H.B. 196

1

ABUSIVE WORKPLACE POLICIES ACT
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Stephen E. Sandstrom
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Utah Labor Code to require policies prohibiting certain
10 workplace practices by certain public employers.
11 Highlighted Provisions:
12 This bill:
13 . enacts the Abusive Workplace Policies Act, including:
14 . defining terms;
15 . requiring a policy against certain conduct;
16 . imposing requirements for a policy;
17 . allowing for affirmative defenses; and
18 . providing for enforcement.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 ENACTS:
25 34A-12-101, Utah Code Annotated 1953
26 34A-12-102, Utah Code Annotated 1953
27 34A-12-103, Utah Code Annotated 1953

28 34A-12-201, Utah Code Annotated 1953
29 34A-12-202, Utah Code Annotated 1953
30 34A-12-203, Utah Code Annotated 1953
31 34A-12-301, Utah Code Annotated 1953
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 34A-12-101 is enacted to read:
35 CHAPTER 12. ABUSIVE WORKPLACE POLICIES ACT
36 Part 1. General Provisions
37 34A-12-101. Title.
38 This chapter is known as the "Abusive Workplace Policies Act."
39 Section 2. Section 34A-12-102 is enacted to read:
40 34A-12-102. Definitions.
41 As used in this chapter:
42 (1) (a) "Abusive conduct" means conduct that a reasonable person would find hostile
43 on the basis of the severity, nature, and frequency of the conduct.
44 (b) "Abusive conduct" includes:
45 (i) repeated infliction of verbal abuse, such as the use of derogatory remarks, insults,
46 and epithets;
47 (ii) verbal or physical conduct of a threatening, intimidating, or humiliating nature;
48 (iii) the sabotage or undermining of an employee's work performance; or
49 (iv) an attempt to exploit an employee's known psychological or physical vulnerability.
50 (2) "Abusive workplace" means a workplace in which a person acts with malice to
51 subject an employee to abusive conduct so severe that it causes tangible harm to the employee.
52 (3) "Adverse employment action" includes:
53 (a) a termination;
54 (b) a constructive discharge;
55 (c) a demotion;
56 (d) an unfavorable reassignment;
57 (e) a failure to promote;
58 (f) a disciplinary action; or

59 (g) a reduction in compensation.
60 (4) "Conduct" includes an act, a failure to act, or both.
61 (5) "Constructive discharge" means that:
62 (a) an employee reasonably believes that the employee is subject to abusive conduct;
63 (b) the employee resigns because of that abusive conduct;
64 (c) before resigning, the employee informs the employer of the abusive conduct; and
65 (d) the employer fails to take reasonable steps to correct the situation.
66 (6) "Employee" means an individual under a contract of hire with an employer.
67 (7) (a) "Employer" means:
68 (i) a state agency;
69 (ii) an institution of higher education as defined in Section 53B-3-102 ; or
70 (iii) a public authority legally constituted by the state as an administrative agency to
71 provide control of and direction for public education.
72 (b) "Employer" includes an agent of an employer.
73 (8) "Malice" means the desire to cause pain, injury, or distress to another.
74 (9) "Neutral body" means an entity that has at least a majority of the voting members
75 who are not involved in the employment setting at issue.
76 (10) "Physical harm" is the material impairment of an individual's physical health or
77 bodily integrity, as established by competent evidence.
78 (11) "Psychological harm" means a material impairment of an individual's mental
79 health, as established by competent evidence.
80 (12) "Tangible harm" means:
81 (a) physical harm; or
82 (b) psychological harm.
83 Section 3. Section 34A-12-103 is enacted to read:
84 34A-12-103. Scope of chapter.
85 (1) This chapter does not exempt or relieve a person from a liability, duty, or penalty
86 provided by another law of this state.
87 (2) This chapter does not create a remedy for abusive conduct or an abusive workplace.
88 Section 4. Section 34A-12-201 is enacted to read:
89 Part 2. Policies Against Abusive Workplace

90 34A-12-201. Policy against abusive workplace required.
91 (1) On and after July 1, 2012, an employer shall adopt a policy that provides that:
92 (a) a person may not subject an employee to an abusive workplace; and
93 (b) a person may not take an adverse employment action in any manner against an
94 employee who:
95 (i) opposes conduct that is a violation of Subsection (1)(a);
96 (ii) engages in reasonable conduct to prevent conduct that is illegal or unethical; or
97 (iii) makes a charge, testifies, assists, or participates in an investigation or proceeding
98 under this chapter, including:
99 (A) an internal complaint or proceeding;
100 (B) an arbitration or mediation proceeding; or
101 (C) a legal action.
102 (2) A policy required by this section shall comply with Section 34A-12-202 .
103 Section 5. Section 34A-12-202 is enacted to read:
104 34A-12-202. Procedural requirements for policy.
105 A policy required under Section 34A-12-201 shall:
106 (1) provide a procedure for:
107 (a) filing a complaint by an aggrieved employee; and
108 (b) taking action on the basis of a complaint, including designating a neutral body to
109 take action on a complaint;
110 (2) expressly authorize that, in examining whether abusive conduct exists, a neutral
111 body may weigh the severity, nature, and frequency of the conduct, including an inference of
112 malice if one or more of the following factors exist:
113 (a) an outward expression of hostility;
114 (b) harmful conduct inconsistent with an employer's legitimate business interests;
115 (c) a continuation of harmful, illegitimate conduct after the aggrieved employee:
116 (i) requests that the conduct cease; or
117 (ii) demonstrates outward signs of emotional or physical distress in the face of the
118 conduct; or
119 (d) attempts to exploit an aggrieved employee's known psychological or physical
120 vulnerability; and

121 (3) provide one or more remedies that address:
122 (a) preventing abusive conduct in the future; and
123 (b) remedying a tangible harm to an aggrieved employee.
124 Section 6. Section 34A-12-203 is enacted to read:
125 34A-12-203. Affirmative defenses allowed.
126 A policy required by Section 34A-12-201 may provide for one or more affirmative
127 defenses, including providing an affirmative defense if:
128 (1) an employer exercises reasonable care to prevent and promptly correct abusive
129 conduct; and
130 (2) the aggrieved employee unreasonably fails to take advantage of appropriate
131 preventive or corrective opportunities.
132 Section 7. Section 34A-12-301 is enacted to read:
133 Part 3. Civil Enforcement
134 34A-12-301. Private right of action.
135 (1) An employee may enforce this chapter solely by a private right of action.
136 (2) (a) An employee may file a civil action in a court of competent jurisdiction to
137 obtain relief under this chapter.
138 (b) An employee may not commence an action under this chapter more than one year
139 after the last conduct that constitutes alleged prohibited workplace practice to which a policy
140 would apply.
141 (3) If a court finds that an employer fails to have a policy that complies with this
142 chapter, the court may issue a writ of mandamus to compel compliance.




Legislative Review Note
as of 2-2-12 5:06 PM

Office of Legislative Research and General Counsel