1     
WORKPLACE ABUSIVE CONDUCT AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Alvin B. Jackson

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to workplace abusive conduct.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the definitions of "retaliatory action" and "adverse action" to include
13     engaging in abusive conduct; and
14          ▸     prohibits an employer from taking adverse action against an employee if the
15     employee reports abusive conduct.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          67-19a-101, as last amended by Laws of Utah 2013, Chapter 427
23          67-21-2, as last amended by Laws of Utah 2013, Chapter 427
24          67-21-3, as last amended by Laws of Utah 2013, Chapter 427
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 67-19a-101 is amended to read:
28          67-19a-101. Definitions.
29          As used in this chapter:
30          (1) "Administrator" means the person appointed under Section 67-19a-201 to head the
31     Career Service Review Office.
32          (2) "Career service employee" means a person employed in career service as defined in
33     Section 67-19-3.
34          (3) "Employer" means the state of Utah and all supervisory personnel vested with the
35     authority to implement and administer the policies of an agency.
36          (4) "Grievance" means:
37          (a) a complaint by a career service employee concerning any matter touching upon the
38     relationship between the employee and the employer;
39          (b) any dispute between a career service employee and the employer; and
40          (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
41     action against the reporting employee.
42          (5) "Office" means the Career Service Review Office created under Section
43     67-19a-201.
44          (6) "Public entity" [is as] means the same as that term is defined in Section 67-21-2.
45          (7) "Reporting employee" means an employee of a public entity who alleges that the
46     public entity engaged in retaliatory action against the employee.
47          (8) "Retaliatory action" means to do any of the following to an employee in violation of
48     Section 67-21-3:
49          (a) dismiss the employee;
50          (b) reduce the employee's compensation;
51          (c) fail to increase the employee's compensation by an amount that the employee is
52     otherwise entitled to or was promised;
53          (d) fail to promote the employee if the employee would have otherwise been promoted;
54          (e) cause the employee to resign by subjecting the employee to conditions that a
55     reasonable person would consider intolerable; [or]
56          (f) engage in abusive conduct as defined in Section 67-19-44; or
57          [(f)] (g) threaten to take an action described in Subsections (8)(a) through [(e)] (f).
58          (9) "Supervisor" means the person:
59          (a) to whom an employee reports; or
60          (b) who assigns and oversees an employee's work.
61          Section 2. Section 67-21-2 is amended to read:
62          67-21-2. Definitions.
63          As used in this chapter:
64          (1) "Abuse of authority" means an arbitrary or capricious exercise of power that:
65          (a) adversely affects the employment rights of another; or
66          (b) results in personal gain to the person exercising the authority or to another person.
67          (2) "Abusive conduct" means the same as that term is defined in Section 67-19-44.
68          [(2)] (3) "Adverse action" means:
69          (a) to discharge, threaten, or discriminate against an employee in a manner that affects
70     the employee's employment, including compensation, terms, conditions, location, rights,
71     immunities, promotions, or privileges[.]; or
72          (b) to engage in abusive conduct.
73          [(3)] (4) "Communicate" means a verbal, written, broadcast, or other communicated
74     report.
75          [(4)] (5) "Damages" means general and special damages for injury or loss caused by
76     each violation of this chapter.
77          [(5)] (6) "Employee" means a person who performs a service for wages or other
78     remuneration under a contract of hire, written or oral, express or implied.
79          [(6)] (7) (a) "Employer" means the public body or public entity that employs the
80     employee.
81          (b) "Employer" includes an agent of an employer.
82          [(7)] (8) "Gross mismanagement" means action or failure to act by a person, with
83     respect to a person's responsibility, that causes significant harm or risk of harm to the mission
84     of the public entity or public body that employs, or is managed or controlled by, the person.
85          [(8)] (9) "Judicial employee" means an employee of the judicial branch of state
86     government.
87          [(9)] (10) "Legislative employee" means an employee of the legislative branch of state
88     government.
89          [(10)] (11) "Political subdivision employee" means an employee of a political
90     subdivision of the state.
91          [(11)] (12) "Public body" means any of the following:
92          (a) a state officer, employee, agency, department, division, bureau, board, commission,
93     council, authority, educational institution, or any other body in the executive branch of state
94     government;
95          (b) an agency, board, commission, council, institution member, or employee of the
96     legislative branch of state government;
97          (c) a county, city, town, regional governing body, council, school district, local district,
98     special service district, or municipal corporation, board, department, commission, council,
99     agency, or any member or employee of them;
100          (d) any other body that is created by state or local authority, or that is primarily funded
101     by or through state or local authority, or any member or employee of that body;
102          (e) a law enforcement agency or any member or employee of a law enforcement
103     agency; and
104          (f) the judiciary and any member or employee of the judiciary.
105          [(12)] (13) "Public entity" means a department, division, board, council, committee,
106     institution, office, bureau, or other similar administrative unit of the executive branch of state
107     government.
108          [(13)] (14) "Public entity employee" means an employee of a public entity.
109          [(14)] (15) "Retaliatory action" [is as] means the same as that term is defined in
110     Section 67-19a-101.
111          [(15)] (16) "State institution of higher education" [is as] means the same as that term is
112     defined in Section 53B-3-102.
113          [(16)] (17) "Unethical conduct" means conduct that violates a provision of Title 67,
114     Chapter 16, Utah Public Officers' and Employees' Ethics Act.
115          Section 3. Section 67-21-3 is amended to read:
116          67-21-3. Reporting of governmental waste or violations of law -- Employer action
117     -- Exceptions.
118          (1) (a) An employer may not take adverse action against an employee because the
119     employee, or a person authorized to act on behalf of the employee, communicates in good
120     faith:
121          (i) the waste or misuse of public funds, property, or manpower;
122          (ii) a violation or suspected violation of a law, rule, or regulation adopted under the law
123     of this state, a political subdivision of this state, or any recognized entity of the United States;
124     or
125          (iii) as it relates to a state government employer:
126          (A) gross mismanagement;
127          (B) abuse of authority; [or]
128          (C) unethical conduct[.]; or
129          (D) abusive conduct.
130          (b) For purposes of Subsection (1)(a), an employee is presumed to have communicated
131     in good faith if the employee gives written notice or otherwise formally communicates the
132     conduct described in Subsection (1)(a) to:
133          (i) a person in authority over the person alleged to have engaged in the conduct
134     described in Subsection (1)(a);
135          (ii) the attorney general's office;
136          (iii) law enforcement, if the conduct is criminal in nature;
137          (iv) if the employee is a public entity employee, public body employee, legislative
138     employee, or a judicial employee:
139          (A) the state auditor's office;
140          (B) the president of the Senate;
141          (C) the speaker of the House of Representatives;
142          (D) the governor's office;
143          (E) the state court administrator; or
144          (F) the Division of Finance;
145          (v) if the employee is a public entity employee, but not an employee of a state
146     institution of higher education, the director of the Division of Purchasing and General Services;
147          (vi) if the employee is a political subdivision employee:
148          (A) the legislative body, or a member of the legislative body, of the political
149     subdivision;
150          (B) the governing body, or a member of the governing body, of the political
151     subdivision;
152          (C) the top executive of the political subdivision; or
153          (D) any government official with authority to audit the political subdivision or the
154     applicable part of the political subdivision; or
155          (vii) if the employee is an employee of a state institution of higher education:
156          (A) the State Board of Regents or a member of the State Board of Regents;
157          (B) the commissioner of higher education;
158          (C) the president of the state institution of higher education where the employee is
159     employed; or
160          (D) the entity that conducts audits of the state institution of higher education where the
161     employee is employed.
162          (c) The presumption described in Subsection (1)(b) may be rebutted by showing that
163     the employee knew or reasonably ought to have known that the report is malicious, false, or
164     frivolous.
165          (2) An employer may not take adverse action against an employee because an
166     employee participates or gives information in an investigation, hearing, court proceeding,
167     legislative or other inquiry, or other form of administrative review held by the public body.
168          (3) An employer may not take adverse action against an employee because the
169     employee has objected to or refused to carry out a directive that the employee reasonably
170     believes violates a law of this state, a political subdivision of this state, or the United States, or
171     a rule or regulation adopted under the authority of the laws of this state, a political subdivision
172     of this state, or the United States.
173          (4) An employer may not implement rules or policies that unreasonably restrict an
174     employee's ability to document:
175          (a) the waste or misuse of public funds, property, or manpower;
176          (b) a violation or suspected violation of any law, rule, or regulation; or
177          (c) as it relates to a state government employer:
178          (i) gross mismanagement;
179          (ii) abuse of authority; [or]
180          (iii) unethical conduct[.]; or
181          (iv) abusive conduct.




Legislative Review Note
Office of Legislative Research and General Counsel