Representative Keven J. Stratton proposes the following substitute bill:


1     
ABUSIVE CONDUCT REPORTING AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: Jacob L. Anderegg

6     

7     LONG TITLE
8     General Description:
9          This bill enacts the Utah Public Employees Healthy Workplace Act and amends
10     existing provisions related to state employee reporting of abusive conduct.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     allows all state employees rather than state executive branch agency employees to
15     report abusive conduct to the employee's respective human resources department;
16          ▸     requires an abusive conduct investigation in relation to an abusive conduct
17     complaint;
18          ▸     requires certain employers to provide an administrative review process;
19          ▸     requires the Department of Human Resource Management (department) to provide
20     certain training;
21          ▸     requires certain employers to provide supplemental training;
22          ▸     requires certain employers to annually report to the department on implementation,
23     numbers, and outcomes of abusive conduct complaints;
24          ▸     requires the department to annually report to the Economic Development and
25     Workforce Services Interim Committee regarding implementation and
26     recommendations; and
27          ▸     makes technical changes and conforming.
28     Money Appropriated in this Bill:
29          None
30     Other Special Clauses:
31          This bill provides a special effective date.
32     Utah Code Sections Affected:
33     AMENDS:
34          67-19a-101, as last amended by Laws of Utah 2018, Chapter 390
35          67-19a-102, as enacted by Laws of Utah 2018, Chapter 390
36          67-19a-202, as last amended by Laws of Utah 2018, Chapter 390
37          67-19a-501, as enacted by Laws of Utah 2018, Chapter 390
38     ENACTS:
39          67-26-101, Utah Code Annotated 1953
40          67-26-102, Utah Code Annotated 1953
41          67-26-103, Utah Code Annotated 1953
42          67-26-201, Utah Code Annotated 1953
43          67-26-202, Utah Code Annotated 1953
44     RENUMBERS AND AMENDS:
45          67-26-301, (Renumbered from 67-19-44, as last amended by Laws of Utah 2018,
46     Chapter 390)
47     

48     Be it enacted by the Legislature of the state of Utah:
49          Section 1. Section 67-19a-101 is amended to read:
50          67-19a-101. Definitions.
51          As used in this chapter:
52          (1) "Abusive conduct" means the same as that term is defined in Section [67-19-44]
53     67-26-102.
54          (2) "Administrator" means the person appointed under Section 67-19a-201 to head the
55     Career Service Review Office.
56          (3) "Career service employee" means a person employed in career service as defined in
57     Section 67-19-3.
58          (4) "Department" means the Department of Human Resource Management.
59          (5) "Employer" means the state of Utah and all supervisory personnel vested with the
60     authority to implement and administer the policies of an agency.
61          (6) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
62     to discover evidence that, through due diligence, could not have been discovered in time to
63     meet the applicable time period, misrepresentation or misconduct by the employer, or any other
64     reason justifying equitable relief.
65          (7) "Grievance" means:
66          (a) a complaint by a career service employee concerning any matter touching upon the
67     relationship between the employee and the employer;
68          (b) any dispute between a career service employee and the employer;
69          (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
70     action against the reporting employee ; and
71          (d) a complaint that the employer subjected the employee to conditions that a
72     reasonable person would consider intolerable, including abusive conduct.
73          (8) "Office" means the Career Service Review Office created under Section
74     67-19a-201.
75          (9) "Public entity" means the same as that term is defined in Section 67-21-2.
76          (10) "Reporting employee" means an employee of a public entity who alleges that the
77     public entity engaged in retaliatory action against the employee.
78          (11) "Retaliatory action" means to do any of the following to an employee in violation
79     of Section 67-21-3:
80          (a) dismiss the employee;
81          (b) reduce the employee's compensation;
82          (c) fail to increase the employee's compensation by an amount that the employee is
83     otherwise entitled to or was promised;
84          (d) fail to promote the employee if the employee would have otherwise been promoted;
85     or
86          (e) threaten to take an action described in Subsections (11)(a) through (d).
87          (12) "Supervisor" means the person:
88          (a) to whom an employee reports; or
89          (b) who assigns and oversees an employee's work.
90          Section 2. Section 67-19a-102 is amended to read:
91          67-19a-102. Work environment policy.
92          As recognized and provided in Section [67-19-44] 67-26-201, it is the policy of the
93     state of Utah to provide and maintain a work environment free from abusive conduct.
94          Section 3. Section 67-19a-202 is amended to read:
95          67-19a-202. Powers -- Scope of authority.
96          (1) The office shall serve as the final administrative body to review a grievance from a
97     career service employee and an agency of a decision regarding:
98          (a) a dismissal;
99          (b) a demotion;
100          (c) a suspension;
101          (d) a reduction in force;
102          (e) a dispute concerning abandonment of position;
103          (f) a wage grievance if an employee is not placed within the salary range of the
104     employee's current position;
105          (g) a violation of a rule adopted under Chapter 19, Utah State Personnel Management
106     Act; or
107          (h) except as provided by Subsection [(1)(c)(iii)] (4)(c), equitable administration of the
108     following benefits:
109          (i) long-term disability insurance;
110          (ii) medical insurance;
111          (iii) dental insurance;
112          (iv) post-retirement health insurance;
113          (v) post-retirement life insurance;
114          (vi) life insurance;
115          (vii) defined contribution retirement;
116          (viii) defined benefit retirement; and
117          (ix) a leave benefit.
118          (2) The office shall serve as the final administrative body to review a grievance by a
119     reporting employee alleging retaliatory action.
120          (3) The office shall serve as the final administrative body to review, without an
121     evidentiary hearing, the findings of an abusive conduct investigation [without an evidentiary
122     hearing.] described in Section 67-26-202.
123          (4) The office may not review or take action on:
124          (a) a personnel matter not listed in Subsections (1) through (3);
125          (b) a personnel matter listed in Subsections (1) through (3) that alleges discrimination
126     or retaliation related to a claim of discrimination that is a violation of a state or federal law for
127     which review and action by the office is preempted by state or federal law; or
128          (c) a personnel matter related to a claim for which an administrative review process is
129     provided by statute and administered by:
130          (i) the Utah State Retirement Systems under Title 49, Utah State Retirement and
131     Insurance Benefit Act;
132          (ii) the Public Employees' Benefit and Insurance Program under Title 49, Chapter 20,
133     Public Employees' Benefit and Insurance Program Act; or
134          (iii) the Public Employees' Long-Term Disability Program under Title 49, Chapter 21,
135     Public Employees' Long-Term Disability Act.
136          (5) The time limits established in this chapter supersede the procedural time limits
137     established in Title 63G, Chapter 4, Administrative Procedures Act.
138          Section 4. Section 67-19a-501 is amended to read:
139          67-19a-501. Procedural steps to be followed in an administrative review of an
140     abusive conduct investigation.
141          (1) An employee may initiate an administrative review of the findings of an abusive
142     conduct investigation described in Section 67-19a-202 that the department conducts within 10
143     days after the day on which the employee receives notification of the investigative findings.
144          (2) (a) An employee bringing an administrative review of the findings described in
145     Subsection (1) may file the request for the administrative review directly with the office.
146          (b) The request for administrative review may set forth the reasons for the [appeal]
147     administrative review and include any submissions the employee desires to submit.
148          (3) (a) When an employee initiates the review described in Subsection (2) with the
149     office:
150          (i) the role of the administrative review is to review and rule upon the [department's]
151     findings [and decision] of the abusive conduct investigation; and
152          (ii) an evidentiary hearing is not required.
153          (b) The department shall make the abusive conduct investigative file available for the
154     [administrator's] office's in camera review.
155          (c) The [administrator] office may:
156          (i) request additional relevant documents from the department or the affected
157     employee; and
158          (ii) interview the [department's] investigators who conducted the investigation.
159          (4) (a) If the [administrator] office determines that the investigator's findings are not
160     reasonable, rational, and sufficiently supported by the record, the [administrator] office may
161     overturn the findings and remand to the agency for appropriate action.
162          (b) The [administrator] office may uphold the [department's] investigative findings if,
163     based on the administrative review, the [administrator] office determines that the investigator's
164     findings are reasonable, rational, and sufficiently supported by the record.
165          (5) (a) Within 30 days after the day on which an employee initiates an administrative
166     review under this section, the [administrator] office shall issue a notice stating whether the
167     [administrator] office upheld or overturned the investigative findings.
168          (b) The office's determination upon administrative review of the findings resulting
169     from an abusive conduct investigation is final and not subject to appeal.
170          (c) The following are classified as protected under Title 63G, Chapter 2, Government
171     Records Access and Management Act, and any other applicable confidentiality provisions:
172          (i) the request for administrative review and any accompanying documents;
173          (ii) documents that any party provides;
174          (iii) the contents of the administrative review file; and
175          (iv) the office's determination.
176          Section 5. Section 67-26-101 is enacted to read:
177     
CHAPTER 26. UTAH PUBLIC EMPLOYEES HEALTHY WORKPLACE ACT

178     
Part 1. General Provisions

179          67-26-101. Title.
180          This chapter shall be known as "Utah Public Employees Healthy Workplace Act."
181          Section 6. Section 67-26-102 is enacted to read:
182          67-26-102. Definitions.
183          As used in this chapter:
184          (1) (a) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
185     employee to another employee that, based on its severity, nature, and frequency of occurrence,
186     a reasonable person would determine:
187          (i) is intended to cause intimidation, humiliation, or unwarranted distress;
188          (ii) results in substantial physical or psychological harm as a result of intimidation,
189     humiliation, or unwarranted distress; or
190          (iii) exploits an employee's known physical or psychological disability.
191          (b) "Abusive conduct" does not mean a single act unless the act is an especially severe
192     and egregious act that meets the standard under Subsection (1)(a)(i), (ii), or (iii).
193          (2) "Abusive conduct complaint process" means the process described in Section
194     67-26-202.
195          (3) "Administrative review process" means a process that allows an employee, in
196     relation to the findings of an abusive conduct investigation, to seek an administrative review
197     that:
198          (a) an employer conducts in accordance with Section 67-26-202; or
199          (b) in relation to a state executive branch agency, the office conducts in accordance
200     with Section 67-19a-501.
201          (4) "Department" means the Department of Human Resource Management.
202          (5) "Employee" means an employee of an employer.
203          (6) "Employer means the following:
204          (a) the state executive branch, including:
205          (i) a state executive branch agency;
206          (ii) an employer within the Utah System of Higher Education, including each member
207     institution, the Board of Regents, and the office of the commissioner of higher education; and
208          (iii) an independent entity, as defined in Section 63E-1-102;
209          (b) the state legislative branch; and
210          (c) the state judicial branch.
211          (7) "Office" means the Career Service Review Office created under Section
212     67-19a-201.
213          (8) "Physical harm" means the impairment of an individual's physical health or bodily
214     integrity, as established by competent evidence.
215          (9) "Psychological harm" means the impairment of an individual's mental health, as
216     established by competent evidence.
217          Section 7. Section 67-26-103 is enacted to read:
218          67-26-103. Effect of chapter.
219          This chapter does not:
220          (1) exempt or relieve a person from a liability, duty, or penalty provided by another
221     federal or state law;
222          (2) create a private right of action;
223          (3) expand or diminish rights or remedies available to a person before July 1, 2019; or
224          (4) expand or diminish grounds for discipline that existed before July 1, 2019.
225          Section 8. Section 67-26-201 is enacted to read:
226     
Part 2. Abusive Conduct

227          67-26-201. State policy on abusive conduct.
228          It is the policy of the state of Utah to provide and maintain a work environment free
229     from abusive conduct.
230          Section 9. Section 67-26-202 is enacted to read:
231          67-26-202. Abusive conduct complaint, investigation, administrative review
232     process.
233          (1) An employee may file a written complaint of abusive conduct with the respective
234     human resources department of the employee's employer.
235          (2) If an employee files a written complaint of abusive conduct under Subsection (1),
236     the respective human resources department of the employee's employer shall conduct an
237     abusive conduct investigation.
238          (3) (a) Each employer that is not a state executive branch agency:
239          (i) shall provide the employer's employees a process for:
240          (A) making an abusive conduct complaint, including an alternative process in the case
241     of a complaint involving an individual who would otherwise receive or review an abusive
242     conduct complaint; and
243          (B) an administrative review of the findings of an abusive conduct investigation
244     described in Subsection (2) that is substantially similar to the administrative review process
245     described in Section 67-19a-501; and
246          (ii) may request assistance from the department, at the department's current consultant
247     rate, or the office, at a reasonable rate that the office sets, in developing a process described in
248     this Subsection (3).
249          (b) The department shall provide the employees of state executive branch agencies a
250     process for making an abusive conduct complaint, including an alternative process in the case
251     of a complaint involving an individual who would otherwise receive or review an abusive
252     conduct complaint.
253          (4) The complaint described in Subsection (1) and any subsequent abusive conduct
254     investigation are subject to:
255          (a) in relation to an employer other than a state executive branch agency, the
256     administrative review process described in Subsection (3); and
257          (b) in relation to a state executive branch agency, the office's administrative review
258     process described in Section 67-19a-501.
259          Section 10. Section 67-26-301, which is renumbered from Section 67-19-44 is
260     renumbered and amended to read:
261     
Part 3. Training and Reporting

262          [67-19-44].      67-26-301.      67-19-44. Abusive conduct training.
263          [(1) As used in this section:]
264          [(a) (i) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
265     employee to another employee that, based on its severity, nature, and frequency of occurrence,
266     a reasonable person would determine:]
267          [(A) is intended to cause intimidation, humiliation, or unwarranted distress;]
268          [(B) results in substantial physical or psychological harm as a result of intimidation,
269     humiliation, or unwarranted distress; or]
270          [(C) exploits an employee's known physical or psychological disability.]
271          [(ii) A single act does not constitute abusive conduct, unless it is an especially severe
272     and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).]
273          [(b) "Employee" means an employee of a state executive branch agency.]
274          [(c) "Physical harm" means the impairment of a person's physical health or bodily
275     integrity, as established by competent evidence.]
276          [(d) "Psychological harm" means the impairment of a person's mental health, as
277     established by competent evidence.]
278          [(2) It is the policy of the state of Utah to provide and maintain a work environment
279     free from abusive conduct.]
280          [(3) An employee may file a written complaint of abusive conduct with the department
281     and subject to further administrative review in accordance with Section 67-19a-501.]
282          [(4) By July 1, 2019, the department shall amend the department's rule, in accordance
283     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the
284     definitions in Subsection (1) and Title 67, Chapter 19a, Grievance Procedures.]
285          [(5)] (1) (a) (i) The department shall provide biennial training to educate all state
286     executive branch agency employees and supervisors about how to prevent abusive workplace
287     conduct.
288          [(b)] (ii) The training described in Subsection (1)(a)(i) shall include information on:
289          [(i)] (A) what constitutes abusive conduct and the ramifications of abusive conduct;
290          [(ii)] (B) resources available to employees who are subject to abusive conduct; and
291          [(iii)] (C) the [grievance] abusive conduct complaint process described in Section
292     67-26-202.
293          (b) (i) The department shall create a baseline training module for employers that are
294     not state executive branch agencies to educate the employers' respective employees and
295     supervisors about how to prevent abusive workplace conduct.
296          (ii) The baseline training module described in Subsection (1)(b)(i) shall include
297     information on what constitutes abusive conduct and the ramifications of abusive conduct.
298          (c) (i) Each employer that is not a state executive branch agency shall create and
299     provide supplemental training to educate the employer's respective employees and supervisors
300     that supplements the department's baseline training module with information regarding:
301          (A) resources available to employees who are subject to abusive conduct; and
302          (B) the employer's abusive conduct complaint process described in Section 67-26-202.
303          (ii) An employer may request assistance from the department, at the department's
304     current consultant rate, in developing the training described in Subsection (1)(c)(i).
305          [(6)] (2) (a) Each [state agency] employer shall provide professional development
306     training [approved by the department] to promote:
307          (i) ethical conduct;
308          (ii) organizational leadership practices based in principles of integrity; and
309          (iii) the state policy described in [Subsection (2)] Section 67-26-103.
310          (b) [A state agency] An employer may request assistance from the department, at the
311     department's current consultant rate, in developing training under this Subsection [(6)] (2).
312          [(7)] (3) (a) Employers shall provide and employees shall participate in the training
313     described in Subsections [(5)] (1) and [(6)] (2);
314          (i) at the time the employee is hired or within a reasonable time after the employee
315     [commences] begins employment; and
316          (ii) in at least alternating years [thereafter] after the employee begins employment.
317          [(b) The requirement in Subsection (7)(a) includes notification to all employees at the
318     time of hiring or within a reasonable time after the employee commences employment and in
319     alternating years thereafter of the abusive conduct complaint procedures and the grievance
320     procedures provided in Title 67, Chapter 19a, Grievance Procedures.]
321          (b) An employer shall provide notification to all employees at the times described in
322     Subsection (3)(a) of the abusive conduct complaint process.
323          [(8)] (4) The department may use money appropriated to the department or access
324     support from outside resources to:
325          (a) develop policies against workplace abusive conduct; and
326          (b) enhance professional development training on topics such as:
327          (i) building trust;
328          (ii) effective motivation;
329          (iii) communication;
330          (iv) conflict resolution;
331          (v) accountability;
332          (vi) coaching;
333          (vii) leadership; or
334          (viii) ethics.
335          [(9) This section does not:]
336          [(a) exempt or relieve a person from a liability, duty, or penalty provided by another
337     federal or state law;]
338          [(b) create a private right of action;]
339          [(c) expand or diminish rights or remedies available to a person before July 1, 2015;
340     or]
341          [(d) expand or diminish grounds for discipline that existed before July 1, 2015.]
342          (5) (a) Beginning in 2020, by July 31 annually, each employer that is not a state
343     executive branch agency shall report to the department regarding:
344          (i) the employer's implementation of this chapter, including the requirement to provide
345     a process under Section 67-26-202; and
346          (ii) the total number and outcomes of abusive conduct complaints that the employer's
347     employees made and that the employer investigated or reviewed.
348          [(10)] (b) The department shall annually report to the Economic Development and
349     Workforce Services Interim Committee by no later than the November interim meeting
350     regarding:
351          [(a)] (i) the department's implementation of this [section] chapter;
352          [(b)] (ii) the department's recommendations, if any, to:
353          (A) appropriately address and reduce workplace abusive conduct; or
354          (B) [to] change definitions or training required by this section; [and]
355          [(c)] (iii) an annual report of the total number and outcomes of abusive conduct
356     complaints that employees [filed] made and the department investigated[.]; and
357          (iv) a summary of the reports the department receives under Subsection (5)(a).
358          Section 11. Effective date.
359          This bill takes effect on July 1, 2019.