1     
ABUSIVE CONDUCT REPORTING AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: Daniel W. Thatcher

6     

7     LONG TITLE
8     General Description:
9          This bill addresses abusive conduct among employees in state government.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     expands the type of state employees who may file a complaint of abusive conduct;
14          ▸     requires an abusive conduct investigation in relation to an abusive conduct
15     complaint;
16          ▸     requires an administrative review process for an abusive conduct complaint;
17          ▸     requires the Department of Human Resource Management (department) and other
18     state government employers to provide certain training relating to abusive conduct;
19          ▸     requires certain employers to annually report to the department on implementation,
20     numbers, and outcomes of abusive conduct complaints;
21          ▸     requires the department to annually report to the Economic Development and
22     Workforce Services Interim Committee regarding implementation and
23     recommendations concerning the provisions of this bill;
24          ▸     requires the judicial branch and an employer within the Utah System of Higher
25     Education to provide training to their employees regarding abusive conduct, and to
26     create a policy for reporting and resolving abusive conduct, among their employees;
27     and
28          ▸     makes technical and conforming changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          This bill provides a special effective date.
33     Utah Code Sections Affected:
34     AMENDS:
35          67-19a-101, as last amended by Laws of Utah 2018, Chapter 390
36          67-19a-102, as enacted by Laws of Utah 2018, Chapter 390
37          67-19a-202, as last amended by Laws of Utah 2018, Chapter 390
38          67-19a-501, as enacted by Laws of Utah 2018, Chapter 390
39     ENACTS:
40          67-26-101, Utah Code Annotated 1953
41          67-26-102, Utah Code Annotated 1953
42          67-26-103, Utah Code Annotated 1953
43          67-26-201, Utah Code Annotated 1953
44          67-26-202, Utah Code Annotated 1953
45          67-26-203, Utah Code Annotated 1953
46     RENUMBERS AND AMENDS:
47          67-26-301, (Renumbered from 67-19-44, as last amended by Laws of Utah 2018,
48     Chapter 390)
49     

50     Be it enacted by the Legislature of the state of Utah:
51          Section 1. Section 67-19a-101 is amended to read:
52          67-19a-101. Definitions.
53          As used in this chapter:
54          (1) "Abusive conduct" means the same as that term is defined in Section [67-19-44]
55     67-26-102.
56          (2) "Administrator" means the person appointed under Section 67-19a-201 to head the
57     Career Service Review Office.
58          (3) "Career service employee" means a person employed in career service as defined in
59     Section 67-19-3.
60          (4) "Department" means the Department of Human Resource Management.
61          (5) "Employer" means the state of Utah and all supervisory personnel vested with the
62     authority to implement and administer the policies of an agency.
63          (6) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
64     to discover evidence that, through due diligence, could not have been discovered in time to
65     meet the applicable time period, misrepresentation or misconduct by the employer, or any other
66     reason justifying equitable relief.
67          (7) "Grievance" means:
68          (a) a complaint by a career service employee concerning any matter touching upon the
69     relationship between the employee and the employer;
70          (b) any dispute between a career service employee and the employer;
71          (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
72     action against the reporting employee ; and
73          (d) a complaint that the employer subjected the employee to conditions that a
74     reasonable person would consider intolerable, including abusive conduct.
75          (8) "Office" means the Career Service Review Office created under Section
76     67-19a-201.
77          (9) "Public entity" means the same as that term is defined in Section 67-21-2.
78          (10) "Reporting employee" means an employee of a public entity who alleges that the
79     public entity engaged in retaliatory action against the employee.
80          (11) "Retaliatory action" means to do any of the following to an employee in violation
81     of Section 67-21-3:
82          (a) dismiss the employee;
83          (b) reduce the employee's compensation;
84          (c) fail to increase the employee's compensation by an amount that the employee is
85     otherwise entitled to or was promised;
86          (d) fail to promote the employee if the employee would have otherwise been promoted;
87     or
88          (e) threaten to take an action described in Subsections (11)(a) through (d).
89          (12) "Supervisor" means the person:
90          (a) to whom an employee reports; or
91          (b) who assigns and oversees an employee's work.
92          Section 2. Section 67-19a-102 is amended to read:
93          67-19a-102. Work environment policy.
94          As recognized and provided in Section [67-19-44] 67-26-201, it is the policy of the
95     state of Utah to provide and maintain a work environment free from abusive conduct.
96          Section 3. Section 67-19a-202 is amended to read:
97          67-19a-202. Powers -- Scope of authority.
98          (1) The office shall serve as the final administrative body to review a grievance from a
99     career service employee and an agency of a decision regarding:
100          (a) a dismissal;
101          (b) a demotion;
102          (c) a suspension;
103          (d) a reduction in force;
104          (e) a dispute concerning abandonment of position;
105          (f) a wage grievance if an employee is not placed within the salary range of the
106     employee's current position;
107          (g) a violation of a rule adopted under Chapter 19, Utah State Personnel Management
108     Act; or
109          (h) except as provided by Subsection (4), equitable administration of the following
110     benefits:
111          (i) long-term disability insurance;
112          (ii) medical insurance;
113          (iii) dental insurance;
114          (iv) post-retirement health insurance;
115          (v) post-retirement life insurance;
116          (vi) life insurance;
117          (vii) defined contribution retirement;
118          (viii) defined benefit retirement; and
119          (ix) a leave benefit.
120          (2) The office shall serve as the final administrative body to review a grievance by a
121     reporting employee alleging retaliatory action.
122          (3) The office shall serve as the final administrative body to review, without an
123     evidentiary hearing, the findings of an abusive conduct investigation [without an evidentiary
124     hearing] described in Section 67-26-202 of a state executive branch agency employee.
125          (4) The office may not review or take action on:
126          (a) a personnel matter not listed in Subsections (1) through (3);
127          (b) a personnel matter listed in Subsections (1) through (3) that alleges discrimination
128     or retaliation related to a claim of discrimination that is a violation of a state or federal law for
129     which review and action by the office is preempted by state or federal law; or
130          (c) a personnel matter related to a claim for which an administrative review process is
131     provided by statute and administered by:
132          (i) the Utah State Retirement Systems under Title 49, Utah State Retirement and
133     Insurance Benefit Act;
134          (ii) the Public Employees' Benefit and Insurance Program under Title 49, Chapter 20,
135     Public Employees' Benefit and Insurance Program Act; or
136          (iii) the Public Employees' Long-Term Disability Program under Title 49, Chapter 21,
137     Public Employees' Long-Term Disability Act.
138          (5) The time limits established in this chapter supersede the procedural time limits
139     established in Title 63G, Chapter 4, Administrative Procedures Act.
140          Section 4. Section 67-19a-501 is amended to read:
141          67-19a-501. Procedural steps to be followed in an administrative review of an
142     abusive conduct investigation.
143          (1) An employee of a state executive branch agency, as defined in Section 67-26-102,
144     may, under Subsection 67-19a-202(3), initiate an administrative review of the findings of an
145     abusive conduct investigation within 10 days after the day on which the employee receives
146     notification of the investigative findings.
147          (2) (a) An employee bringing an administrative review of the findings described in
148     Subsection (1) may file the request for the administrative review directly with the office.
149          (b) The request for administrative review may [set forth] describe the reasons for the
150     [appeal] administrative review and include any submissions the employee desires to submit.
151          (3) (a) When an employee initiates the review described in Subsection (2) with the
152     office:
153          (i) the role of the administrative review is to review and rule upon the [department's]
154     findings [and decision] of the abusive conduct investigation; and
155          (ii) an evidentiary hearing is not required.
156          (b) The department shall make the abusive conduct investigative file available for the
157     [administrator's] office's in camera review.
158          (c) The [administrator] office may:
159          (i) request additional relevant documents from the department or the affected
160     employee; and
161          (ii) interview the employee who initiated the administrative review and the
162     [department's] investigators who conducted the investigation.
163          [(4) (a) If the administrator determines that the investigator's findings are not
164     reasonable, rational, and sufficiently supported by the record, the administrator may overturn
165     the findings and remand to the agency for appropriate action.]
166          [(b) The administrator may uphold the department's investigative findings if, based on
167     the administrative review, the administrator determines that the investigator's findings are
168     reasonable, rational, and sufficiently supported by the record.]
169          (4) (a) The office may overturn the findings of the abusive conduct investigation if the
170     office determines that:
171          (i) the findings are not reasonable, rational, or sufficiently supported by the evidence;
172     or
173          (ii) the facts on which the findings are based are inaccurate.
174          (b) The office may uphold the findings of the abusive conduct investigation if the
175     office determines that:
176          (i) the findings are reasonable, rational, and sufficiently supported by the evidence; and
177          (ii) the facts on which the findings are based are accurate.
178          (5) (a) Within 30 days after the day on which an employee initiates an administrative
179     review under this section, the [administrator] office shall issue a notice stating whether the
180     [administrator] office upheld or overturned the investigative findings.
181          (b) The office's determination upon administrative review of the findings resulting
182     from an abusive conduct investigation is final and not subject to appeal.
183          (c) The following are classified as protected under Title 63G, Chapter 2, Government
184     Records Access and Management Act, and any other applicable confidentiality provisions:
185          (i) the request for administrative review and any accompanying documents;
186          (ii) documents that any party provides;
187          (iii) the contents of the administrative review file; and
188          (iv) the office's determination.
189          Section 5. Section 67-26-101 is enacted to read:
190     
CHAPTER 26. UTAH PUBLIC EMPLOYEES HEALTHY WORKPLACE ACT

191     
Part 1. General Provisions

192          67-26-101. Title.
193          This chapter is known as the "Utah Public Employees Healthy Workplace Act."
194          Section 6. Section 67-26-102 is enacted to read:
195          67-26-102. Definitions.
196          As used in this chapter:
197          (1) (a) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
198     employee to another employee of the same employer that, based on the severity, nature, or
199     frequency of the conduct, a reasonable person would determine:
200          (i) is intended to cause intimidation, humiliation, or unwarranted distress;
201          (ii) results in substantial physical harm or substantial psychological harm as a result of
202     intimidation, humiliation, or unwarranted distress; or
203          (iii) exploits an employee's known physical or psychological disability.
204          (b) "Abusive conduct" does not mean a single act unless the act is an especially severe
205     and egregious act that meets the standard described in Subsection (1)(a)(i), (ii), or (iii).
206          (2) "Abusive conduct complaint process" means the process described in Section
207     67-26-202.
208          (3) "Administrative review process" means a process that allows an employee, in
209     relation to the findings of an abusive conduct investigation, to seek an administrative review
210     that:
211          (a) an employer conducts in accordance with Section 67-26-202; or
212          (b) in relation to a state executive branch agency, the office conducts in accordance
213     with Section 67-19a-501.
214          (4) "Department" means the Department of Human Resource Management.
215          (5) (a) "Employee" means an employee of an employer.
216          (b) "Employee" includes an elected or appointed official of an employer.
217          (6) "Employer" means:
218          (a) a state executive branch agency; or
219          (b) an independent entity, as defined in Section 63E-1-102.
220          (7) "Office" means the Career Service Review Office created under Section
221     67-19a-201.
222          (8) "Physical harm" means the impairment of an individual's physical health or bodily
223     integrity, as established by competent evidence.
224          (9) "Psychological harm" means the impairment of an individual's mental health, as
225     established by competent evidence.
226          (10) (a) "State executive branch agency" means a department, division, office, bureau,
227     or other organization within the state executive branch.
228          (b) "State executive branch agency" includes an agency under the authority of the
229     governor, lieutenant governor, state treasurer, state auditor, or attorney general.
230          (c) "State executive branch agency" does not include the Utah System of Higher
231     Education or an independent entity, as defined in Section 63E-1-102.
232          Section 7. Section 67-26-103 is enacted to read:
233          67-26-103. Effect of chapter.
234          This chapter does not:
235          (1) exempt or relieve a person from a liability, duty, or penalty provided by another
236     federal or state law;
237          (2) create a private right of action;
238          (3) expand or diminish rights or remedies available to a person before July 1, 2020; or
239          (4) expand or diminish grounds for discipline that existed before July 1, 2020.
240          Section 8. Section 67-26-201 is enacted to read:
241     
Part 2. Abusive Conduct

242          67-26-201. State policy on abusive conduct.
243          It is the policy of the state to provide and maintain a work environment free from
244     abusive conduct.
245          Section 9. Section 67-26-202 is enacted to read:
246          67-26-202. Abusive conduct complaint, investigation, administrative review
247     process.
248          (1) An employee may file a written complaint of abusive conduct with the human
249     resources department of the employee's employer if the complaint is against an employee of the
250     same employer as the employee filing the complaint.
251          (2) If an employee files a written complaint of abusive conduct under Subsection (1),
252     the human resources department of the employee's employer shall conduct an abusive conduct
253     investigation.
254          (3) (a) Each employer that is not a state executive branch agency:
255          (i) shall provide the employer's employees a process for:
256          (A) filing an abusive conduct complaint, including an alternative process if the
257     complaint involves an individual who would otherwise receive or review an abusive conduct
258     complaint; and
259          (B) an administrative review of the findings of an abusive conduct investigation
260     described in Subsection (2) that is substantially similar to the administrative review process
261     described in Section 67-19a-501; and
262          (ii) may request assistance from the department, at the department's current consultant
263     rate, or the office, at a reasonable rate established by the office, in developing a process
264     described in this Subsection (3)(a).
265          (b) The department shall provide a process for an employee of a state executive branch
266     agency to file an abusive conduct complaint, including an alternative process if the complaint
267     involves an individual who would otherwise receive or review an abusive conduct complaint.
268          (4) The complaint described in Subsection (1) and a subsequent abusive conduct
269     investigation are subject to:
270          (a) in relation to an employer other than a state executive branch agency, the
271     administrative review process described in Subsection (3)(a); and
272          (b) in relation to a state executive branch agency, the office's administrative review
273     process described in Section 67-19a-501.
274          Section 10. Section 67-26-203 is enacted to read:
275          67-26-203. Abusive conduct -- Training -- Policy.
276          (1) As used in this section:
277          (a) "Abusive conduct" means:
278          (i) verbal, nonverbal, or physical conduct of a covered employee to another covered
279     employee of the same covered employer that, based on the severity, nature, or frequency of the
280     conduct, a reasonable person would determine:
281          (A) is intended to cause intimidation, humiliation, or unwarranted distress;
282          (B) results in substantial physical harm or substantial psychological harm as a result of
283     intimidation, humiliation, or unwarranted distress; or
284          (C) exploits a covered employee's known physical or psychological disability.
285          (b) "Covered employee" means:
286          (i) for the judicial branch, a judge or an employee of the judicial branch; or
287          (ii) for a higher education entity, each governing member and each employee of the
288     higher education entity.
289          (c) "Covered employer" means:
290          (i) the judicial branch; or
291          (ii) a higher education entity.
292          (d) "Higher education entity" means an entity within the Utah System of Higher
293     Education, including each member institution, the Board of Regents, and the office of
294     commissioner of higher education.
295          (2) The judicial branch shall, beginning on January 1, 2021:
296          (a) provide annual training to all covered employees on abusive conduct in the
297     workplace; and
298          (b) implement a policy prohibiting, and for reporting and resolving, abusive conduct
299     within the judicial branch.
300          (3) Each higher education entity shall, beginning on January 1, 2021:
301          (a) provide annual training to all covered employees on abusive conduct in the
302     workplace; and
303          (b) implement a policy prohibiting, and for reporting and resolving, abusive conduct
304     within the higher education entity.
305          (4) The judicial branch and each higher education entity shall, before May 1, 2021,
306     submit to the Government Operations Interim Committee a copy of the policies described in
307     Subsections (2)(b) and (3)(b).
308          Section 11. Section 67-26-301, which is renumbered from Section 67-19-44 is
309     renumbered and amended to read:
310     
Part 3. Training and Reporting

311          [67-19-44].      67-26-301. Abusive conduct training.
312          [(1) As used in this section:]
313          [(a) (i) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
314     employee to another employee that, based on its severity, nature, and frequency of occurrence,
315     a reasonable person would determine:]
316          [(A) is intended to cause intimidation, humiliation, or unwarranted distress;]
317          [(B) results in substantial physical or psychological harm as a result of intimidation,
318     humiliation, or unwarranted distress; or]
319          [(C) exploits an employee's known physical or psychological disability.]
320          [(ii) A single act does not constitute abusive conduct, unless it is an especially severe
321     and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).]
322          [(b) "Employee" means an employee of a state executive branch agency.]
323          [(c) "Physical harm" means the impairment of a person's physical health or bodily
324     integrity, as established by competent evidence.]
325          [(d) "Psychological harm" means the impairment of a person's mental health, as
326     established by competent evidence.]
327          [(2) It is the policy of the state of Utah to provide and maintain a work environment
328     free from abusive conduct.]
329          [(3) An employee may file a written complaint of abusive conduct with the department
330     and subject to further administrative review in accordance with Section 67-19a-501.]
331          [(4) By July 1, 2019, the department shall amend the department's rule, in accordance
332     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the
333     definitions in Subsection (1) and Title 67, Chapter 19a, Grievance Procedures.]
334          [(5)] (1) (a) The department shall provide biennial training to educate all state
335     executive branch agency employees and supervisors about how to prevent abusive workplace
336     conduct.
337          (b) The training described in Subsection (1)(a) shall include information on:
338          (i) what constitutes abusive conduct and the ramifications of abusive conduct;
339          (ii) resources available to employees who are subject to abusive conduct; and
340          (iii) the [grievance] abusive conduct complaint process described in Section 67-26-202.
341          (2) (a) The department shall create a baseline training module for employers that are
342     not state executive branch agencies to educate the employers' respective employees and
343     supervisors about how to prevent abusive workplace conduct.
344          (b) The baseline training module described in Subsection (2)(a) shall include
345     information on what constitutes abusive conduct and the ramifications of abusive conduct.
346          (c) Each employer that is not a state executive branch agency shall create and provide
347     supplemental training to educate the employer's employees and supervisors that supplements
348     the department's baseline training module with information regarding:
349          (i) resources available to employees who are subject to abusive conduct; and
350          (ii) the employer's abusive conduct complaint process described in Section 67-26-202.
351          (d) An employer may request assistance from the department, at the department's
352     current consultant rate, in developing the training described in Subsection (2)(c).
353          [(6)] (3) (a) Each [state agency] employer shall provide professional development
354     training [approved by the department] to promote:
355          (i) ethical conduct;
356          (ii) organizational leadership practices based in principles of integrity; and
357          (iii) the state policy described in [Subsection (2)] Section 67-26-201.
358          (b) [A state agency] An employer may request assistance from the department, at the
359     department's current consultation rate, in developing training [under] described in this
360     Subsection [(6)] (3).
361          [(7)] (4) (a) Employers shall provide and employees shall participate in the training
362     described in[ Subsections (5) and (6)] this section:
363          (i) at the time the employee is hired or within a reasonable time after the employee
364     [commences] begins employment; and [in alternating years thereafter.]
365          (ii) at least every other year after the employee begins employment.
366          [(b) The requirement in Subsection (7)(a) includes notification to all employees at the
367     time of hiring or within a reasonable time after the employee commences employment and in
368     alternating years thereafter of the abusive conduct complaint procedures and the grievance
369     procedures provided in Title 67, Chapter 19a, Grievance Procedures.]
370          (b) An employer shall, at the times described in Subsection (4)(a), provide notification
371     to the employee of the abusive conduct complaint process.
372          [(8)] (5) The department may use money appropriated to the department or access
373     support from outside resources to:
374          (a) develop policies against workplace abusive conduct; and
375          (b) enhance professional development training on topics such as:
376          (i) building trust;
377          (ii) effective motivation;
378          (iii) communication;
379          (iv) conflict resolution;
380          (v) accountability;
381          (vi) coaching;
382          (vii) leadership; or
383          (viii) ethics.
384          [(9) This section does not:]
385          [(a) exempt or relieve a person from a liability, duty, or penalty provided by another
386     federal or state law;]
387          [(b) create a private right of action;]
388          [(c) expand or diminish rights or remedies available to a person before July 1, 2015;
389     or]
390          [(d) expand or diminish grounds for discipline that existed before July 1, 2015.]
391          (6) (a) Beginning in 2021, and each year after 2021, an employer that is not a state
392     executive branch agency shall, on or before July 31, report to the department regarding:
393          (i) the employer's implementation of this chapter, including the requirement to provide
394     a process under Section 67-26-202; and
395          (ii) the total number and outcomes of abusive conduct complaints that the employer's
396     employees filed and that the employer investigated or reviewed.
397          [(10)] (b) The department shall annually report to the Economic Development and
398     Workforce Services Interim Committee [by], no later than the November interim meeting
399     [regarding], the following:
400          [(a) the] (i) a description the department's implementation of this [section] chapter;
401          [(b)] (ii) the department's recommendations, if any, to:
402          (A) appropriately address and reduce workplace abusive conduct; or [to]
403          (B) change definitions or training required by this section; [and]
404          [(c)] (iii) an annual report of the total number and outcomes of abusive conduct
405     complaints that employees filed and the department investigated[.]; and
406          (iv) a summary of the reports the department receives under Subsection (6)(a).
407          Section 12. Effective date.
408          This bill takes effect on July 1, 2020.