Representative Keven J. Stratton proposes the following substitute bill:


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; and
27          ▸     makes technical and conforming changes.
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          67-26-203, Utah Code Annotated 1953
45     RENUMBERS AND AMENDS:
46          67-26-301, (Renumbered from 67-19-44, as last amended by Laws of Utah 2018,
47     Chapter 390)
48     

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

190     
Part 1. General Provisions

191          67-26-101. Title.
192          This chapter is known as the "Utah Public Employees Healthy Workplace Act."
193          Section 6. Section 67-26-102 is enacted to read:
194          67-26-102. Definitions.
195          As used in this chapter:
196          (1) (a) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
197     employee to another employee of the same employer that, based on the severity, nature, or
198     frequency of the conduct, a reasonable person would determine:
199          (i) is intended to cause intimidation, humiliation, or unwarranted distress;
200          (ii) results in substantial physical harm or substantial psychological harm as a result of
201     intimidation, humiliation, or unwarranted distress; or
202          (iii) exploits an employee's known physical or psychological disability.
203          (b) "Abusive conduct" does not mean a single act unless the act is an especially severe
204     and egregious act that meets the standard described in Subsection (1)(a)(i), (ii), or (iii).
205          (2) "Abusive conduct complaint process" means the process described in Section
206     67-26-202.
207          (3) "Administrative review process" means a process that allows an employee, in
208     relation to the findings of an abusive conduct investigation, to seek an administrative review
209     that:
210          (a) an employer conducts in accordance with Section 67-26-202; or
211          (b) in relation to a state executive branch agency, the office conducts in accordance
212     with Section 67-19a-501.
213          (4) "Department" means the Department of Human Resource Management.
214          (5) (a) "Employee" means an employee of an employer.
215          (b) "Employee" includes an elected or appointed official of an employer.
216          (6) "Employer" means:
217          (a) a state executive branch agency; or
218          (b) an independent entity, as defined in Section 63E-1-102.
219          (7) "Office" means the Career Service Review Office created under Section
220     67-19a-201.
221          (8) "Physical harm" means the impairment of an individual's physical health or bodily
222     integrity, as established by competent evidence.
223          (9) "Psychological harm" means the impairment of an individual's mental health, as
224     established by competent evidence.
225          (10) (a) "State executive branch agency" means a department, division, office, bureau,
226     or other organization within the state executive branch.
227          (b) "State executive branch agency" includes an agency under the authority of the
228     governor, lieutenant governor, state treasurer, state auditor, or attorney general.
229          (c) "State executive branch agency" does not include the Utah System of Higher
230     Education or an independent entity, as defined in Section 63E-1-102.
231          Section 7. Section 67-26-103 is enacted to read:
232          67-26-103. Effect of chapter.
233          This chapter does not:
234          (1) exempt or relieve a person from a liability, duty, or penalty provided by another
235     federal or state law;
236          (2) create a private right of action;
237          (3) expand or diminish rights or remedies available to a person before July 1, 2020; or
238          (4) expand or diminish grounds for discipline that existed before July 1, 2020.
239          Section 8. Section 67-26-201 is enacted to read:
240     
Part 2. Abusive Conduct

241          67-26-201. State policy on abusive conduct.
242          It is the policy of the state to provide and maintain a work environment free from
243     abusive conduct.
244          Section 9. Section 67-26-202 is enacted to read:
245          67-26-202. Abusive conduct complaint, investigation, administrative review
246     process.
247          (1) An employee may file a written complaint of abusive conduct with the human
248     resources department of the employee's employer if the complaint is against an employee of the
249     same employer as the employee filing the complaint.
250          (2) If an employee files a written complaint of abusive conduct under Subsection (1),
251     the human resources department of the employee's employer shall conduct an abusive conduct
252     investigation.
253          (3) (a) Each employer that is not a state executive branch agency:
254          (i) shall provide the employer's employees a process for:
255          (A) filing an abusive conduct complaint, including an alternative process if the
256     complaint involves an individual who would otherwise receive or review an abusive conduct
257     complaint; and
258          (B) an administrative review of the findings of an abusive conduct investigation
259     described in Subsection (2) that is substantially similar to the administrative review process
260     described in Section 67-19a-501; and
261          (ii) may request assistance from the department, at the department's current consultant
262     rate, or the office, at a reasonable rate established by the office, in developing a process
263     described in this Subsection (3)(a).
264          (b) The department shall provide a process for an employee of a state executive branch
265     agency to file an abusive conduct complaint, including an alternative process if the complaint
266     involves an individual who would otherwise receive or review an abusive conduct complaint.
267          (4) The complaint described in Subsection (1) and a subsequent abusive conduct
268     investigation are subject to:
269          (a) in relation to an employer other than a state executive branch agency, the
270     administrative review process described in Subsection (3)(a); and
271          (b) in relation to a state executive branch agency, the office's administrative review
272     process described in Section 67-19a-501.
273          Section 10. Section 67-26-203 is enacted to read:
274          67-26-203. Abusive conduct -- Training -- Policy.
275          (1) As used in this section:
276          (a) "Abusive conduct" means:
277          (i) verbal, nonverbal, or physical conduct of a covered employee to another covered
278     employee of the same covered employer that, based on the severity, nature, or frequency of the
279     conduct, a reasonable person would determine:
280          (A) is intended to cause intimidation, humiliation, or unwarranted distress;
281          (B) results in substantial physical harm or substantial psychological harm as a result of
282     intimidation, humiliation, or unwarranted distress; or
283          (C) exploits a covered employee's known physical or psychological disability.
284          (b) "Covered employee" means:
285          (i) for the judicial branch, a judge or an employee of the judicial branch; or
286          (ii) for a higher education entity, each governing member and each employee of the
287     higher education entity.
288          (c) "Covered employer" means:
289          (i) the judicial branch; or
290          (ii) a higher education entity.
291          (d) "Higher education entity" means an entity within the Utah System of Higher
292     Education, including each member institution, the Board of Regents, and the office of
293     commissioner of higher education.
294          (2) The judicial branch shall, beginning on January 1, 2021:
295          (a) provide annual training to all covered employees on abusive conduct in the
296     workplace; and
297          (b) implement a policy prohibiting, and for reporting and resolving, abusive conduct
298     within the judicial branch.
299          (3) Each higher education entity shall, beginning on January 1, 2021:
300          (a) provide annual training to all covered employees on abusive conduct in the
301     workplace; and
302          (b) implement a policy prohibiting, and for reporting and resolving, abusive conduct
303     within the higher education entity.
304          (4) The judicial branch and each higher education entity shall, before May 1, 2021,
305     submit to the Government Operations Interim Committee a copy of the policies described in
306     Subsection (2)(b) and (3)(b).
307          Section 11. Section 67-26-301, which is renumbered from Section 67-19-44 is
308     renumbered and amended to read:
309     
Part 3. Training and Reporting

310          [67-19-44].      67-26-301. Abusive conduct training.
311          [(1) As used in this section:]
312          [(a) (i) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
313     employee to another employee that, based on its severity, nature, and frequency of occurrence,
314     a reasonable person would determine:]
315          [(A) is intended to cause intimidation, humiliation, or unwarranted distress;]
316          [(B) results in substantial physical or psychological harm as a result of intimidation,
317     humiliation, or unwarranted distress; or]
318          [(C) exploits an employee's known physical or psychological disability.]
319          [(ii) A single act does not constitute abusive conduct, unless it is an especially severe
320     and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).]
321          [(b) "Employee" means an employee of a state executive branch agency.]
322          [(c) "Physical harm" means the impairment of a person's physical health or bodily
323     integrity, as established by competent evidence.]
324          [(d) "Psychological harm" means the impairment of a person's mental health, as
325     established by competent evidence.]
326          [(2) It is the policy of the state of Utah to provide and maintain a work environment
327     free from abusive conduct.]
328          [(3) An employee may file a written complaint of abusive conduct with the department
329     and subject to further administrative review in accordance with Section 67-19a-501.]
330          [(4) By July 1, 2019, the department shall amend the department's rule, in accordance
331     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the
332     definitions in Subsection (1) and Title 67, Chapter 19a, Grievance Procedures.]
333          [(5)] (1) (a) The department shall provide biennial training to educate all state
334     executive branch agency employees and supervisors about how to prevent abusive workplace
335     conduct.
336          (b) The training described in Subsection (1)(a) shall include information on:
337          (i) what constitutes abusive conduct and the ramifications of abusive conduct;
338          (ii) resources available to employees who are subject to abusive conduct; and
339          (iii) the [grievance] abusive conduct complaint process described in Section 67-26-202.
340          (2) (a) The department shall create a baseline training module for employers that are
341     not state executive branch agencies to educate the employers' respective employees and
342     supervisors about how to prevent abusive workplace conduct.
343          (b) The baseline training module described in Subsection (2)(a) shall include
344     information on what constitutes abusive conduct and the ramifications of abusive conduct.
345          (c) Each employer that is not a state executive branch agency shall create and provide
346     supplemental training to educate the employer's employees and supervisors that supplements
347     the department's baseline training module with information regarding:
348          (i) resources available to employees who are subject to abusive conduct; and
349          (ii) the employer's abusive conduct complaint process described in Section 67-26-202.
350          (d) An employer may request assistance from the department, at the department's
351     current consultant rate, in developing the training described in Subsection (2)(c).
352          [(6)] (3) (a) Each [state agency] employer shall provide professional development
353     training [approved by the department] to promote:
354          (i) ethical conduct;
355          (ii) organizational leadership practices based in principles of integrity; and
356          (iii) the state policy described in [Subsection (2)] Section 67-26-201.
357          (b) [A state agency] An employer may request assistance from the department, at the
358     department's current consultation rate, in developing training [under] described in this
359     Subsection [(6)] (3).
360          [(7)] (4) (a) Employers shall provide and employees shall participate in the training
361     described in[ Subsections (5) and (6)] this section:
362          (i) at the time the employee is hired or within a reasonable time after the employee
363     [commences] begins employment; and [in alternating years thereafter.]
364          (ii) at least every other year after the employee begins employment.
365          [(b) The requirement in Subsection (7)(a) includes notification to all employees at the
366     time of hiring or within a reasonable time after the employee commences employment and in
367     alternating years thereafter of the abusive conduct complaint procedures and the grievance
368     procedures provided in Title 67, Chapter 19a, Grievance Procedures.]
369          (b) An employer shall, at the times described in Subsection (4)(a), provide notification
370     to the employee of the abusive conduct complaint process.
371          [(8)] (5) The department may use money appropriated to the department or access
372     support from outside resources to:
373          (a) develop policies against workplace abusive conduct; and
374          (b) enhance professional development training on topics such as:
375          (i) building trust;
376          (ii) effective motivation;
377          (iii) communication;
378          (iv) conflict resolution;
379          (v) accountability;
380          (vi) coaching;
381          (vii) leadership; or
382          (viii) ethics.
383          [(9) This section does not:]
384          [(a) exempt or relieve a person from a liability, duty, or penalty provided by another
385     federal or state law;]
386          [(b) create a private right of action;]
387          [(c) expand or diminish rights or remedies available to a person before July 1, 2015;
388     or]
389          [(d) expand or diminish grounds for discipline that existed before July 1, 2015.]
390          (6) (a) Beginning in 2021, and each year after 2021, an employer that is not a state
391     executive branch agency shall, on or before July 31, report to the department regarding:
392          (i) the employer's implementation of this chapter, including the requirement to provide
393     a process under Section 67-26-202; and
394          (ii) the total number and outcomes of abusive conduct complaints that the employer's
395     employees filed and that the employer investigated or reviewed.
396          [(10)] (b) The department shall annually report to the Economic Development and
397     Workforce Services Interim Committee [by], no later than the November interim meeting
398     [regarding], the following:
399          [(a) the] (i) a description the department's implementation of this [section] chapter;
400          [(b)] (ii) the department's recommendations, if any, to:
401          (A) appropriately address and reduce workplace abusive conduct; or [to]
402          (B) change definitions or training required by this section; [and]
403          [(c)] (iii) an annual report of the total number and outcomes of abusive conduct
404     complaints that employees filed and the department investigated[.]; and
405          (iv) a summary of the reports the department receives under Subsection (6)(a).
406          Section 12. Effective date.
407          This bill takes effect on July 1, 2020.