November 14, 2014
Paul K. Schrieffer
P. K. SCHRIEFFER LLP
Dear Clients and Colleagues,
Governor Brown signed the anti-bullying training law on September 9, 2014. It commences on January 1, 2015. It applies to employers with 50 or more employees.
Requirement: Employers must now provide two or more hours of training and education in anti-bullying to the same extent as sexual harassment and other discriminatory misconduct. This law amends California Government Code section 12950.1, which is part of the anti-discrimination and anti-sexual harassment statutory laws.
This new legislation means all supervisory employees, within the first six months of the supervisor assuming the supervisory role, must receive this training. Ongoing training must occur no less than every two years. Specifically, the training must include information and practical guidance, including examples. Further, trainers or educators must have requisite knowledge and expertise in this particular training.
The key point with respect to this legislation is that it does not mandate a new cause of action for bullying at the workplace, but merely requires, as part of sexual harassment training, that supervisors also receive training in avoiding “abusive behavior” that would constitute bullying at the workplace. Notwithstanding that limitation, however, there is reason to believe that employees may use this new language added to the Government Code in pursuing the common law cause of action “intentional infliction of emotional distress.”
Amended California Government Code section 12950.1:
Starting January 1, 2015, the amended California Government Code section 12950.1 will read that employers are required to include “prevention of abusive conduct as a component” of the sexual harassment training and education. “Abusive conduct” is defined in the amended statute as follows:
“. . . conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. [It] may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” (Emphasis added)
It also states a “single act shall not constitute abusive conduct, unless especially severe or egregious,” which is language consistent with the case law regarding claims for intentional infliction of emotional distress.
The new statutory language does not define “malice.” However, “malice” is defined in the punitive damages law, California Civil Code section 3294, as that conduct “intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by a defendant with a willful and conscious disregard of the rights or safety of others.” The common law has sometimes been less detailed in defining “malice” and before the 1980s, California courts found “malice” could be found in scenarios where there was merely “recklessness” or “gross negligence” as long as there was some evidence of an “evil motive.” See: Nolin v. National Convenience Stores, Inc., 95 Cal. App. 3d 279 (1979), involving a “non-intentional tort” in a slip and fall accident. Notwithstanding Nolin and other cases from the 1970s, we believe courts are more likely to apply the definition of “malice” that is based upon the language in the punitive damages statute, California Civil Code section 3294.
Again, this new statutory language concerns “training” and does NOT add a new “protected status” category. Even after January 1, 2015, in order for an aggrieved employee to pursue a claim based upon “hostile environment” in the employment context, the employee must prove a “discriminatory” motivation or a “retaliation” in response to the exercise of a public policy right expressed in a statute, regulation or the CA or Federal Constitutions.
First major step toward a “bad manners” cause of action and effect on intentional infliction of emotional distress:
Despite the statutory amendment concerning merely “training” and “education,” this legislation constitutes a first major step toward making what some may perceive as a separate cause of action for “bad employer manners.” From a practical standpoint, we advise California employers, as part of their training of supervisors, recommend that supervisors take a step back and think before uttering harsh words at an employee, even if that employee is already yelling or screaming at the supervisor.
The most troublesome area that employers may be on guard against concerns the question of what constitutes “gratuitous sabotage,” as the issue will require human resource directors, labor law lawyers and senior executives to evaluate the details of an employee’s errors or poor performance in a manner more in depth than before. It is a truism that employees who fail in their performance will often blame others who are not being disciplined or otherwise suffering an “adverse employment decision,” whether it is probation, suspension, demotion or termination.
While early appellate case law in California stated the courts are not inclined to micro-manage or second guess employer decisions based upon business judgment, we unfortunately predict the effect of the “sabotage” language, if it becomes a stepping stone beyond “training” to allowing a claim for “hostile environment” based upon “abusive conduct,” will largely undermine in practice that court based sentiment to not second guess the day to day business decisions of employers.
We also wonder how courts may define “abusive conduct” in relation to the current elements of a claim for “intentional infliction of emotional distress” which requires, as an element of the tort, that conduct be deemed “outrageous” and “extreme.” The phrase “outrageous conduct” is defined in CA law as follows (as set forth in the California Civil Jury Instructions 1602):
“‘Outrageous conduct’ is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”
An appellate court may ultimately interpret the phrase “abusive conduct” in a narrow manner to ensure its meaning is not the same as “outrageous conduct.” If, however, an appellate court more expansively interprets the phrase “abusive conduct” to be the same as “outrageous conduct,” the interpretation may lead to courts having to involve themselves far more deeply into an employer’s “manners” and day to day business decisions. From a political standpoint, employers’ associations should be vigilant in ensuring the legislature does not further amend the anti-discrimination law to include “abusive conduct” as its own anti-discriminatory cause of action and ensure the phrase “abusive conduct” not be interpreted as the same as “outrageous conduct.”