HOUSE DOCKET, NO. 2074        FILED ON: 2/16/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3843

The Commonwealth of Massachusetts

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PRESENTED BY:

Jack Patrick Lewis

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to dignity at work.

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PETITION OF:

HOUSE DOCKET, NO. 2074        FILED ON: 2/16/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3843

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to dignity at work.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

The General Laws are hereby amended by inserting after chapter 151B the following chapter:-

Chapter 151B ½. Fair Work Commission

Section 1. As used in this chapter the following terms shall, unless the context clearly requires otherwise, have the following meanings:

“Commission”, the fair work commission established in section 9.

“Constructive discharge”, an adverse employment action in which: (i) the employee reasonably believed they were subjected to an abusive work environment; (ii) the employee resigned because of said environment; and (iii) the employer knew or should have known of said environment prior to the resignation and failed to stop it.

“Employee” or “worker”, an individual who engages in work for another, whether such work is paid or unpaid or whether such other directly employs the employee. Employees shall include individuals who perform work in any capacity, including apprentices, trainees, unpaid interns, volunteers, farm workers, union stewards and other representatives or independent contractors.

“Employer”, any organization or individual employing an individual to engage in any work on their behalf or on behalf of their subsidiaries, customers or clients, whether such work is paid or unpaid. Employers shall include non-profit agencies employing volunteers and organizations hiring workers through a temporary agency or other such organization to perform work on their behalf. Employers that exert control over the means, methods, payroll or personnel practices of their suppliers shall be considered joint employers with the supplier for the purpose of this chapter. Where more than 1 organization or individual meets the definition of employer for the purpose of a claim by a targeted employee, the organizations shall have joint and several liability as co-employers.

“Just cause”, a standard of reasonableness used to evaluate a person’s actions in a given set of circumstances. If a person acts with just cause, their actions shall be based on reasonable grounds and committed in good faith.

“Management action”, a course of action that is taken by an employer or its supervisors or its agents to direct and control the way work is done.

“Moral, psychological or general harassment”, unwelcome, objectionable conduct that is severe or pervasive enough to create an intimidating, hostile or abusive environment.

“Organizational practices”, actions taken and policies and practices implemented in the workplace to direct the work and production of an organization.

“Retaliation”, a materially adverse action that may deter a reasonable person from engaging in protected activity such as submitting a complaint or reporting abuse. A materially adverse action shall include any form of unfavorable treatment that rises above trivial harms, petty slights or minor annoyances. Materially adverse action shall need not be job-related or occur in the workplace to constitute unlawful retaliation.

“Right to dignity”, the fundamental right to receive respect for a person’s dignity as a human being and the right to enjoy the conditions necessary for human dignity to flourish. Right to dignity implies the right not to be treated in a degrading or humiliating manner.

“Supervisor”, an individual who has control over any of the means, methods, wages, benefits, terms or conditions of another, either through formal or implied authority. A supervisor shall not be limited to only those with the power to hire, fire, demote, promote, transfer or discipline and shall include those with the power to set schedules, make task assignments, mediate complaints, distribute rewards and punishments or assert other intangible forms of authority.

“Workplace bullying”, the unwanted abuse of any source of power that has the effect of or intent to intimidate, control or otherwise strip a target of the target’s right to esteem, growth, dignity, voice or other human right in the workplace. Workplace bullying may take the form of moral, psychological, or general harassment, incivility, abusive supervision, violence, mobbing, aggressions and other types of objectionable behaviors. Workplace bullying may take the form of interpersonal interactions or organizational practices or management actions. Workplace bullying may occur face-to-face or via cyberbullying. Workplace bullying may come from any level of the organization, including but not limited to supervisors, coworkers, clients, customers and other third parties. The source of power shall not be considered as limited to formal organizational power or authority.

Section 2.  Every worker shall have the right to a work environment that affords them the dignity to which all human beings are entitled, free from all forms of bullying, mobbing and harassment.

Section 3. (a)(1) It shall be unlawful for any person to engage in workplace bullying or moral, psychological or general harassment of a coworker or other employee in the work environment. Bullying and moral, psychological or general harassment shall be prohibited without regard to its subject matter or motivating animus.

There shall be no requirement that the bullying behavior be extreme, outrageous or repetitive to be unlawful for the purposes of this chapter.

Workplace bullying and general, psychological and moral harassment may encompass a broad spectrum of conduct, including, but not limited to: (i) persistent or egregious use of abusive, insulting or offensive language; (ii) unwarranted physical contact or threatening gestures; (iii) interference with a person’s personal property or work equipment; (iv) the use of humiliation, personal criticism, ridicule and demeaning comments; (v) overbearing or intimidating levels of supervision; (vi) withholding information, supervision, training or resources to prevent someone from doing their job; (vii) changing work arrangements, such as rosters, offices, assignments, leave and schedules to deliberately inconvenience someone; (viii) isolating or marginalizing a person from normal work activities; (ix) inconsistently following or enforcing rules to the detriment of an employee; (x) unjustifiably excluding colleagues from meetings or communications; (xi) intruding on a person's privacy by pestering, spying or stalking; (xii) any abusive or unjust use of employment or workplace policies, including performance reviews, assignments of work, excessive monitoring of work or unreasonable assignment of or removal of work tasks; (xiii) spreading misinformation or malicious rumors; (xiv) subjecting individuals to excessive supervision and unwarranted monitoring; (xv) inappropriate use of disciplinary procedures, including using performance reviews to misrepresent an employee’s work history; (xvi) arbitrarily withholding information that is vital for effective work performance; (xvii) unjustifiably removing whole areas of work responsibility from a person; (xviii) setting impossible targets and objectives or changing targets without telling the person; (xix) deliberate isolation by ignoring or excluding a person; (xx) setting tasks that are unreasonably below or beyond a person's skill level; (xxi) denying access to information, supervision, consultation or resources to the detriment of the worker; (xxii) conducting an unfair workplace investigation; or (xxiii) any disciplinary action taken not based on just cause.

(2) A single incident of bullying or harassment is sufficient to create a triable issue regarding the existence of a hostile work environment if the bullying or harassing conduct creates an intimidating, hostile or offensive working environment. The question of whether an environment is objectively hostile or abusive is a question of fact that must be answered by reference to all circumstances.

(3) The alleged offender’s intent shall not be a required element to support a claim of workplace bullying or moral, general or psychological harassment. The decision of whether bullying or any form of harassment has occurred shall not to be determined by the intent of the alleged offender but by the nature of the behavior itself.

(4) The analysis of whether bullying or harassment has occurred shall be conducted from the view of a reasonable person under the totality of the circumstances.

(5) Bullying and harassment shall be unlawful when it rises to the level that: (i) creates any harm to dignity and other human rights in the workplace; (ii) causes any level of emotional, psychological, social or physical harm; (iii) otherwise creates an intimidating, hostile or abusive working environment; or (iv) otherwise unreasonably interferes with the working environment of the target of said bullying or harassment.

(6) A management action shall not be considered bullying if it is carried out with just cause and is conducted in a reasonable manner.

(b) It shall be unlawful for any person to aid, abet, incite, compel or coerce the doing of an act forbidden under this chapter or to attempt to do so.

(c) It shall be an unlawful employment practice to coerce, intimidate, threaten, interfere with or otherwise retaliate against any person in the exercise of any right pursuant to this chapter, including but not limited to: (i) filing a claim internally with an employer or externally through any agency or court on the behalf of oneself or another; (ii) encouraging a person to file such a claim; (iii) objecting to behavior a person perceives to be in violation of this chapter; (iv) participating in a claim as an advocate, witness or complainant; (v) defending oneself from against a claim made pursuant to this chapter; or (vi) engaging in any other reasonable participation in a claim made pursuant to this chapter. Any action that may have a chilling effect on current or future complainants or any other participation in a complaint as a witness shall be considered unlawful retaliation pursuant to this chapter.

(d) It shall be an unlawful employment practice to require any complainant acting pursuant to this chapter to enter into a non-disclosure agreement.

(e) It shall be an unlawful employment practice to require any complainant to enter into any pre-interest binding arbitration agreement addressing any potential unlawful practices described in this chapter.

Section 4. (a) Employers shall have a general duty to provide a workplace free from bullying and moral, psychological and general harassment and a workplace that protects each employee’s personal integrity, dignity and human rights.

(b) Employers shall post notice of employees’ rights pursuant to this chapter and distribute the employer’s anti-bullying policy, including an explanation of reporting measures, investigation process and remedial processes. While posting of said notice  shall not abdicate an employer from legal liability for workplace bullying, failure to post said notice shall be a per se violation of this chapter, may lead to fines and penalties against the employer, and shall make all affirmative defenses against a claim of workplace bullying or general or moral harassment unavailable to the employer.

(c) Employers shall have a general duty to prevent, detect, remedy and eliminate workplace bullying and general harassment from their workplaces. At a minimum, employers shall put in place a system to monitor, prevent and manage workplace bullying and assure that workers are adequately informed and trained on workplace bullying prevention and management. The presence of said system shall not in itself create an affirmative defense, but the absence of said system shall be a per se violation of this chapter, may lead to fines and penalties against the employer, and shall make all affirmative defenses against a claim of workplace bullying or general or moral harassment unavailable to said employer.

(d) Employers shall take all necessary steps to assure that there shall be no retaliation against any complainant who has filed a complaint pursuant to this chapter in good faith.

(e) Employers shall take all necessary steps to assure that there shall be no retaliation against any individual for participating in a complaint as a witness, taking action as a bystander to prevent or eliminate bullying of a target or opposing any behavior prohibited by this chapter.

Section 5. (a) An employer shall be liable for any damages, including economic, compensatory and punitive damages, to any employee who has been the target of any of the prohibited behaviors described in this chapter in the scope of their employment, unless the employer can demonstrate they have met all elements of an affirmative defense pursuant to section 7. An employee is entitled to recover actual damages or $5000, whichever is greater, for each violation of this chapter.

(b) An employer shall be strictly liable for all damages, including economic, compensatory and punitive damages, resulting from any prohibited behaviors described in this chapter carried out by a supervisor employed by said employer.

(c) Any employer who fails to file notice of employees’ rights pursuant to this section in such a manner that all employees have reasonable access to said notice shall be subject to fines and penalties as deemed appropriate by the fair work commission established in section 9.

(d) Any employer who fails to implement and notify employees of a workplace bullying prevention policy that includes reasonable reporting, investigatory, remedial and anti-retaliation provisions shall be deemed in violation of this chapter and shall be subject to fines and penalties deemed appropriate by the fair work commission established in section 9. Further, said employer shall not have available the affirmative defenses established in section 7.

(e)  In civil actions brought under this section, the court shall award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, but a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable or groundless when brought or the plaintiff continued to litigate after it clearly became so.

Section 6. Any individual who engages in workplace bullying, moral, psychological or general harassment, retaliation or any other prohibited behavior described in this chapter shall be jointly and severally liable along with their employer for any and all damages including economic, compensatory and punitive damages.

Section 7. (a) An employer may establish an affirmative defense to limit damages for prohibited behaviors described in this chapter if such behaviors are committed by non-supervisory employees.

(b) To establish an affirmative defense pursuant to subsection (a), an employer shall show that the employer took all necessary steps to prevent, detect and remedy behaviors prohibited by this chapter, including, at a minimum posting notice of employees’ rights pursuant to this chapter and establishing an anti-bullying, anti-general harassment policy that includes, at a minimum: (i) a broad reporting procedure; (ii) formal and informal reporting methods; (iii) affirmative steps to detect bullying and harassment in the workplace, including periodic workplace audits and climate surveys of the employer workplace; (iv) an effective investigatory policy that assures neutral well-trained investigators, a neutral fact-finding investigation of each claim of bullying or harassment, a prompt investigation that begins within 24 hours of the filing of a claim or employer knowledge of a potential violation described in this chapter and completion of such investigation within a reasonable period time, not to exceed 5 days, unless a clear justification for such extended time exists; (v) an effective remedial process that assures immediate cessation of any bullying and harassing behavior, assures that the bullying or harassing behavior shall not recommence and deters future bullying or harassing behaviors throughout the organization; and (vi) an effective anti-retaliation provision that assures no retaliation occurs against any complainant, target or other participant in any claim of workplace bullying or harassment.

(c) To establish a claim of bullying or harassment based on an organizational practice or management action, the complainant shall establish that such action meets the basic elements of workplace bullying.

An employer may establish an affirmative defense against a claim of bullying or harassment based on an organizational practice or management action if the employer can establish by a preponderance of the evidence that such practice or action: (1) was carried out with just cause or (2) that such action was taken out of economic necessity. To show just cause for the purposes of this subsection, the employer shall establish by a preponderance of the evidence that the: (i) action was based on a reasonable work rule; (ii) employee was notified of the rule and the potential penalty for violation of the rule; (iii) employer conducted a sufficient investigation to determine whether the rule was violated; (iv) employer’s investigation was fair, impartial and provided the employee adequate due process; (v) investigation provided adequate proof of the violation of the rule; (vi) employer applied the rule fairly and consistently to all employees; and (vii) punishment for violation of the rule was reasonable given the seriousness of the offense and the totality of the employee’s work record. To establish economic necessity for the purposes of this subsection, the employer shall establish, by a preponderance of the evidence, that action was taken because the employer had no economic option but to take the management action, including, but not limited to, laying off employees as a result of economic losses.

The complainant shall then be afforded an opportunity to show that the employer’s preferred reasons for the action were a pretext to cover up bullying or harassing behavior or were not economically necessary.

The trier of fact shall make the determination as to whether such management action or organizational practice was either bullying, harassment or justified behavior based on the totality of the evidence presented.

Section 8. (a) Targets of workplace bullying shall be entitled to all remedies necessary to make the targets whole. Remedies shall include, but not be limited to: (i) economic damages for lost wages, back pay and front pay and any expenses related to treatment related to the bullying; (ii) compensatory damages to compensate for the pain and suffering and emotional and psychological damages resulting from such workplace bullying; (iii) punitive damages as deemed necessary to deter future acts of workplace bullying; (iv) injunctive relief, whereby the court may enjoin the defendant from engaging in the unlawful employment practice; (v) equitable remedies; and (vi) any other relief that is deemed appropriate, including but not limited to medical expenses, psychological treatment, restorative measures, organizational training and attorney’s fees.

(b) A complaining party may recover punitive damages under this chapter if the complaining party can demonstrate that the employer engaged in prohibited conduct with intent to injure or with knowing disregard of the protected rights of an aggrieved individual or the employer failed to meet their obligations as described in section 4.

(c) The remedies provided in this chapter shall be in addition to any remedies provided by any other law. Nothing in this chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law.

Section 9. (a) There is hereby established a fair work commission to address workplace bullying and enforce this chapter.

(b) In enforcing this chapter, the commission shall have the powers and duties to: (i) issue enforcement guidance and formulate policies to effectuate the purposes of this chapter; (ii) make recommendations to agencies and officers of the state or its political subdivisions in aid of said policies and purposes; (iii) receive, initiate, investigate and seek to conciliate complaints made pursuant to this chapter; (iv) adjudicate and issue orders on complaints alleging violations of this chapter; provided, that such adjudication shall be final and binding on all parties and any appeals of such decision shall be filed at the state appellate court level; (v) compel the attendance of witnesses, examine witnesses under oath or affirmation in person by deposition and require answers to interrogatories and the production of documents relevant to a complaint filed in accordance with this chapter, during both the investigation and adjudication of complaints made pursuant to this chapter; (vi) issue right to sue letters to complainants who choose to litigate their claims in the court system of the state rather than pursuing the commission’s adjudication process; provided, that a right to sue letter shall extend the statute of limitations for filing a complaint to at least 120 days after the date of the issuance of said letter; and (vii) make available to the public information concerning this chapter, grievance procedures, public records of the commission, and any other information that would further the purposes and intentions of this chapter.

(c) The commission shall have the right to represent claimants in judicial proceedings and during the hearing process under the commission’s powers. At the conclusion of the investigation, the commission may bring the complaint in front of an administrative law judge to litigate the commission’s determination, recommend appropriate penalties against an employer,  engage in mediation between the claimant and employer or issue the claimant a right to sue letter to bring a private claim of action.

Section 10. (a) Claimants shall have 3 years from the last act of bullying or moral, psychological or general harassment to either file a complaint with the commission or to file litigation.

(b) If a claimant files a complaint with the commission, the statute of limitations for filing a private cause of action shall be tolled.

(c) Claimants who file with the commission shall have the later of 3 years from the date of the last alleged bullying action or 120 days from the issuance of the right to sue letter to file a private cause of action after the commission issues a right to sue determination.

(d) Under this subsection, apprentices, trainees, unpaid interns, volunteers and independent contractors may file a complaint alleging unlawful bullying and harassment. Nothing in this subsection shall create an employment relationship with respect to wage and hour provisions, workers' compensation or unemployment insurance.

Section 11. The rights afforded to targets, witnesses, bystanders and others harmed by workplace bullying may not be waived. Complainants may not be required to waive their rights under this law directly or indirectly via collective bargaining agreements, mandatory arbitration clauses or non-disclosure agreements.

Section 12. (a) Nothing in this chapter should be construed as limiting employee rights under any other general, special or federal law, including chapter 151B, Title VII of the federal Civil Rights Act, the federal Americans with Disabilities Act, the federal Age Discrimination in Employment Act or the National Labor Relations Act. Concerted activity under the National Labor Relations Act, as interpreted by the National Labor Relations Board, shall not be construed as workplace bullying or moral, psychological or general harassment.

(b) Nothing under this chapter shall restrict workers from negotiating broader protections of their dignity or protections against workplace bullying or harassment through collective bargaining or other concerted activity.