March 30th, 2016

California “clarifies” Abusive Conduct training mandate


On Jan. 1, 2015 California started mandating training in Abusive Conduct for supervisors (in employers with 50 or more workers). The definition was lifted verbatim from the WBI Healthy Workplace Bill (HWB) authored by Suffolk University Law Professor David Yamada.

WBI and its national network of volunteer State Coordinators has been lobbying for the complete HWB since 2001. Timid, business lobby-yoked state lawmakers are afraid to take a stand for workers who suffer health harm as the result of workplace bullying. Of course, the HWB does not include the phrase “workplace bullying.” The term used is “abusive conduct.”

California and Utah have mandated training. Utah’s 2015 legislation is superior to California’s, though it applies only to state agency employers. Utah requires that employers describe how they will provide protections to employees. California, at first, simply mandated the training. And the topic of abusive conduct, which is still legal until the full HWB is enacted into law in California, is to be added to mandated training on the employer’s commitment to the prevention and resolution of illegal sexual harassment. Oops. This is confusing to nearly everyone. Many HR types hardly understand the power of having protected group status membership or not.

We worry that employees will conflate bullying (abusive conduct) with illegal forms of harassment, including exposure to a hostile work environment. They will falsely believe that abusive conduct is currently illegal because of the pairing with illegal forms of discrimination that violate state and federal laws.

Now comes an April 1 amendment to California Fair Employment and Housing Act Regulations. The section below shows the intended clarification regarding the content of the Abusive Conduct related to Government Code section 12950.1(g)(2).

The good news: the deleterious impact on the targets of abusive conduct must be discussed. Naturally, the negatives for the employer are to be included.

The bad news: the regulation lifts most of our HWB definition of abusive conduct but omits the critical element describing that personal health harm can be manifested. And time devoted to abusive conduct training should be “meaningful.” Still vague.

Read the amended, clarifying regulation for yourself.

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