1 of 2
HOUSE DOCKET, NO. 2569 FILED ON: 1/19/2023
HOUSE . . . . . . . . . . . . . . . No. 1882
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Jessica Ann Giannino and Carol A. Doherty
_________________
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 to establish psychological workplace safety.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Jessica Ann Giannino16th Suffolk1/19/2023Carol A. Doherty3rd Bristol1/21/2023Michael D. BradySecond Plymouth and Norfolk1/23/2023Steven Owens29th Middlesex1/23/2023Nick CollinsFirst Suffolk1/24/2023Lindsay N. Sabadosa1st Hampshire1/27/2023Lydia EdwardsThird Suffolk1/30/2023Sally P. Kerans13th Essex2/1/2023James C. Arena-DeRosa8th Middlesex2/1/2023David Henry Argosky LeBoeuf17th Worcester2/1/2023Patricia A. Duffy5th Hampden2/2/2023Susannah M. Whipps2nd Franklin2/2/2023Samantha Montaño15th Suffolk2/4/2023Christopher Hendricks11th Bristol2/6/2023Adrian C. Madaro1st Suffolk2/6/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/7/2023James K. Hawkins2nd Bristol2/8/2023David Allen Robertson19th Middlesex2/8/2023 2 of 2
Tricia Farley-Bouvier2nd Berkshire2/8/2023Natalie M. Higgins4th Worcester2/9/2023Natalie M. Higgins4th Worcester2/9/2023Christine P. Barber34th Middlesex2/9/2023Kate Donaghue19th Worcester2/14/2023Edward R. Philips8th Norfolk2/14/2023Daniel M. Donahue16th Worcester2/15/2023James Arciero2nd Middlesex2/15/2023James B. EldridgeMiddlesex and Worcester2/16/2023Mathew J. Muratore1st Plymouth2/16/2023Rodney M. Elliott16th Middlesex2/16/2023Daniel Cahill10th Essex2/17/2023Patrick Joseph Kearney4th Plymouth2/22/2023Shirley B. Arriaga8th Hampden2/22/2023Simon Cataldo14th Middlesex2/24/2023Danillo A. Sena37th Middlesex2/28/2023Angelo J. Puppolo, Jr.12th Hampden3/2/2023Michelle M. DuBois10th Plymouth3/2/2023Thomas M. Stanley9th Middlesex3/12/2023 1 of 14
HOUSE DOCKET, NO. 2569 FILED ON: 1/19/2023
HOUSE . . . . . . . . . . . . . . . No. 1882
By Representatives Giannino of Revere and Doherty of Taunton, a petition (accompanied by bill,
House, No. 1882) of Jessica Ann Giannino, Carol A. Doherty and others relative to
psychological abuse workplace safety. Labor and Workforce Development.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to establish psychological workplace safety.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 149 of the General Laws is hereby amended by adding the
2following section:-
3 Section 204. (a) For the purposes of this section the following words shall, unless the
4context clearly requires otherwise, have the following meanings:
5 “Bullying”, interpersonal abuse that operates employee to employee, especially superior
6to subordinate.
7 “Employee”, any person who renders services to an employer and receives compensation
8for them including, full and part time paid employees, temporary employees and independent
9contractors.
10 “Employer”, a person or entity who obtains services from an employee and hires
11employees for any compensation. 2 of 14
12 “Mobbing”, interpersonal abuse that operates employer to employee.
13 “Physical injury”, impairment of a person’s physical health or bodily integrity as
14established by competent evidence.
15
16 “Psychological abuse”, mentally provocative harassment or mistreatment that has the
17effect of hurting, weakening, confusing or frightening a person mentally or emotionally.
18 “Psychological injury”, impairment of a person’s mental health as established by
19competent evidence.
20 “Reasonable person”, an unbiased person who displays reason, fairness, caution and care.
21 “Representative employee”, administrative employees in leadership or management
22positions whose responsibility is to oversee and enforce organizational policies including, but not
23limited to, chief executive officers, chief financial officer, presidents, vice presidents, executive
24directors, members of a board of directors or employees in human resources.
25 “Third party”, a neutral person with no prior affiliation with the parties.
26 “Toxic work environment”, an intolerable employment condition in which a reasonable
27person would find it a difficult, uncomfortable or impossible environment to perform their
28workplace duties and tasks.
29 (b) This section shall apply to all employees regardless of the nature of their job. 3 of 14
30 (c) Every employee shall have the right to a work environment that is safe, affords them
31the dignity to which all human beings are entitled and free from all forms of psychological
32abuse.
33 (d) Employers have a general duty to: (i) provide a safe work environment free from all
34forms of abuse including psychological abuse; and (ii) ensure that all employees are treated
35respectfully and with dignity.
36 (e)(1) It shall be an unlawful employment practice:
37 (i) for any employer or employee to engage in the psychological abuse of another
38employee during or outside the course or scope of their work that creates a toxic work
39environment in which a reasonable person would find intolerable to perform their regular
40workplace duties and tasks, has the ability to cause subsequent injury or jeopardizes future career
41prospects without just cause. The determination of psychological abuse shall be conducted from
42the view of a reasonable person under the totality of the circumstances, its impact on the work
43environment of the employee and its subsequent impact on the employee’s well-being. There is
44no requirement of extreme, outrageous or repetitive behavior on the part of the offender to be
45unlawful. The creation of a toxic work environment, subsequent or potential injury and damage
46to future career prospects shall suffice regardless of protected class status;
47 (ii) to retaliate in any manner against an employee who has opposed any unlawful
48employment practices under this section including, but not limited to, filing a claim internally or
49externally on behalf of oneself or another objecting to behavior in violation of this section
50whether as an complainant, witness or advocate; and 4 of 14
51 (iii) to require any complainant under this section to enter into mediation, forced
52arbitration, a non-disclosure agreement or any agreement for the employer to see or review the
53complainant’s medical history not pertinent to the complaint, unless willingly disclosed and
54consented by the complainant.
55 (2) Behaviors that constitute psychological abuse shall include, but are not limited to:
56 (i) Subtle or blatant unethical and unprofessional behavior directed in a targeted or
57systematic manner such as sabotage; misrepresentation of employee performance or behavior;
58spreading of lies; discipline that does not follow procedure; withholding of vital information;
59verbal or written abuse or abusive gestures; frequent request for work below competence level;
60long-term assigning of tasks beyond the employee’s duties without compensation; requesting to
61take part in illegal activity; public or group humiliation or degradation; consistent taking credit
62for work; public ridicule; exclusion from work related gatherings or communications;
63inconsistent following or enforcement of rules; placing in dangerous or physically threatening
64working conditions; hostile yelling, shouting or physical gestures and postures; outright physical
65abuse, such as pushing and shoving; looking into or disclosing of private facts about the
66employee or their family; behaviors without just cause, degrading role changes that could
67jeopardize future career prospects, exclusion, physical isolation, ignoring, regular inconsistent
68instructions, unreasonably heavy workloads, unreasonable put downs, excessive monitoring,
69threat of dismissal, removal of job duties, tampering with or spying on equipment or personal
70belongings.
71 (ii) Employer non-response or prolonged response to employee complaints of
72psychologically abusive behavior; rigged internal protocol; unethical communication such as 5 of 14
73misrepresenting a complaint process; misrepresenting an investigatory process; hollow
74investigations; misrepresenting findings in subsequent reports; blame shifting; ignoring
75continued and escalating bullying behavior or the reporting employee’s request for assistance.
76 (iii) Employer failure to provide a safe working environment; failure to acknowledge
77employee complaints of abusive behavior; failure to provide a transparent reporting system;
78failure to adequately address employee complaints; failure to remove a known stressors; failure
79to alter or stabilize the work environment; tolerance or increase of abusive behavior by
80representing employees.
81 (3) Behavior that does not constitute psychological abuse includes, but is not limited to:
82 (i) acts intended to exercise a supervisor’s authority to discipline with just cause and
83conducted in a progressive disciplinary manner in compliance with policies and laws;
84 (ii) demands for protecting the confidentiality of the services provided by the employer;
85 (iii) the formulation or promulgation of regulations or memoranda to direct the
86operations, maximize efficiency and evaluate employees’ performance based on the general
87objectives of the employer;
88 (iv) the temporary assignment of additional duties when necessary to ensure the
89continuity of services;
90 (v) administrative actions directed to the completion of an employment agreement, with
91cause; 6 of 14
92 (vi) employer’s affirmative actions to enforce the provisions of a human resources
93regulation, clauses of employment agreements or obligations, duties and prohibitions established
94by the General Laws; and
95 (vii) concerted activity under the federal National Labor Relations Act, 29 U.S.C. §151 et
96seq, as interpreted by the National Labor Relations Board shall not be construed as psychological
97abuse.
98
99 (f) Every employer shall be responsible for taking all reasonable measures to
100acknowledge, monitor, prevent, discourage and adequately address incidents of psychological
101abuse. The employer shall implement and enforce policies, procedures and corrective action
102plans, including:
103 (i) adopting and implementing preventive and detective internal policies against
104psychological abuse including, anti-retaliation policies, within 90 days consistent with this
105section . Policies should include a broad reporting procedure including, formal and informal
106reporting methods that include, an employee’s right to make a complaint outside of the
107employer’s internal reporting procedures;
108 (ii) notifying and training all managers, supervisors and other representative employees
109as to handling of complaints of psychologically abusive behavior including, the employer’s
110reporting provisions and policies to acknowledge, monitor, prevent, discourage and adequately
111address all such complaints; 7 of 14
112 (iii) posting employees’ rights under this section and employer reporting policies in such
113a manner that all employees have access including, on the website, bulletin boards, job
114descriptions and in applicable promotional materials. Any employer who fails to notify and train
115all managers, supervisors and other representative employees and post notice of employees’
116rights under this section shall be subject to fines and penalties by not to exceed $100 for each
117separate offense;
118 (iv) acknowledging employee complaints of psychologically abusive behavior in writing
119and initiate a neutral third-party fact-finding professional investigation within 5 business days of
120a formal or informal complaint of an alleged violation of this section, unless the danger is
121imminent whereby immediate action is called for. Taking all steps to assure immediate cessation
122of the alleged violation, which shall be included in the investigatory report including, removing
123the instigating employee who allegedly violated this section from working with the complainant
124if necessary. Ensure and monitor complainant’s safety through separation from the alleged
125perpetrator during the investigation and submit weekly written updates of the investigation’s
126progress to the complainant;
127 (v) implementing and upholding an effective anti-retaliation provision that guarantees no
128retaliation against any employee who opposes any unlawful practice in a complaint under this
129section;
130 (vi) completing the third-party investigation within a reasonable amount of time, such
131time depending on factors related to the complexity of the complaint. The investigator shall
132notify the complainant in writing of any delay within a reasonable amount of time. The
133complainant shall agree on who is chosen as the third party neutral investigator. The investigator 8 of 14
134cannot be hired for the purposes of determining the complainant’s legal standing or legal
135advantages and disadvantages;
136 (vii) a neutral third-party investigator shall establish whether or not the creation of a toxic
137work environment occurred under this section. The investigator shall also establish whether or
138not subsequent injury occurred beyond the minimum level of damage under this section;
139 (viii) when psychological abuse occurs between employees of different employers, all
140employers concerned shall be responsible for investigating the allegation of psychological abuse,
141regardless of whether or not they are the direct employer of the complainant;
142 (ix) if the outcome favors the complainant, issue an apology to the employee, reinstate
143employee if applicable and coach, counsel or discipline the employee who violated this section;
144 (x) if another complaint occurs after coaching and is found in favor of the complainant,
145take the next step in the disciplinary process including, removing supervisory duties from the
146employee who violated this section or terminate the employee who violated this section;
147 (xi) applying evaluation and discipline processes evenly and fairly to all employees;
148 (xii) annually perform an anonymous workplace climate survey. Submit its results to the
149United States Occupational Safety and Health Administration, the Department of Labor or the
150department of labor standards annually; and
151 (xiii) quarterly report the number of employee complaints of abusive behavior, employee
152disciplines, workers’ compensation claims, discrimination complaints, investigations and follow
153up actions; rates of absenteeism, stress leave and attrition; the workforce gender and racial
154makeup; and de-identified wage and salary data by protected category to the United States 9 of 14
155Occupational Safety and Health Administration and Department of Labor Standards or the
156department of labor standards, who will make this information publicly available, at a minimum
157under the federal Freedom of Information Act, 5 U.S.C. § 552.
158 (g) If the employer proves to have exercised reasonable care to prevent and promptly
159correct the conduct, such employer shall be held harmless from any claim under the provisions of
160this section. Such immunity shall not be extended to the person who engaged in psychological
161abuse in their personal capacity.
162 (h) The aggrieved employee shall have the following options to notify the employer of
163the complaint without use of the employer’s protocol:
164 (i) file a restraining order against the employee who violates this section;
165 (ii) report the alleged violation of this section internally to initiate an internal
166investigation within 5 days of notification unless the danger is imminent whereby immediate
167response is called for pursuant to clause (iv) of subsection (f);
168 (iii) seek outside assistance by filing a complaint that discloses the complainant’s identity
169directly and only to the United States Occupational Safety and Health Administration or the
170department of labor standards. These offices shall: (1) evaluate the conditions described in the
171complaint; (2) if it is determined that the complaint describes a potential violation, the case is
172assigned to an inspector; (3) contact the employer in writing and require the employer to respond
173by a due date with proof that the hazard has been corrected; or make an appointment for a site
174visit prioritized according to the nature of the hazard; or phone or visit the workplace the same
175day if there is imminent danger. Issue fines and/or penalties, including legal action, to violators;
176(4) make violations of this section available to the public per the Freedom of Information Act, 10 of 14
177redacting all private information as to the aggrieved employee and accused, including their
178names to protect their privacy and not interfere with future job prospects; (5) if applicable,
179forward the complaint to another agency with jurisdiction; and (6) collect and maintain data on
180the effectiveness of this section as determined by a decrease in employees self-reporting
181experiencing psychological abuse at work; and
182 (iv) sue the employer or individuals in violation of this section.
183 (i) Any employer that allows, engages in or promotes psychological abuse that creates a
184toxic work environment shall be liable to the affected employee or employees. Employers shall:
185 (i) be liable for failing to take the appropriate measures to provide employees with a
186psychologically safe work environment as outlined in this section;
187 (ii) be liable for engaging in any violation of this section;
188 (iii) be liable for any damages including, economic, compensatory and punitive damages,
189to any employee who has been subjected to work in a toxic work environment as outlined in this
190section in the scope of their employment, unless the employer can demonstrate they have met all
191elements of the affirmative defense. An employee is entitled to recover the greater of all actual
192damages or $5,000 for each violation of this section;
193 (iv) be strictly liable for all damages including, economic, compensatory and punitive
194damages, resulting from any prohibited behaviors of this section carried out by a supervisor or
195representative employee of such employer; and
196 (v) if not prevailing, be liable for the plaintiff’s reasonable attorneys’ and witnesses’ fees
197and costs. A prevailing employer shall not be awarded fees and costs. 11 of 14
198 (j) (1) Any employee, representative or otherwise, who knowingly allows, engages in or
199promotes psychological abuse creating a toxic work environment or subsequent injury shall be
200civilly liable for an amount equal to double the amount of damages caused by the improper
201conduct to the affected employee.
202 (2) The employee may hold another employee, representative or otherwise, who allows,
203engages in or promotes psychological abuse creating a toxic work environment or subsequent
204injury may file a complaint under Rule 3(g) (1) and (2) of the Massachusetts Rules of Criminal
205Procedure.
206 (3) It shall not be an affirmative defense for an employee if that employee committed a
207violation of this section at the direction of the employer or a representative employee under
208threat of continued employment, termination, or any other such threat. Employers and employees
209shall be held liable under this section, but an employer or representative employee shall not hold
210an employee civilly or criminally liable under this section.
211 (k) Any person who reports psychological abuse shall be protected by this section and no
212person shall aid, abet, incite, compel or coerce any action in violation of this section including
213such attempts to do so. An employer shall:
214 (i) not terminate, sanction, mislead, coerce, intimidate, threaten, interfere with,
215discriminate against or otherwise retaliate against any person in the opposition of unlawful
216employment practices or exercise of any right under this section including, but not limited to, an
217employee as to the terms, conditions, compensation, location, benefits or privileges of
218employment because the employee or witness offers or attempts to offer, verbally or in writing,
219any testimony, statement, information or claim to a labor union, human resources office, 12 of 14
220employer office, legislative, administrative or judicial forum or any other internal or external
221office or otherwise engages in any other reasonable participation in a claim under this section;
222and
223 (ii) show proof of the violation through direct and circumstantial evidence. The employee
224may bring a prima facie case of violation of the law by proving they reported an incident of
225workplace psychological abuse and was subsequently terminated, threatened or discriminated
226against in their employment. Once the foregoing is established, the employer may allege and
227provide a legitimate and nondiscriminatory ground for the termination. If the employer alleges
228and provides such grounds, the employee shall show that the ground alleged by the employer
229was a mere pretext for termination.
230 (l) An employer may establish an affirmative defense to limit damages for psychological
231abuse under this section where the employer took all steps outlined in this section to
232acknowledge, monitor, prevent, discourage and adequately address the issues and complaints
233surrounding allegations of psychological abuse and exercised reasonable care to prevent and
234promptly correct any violation in this section or acted with just cause.
235 (m) An employer shall not be exempt from liability if the employer or its representative
236employees or supervisors knew or should have known of said conduct and failed to address the
237allegations of psychological abuse and promptly correct the situation. This defense shall not be
238available when the employer or its representative employees or supervisors engage in this
239conduct.
240 (n) Complainants who prove a violation of this section shall be entitled to all remedies
241necessary to make such complainants whole. Such remedies shall factor whether a toxic work 13 of 14
242environment existed or whether or not injury resulted. Remedies shall include, but not be limited
243to:
244 (i) an apology to the complainant employee and mandatory training, coaching, counseling
245or discipline for violators of this section who remain with the employer;
246 (ii) reinstatement of work;
247 (iii) removal of the employee who violated this section from supervisory duties or
248termination of said employee;
249 (iv) economic damages for lost wages, both front pay up to 24 months and back pay;
250 (v) expenses related to treatment related to the psychological abuse including, future
251medical expenses for psychological injury or resulting physical injury;
252 (vi) compensable damages to compensate for the resulting pain and suffering and
253emotional and psychological damages;
254 (vii) punitive damages to deter future acts of psychological abuse;
255 (viii) injunctive relief whereby the court may enjoin the defendant from engaging in the
256unlawful employment practice;
257 (ix) public notification of the case outcome without disclosing the plaintiff’s name if
258desired by the plaintiff;
259 (x) attorney’s fees for the prevailing plaintiff; and 14 of 14
260 (xi) any other relief deemed appropriate, including such restorative measures as
261modification of the disciplinary record of the employee or organizational training.
262 (o) Any person who has a cause of action under the provisions of this section shall have
263300 days to file said cause of action from the last alleged psychologically abusive behavior from
264the employee with the United States Occupational Safety and Health Administration, the
265Department of Labor Standards or the department of labor standards or a private cause of action.
266If a claimant files a complaint with the United States Occupational Safety and Health
267Administration or the Department of Labor Standards or the department of labor standards, the
268statute of limitations for filing a private cause of action is tolled.
269 (p) Any judicial proceeding instituted for violations of the provisions of this section, the
270aggrieved person may choose to bring their cause of action through the summary proceeding.
271 (q) Nothing under this law shall restrict workers from negotiating broader protections via
272collective bargaining or other concerted activity.
273 SECTION 2. This act shall take effect 180 days after its passage.
274