Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1882 Compare Versions

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2	2	HOUSE DOCKET, NO. 2569 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1882
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jessica Ann Giannino and Carol A. Doherty
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to establish psychological workplace safety.
13	13	_______________
14	14	PETITION OF:
15	15	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
16	16	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
17	17	HOUSE DOCKET, NO. 2569 FILED ON: 1/19/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 1882
19	19	By Representatives Giannino of Revere and Doherty of Taunton, a petition (accompanied by bill,
20	20	House, No. 1882) of Jessica Ann Giannino, Carol A. Doherty and others relative to
21	21	psychological abuse workplace safety. Labor and Workforce Development.
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act to establish psychological workplace safety.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Chapter 149 of the General Laws is hereby amended by adding the
31	31	2following section:-
32	32	3 Section 204. (a) For the purposes of this section the following words shall, unless the
33	33	4context clearly requires otherwise, have the following meanings:
34	34	5 “Bullying”, interpersonal abuse that operates employee to employee, especially superior
35	35	6to subordinate.
36	36	7 “Employee”, any person who renders services to an employer and receives compensation
37	37	8for them including, full and part time paid employees, temporary employees and independent
38	38	9contractors.
39	39	10 “Employer”, a person or entity who obtains services from an employee and hires
40	40	11employees for any compensation. 2 of 14
41	41	12 “Mobbing”, interpersonal abuse that operates employer to employee.
42	42	13 “Physical injury”, impairment of a person’s physical health or bodily integrity as
43	43	14established by competent evidence.
44	44	15
45	45	16 “Psychological abuse”, mentally provocative harassment or mistreatment that has the
46	46	17effect of hurting, weakening, confusing or frightening a person mentally or emotionally.
47	47	18 “Psychological injury”, impairment of a person’s mental health as established by
48	48	19competent evidence.
49	49	20 “Reasonable person”, an unbiased person who displays reason, fairness, caution and care.
50	50	21 “Representative employee”, administrative employees in leadership or management
51	51	22positions whose responsibility is to oversee and enforce organizational policies including, but not
52	52	23limited to, chief executive officers, chief financial officer, presidents, vice presidents, executive
53	53	24directors, members of a board of directors or employees in human resources.
54	54	25 “Third party”, a neutral person with no prior affiliation with the parties.
55	55	26 “Toxic work environment”, an intolerable employment condition in which a reasonable
56	56	27person would find it a difficult, uncomfortable or impossible environment to perform their
57	57	28workplace duties and tasks.
58	58	29 (b) This section shall apply to all employees regardless of the nature of their job. 3 of 14
59	59	30 (c) Every employee shall have the right to a work environment that is safe, affords them
60	60	31the dignity to which all human beings are entitled and free from all forms of psychological
61	61	32abuse.
62	62	33 (d) Employers have a general duty to: (i) provide a safe work environment free from all
63	63	34forms of abuse including psychological abuse; and (ii) ensure that all employees are treated
64	64	35respectfully and with dignity.
65	65	36 (e)(1) It shall be an unlawful employment practice:
66	66	37 (i) for any employer or employee to engage in the psychological abuse of another
67	67	38employee during or outside the course or scope of their work that creates a toxic work
68	68	39environment in which a reasonable person would find intolerable to perform their regular
69	69	40workplace duties and tasks, has the ability to cause subsequent injury or jeopardizes future career
70	70	41prospects without just cause. The determination of psychological abuse shall be conducted from
71	71	42the view of a reasonable person under the totality of the circumstances, its impact on the work
72	72	43environment of the employee and its subsequent impact on the employee’s well-being. There is
73	73	44no requirement of extreme, outrageous or repetitive behavior on the part of the offender to be
74	74	45unlawful. The creation of a toxic work environment, subsequent or potential injury and damage
75	75	46to future career prospects shall suffice regardless of protected class status;
76	76	47 (ii) to retaliate in any manner against an employee who has opposed any unlawful
77	77	48employment practices under this section including, but not limited to, filing a claim internally or
78	78	49externally on behalf of oneself or another objecting to behavior in violation of this section
79	79	50whether as an complainant, witness or advocate; and 4 of 14
80	80	51 (iii) to require any complainant under this section to enter into mediation, forced
81	81	52arbitration, a non-disclosure agreement or any agreement for the employer to see or review the
82	82	53complainant’s medical history not pertinent to the complaint, unless willingly disclosed and
83	83	54consented by the complainant.
84	84	55 (2) Behaviors that constitute psychological abuse shall include, but are not limited to:
85	85	56 (i) Subtle or blatant unethical and unprofessional behavior directed in a targeted or
86	86	57systematic manner such as sabotage; misrepresentation of employee performance or behavior;
87	87	58spreading of lies; discipline that does not follow procedure; withholding of vital information;
88	88	59verbal or written abuse or abusive gestures; frequent request for work below competence level;
89	89	60long-term assigning of tasks beyond the employee’s duties without compensation; requesting to
90	90	61take part in illegal activity; public or group humiliation or degradation; consistent taking credit
91	91	62for work; public ridicule; exclusion from work related gatherings or communications;
92	92	63inconsistent following or enforcement of rules; placing in dangerous or physically threatening
93	93	64working conditions; hostile yelling, shouting or physical gestures and postures; outright physical
94	94	65abuse, such as pushing and shoving; looking into or disclosing of private facts about the
95	95	66employee or their family; behaviors without just cause, degrading role changes that could
96	96	67jeopardize future career prospects, exclusion, physical isolation, ignoring, regular inconsistent
97	97	68instructions, unreasonably heavy workloads, unreasonable put downs, excessive monitoring,
98	98	69threat of dismissal, removal of job duties, tampering with or spying on equipment or personal
99	99	70belongings.
100	100	71 (ii) Employer non-response or prolonged response to employee complaints of
101	101	72psychologically abusive behavior; rigged internal protocol; unethical communication such as 5 of 14
102	102	73misrepresenting a complaint process; misrepresenting an investigatory process; hollow
103	103	74investigations; misrepresenting findings in subsequent reports; blame shifting; ignoring
104	104	75continued and escalating bullying behavior or the reporting employee’s request for assistance.
105	105	76 (iii) Employer failure to provide a safe working environment; failure to acknowledge
106	106	77employee complaints of abusive behavior; failure to provide a transparent reporting system;
107	107	78failure to adequately address employee complaints; failure to remove a known stressors; failure
108	108	79to alter or stabilize the work environment; tolerance or increase of abusive behavior by
109	109	80representing employees.
110	110	81 (3) Behavior that does not constitute psychological abuse includes, but is not limited to:
111	111	82 (i) acts intended to exercise a supervisor’s authority to discipline with just cause and
112	112	83conducted in a progressive disciplinary manner in compliance with policies and laws;
113	113	84 (ii) demands for protecting the confidentiality of the services provided by the employer;
114	114	85 (iii) the formulation or promulgation of regulations or memoranda to direct the
115	115	86operations, maximize efficiency and evaluate employees’ performance based on the general
116	116	87objectives of the employer;
117	117	88 (iv) the temporary assignment of additional duties when necessary to ensure the
118	118	89continuity of services;
119	119	90 (v) administrative actions directed to the completion of an employment agreement, with
120	120	91cause; 6 of 14
121	121	92 (vi) employer’s affirmative actions to enforce the provisions of a human resources
122	122	93regulation, clauses of employment agreements or obligations, duties and prohibitions established
123	123	94by the General Laws; and
124	124	95 (vii) concerted activity under the federal National Labor Relations Act, 29 U.S.C. §151 et
125	125	96seq, as interpreted by the National Labor Relations Board shall not be construed as psychological
126	126	97abuse.
127	127	98
128	128	99 (f) Every employer shall be responsible for taking all reasonable measures to
129	129	100acknowledge, monitor, prevent, discourage and adequately address incidents of psychological
130	130	101abuse. The employer shall implement and enforce policies, procedures and corrective action
131	131	102plans, including:
132	132	103 (i) adopting and implementing preventive and detective internal policies against
133	133	104psychological abuse including, anti-retaliation policies, within 90 days consistent with this
134	134	105section . Policies should include a broad reporting procedure including, formal and informal
135	135	106reporting methods that include, an employee’s right to make a complaint outside of the
136	136	107employer’s internal reporting procedures;
137	137	108 (ii) notifying and training all managers, supervisors and other representative employees
138	138	109as to handling of complaints of psychologically abusive behavior including, the employer’s
139	139	110reporting provisions and policies to acknowledge, monitor, prevent, discourage and adequately
140	140	111address all such complaints; 7 of 14
141	141	112 (iii) posting employees’ rights under this section and employer reporting policies in such
142	142	113a manner that all employees have access including, on the website, bulletin boards, job
143	143	114descriptions and in applicable promotional materials. Any employer who fails to notify and train
144	144	115all managers, supervisors and other representative employees and post notice of employees’
145	145	116rights under this section shall be subject to fines and penalties by not to exceed $100 for each
146	146	117separate offense;
147	147	118 (iv) acknowledging employee complaints of psychologically abusive behavior in writing
148	148	119and initiate a neutral third-party fact-finding professional investigation within 5 business days of
149	149	120a formal or informal complaint of an alleged violation of this section, unless the danger is
150	150	121imminent whereby immediate action is called for. Taking all steps to assure immediate cessation
151	151	122of the alleged violation, which shall be included in the investigatory report including, removing
152	152	123the instigating employee who allegedly violated this section from working with the complainant
153	153	124if necessary. Ensure and monitor complainant’s safety through separation from the alleged
154	154	125perpetrator during the investigation and submit weekly written updates of the investigation’s
155	155	126progress to the complainant;
156	156	127 (v) implementing and upholding an effective anti-retaliation provision that guarantees no
157	157	128retaliation against any employee who opposes any unlawful practice in a complaint under this
158	158	129section;
159	159	130 (vi) completing the third-party investigation within a reasonable amount of time, such
160	160	131time depending on factors related to the complexity of the complaint. The investigator shall
161	161	132notify the complainant in writing of any delay within a reasonable amount of time. The
162	162	133complainant shall agree on who is chosen as the third party neutral investigator. The investigator 8 of 14
163	163	134cannot be hired for the purposes of determining the complainant’s legal standing or legal
164	164	135advantages and disadvantages;
165	165	136 (vii) a neutral third-party investigator shall establish whether or not the creation of a toxic
166	166	137work environment occurred under this section. The investigator shall also establish whether or
167	167	138not subsequent injury occurred beyond the minimum level of damage under this section;
168	168	139 (viii) when psychological abuse occurs between employees of different employers, all
169	169	140employers concerned shall be responsible for investigating the allegation of psychological abuse,
170	170	141regardless of whether or not they are the direct employer of the complainant;
171	171	142 (ix) if the outcome favors the complainant, issue an apology to the employee, reinstate
172	172	143employee if applicable and coach, counsel or discipline the employee who violated this section;
173	173	144 (x) if another complaint occurs after coaching and is found in favor of the complainant,
174	174	145take the next step in the disciplinary process including, removing supervisory duties from the
175	175	146employee who violated this section or terminate the employee who violated this section;
176	176	147 (xi) applying evaluation and discipline processes evenly and fairly to all employees;
177	177	148 (xii) annually perform an anonymous workplace climate survey. Submit its results to the
178	178	149United States Occupational Safety and Health Administration, the Department of Labor or the
179	179	150department of labor standards annually; and
180	180	151 (xiii) quarterly report the number of employee complaints of abusive behavior, employee
181	181	152disciplines, workers’ compensation claims, discrimination complaints, investigations and follow
182	182	153up actions; rates of absenteeism, stress leave and attrition; the workforce gender and racial
183	183	154makeup; and de-identified wage and salary data by protected category to the United States 9 of 14
184	184	155Occupational Safety and Health Administration and Department of Labor Standards or the
185	185	156department of labor standards, who will make this information publicly available, at a minimum
186	186	157under the federal Freedom of Information Act, 5 U.S.C. § 552.
187	187	158 (g) If the employer proves to have exercised reasonable care to prevent and promptly
188	188	159correct the conduct, such employer shall be held harmless from any claim under the provisions of
189	189	160this section. Such immunity shall not be extended to the person who engaged in psychological
190	190	161abuse in their personal capacity.
191	191	162 (h) The aggrieved employee shall have the following options to notify the employer of
192	192	163the complaint without use of the employer’s protocol:
193	193	164 (i) file a restraining order against the employee who violates this section;
194	194	165 (ii) report the alleged violation of this section internally to initiate an internal
195	195	166investigation within 5 days of notification unless the danger is imminent whereby immediate
196	196	167response is called for pursuant to clause (iv) of subsection (f);
197	197	168 (iii) seek outside assistance by filing a complaint that discloses the complainant’s identity
198	198	169directly and only to the United States Occupational Safety and Health Administration or the
199	199	170department of labor standards. These offices shall: (1) evaluate the conditions described in the
200	200	171complaint; (2) if it is determined that the complaint describes a potential violation, the case is
201	201	172assigned to an inspector; (3) contact the employer in writing and require the employer to respond
202	202	173by a due date with proof that the hazard has been corrected; or make an appointment for a site
203	203	174visit prioritized according to the nature of the hazard; or phone or visit the workplace the same
204	204	175day if there is imminent danger. Issue fines and/or penalties, including legal action, to violators;
205	205	176(4) make violations of this section available to the public per the Freedom of Information Act, 10 of 14
206	206	177redacting all private information as to the aggrieved employee and accused, including their
207	207	178names to protect their privacy and not interfere with future job prospects; (5) if applicable,
208	208	179forward the complaint to another agency with jurisdiction; and (6) collect and maintain data on
209	209	180the effectiveness of this section as determined by a decrease in employees self-reporting
210	210	181experiencing psychological abuse at work; and
211	211	182 (iv) sue the employer or individuals in violation of this section.
212	212	183 (i) Any employer that allows, engages in or promotes psychological abuse that creates a
213	213	184toxic work environment shall be liable to the affected employee or employees. Employers shall:
214	214	185 (i) be liable for failing to take the appropriate measures to provide employees with a
215	215	186psychologically safe work environment as outlined in this section;
216	216	187 (ii) be liable for engaging in any violation of this section;
217	217	188 (iii) be liable for any damages including, economic, compensatory and punitive damages,
218	218	189to any employee who has been subjected to work in a toxic work environment as outlined in this
219	219	190section in the scope of their employment, unless the employer can demonstrate they have met all
220	220	191elements of the affirmative defense. An employee is entitled to recover the greater of all actual
221	221	192damages or $5,000 for each violation of this section;
222	222	193 (iv) be strictly liable for all damages including, economic, compensatory and punitive
223	223	194damages, resulting from any prohibited behaviors of this section carried out by a supervisor or
224	224	195representative employee of such employer; and
225	225	196 (v) if not prevailing, be liable for the plaintiff’s reasonable attorneys’ and witnesses’ fees
226	226	197and costs. A prevailing employer shall not be awarded fees and costs. 11 of 14
227	227	198 (j) (1) Any employee, representative or otherwise, who knowingly allows, engages in or
228	228	199promotes psychological abuse creating a toxic work environment or subsequent injury shall be
229	229	200civilly liable for an amount equal to double the amount of damages caused by the improper
230	230	201conduct to the affected employee.
231	231	202 (2) The employee may hold another employee, representative or otherwise, who allows,
232	232	203engages in or promotes psychological abuse creating a toxic work environment or subsequent
233	233	204injury may file a complaint under Rule 3(g) (1) and (2) of the Massachusetts Rules of Criminal
234	234	205Procedure.
235	235	206 (3) It shall not be an affirmative defense for an employee if that employee committed a
236	236	207violation of this section at the direction of the employer or a representative employee under
237	237	208threat of continued employment, termination, or any other such threat. Employers and employees
238	238	209shall be held liable under this section, but an employer or representative employee shall not hold
239	239	210an employee civilly or criminally liable under this section.
240	240	211 (k) Any person who reports psychological abuse shall be protected by this section and no
241	241	212person shall aid, abet, incite, compel or coerce any action in violation of this section including
242	242	213such attempts to do so. An employer shall:
243	243	214 (i) not terminate, sanction, mislead, coerce, intimidate, threaten, interfere with,
244	244	215discriminate against or otherwise retaliate against any person in the opposition of unlawful
245	245	216employment practices or exercise of any right under this section including, but not limited to, an
246	246	217employee as to the terms, conditions, compensation, location, benefits or privileges of
247	247	218employment because the employee or witness offers or attempts to offer, verbally or in writing,
248	248	219any testimony, statement, information or claim to a labor union, human resources office, 12 of 14
249	249	220employer office, legislative, administrative or judicial forum or any other internal or external
250	250	221office or otherwise engages in any other reasonable participation in a claim under this section;
251	251	222and
252	252	223 (ii) show proof of the violation through direct and circumstantial evidence. The employee
253	253	224may bring a prima facie case of violation of the law by proving they reported an incident of
254	254	225workplace psychological abuse and was subsequently terminated, threatened or discriminated
255	255	226against in their employment. Once the foregoing is established, the employer may allege and
256	256	227provide a legitimate and nondiscriminatory ground for the termination. If the employer alleges
257	257	228and provides such grounds, the employee shall show that the ground alleged by the employer
258	258	229was a mere pretext for termination.
259	259	230 (l) An employer may establish an affirmative defense to limit damages for psychological
260	260	231abuse under this section where the employer took all steps outlined in this section to
261	261	232acknowledge, monitor, prevent, discourage and adequately address the issues and complaints
262	262	233surrounding allegations of psychological abuse and exercised reasonable care to prevent and
263	263	234promptly correct any violation in this section or acted with just cause.
264	264	235 (m) An employer shall not be exempt from liability if the employer or its representative
265	265	236employees or supervisors knew or should have known of said conduct and failed to address the
266	266	237allegations of psychological abuse and promptly correct the situation. This defense shall not be
267	267	238available when the employer or its representative employees or supervisors engage in this
268	268	239conduct.
269	269	240 (n) Complainants who prove a violation of this section shall be entitled to all remedies
270	270	241necessary to make such complainants whole. Such remedies shall factor whether a toxic work 13 of 14
271	271	242environment existed or whether or not injury resulted. Remedies shall include, but not be limited
272	272	243to:
273	273	244 (i) an apology to the complainant employee and mandatory training, coaching, counseling
274	274	245or discipline for violators of this section who remain with the employer;
275	275	246 (ii) reinstatement of work;
276	276	247 (iii) removal of the employee who violated this section from supervisory duties or
277	277	248termination of said employee;
278	278	249 (iv) economic damages for lost wages, both front pay up to 24 months and back pay;
279	279	250 (v) expenses related to treatment related to the psychological abuse including, future
280	280	251medical expenses for psychological injury or resulting physical injury;
281	281	252 (vi) compensable damages to compensate for the resulting pain and suffering and
282	282	253emotional and psychological damages;
283	283	254 (vii) punitive damages to deter future acts of psychological abuse;
284	284	255 (viii) injunctive relief whereby the court may enjoin the defendant from engaging in the
285	285	256unlawful employment practice;
286	286	257 (ix) public notification of the case outcome without disclosing the plaintiff’s name if
287	287	258desired by the plaintiff;
288	288	259 (x) attorney’s fees for the prevailing plaintiff; and 14 of 14
289	289	260 (xi) any other relief deemed appropriate, including such restorative measures as
290	290	261modification of the disciplinary record of the employee or organizational training.
291	291	262 (o) Any person who has a cause of action under the provisions of this section shall have
292	292	263300 days to file said cause of action from the last alleged psychologically abusive behavior from
293	293	264the employee with the United States Occupational Safety and Health Administration, the
294	294	265Department of Labor Standards or the department of labor standards or a private cause of action.
295	295	266If a claimant files a complaint with the United States Occupational Safety and Health
296	296	267Administration or the Department of Labor Standards or the department of labor standards, the
297	297	268statute of limitations for filing a private cause of action is tolled.
298	298	269 (p) Any judicial proceeding instituted for violations of the provisions of this section, the
299	299	270aggrieved person may choose to bring their cause of action through the summary proceeding.
300	300	271 (q) Nothing under this law shall restrict workers from negotiating broader protections via
301	301	272collective bargaining or other concerted activity.
302	302	273 SECTION 2. This act shall take effect 180 days after its passage.
303	303	274