Sent today to:
- SENATOR BARRY FINEGOLD
- SENATOR RYAN FATTMAN
- SASHA KLIGER
- CHAIR MICHAEL RODRIGUES
- VICE CHAIR CINDY FRIEDMAN
- SENATOR PATRICK OÂ€™CONNOR
- TOVAH MILLER
- SENATOR JASON LEWIS
- SENATOR ADAM HINDS
- SENATOR PATRICIA JEHLEN
- SENATOR MICHAEL RUSH
- SENATOR MICHAEL BRADY
- SENATOR PAUL FEENEY
- SENATOR JOHN KEENAN
- SENATOR BRUCE TARR
- SENATOR MICHAEL BARRETT
- SENATOR ANNE GOBI
- SENATOR ERIC LESSER
- SENATOR MICHAEL MOORE
I humbly request that you amend S2723, an Act addressing workplace bullying, mobbing, and harassment without regard to protected class status while promoting healthy workplaces, as it currently sits before you in the Senate Ways & Means Committee.
To prevent and eliminate damaging behavior, we can not require targeted employees to prove the abuse is intentional, deliberate, extreme, or outrageous. The threshold for proof is too high/nearly impossible to reach. This point is backed by extensive research.
Targets should not have to wait for severe — or any — psychological or physical harm to have a legal claim.
As written, S2723 is regressive, as the Supreme Court has already decided that a hostile work environment is actionable and that psychological injury need not be proven
ITEMIZED CHANGES TO S2723
I humbly request the following for consideration.
Under “Abusive conduct,” at a minimum, delete “A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet the standard.” Replace this section with “Abusive conduct is unwanted behavior that creates a hostile, or offensive working environment or otherwise unreasonably interferes with the targets’ work environment” to include most forms of bullying whether or not extreme or outrageous. Add “The behavior itself rather than intent of the offender shall be a factor in whether or not bullying or mobbing has occurred.”
Under “Abusive work environment,” delete “acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both;” and leave in “subjects that employee to abusive conduct.”
Eliminate definitions of physical and psychological harm.
(a) Change to “It shall be unlawful for any employee to engage in bullying of another same- or lower-ranking employee without regard to its subject matter or motivation.”
(b) Delete all text including and after “who has opposed any unlawful unemployment….”
Add “Bullying behavior need not be extreme or repetitive to be unlawful but simply be harmful to humanity, violation of basic human rights as to dignity, respect, equality, fairness at work, cause harm, or otherwise create a hostile work environment.”
(a) Change to “An employee may be individually and criminally liable for a violation of this Act.”
“1. An employer may establish an affirmative defense to limit damages by proving they took all necessary steps to prevent, detect, and remedy behaviors prohibited under this Act based on the totality of evidence presented, including:
They held a neutral, third-party fact-finding investigation of each claim of bullying beginning within 24 hours of employer knowledge of a potential violation under this Act and completion of such investigation within five days unless a clear justification for such extended time exists;
An effective remedial process that assures an immediate cessation and deterrence of any further bullying or retaliation;
Proof of just cause, including proof the employee was notified of violation of a reasonable work rule and the potential penalty for the rule violation, applied fairly and consistently to all employees, including a fair and impartial investigation with due process with proof of violation and a fair and reasonable punishment.”
Section 7 (first one):
Add “An employer may not hold an employee liable under this section. An employee can only hold an employer, same-, or higher-level employee liable under this section so this Act is not used to further damage an employee.”
Section 7 (second one):
(a) Change to “This chapter shall be enforced by a private right of action or by the Massachusetts Commission Against Discrimination (MCAD). If a claimant files a complaint with MCAD, the statute of limitations for filing a private cause of action is tolled.”
(b) Change one year to three years (as victims often do not feel well enough to sue until they’ve had reasonable time to heal from the trauma of the abuse).
Workers have an inherent right to all of our basic human rights. Equality. Dignity. Respect. Fair Process. This bill will provide much-needed incentive for employers to prevent, detect, remedy, and eliminate workplace bullying and mobbing before targets incur significant harm if amended.