Opening the Door for Potential New Employment Litigation – California’s Anti-Bullying Law

Author: Nicole Lenat

Last year, the California legislature passed a law requiring all companies with over 50 employees to add anti-bullying training to the mandatory two-hour sexual harassment training required under California Government Code section 12950.1. Prior to the passage of this legislation, the law required training on prohibiting and preventing sexual harassment, discrimination, retaliation, and other types of unlawful harassment. This new amendment to the law adds that training must also be given on the subject of “abusive conduct” in the workplace, or bullying.

This new statute, A.B. 2053, which was signed into law by Governor Jerry Brown and took effect January 1, 2015, is being referred to as the “anti-bullying” law. Many management-side lawyers see this as the beginning of broader efforts by state legislators to ban such conduct in the workplace that will open up a whole new area of employment litigation.

As of now, the current law only mandates training (in addition to harassment/discrimination training set forth above) and does not specify a private right of action for bullying in the workplace. However, many attorneys suspect this legislative attempt to ban office bullying will clear the way for workers to bring suits against abusive managers and the companies themselves. It is anticipated that state lawmakers may be interested in eventually expanding the Fair Employment and Housing Act (“FEHA”) to include a private right of action for bullying.

Preliminarily, the issue of abusive conduct routinely arises in nearly every employment discrimination case, as in a lot of cases a plaintiff will claim as part of their discrimination/harassment suit that they were subjected to bullying behavior. Now that the State Legislature has tried to define what abusive conduct is, it is predicted that “employees and plaintiffs’ counsel will be encouraged to use the definition to add more heft to their case for discrimination.” (Coe, Erin. Law 360, Feb. 3, 2015). For example, if a company fails to provide the required training, a plaintiff who is already bringing a discrimination case will use this to try to discredit their employer in front of a jury. It is also important to note that a plaintiff can bring a separate cause of action for failure to prevent harassment or discrimination as part of their discrimination case against their employer which can be predicated upon (among other things) the employer’s failure to provide the mandated training required under California Government Code section 12950.1.

Identifying or determining what is “abusive conduct” may be the most difficult problem with the new statute, as there is likely some gray area involved. The statute defines “abusive conduct” to mean “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” (Government Code § 12950.1 (g)(2).)

For companies to be in the best position to avoid claims that they have failed to provide the training mandated by section 12950.1, they need to put together a thorough training seminar or program inclusive of all of the subjects required by section 12950.1, including workplace bullying, and make sure they keep good records of those who attended the training and what was taught during the training session. We also recommend for companies who use third parties to provide the mandatory training to their supervisors, that the companies ask the third parties if they have incorporated the anti-bullying subject matter into the training materials.

While the mandatory training requirement set forth in section 12950.1 sets forth no penalty for failing to comply with the training requirement, the department of Fair Employment and Housing may seek an order requiring that an employer comply with the training requirements. In addition, as set forth above, companies that fail to implement the mandatory training are exposing themselves to the risk that a plaintiff who files a harassment/discrimination or retaliation claim may use this as evidence to support a failure to prevent discrimination/harassment separate cause of action. Furthermore, and more significantly, an employer who fails to comply with the mandatory training requirements of section 12950.1 will be prevented from raising an affirmative defense that it took all reasonable steps to prevent the alleged harassment/discrimination, and that it was plaintiff who failed to utilize the employer’s complaint procedures, which would have prevented the plaintiff’s harm.

In light of this expansion to the mandatory supervisory training, companies may also consider updating their harassment/discrimination policies to prohibit bullying in the workplace. This may help an employer show that it took all reasonable steps to prevent harassment/discrimination caused in whole or in part by “bullying” behavior.

ABOUT THE AUTHOR: Nicole Hermanson is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation. Contact her at NHermanson@tysonmendes.com.

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