Psychological safety at work is a human right.
Ensuring workers’ psychological safety will require a reliance on strong state laws leading to a federal law, enforcement of laws, and a dedicated labor movement, including unions, to hold employers accountable.
Laws must cover all workers, all or most types of abuse, clear accessible pathways to fair and quick resolution and/or redress for employees, and employer incentive to prevent, discourage, thwart, and properly address acts of abuse to make employees whole.
So which of the U.S. laws cover these areas?
|State/U.S. Territory||Covers all types of abuse?||Has multiple forms of redress to be made whole?||Incentivizes employers to prevent and address abuse?|
The Puerto Rico Constitution recognizes human dignity, and Puerto Rico has strong employment laws for constructive dismissal and retaliation. Cultures prioritizing dignity and respect tend to better address abuse at work. Puerto Rico is no exception.
The Puerto Rico law has clearly led the way for change in the U.S. workplace. It includes strong enforcement, prohibition of all types of abuse without limits to malice, intent, or repetitiveness, recognition of all types of harm, clear access to remedies, and incentives for employers to prevent and address workplace abuse. The Workplace Psychological Safety Act seeks to clarify and address gaps in the Puerto Rico Law to better serve all U.S. workers.
COVERS ALL TYPES OF ABUSE?
The law uses the term “malicious” (intent is impossible to prove) and repetition (single acts can also be damaging). These two factors denote a negative rights approach (prohibited behavior an employer can work around versus a guaranteed right). But malice and repetition are not required — they are one of several options that qualify as workplace harassment, including arbitrary, unreasonable, and/or capricious behavior. The law explicitly protects against all types of harassment that affect “the performance of the worker, alters the industrial peace, and violates the dignity of the workers….” As with all laws, how the courts interpret this law will determine its effectiveness.
has multiple forms of REDRESS FOR EMPLOYEES TO BE MADE WHOLE IN THE SHORT-TERM?
This law has multiple accessible pathways to short-term resolution and/or redress for workers:
- Employers must provide an internal remedial process. In non-hostile work environments where human well-being is respected and prioritized, this system works well. However, in hostile work environments, this system puts reporting employees in even more danger. Workers need an independent/neutral remedy.
- Employees unsatisfied with the internal process results can access to the Bureau of Alternative Methods for the Resolution of Conflicts (BAMRC) of the Judicial Branch.The BAMRC process will follow court mediation processes (neutral mediator) rather than an employer internal mediation processes. In PR, both parties must agree to mediation. It is not required. Abuse is not conflict. Abuse is abuse.
- Employees can access a summary procedure for litigation, providing quicker access to a court and to a court decision. This expedited process fosters respect and balance of power in the employer/employee relationship.
- Employees can access the traditional court system. But there is a one-year statute of limitations that begins to run from the start of the mistreatment. A longer statute of limitations would be better to give employees a more realistic time frame before deciding to litigate. Most targeted and victimized employees don’t recognize the dire situation they are in nor realize the potential health and/or future financial harm at the one year mark.
incentivizes employers to prevent and address abuse?
This law incentivizes employers to prevent and address abuse at work by:
- Requiring measures to eliminate and minimize workplace harassment. Specifically states, “It will be the responsibility of every employer to take the necessary measures to eliminate or minimize the occurrence of workplace harassment in the workplace” through “internal policies to prevent, discourage, and avoid workplace harassment.”
- Penalizing offending employers, allowing for compensation for a broad range of damages at double the amount.
- Holding employers accountable for supervisor actions and all bullying they know or should have known of, unless they take “immediate and appropriate actions to correct” the harassment.
The California law involves no enforcement. It calls for training on abusive conduct only.
“Abusive conduct” means 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.
The Utah law also involves no enforcement. It covers state agencies only and training on abusive conduct only.
The first anti-abuse bill to pass in the U.S., the Tennessee law grants immunity to employers who adopt a model policy but does not create a direct cause of action for targets.
However, the model policy employers must adopt to acquire the broad immunity is strong. The model policy requires taking complaints seriously, contains a broad definition of abusive conduct, an anti-retaliation provision, and a broad reporting structure allowing flexibility in reporting. Employers must conduct prompt, thorough, and objective investigations and must take appropriate remedial action while protecting targets’ confidentiality whenever possible.
Though the laws in California, Utah, and Tennessee have helped raise awareness about workplace abuse and acknowledge the necessity of preventative measures, without enforcement measures, they have proven to be ineffective.
Some advocates say that workplace anti-abuse legislation needs to assure a positive right, while some employment attorneys insist that naming negative rights will give courts clearer guidelines. A positive right is an assurance of a right, and a negative right is an assurance of prohibited behavior. U.S. employment law is based on negative rights. In hostile work environments where avoidance of liability is prized over human well-being, employers can misuse negative rights to skirt issues of any potential real and/or perceived liability using loopholes in existing law. But naming negative rights can thwart some of the most common abusive behaviors.