Deconstructing the Workplace Psychological Safety Act
Pt. 3 of 3, in which I analyze and evaluate the bill and its chances of passing
Recap
Thus far, I've looked closely at the Dignity at Work Act (DAWA), sponsored and promoted by the National Workplace Bullying Coalition, and the Healthy Workplace Bill (HWB), sponsored and promoted by the Workplace Bullying Institute.
Today, I turn my attention to the newest kid on the block.
Observations
The Workplace Psychological Safety Act, written by Deb Falzoi and Vicki Courtemanche of End Workplace Abuse, was first introduced in state legislatures of Massachusetts, Oregon, and Rhode Island early last year.
As with DAWA, WPSA has enjoyed some early success that has yet to elude Yamada's bill. Last year, the Rhode Island State Senate voted to approve WPSA. But despite the House Democrats’ supermajority, it later died in committee.
Not only does WPSA have the most effective title of the three bills (which is not a small thing, mind you), it continues to gain support from a number of high-profile individuals.
And it's doing so at a speed that suggests, at least to this observer, that for now, WPSA is in the lead.
A Closer Look
As I did with HWB and DAWA, I took the time to introduce WPSA to my newest and smartest friend.
Here are the results:
Jensen
Workplace abuse advocates are striving to pass a law in the individual 50 state legislatures. One effort is the Workplace Psychological Safety Act, introduced as Bill H.1882 to the Massachusetts Legislature.
The language from the Workplace Psychological Safety Act is as follows:
(Readers can find the full text of the bill here).
As you understand employment law, what are the weaknesses of this bill regarding its efficacy to address the prevalence of psychological and emotional abuse in the workplace?
ChatGPT
While the Workplace Psychological Safety Act outlines comprehensive measures to address psychological and emotional abuse in the workplace, there are several potential weaknesses that could impact its efficacy. Keep in mind that the assessment of legal provisions can be subjective, and legal interpretations may vary. Here are some potential weaknesses:
Vagueness in Definitions:
The definitions of terms such as "psychological abuse" and "toxic work environment" might be considered somewhat subjective. The use of terms like "reasonable person" leaves room for interpretation and may lead to challenges in enforcement and legal disputes.
Subjectivity in Determining Violations:
The determination of psychological abuse relies on the perspective of a "reasonable person." This subjectivity could lead to challenges in proving violations, as individuals may have different interpretations of what constitutes abusive behavior.
Challenges in Identifying Causation:
Linking psychological abuse to subsequent injury or damage to future career prospects without just cause may be challenging. Establishing a direct causal relationship between abusive behavior and specific outcomes could be difficult, potentially leading to legal complexities.
Enforcement Challenges Across Different Employers:
When psychological abuse occurs between employees of different employers, the responsibility for investigating the allegation falls on all concerned employers. Coordinating and enforcing such measures across multiple employers may present logistical challenges.
Burden on Employers for Third-Party Investigations:
Requiring employers to initiate a third-party investigation within 5 business days of a complaint may place a significant burden on employers, especially in cases where immediate action is necessary. This timeframe may not be feasible in all situations.
Potential for Retaliatory Claims:
While the Act includes provisions to protect employees from retaliation, proving retaliation can be challenging. The burden of proof for employees to show that adverse actions were a direct result of their complaints may be high.
Limitations on Employee Rights:
The Act restricts the use of mediation, forced arbitration, non-disclosure agreements, or reviewing the complainant’s medical history, potentially limiting the options available to employees in resolving disputes.
Undefined "Just Cause" Standard:
The Act refers to "just cause" in the context of creating a toxic work environment. The lack of a clear definition for "just cause" may lead to uncertainty and disputes over what actions constitute a legitimate reason for certain behaviors.
Resource Intensity for Employers:
The requirements for employers to annually perform workplace climate surveys, report various metrics, and implement policies may place a significant administrative and financial burden on businesses, especially smaller ones.
Timeline for Implementation:
The Act allows for a 180-day period before it takes effect. During this time, employers may need to adapt to the new requirements, potentially causing delays in addressing existing workplace issues.
It's important to note that the effectiveness of the Act will also depend on how well it is enforced, interpreted by the courts, and integrated into existing workplace cultures. Additionally, legal challenges and amendments may arise as the Act is implemented and tested in practice.
Jensen
This bill was written by two people with Progressive political beliefs, and is promoted by individuals who mostly believe as they do.
Can you please point out the political biases in the draft that will make it very difficult for conservative-minded state legislators to support?
ChatGPT
While it's challenging to pinpoint political biases definitively, certain aspects of the Workplace Psychological Safety Act may be perceived as leaning toward Progressive political beliefs. Conservative-minded state legislators might find it difficult to support the bill due to the following elements:
Expansive Regulatory Scope:
The Act proposes broad regulations and interventions in the employer-employee relationship, which might be seen as an overreach of government authority. Conservatives tend to favor limited government interference in private enterprises.
Emphasis on Collective Rights:
The Act places a strong emphasis on protecting employees' rights collectively, potentially overshadowing individual responsibilities and accountability. Conservative legislators often prioritize individual rights over collective rights.
Mandatory Third-Party Investigations:
Requiring mandatory third-party investigations within a short timeframe may be viewed as burdensome and inflexible. Conservatives might prefer a more measured approach, allowing employers flexibility in addressing workplace issues.
Annual Workplace Climate Surveys:
The mandate for employers to conduct annual anonymous workplace climate surveys and report various metrics may be seen as excessive monitoring and regulation. Conservatives may advocate for less frequent or less intrusive reporting requirements.
Potential Impact on Small Businesses:
The administrative and financial burdens imposed on employers, especially smaller businesses, could be a concern for conservative legislators who typically support policies that foster a business-friendly environment.
Implicit Bias in Definitions:
The definitions of terms such as "psychological abuse" and a "toxic work environment" might be perceived as having implicit biases favoring a Progressive perspective. Conservatives may seek clearer and more neutral definitions.
Retaliation Protections:
While protections against retaliation are crucial, conservative legislators may worry about potential abuse of such protections. Striking a balance between employee rights and preventing frivolous claims could be a point of contention.
Limits on Dispute Resolution Options:
The Act restricts the use of mediation, forced arbitration, and non-disclosure agreements. Conservatives may argue that these restrictions limit the freedom of contract and individual dispute resolution preferences.
Potential Impact on Employment At-Will Doctrine:
The Act, by delineating specific circumstances under which employment practices are considered unlawful, may be perceived as encroaching on the traditional employment at-will doctrine favored by conservatives.
Unclear Definition of "Just Cause":
The use of the term "just cause" without a clear definition might be a concern for conservatives who generally prefer precise legal language to avoid subjective interpretations.
It's important to note that individual perspectives on these points can vary, and not all conservatives may share the same concerns. Political biases can be subjective, and lawmakers from any political affiliation may have diverse views on regulatory approaches to workplace issues.
Final Thoughts
As with both DAWA and HWB, the Workplace Psychological Safety Act is not without its weaknesses or its biases.
To be fair, writing these bills was no small feat, and each author should be recognized for their efforts, with special honor and distinction going to Dr. David Yamada for being the first to break ground in this area.
And the same respect needs to be extended to the organizations and individuals who supported the effort to pass the bills into legislation.
Time will tell whether any of the authors has the humility necessary to improve upon the language of their bill and address the biases within.