Employer Liability and the Healthy Workplace Bill
Part 1 of 3
Time for some more heavy lifting by yours truly. The goal? Honest evaluation of the major efforts to address workplace abuse.
Will that upset some people? Yup. Always does. Is that okay? Yup. Always worth it.
It drives me batty that so few of us are willing to speak to the very real dilemma of employer liability. It’s so infrequently discussed that I recently wondered whether or not the three major bills, the Healthy Workplace Bill, the Dignity at Work Act, and the Workplace Psychological Safety Act, satisfactorily address the dilemma.
I’m not a lawyer, so I asked ChatGPT:
Does HWB resolve the dilemma of liability for the employer who would admit to the targeted employee that workplace abuse did indeed occur here?
Here was its answer, in fewer than 330 words:
The Healthy Workplace Bill (HWB) creates a framework that could potentially address the issue of employer liability when admitting that workplace abuse occurred, but it does so in a way that is nuanced and dependent on various factors outlined in the bill:
Vicarious Liability and Affirmative Defenses: According to the HWB, an employer is vicariously liable for abuse committed by an employee unless the employer can demonstrate that they exercised reasonable care to prevent and correct the abusive behavior promptly and that the targeted employee unreasonably failed to take advantage of preventive or corrective opportunities provided. This means that even if an employer admits that abuse occurred, they can still defend themselves by showing they took appropriate steps to address the issue.
Constructive Steps by Employers: The bill encourages employers to take proactive measures to prevent and address workplace abuse. An employer who admits that abuse has occurred but also shows that they have actively worked to prevent such incidents and responded appropriately when they happened might mitigate their liability under the bill.
Encouragement to Address Issues Internally: By allowing employers to use their response efforts as a defense, the bill indirectly encourages employers to acknowledge and address incidents of workplace abuse. This could lead to more internal resolutions and less fear of automatic penalties for admitting abuse has occurred.
Legal Outcomes: If an employer admits to workplace abuse and has not taken sufficient action to prevent or address it, this admission could potentially be used against them in legal proceedings under the HWB. However, the presence of reasonable corrective actions and preventive measures could significantly mitigate this liability.
In summary, the HWB doesn't completely absolve employers from liability if they admit that workplace abuse occurred, but it does provide a framework where such an admission, combined with evidence of proactive and corrective measures, could reduce their overall liability. This structure aims to balance the protection of employees with the realities of managing complex interpersonal issues within a workplace.
ChatGPT’s conclusion left me wanting, so I asked it:
If the HWB doesn't completely absolve employers from liability if they were to admit that workplace abuse occurred, how might they yet be on the hook for damages?
ChatGPT’s reply, in less than 445 words:
Under the Healthy Workplace Bill (HWB), employers could still be on the hook for damages in several scenarios, even if they admit that workplace abuse occurred and have taken some corrective actions. Here's how:
Insufficient Preventative Measures: If an employer admits to the occurrence of workplace abuse but the measures they took to prevent such abuse are found to be insufficient or ineffective, they could still be liable. The law requires not just any action but reasonable care to prevent abusive behavior. If the preventative measures do not meet this standard, the employer could be found liable for damages.
Inadequate Response: Even if an employer acknowledges the abuse, they must also have responded appropriately and promptly to correct the situation. If their response is deemed slow, inadequate, or ineffective in stopping the abuse or preventing future incidents, this could also result in liability for damages.
Severity and Nature of the Abuse: Depending on the severity and egregiousness of the abuse, a single act could be enough to constitute abusive conduct under the HWB. If an employer admits that such a severe incident occurred but failed to take strong enough action in response, this could lead to liability.
Continued Risk or Harm: If the employer’s actions, although well-intentioned, fail to remove the risk of harm to the employee or if the employee continues to suffer harm (either psychological or physical) as a result of the initial abuse, the employer could be liable for ongoing damages.
Failure to Utilize Affirmative Defenses Effectively: Employers have the option to use affirmative defenses as outlined in the bill, such as demonstrating they had provided reasonable preventive and corrective opportunities to the complainant who unreasonably failed to utilize them. If an employer fails to effectively use these defenses or cannot prove that the employee had reasonable opportunities to address the abuse, they could be liable.
Constructive Discharge: If the employee resigns due to the abusive environment and the employer knew about the abuse but did not take adequate steps to prevent it, the employer could be liable for constructive discharge. This includes damages related to the employee's resignation, such as lost wages and benefits.
Punitive Damages: In cases where the abusive conduct was extreme and outrageous, even if there was no adverse employment action, punitive damages may be awarded. If an employer admits to such conduct occurring under their watch, this could open them up to punitive damages aimed at deterring such severe misconduct in the future.
These scenarios highlight the potential liabilities for employers under the HWB, emphasizing the importance of effective and timely preventive and corrective actions in the workplace.
My final question to ChatGPT:
Can you summarize then, in a single statement, what the writers of the HWB are missing re the POV of employers?
ChatGPT’s answer:
The writers of the Healthy Workplace Bill may be overlooking the need for clearer guidelines and support mechanisms for employers on how to effectively implement preventative measures and manage compliance without imposing excessive burdens or legal risks.
(Source: ChatGPT)
If you’ve ever wondered to yourself why legislators have passed on the Healthy Workplace Bill, now you know. The legal risk is too great.
Next time, I’ll be looking at the Dignity at Work Act.
If you see the value I’m providing to the cause, please consider buying me a cup of coffee. Thanks.