Employer Liability and the Workplace Psychological Safety Act
Part 3 of 3
Last time, ChatGPT and I looked closely at the extent to which the Dignity at Work Act addressed employer liability as it relates to workplace abuse.
Why is this so important? Because until employer liability is satisfactorily addressed, it is actually in the best interest of employers to ignore workplace abuse.
Today, I share my exchange w/ ChatGT. The subject? The Workplace Psychological Safety Act written by and endorsed by End Workplace Abuse.
I asked:
Does WPSA resolve the dilemma of liability for the employer who would admit to the targeted employee that workplace abuse did indeed occur here?
ChatGPT replied:
The Workplace Psychological Safety Act (WPSA) attempts to address the liability dilemma for employers who acknowledge instances of workplace abuse by setting out a framework where acknowledging and actively addressing abuse can potentially mitigate an employer’s liability. Key components include:
Acknowledgement and Corrective Action: Under Section (f) of the bill, if an employer takes "all reasonable measures to acknowledge, monitor, prevent, discourage and adequately address incidents of psychological abuse," this proactive behavior can help demonstrate that the employer is taking responsibility and making efforts to correct the situation.
Affirmative Defense: Section (g) of the Act states that an employer who demonstrates they exercised reasonable care to prevent and promptly correct abusive conduct can be held harmless from claims under this section. This provides an incentive for employers to admit and address issues, as doing so forms part of the basis for claiming this affirmative defense.
Immediate Response Requirements: The Act requires that upon receiving a complaint, employers must acknowledge it in writing and initiate an investigation within a very short timeframe, emphasizing the necessity of immediate action which, if followed, may mitigate liability.
Transparency and Reporting: By mandating that employers maintain transparency in the investigative process and keep the complainant informed, the Act encourages employers to be upfront about incidents and their resolution efforts.
However, admitting that abuse occurred does not fully absolve the employer of liability if the abuse resulted in damage to the employee. The Act outlines that employers are still liable for damages unless they can demonstrate that all necessary preventive and corrective measures were adequately implemented. Thus, while the WPSA does provide mechanisms that could reduce an employer’s liability when they admit to and address abuse, it does not entirely eliminate liability, maintaining a balance between protecting employees and providing employers a route to mitigate potential penalties through proactive behavior.
ChatGPT’s conclusion left me wanting, so I asked it:
If WPSA 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 420 words:
Under the Workplace Psychological Safety Act (WPSA), even if an employer admits to the occurrence of workplace abuse and takes steps to address it, there are several scenarios where they could still be liable for damages:
Insufficient Preventive Measures: If the employer failed to implement adequate preventive measures outlined in the Act, such as effective anti-bullying policies, training programs, or a transparent reporting system, they might still be found liable. The Act requires not just reactive measures but a proactive approach to preventing workplace abuse.
Inadequate Response: Admitting that abuse occurred is one step, but the employer's response must also meet the standards set by the Act. This includes conducting a thorough and impartial investigation, providing timely updates to the complainant, and ensuring that the corrective actions are sufficient to address the abuse and prevent its recurrence. If the response is deemed slow, inadequate, or biased, the employer could still face liability.
Continued Harm or Recurrence: If the abuse continues or recurs, indicating a failure to effectively stop the abusive behavior despite acknowledgment, the employer could be liable for ongoing or additional harm suffered by the employee.
Failure to Comply with All Legal Requirements: The WPSA outlines specific legal obligations, such as posting employee rights prominently and conducting annual workplace climate surveys. Non-compliance with these requirements can lead to penalties and damages, even if the employer acknowledged the abuse and took some corrective actions.
Subsequent Injury or Damage: Even if the employer admits abuse and responds appropriately, if the employee suffers demonstrable psychological injury, economic loss, or damage to career prospects as a result of the initial abuse, the employer could still be liable for compensating these damages.
Statutory Penalties: The Act provides for fines and penalties for failing to meet specific obligations, such as training managers or properly notifying employees of their rights. Admitting abuse does not exempt an employer from these statutory penalties if they failed to meet these broader regulatory requirements.
Civil Liability: Under the Act, employers and individual employees who engage in or allow psychological abuse can be held civilly liable. An admission of workplace abuse might simplify the process for establishing the occurrence of abuse in a civil lawsuit, potentially leading to liability for damages.
Thus, while admitting and addressing workplace abuse can help mitigate liability under the WPSA, it does not completely absolve an employer if there are deficiencies in their preventive, responsive, or corrective measures or if the employee suffers continued or additional harm.
My final question to ChatGPT:
Can you summarize then, in a single statement, what the writers of WPSA are missing re the POV of employers?
ChatGPT’s answer:
The writers of the Workplace Psychological Safety Act may be missing the perspective that employers require more flexibility and clearer guidelines to effectively manage and mitigate workplace abuse without facing excessive legal and administrative burdens.
Now you better understand why workplace abuse persists:
Because none of the three major legislative efforts satisfactorily resolves the issue of employer liability.