2022 -- H 8195

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LC005752

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- DIGNITY AT WORK ACT

     Introduced By: Representatives Henries, Morales, Felix, Alzate, Kazarian, Biah,
Speakman, and Ranglin-Vassell

     Date Introduced: April 29, 2022

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 28 of the General Laws entitled "LABOR AND LABOR RELATIONS"

is hereby amended by adding thereto the following chapter:

CHAPTER 52.1

DIGNITY AT WORK ACT

     28-52.1-1. Findings.

     The general assembly hereby finds as follows:

     (1) Generalized workplace harassment and bullying is a severe and pervasive problem. At

least one-third (1/3) of workers in the United States will face workplace bullying during their

careers. Workplace bullying leads to a loss of esteem, dignity, and self-worth for targets and

witnesses. Workplace bullying also leads to severe emotional, psychological, economic, and

physical harm to targets. Such harms include feelings of shame and humiliation, anxiety,

depression, insomnia, hypertension, substance abuse, post-traumatic stress disorder, suicidal

ideation, heart disease, stress-induced illnesses, suicide, workplace violence, and job loss.

     (2) Generalized workplace harassment and bullying costs American employers billions of

dollars in lost productivity, turnover, absenteeism, presenteeism, decreased morale, increased

insurance premiums, workers' compensation, and medical and legal costs.

     (3) Workplace bullying and general harassment has been studied in the United States since

at least 1976, when psychiatrist Carroll Brodsky published the earliest examination of workplace

bullying in America. Since then, a multitude of employer systems have been made available to

address the problem. Despite these decades of work and awareness, employer policies alone have

been ineffective in preventing, remedying, and eliminating workplace bullying.

     (4) In 1986, the United States Supreme Court first determined that discriminatory

harassment in the workplace that creates a hostile work environment is prohibited under federal

law. Hostile work environments are prohibited under various federal anti-discrimination statutes,

such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990

(ADA), and the Age Discrimination in Employment Act of 1967 (ADEA). However, a hostile work

environment unconnected to an employee's membership in a protected group is not actionable under

these laws. If mistreated employees who have been subjected to harassment cannot establish that

the behavior was motivated by discrimination, such employees are unlikely to be protected by the

law against such mistreatment.

     (5) Existing workers' compensation provisions and common law tort law are inadequate to

discourage workplace bullying or to provide adequate redress to employees who have been harmed

by workplace bullying.

     (6) Since the 1940s, the right to dignity has been recognized as an inalienable human right

and the foundation of freedom, justice, and peace in the world. A typical adult will spend at least

one-third (1/3) of their waking hours at work. Therefore, the right to dignity must be assured in the

workplace. To protect workers' right to dignity, legislation must be passed protecting this right and

providing legal recourse for targets of workplace bullying and/or general harassment and other

abusive behaviors.

     28-52.1-2. Purpose.

     It is the purpose of this chapter to:

     (1) Recognize and protect the right to dignity and other human rights in the workplace and

to prevent any abusive or negative behaviors that infringe upon these rights in the workplace.

     (2) Prevent, detect, remedy, and eliminate workplace bullying, moral, psychological, and

general harassment, and other abusive behavior from the American workplace.

     (3) Provide a remedy for workers who are targets of workplace bullying, moral,

psychological, or general harassment, and/or other forms of workplace abuse to make whole such

targets of workplace abuse.

     (4) Provide an incentive for employers to prevent, detect, remedy, and eliminate workplace

bullying, moral, psychological, and general harassment, and other forms of abuse in the workplace,

in order that such behaviors shall be addressed and eliminated before they cause harm to the targets

of such behaviors.

     28-52.1-3. Definitions.

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     For the purposes of this chapter, the following words and phrases shall have the following

meanings:

     (1) "Constructive discharge" means an adverse employment action where:

     (i) The employee reasonably believed he or she was subjected to an abusive work

environment;

     (ii) The employee resigned because of that conduct; and,

     (iii) The employer knew or should have known of the abusive conduct prior to the

resignation and failed to stop it.

     (2) "Employee" means one who engages in work for another, whether such work is paid or

unpaid. "Employee" includes individuals who perform work in any capacity, including apprentices,

trainees, unpaid interns, volunteers, farm workers, union stewards, and other representatives or

independent contractors.

     (3) "Employer" means any organization or individual employing an individual to engage

in any work on their behalf or on behalf of their subsidiaries, customers, or clients, whether such

work is paid or unpaid. "Employer" shall include nonprofit agencies employing volunteers and

organizations hiring workers through a temporary agency or other such organization to perform

work on their behalf. Employers, who exert control over the means, methods, payroll, or personnel

practices of their suppliers, shall be considered joint employers with said supplier for the purpose

of this chapter. Where more than one organization or individual meets the definition of employer

under this chapter, for the purpose of a claim by a targeted employee, such organizations shall have

joint and several liability as co-employers.

     (4) "Just cause" means a standard of reasonableness used to evaluate a person's actions in

a given set of circumstances. If a person acts with just cause, their actions are based on reasonable

grounds and committed in good faith.

     (5) "Management action" means a course of action that is taken by an employer or its

supervisors or its agents, to direct and control the way work is done.

     (6) "Moral, psychological, or general harassment" means unwelcome, objectionable

conduct that is severe or pervasive enough to create an intimidating, hostile, or abusive

environment.

     (7) "Organizational practices" means actions taken and policies and practices implemented

in the workplace to direct the work and production of an organization.

     (8) "Retaliation" means a materially adverse action that might deter a reasonable person

from engaging in protected activity, such as submitting a complaint or reporting abuse. "Materially

adverse" includes any form of unfavorable treatment that rises above trivial harms, petty slights, or

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minor annoyances. Materially adverse action need not be job-related or occur in the workplace to

constitute unlawful retaliation.

     (9) "Right to dignity" means the fundamental right to receive respect for one's dignity as a

human being and the right to enjoy the conditions necessary for human dignity to flourish. Respect

for dignity implies the right not to be treated in a degrading or humiliating manner.

     (10) "Supervisor" means one who has control over any of the means, methods, wages,

benefits, terms, or conditions of another either through formal or implied authority. The term

"supervisor" shall not be limited to only those with the power to hire, fire, demote, promote,

transfer, or discipline. It includes those with the power to set schedules, make task assignments,

mediate complaints, distribute rewards and punishments, or assert other intangible forms of

authority.

     (11) "Workplace bullying" means the unwanted abuse of any source of power, that has the

effect of or intent to intimidate, control, or otherwise strip a target of his or her right to esteem,

growth, dignity, voice, or other human right in the workplace. Workplace bullying may take the

form of moral, psychological, or general harassment, incivility, abusive supervision, violence,

mobbing, aggressions, and other types of objectionable behaviors. Further, these behaviors may

take the form of interpersonal interactions, organizational practices or management actions. These

behaviors may occur face-to-face or via cyberbullying. The behaviors may come from any level of

the organization -- supervision, co-workers, customers, and other third parties. The source of power

shall not be considered as limited to formal organizational power or authority.

     28-52.1-4. Worker right to dignity in the workplace.

     Every worker shall have the right to a work environment that affords them the dignity to

which all human beings are entitled -- free from all forms of bullying, mobbing, and harassment.

     28-52.1-5. Prohibited activities.

     (a) It shall be unlawful for any person to engage in workplace bullying or moral,

psychological, or general harassment of a co-worker or other employee in the work environment.

Bullying and moral, psychological, or general harassment shall be prohibited, without regard to its

subject matter or motivating animus. There is no requirement that the bullying behavior be extreme,

outrageous, or repetitive to be unlawful under this chapter.

     (b) Workplace bullying and general, psychological, and moral harassment can encompass

a broad spectrum of conduct. Examples of workplace bullying include, but are not limited to:

     (1) Persistent or egregious use of abusive, insulting, or offensive language;

     (2) Unwarranted physical contact or threatening gestures;

     (3) Interfering with a person's personal property or work equipment;

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     (4) The use of humiliation, personal criticism, ridicule, and demeaning comments;

     (5) Overbearing or intimidating levels of supervision;

     (6) Withholding information, supervision, training, or resources to prevent someone from

doing their job;

     (7) Changing work arrangements, such as rosters, offices, assignments, leave, and

schedules to deliberately inconvenience someone;

     (8) Isolating or marginalizing a person from normal work activities;

     (9) Inconsistently following or enforcing rules to the detriment of an employee;

     (10) Unjustifiably excluding colleagues from meetings or communications;

     (11) Intruding on a person's privacy by pestering, spying, or stalking;

     (12) Any abusive or unjust use of employment or workplace policies including

performance reviews, assignments of work, excessive monitoring of work, or unreasonable

assignment of or removal of work tasks;

     (13) Spreading misinformation or malicious rumors;

     (14) Subjecting individuals to excessive supervision and unwarranted monitoring;

     (15) Inappropriate use of disciplinary procedures, including using performance reviews to

misrepresent an employee's work history;

     (16) Arbitrarily withholding information that is vital for effective work performance;

     (17) Unjustifiably removing whole areas of work responsibility from a person;

     (18) Setting impossible targets and objectives or changing targets, without telling the

person;

     (19) Deliberate isolation by ignoring or excluding a person;

     (20) Setting tasks that are unreasonably below or beyond a person's skill level;

     (21) Denying access to information, supervision, consultation, or resources to the detriment

of the worker;

     (22) Conducting an unfair workplace investigation; or

     (23) Any disciplinary action taken not based on just cause.

     (c) A single incident of bullying or harassment is sufficient to create a triable issue

regarding the existence of a hostile work environment, if the bullying or harassing conduct creates

an intimidating, hostile, or offensive working environment. The question of whether an

environment is objectively hostile or abusive is a question of fact, that must be answered by

reference to all circumstances.

     (d) The offender's intent shall not be a required element to support a claim of workplace

bullying or moral, general or psychological harassment. The decision on whether bullying or any

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form of harassment has occurred is not to be determined by the intent of the offender, but rather by

the nature of the behavior itself.

     (e) The analysis of whether bullying or harassment has occurred shall be conducted from

the view of a reasonable person, under the totality of the circumstances.

     (f) Bullying and harassment shall be unlawful when it rises to the level that creates any

harm to dignity and other human rights in the workplace, causes any level of emotional,

psychological, social, or physical harm, otherwise creates an intimidating, hostile, or abusive

working environment, or otherwise unreasonably interferes with the working environment of the

target of such behavior.

     (g) A management action shall not be considered bullying, if it is carried out with just cause

and is conducted in a reasonable manner.

     (h) Anyone who has formal or actual authority to make or influence employment decisions,

including terminating one's employment and/or overseeing projects, cannot claim that such direct

report has bullied or harassed them under this chapter.

     (i) It shall be unlawful for any person to aid, abet, incite, compel, or coerce the doing of an

act, forbidden under this chapter or to attempt to do so.

     (j) It shall be an unlawful employment practice to coerce, intimidate, threaten, or interfere

with or otherwise retaliate against any person, in the exercise of any right under this chapter

including, but not limited to, filing a claim internally with an employer or externally through any

agency or court on the behalf of oneself or other, encouraging one to file such a claim, objecting to

behavior one perceives to be in violation of this chapter, participating in such claim as an advocate,

witness, or complainant, defending oneself from or against a claim under this chapter, or engaging

in any other reasonable participation in a claim under this chapter. Any action that would have a

chilling effect on a current target or future targets filing a complaint or any other participation in a

complaint, as a witness shall be considered unlawful retaliation under this chapter.

     (k) It shall be an unlawful employment practice to require any complainant under this

chapter to enter into a non-disclosure agreement.

     (l) It shall be an unlawful employment practice to require any complainant to enter into any

interest binding arbitration agreement addressing any potential unlawful practices under this

chapter.

     28-52.1-6. Employer responsibility to assure worker dignity and to prevent, detect,

remedy, and eliminate all forms of workplace bullying and harassment.

     (a) Employers shall have a general duty to provide a workplace free from bullying and

moral, psychological, and general harassment and a workplace that protects each employee's

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personal integrity, dignity, and human rights.

     (b) Employers shall be required to post notice of employees' rights under this law and to

distribute the employer's anti-bullying policy, including an explanation of reporting measures,

investigation process, and remedial processes. While posting of such notices does not abdicate an

employer from legal liability for workplace bullying, failure to post such notice is a per se violation

of this chapter, may lead to fines and penalties against the employer, and will make any and all

affirmative defenses against a claim of workplace bullying or general or moral harassment,

unavailable to said employer.

     (c) Employers shall have a general duty to ensure to take all necessary steps to prevent,

detect, remedy, and eliminate workplace bullying and general harassment from their workplaces.

At a minimum, they shall put in place a system to monitor, prevent, and manage workplace bullying

and assure that workers are adequately informed and trained on workplace bullying prevention and

management. The presence of such a policy does not in itself create an affirmative defense, but the

absence of such a policy is a per se violation of this chapter, could lead to fines and penalties against

the employer, and will result in affirmative defenses being unavailable against a claim file under

this chapter.

     (d) Employers shall take all necessary steps to assure that there be no retaliation against

any complainant who has filed a complaint under this chapter in good faith.

     (e) Employers shall take all necessary steps to assure that there be no retaliation against

any individual for participating in a complaint adjudication, as a witness, for taking action as a

bystander to prevent or eliminate bullying of a target, or for opposing any behavior made unlawful

by this chapter.

     28-52.1-7. Employer liability.

     (a) An employer shall be liable for any damages, including economic, compensatory, and

punitive damages, to any employee who has been the target of any of the prohibited behaviors in

this chapter in the scope of their employment, unless the employer can demonstrate they have met

all elements of the affirmative defense, as established under § 28-52.1-9. An employee is entitled

to recover whichever is greater of all actual damages or five thousand dollars ($5,000), for each

violation of this chapter.

     (b) An employer shall be strictly liable for all damages, including economic, compensatory,

and punitive damages, resulting from any prohibited behaviors of this chapter, carried out by a

supervisor of such employer.

     (c) Any employer who fails to provide notice of employees' rights under this chapter in

such a manner that all employees have reasonable access to such notice, shall be subject to fines

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and penalties as deemed appropriate by the fair work commission established in § 28-52.1-11.

     (d) Any employer who fails to implement and notify employees of a workplace bullying

prevention policy that includes reasonable reporting, investigatory, remedial, and anti-retaliation

provisions shall be deemed in violation of this chapter and shall be subject to fines and penalties

deemed appropriate by the fair work commission established in § 28-52.1-11. Further, such

employer shall not have available the affirmative defenses established in § 28-52.1-9.

     (e) In civil actions brought under this section, the court shall award to the prevailing party

reasonable attorneys' fees and costs, including expert witness fees, except that a prevailing

defendant shall not be awarded fees and costs, unless the court finds the action was frivolous,

unreasonable, or groundless when brought, or the plaintiff continued to litigate, after it clearly

became so.

     28-52.1-8. Individual liability.

     Any individual who engages in workplace bullying, moral, psychological or general

harassment, retaliation, or any other prohibited behavior under this chapter shall be jointly and

severally liable, along with their employer, for any and all damages, including economic,

compensatory, and punitive damages.

     28-52.1-9. Affirmative defense.

     (a) An employer may establish an affirmative defense, to limit damages for prohibited

behaviors under this chapter, where such behaviors are committed by non-supervisory employees.

     (b) An employer must show the following in order to establish such defense:

     (1) The employer took all necessary steps to prevent, detect, and remedy behaviors

prohibited under this chapter.

     (2) Such steps shall include at a minimum:

     (i) Posting notice of employees' rights under this chapter;

     (ii) Establishing an anti-bullying, anti-general harassment policy. Such a policy includes at

a minimum:

     (iii) A broad reporting procedure;

     (iv) Formal and informal reporting methods;

     (v) Affirmative steps to detect bullying and harassment in the workplace, including

periodic workplace audits and climate surveys of the employer workplace;

     (vi) An effective investigatory policy that assures neutral, well-trained investigators as well

as a neutral fact-finding investigation of each claim of bullying and/or harassment, a prompt

investigation that begins within twenty-four (24) hours of the filing of a claim or employer

knowledge of a potential violation under this chapter, and completion of such investigation within

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a reasonable time period, not to exceed five (5) days, unless a clear justification for such extended

time exists;

     (vii) An effective remedial process that assures an immediate cessation of any bullying and

harassing behavior, that assures that the bullying or harassing behavior shall not re-commence, and

that deters future bullying or harassing behaviors throughout the organization; and

     (viii) An effective anti-retaliation provision, that assures no retaliation occurs against any

complainant, target, or other participant in any claim of workplace bullying or harassment.

     (c) An employer may establish an affirmative defense against a claim of bullying or

harassment based on an organizational practice or management action, only where they can

establish by a preponderance of the evidence that such practice or action was carried out with just

cause and meets each of the eight (8) tests of just cause set forth in subsection (b) of this section or

that such action was taken out of economic necessity. Burden of proof in a claim involving an

organizational practice or management action shall entail:

     (1) The complainant must establish that such action meets the basic elements of workplace

bullying that is unwanted, objectionable behavior that has the effect of infringing on the human

rights of the target or creating an intimidating, hostile, or abusive working environment.

     (2) The employer must either:

     (i) Establish that such action was taken out of just cause;

     (ii) The action was based on a reasonable work rule;

     (iii) The employee was notified of such rule and the potential penalty for such rule

violation;

     (iv) The employer conducted a sufficient investigation to determine whether the rule was

violated;

     (v) The employer's investigation was fair, impartial, and provided the employee adequate

due process;

     (vi) The investigation provided adequate proof of the violation of the rule;

     (vii) The employer has applied the rule fairly and consistently to all employees;

     (viii) The punishment for such rule violation was reasonable given the seriousness of the

offense and the totality of the employee's work record; or

     (ix) Show the action was taken out of economic necessity, such that the employer had no

economic option but to take the management action such as laying off employees as a result of

economic losses.

     (3) The complainant will then be afforded an opportunity to show that the employer's

preferred reasons for the action were merely pretext to cover up bullying or harassing behavior

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and/or were not economically necessary.

     (d) The trier of fact shall make the determination as to whether such management action or

organizational practice, was either bullying, harassment or justified behavior, based on the totality

of the evidence presented.

     28-52.1-10. Remedies.

     (a) Targets of workplace bullying shall be entitled to all remedies necessary to make such

targets whole. Such remedies shall include:

     (1) Economic damages for lost wages, both back pay and front pay, and any expenses,

related to treatment related to the bullying.

     (2) Compensable damages to compensate for the pain and suffering, emotional and

psychological damages, resulting from such workplace bullying.

     (3) Punitive damages as deemed necessary to deter future acts of workplace bullying.

     (4) Injunctive relief, whereby the court may enjoin the defendant from engaging in the

unlawful employment practice.

     (5) Equitable remedies.

     (6) Any other relief that is deemed appropriate including, but not limited to, medical

expenses, psychological treatment, restorative measures, organizational training, and attorneys'

fees.

     (b) A complaining party may recover punitive damages under this chapter:

     (1) If the complaining party can demonstrate that the employer engaged in prohibited

conduct, with intent to injure or with knowing disregard of the protected rights of an aggrieved

individual; or

     (2) The employer failed to meet their obligations under § 28-52.1-5.

     (c) The remedies provided in this chapter shall be in addition to any remedies provided

under any other law, and nothing in this chapter shall relieve any person from any liability, duty,

penalty, or punishment, provided by any other law.

     28-52.1-11. Cause of action.

     (a) The state shall establish a fair work commission (FWC) to address workplace bullying

and to enforce this chapter. In the enforcement of this chapter, the commission shall have the

following powers and duties to:

     (1) Issue enforcement guidance and formulate policies to implement the purposes of this

chapter and make recommendations to agencies, officers of the state or its political subdivisions,

in aid of such policies and purposes.

     (2) Receive, initiate, investigate, and seek to conciliate complaints under this chapter.

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     (3) Adjudicate and issue orders on complaints alleging violations of this chapter. Such

adjudication shall be final and binding on all parties and any appeals of such decision shall be filed

with the superior court.

     (4) Require answers to interrogatories, compel the attendance of witnesses, examine

witnesses under oath or affirmation in person, by deposition, and require the production of

documents relevant to the complaint, in accordance with this chapter, both during the investigation

of and adjudication of complaints under this chapter.

     (5) Issue right to sue letters to complainants who choose to litigate their claims in the court

system of the state, rather than pursuing the FWC's adjudication process. Such right to sue letter

shall extend the statute of limitations for filing such a complaint to no less than one hundred twenty

(120) days from the date of the issuance of such letter.

     (6) Make available to the public information on this chapter, grievance procedures, public

records of the commission, and any other information that would further the purposes and intentions

of this chapter.

     (b) The commission shall also have the right to represent claimants in judicial proceedings

and during the hearing process, under the commission's powers. At the conclusion of the

investigation, the commission may bring the complaint to the superior court to litigate the

commission's determination, recommend appropriate penalties against an employer, engage in

mediation between the claimant and employer or issue the claimant a right to sue letter, to bring a

private claim of action.

     28-52.1-12. Statute of limitations.

     (a) Claimants shall have three (3) years from the last act of bullying or moral,

psychological, or general harassment to either file a complaint with the FWC or to file litigation.

     (b) If a claimant files a complaint with the FWC, the statute of limitations for filing a private

cause of action is tolled.

     (c) Claimants who file with the FWC shall have the later of three (3) years from the date

of the last alleged bullying action or one hundred twenty (120) days from the issuance of the FWC

right to sue letter, to file a private cause of action, after the commission issues a right to sue

determination.

     (d) Under this section, apprentices, trainees, unpaid interns, volunteers, and independent

contractors may file a complaint alleging unlawful bullying and harassment. Nothing in this section

shall create an employment relationship pertaining to the wage and hour provisions, workers'

compensation, or unemployment insurance laws.

     28-52.1-13. Non-waivable rights.

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     The rights afforded to targets, witnesses, bystanders, and others harmed by workplace

bullying are non-waivable. Complainants may not be required to waive their rights under this law

directly or indirectly via collective bargaining agreements, mandatory arbitration clauses, or non-

disclosure agreements.

     28-52.1-14. Conflict with laws.

     (a) Nothing in this chapter should be construed as limiting employee rights under any other

law, including rights under Title VII of the Civil Rights Act, the Americans with Disabilities Act,

the Age Discrimination in Employment Act, and state Equal Employment Opportunity laws.

     (b) Nothing in this chapter should be construed as limiting employee rights under the

National Labor Relations Act (NLRA) and/or state labor rights laws. Concerted Activity/Section 7

activity, under the NLRA, as interpreted by the National Labor Relations Board, shall not be

construed as workplace bullying or moral, psychological, or general harassment.

     (c) Nothing in this chapter shall restrict workers from negotiating broader protections of

their dignity or protections against workplace bullying or harassment via collective bargaining or

other concerted activity.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- DIGNITY AT WORK ACT

***

     This act would establish a broad and comprehensive framework to provide workers with

more protection and remedies from bullying and harassment in the workplace.

     This act would take effect upon passage.

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