I was initially enthused about California’s response to the “anti-bullying” legislation [usually introduced as the “Healthy Workplace Bill”] making the rounds of our state legislatures. On first glance, AB 2053‘s mandate to educate employers and supervisors about prevention of workplace abuse – although somewhat obscured within the Sexual Harassment training mandate – seems a thoughtful, measured, and reasonable approach. After all, change begins with awareness. Signed by Governor Jerry Brown in September and now in the regulatory comment phase, AB 2053 requires education regarding prevention of abusive conduct in the workplace to be incorporated into California’s 2-hour sexual harassment training, already mandated bi-annually for supervisors and employers in workplaces with over 50 employees.
AB 2053 defines “abusive conduct” in the workplace as: “…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”. That first glance is pretty rosy; the language is pretty clear…right? Let’s take off those rose-colored specs and gaze closer at the language of the bill.
You can probably guess my concerns. Is there an objective measure for the supervisor, manager, human resource director, or investigator to determine “malice”? Will the compliance training focus its precious time [there are no guidelines for how much of the 2-hour bi-annual sexual harassment training must be devoted to workplace abuse] on fitting behaviors into the box of this broad legislative definition? Who gets to be the “reasonable person”? Is there any guidance for the employer to support the employee who is literally in limbo, on the receiving end of behaviors deemed to dance just underneath this subjective bar? Will the legislative intent of prevention of workplace abuse truly be actualized? Or will this bill simply perpetuate the focus on labels, rather than action?
For our third glance at California’s golden opportunity to impact respect in the workplace, you may want to trade in your rose-colored glasses for moto-goggles, because the purpose behind the bill sure is getting muddy. The proposed regulatory language corresponding to implementation of AB 2053 boils down the learning objectives for the required training: “The emphasis should be on explaining the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace…the detrimental consequences of this conduct on employers – including a reduction in productivity and morale. The training should specifically discuss the elements of “abusive conduct”…defined as conduct with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests (including performance standards). Finally, the training should emphasize that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious.” [You can find the full text of the proposed Department of Fair Employment and Housing regs here – scroll down to section 11024 on page 8].
Negative effects. Elements and definitions. That’s it – words empty of action, deviod of value. Not a word about “prevention”! So, what is likely to change in California workplaces as a result of this narrow and negligible training requirement? We don’t need more training that just perpetuates labels and opens the door to litigation as a result of California’s legislation. What a golden opportunity – lost!
What about a regulatory requirement that training truly focus on the legislative intent – prevention of workplace abuse? How about how-to, action oriented training that helps create an organizational culture of respect – promotes easy and safe access points for employees to address concerns – enables early identification of behaviors that cause distress – supports creative, no-fault intervention techniques into these behaviors – builds supervisors’ and managers’ conflict competence skills?
What are your thoughts about the kind of “abusive conduct” training that might have a real and positive impact on California workplaces? You can share your comments with the California Department of Fair Employment and Housing through 5pm Monday, December 8th by email to: FEHCouncil@dfeh.ca.gov. Maybe California’s regulatory body will wake up and shout “Eureka”!