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House Bill 2159 - Establishing a Claim for Bullying in the Workplace

Photo of Nathanial Kuratomi

The issue of bullying has come front and center in recent years, especially with the widespread use of social media and the ability of a person or people to, either directly or anonymously, threaten, demean, or humiliate others. HB2159 has been introduced in the West Virginia House of Delegates with the aim of providing legal relief for a person who suffers physical, economic, or psychological harm as a result of bullying in the workplace.

HB2159 identifies new "unlawful employment practices" including 1) subjecting an employment to an "abusive work environment" and 2) to retaliate against an employee who has opposed bullying or who has reported bullying or assisted in an investigation of the same.

The bill defines "abusive conduct" as an act or omission that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct. According to the bill, this conduct could include verbal abuse, including derogatory remarks, insults, or epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; the sabotage or undermining of an employee's work performance; or attempts to exploit an employee's known psychological or physical weakness.

This legislation, if passed, provides that a court may grant injunctive relief to prevent the employer or fellow-employee from engaging in such conduct or the removal of an offending fellow-employee from the victim's work environment. A plaintiff may bring a claim against a co-employee individually and against the employee. Further, employers are vicariously liable for the conduct of its employees.

In addition, the victim may seek and recover economic damages in the form of back pay, front pay, medical expenses, emotional distress, humiliation, and punitive damages, as well as attorney's fees. The legislation tempers the breadth of available damages and would establish limitations on damages: namely that damages for emotional distress may be capped at $50,000.00 in certain instances, and that an employer may not always be liable for punitive damages.

This legislation establishes a broad cause of action that could have a dramatic economic impact on an employer if the employer is found liable for engaging in an "unlawful employment practice." This bill essentially would hold an employer vicariously liable for the intentional conduct of co-employees. This threat of liability certainly provides an employer with incentive to curb any conduct that could be deemed "abusive." If this legislation is adopted, employers must be aware of the potential for such a claim, take measures to eliminate bullying if it has not done so already, respond appropriately to complaints from employees about abusive conduct, and practice vigilance in monitoring for potentially abusive conduct.

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