An Act To Protect Employees from Abusive Work Environments
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 26 MRSA c. 7, sub-c. 11 is enacted to read:
SUBCHAPTER 11
PROTECTION FROM ABUSIVE WORK ENVIRONMENTS
§ 876. Definitions
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Abusive conduct. "Abusive conduct" means acts or omissions or both that a reasonable person would find abusive, based on their severity, nature or frequency. "Abusive conduct" includes, but is not limited to: repeated verbal abuse involving the use of derogatory remarks, insults and epithets; verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature; and the sabotaging or undermining of an employee's work performance. A single act or omission does not constitute abusive conduct, unless so severe and egregious that a reasonable person would find it abusive.
2. Abusive work environment. "Abusive work environment" means a work environment in which an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm or both.
3. Adverse employment action. "Adverse employment action" means a termination, constructive discharge, demotion, unfavorable reassignment, failure to promote, disciplinary action, reduction in compensation or other action adverse to an employee's employment status.
4. Constructive discharge. "Constructive discharge" means a termination of employment by resignation under the following circumstances:
A. The employee reasonably believed that the employee was subjected to an abusive work environment;
B. The employee resigned because of that abusive work environment; and
C. The employer was aware of the abusive conduct prior to the resignation and failed to stop it.
5. Physical harm. "Physical harm" means the impairment of a person's physical health or bodily integrity, as established by competent evidence.
6. Psychological harm. "Psychological harm" means the impairment of a person's mental health, as established by competent evidence.
§ 877. Unlawful employment practices
1. Abusive work environment. A person may not subject an employee to an abusive work environment.
2. Retaliation. A person may not retaliate in any manner against an employee who has taken reasonable action to stop or contest a violation of subsection 1 or who has made a charge, testified, assisted or participated in any manner in an investigation or proceeding under this subchapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings and legal actions.
§ 878. Employer liability and defense
1. Employer liability. An employer may be individually liable for direct actions in violation of section 877 and is vicariously liable for a violation of section 877 by an employee of that employer.
2. Employer defense. If an alleged violation of section 877 does not result in an adverse employment action, it is an affirmative defense to liability under subsection 1 if the employer:
A. Exercised reasonable care to prevent and promptly correct any abusive conduct or abusive work environment; and
B. The complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.
§ 879. Employee liability and defense
1. Employee liability. An employee may be individually liable for a violation of section 877.
2. Employee defense. It is an affirmative defense for an employee if the employee violated section 877 at the direction of the employer under actual or implied threat of an adverse employment action.
§ 880. Affirmative defenses
1. Affirmative defenses. It is an affirmative defense to any action brought under this subchapter that:
A. The complaint is based on an adverse employment action reasonably made for poor performance, misconduct or economic necessity;
B. The complaint is based on a reasonable performance evaluation; or
C. The complaint is based on an employer's reasonable investigation about potentially illegal or unethical activity.
§ 880-A. Relief
1. Relief generally. If a person is found liable for a violation of this subchapter, the court may enjoin the defendant from engaging in any activity related to the violation and may order any other relief the court determines is appropriate, including, but not limited to, reinstatement of employment, removal of the offending party from the complainant's work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages and attorney's fees.
2. Limitations on employer liability. When an employer is liable for a violation of this subchapter that did not include an adverse employment action, emotional distress damages and punitive damages may be awarded only if the court finds the actionable conduct was extreme. This limitation does not apply to individually named employee defendants.
3. Aggravating factor. In any action brought under this subchapter, the court shall consider it to be an aggravating factor that the conduct constituting a violation of this subchapter exploited an employee's known psychological or physical illness or disability.
§ 880-B. Procedures
1. Private right of action. This subchapter may be enforced solely by a private right of action.
2. Time limitations. An action under this subchapter must be commenced no later than one year after the last act that constitutes a violation of this subchapter.
§ 880-C. Effect on other legal relationships
1. Collective bargaining. This subchapter does not supersede rights and obligations provided under collective bargaining laws, rules and regulations.
2. Nonlimitation of remedy. The remedies provided in this subchapter are in addition to any remedies provided under any other law, and nothing in this subchapter relieves any person from any liability, duty, penalty or punishment provided by any other law, except as provided by subsection 3.
3. Workers' compensation. If an employee receives workers' compensation benefits for medical costs for the same physical harm or psychological harm pursuant to both this subchapter and Title 39-A or compensation under both this subchapter and Title 39-A in cash payments for the same period of time of the employee's not working as a result of the compensable physical harm or psychological harm resulting from a violation of this subchapter, the court must order the payments of workers' compensation benefits to be reimbursed from compensation paid under this subchapter.
summary
This bill provides legal relief for employees who have been harmed psychologically, physically or economically by exposure to abusive work environments. Employees and employers who subject an employee to an abusive work environment are liable, and employers are vicariously liable for the abusive workplace conduct of their employees, in a private civil action brought by the affected employee. The legal remedies made available by this bill do not limit any other legal rights of an individual, except that workers' compensation benefits received under the Maine Revised Statutes, Title 39-A for the same injury or illness must be reimbursed from compensation that is earned through the legal remedies made available by this bill.