a rebuttal that you can see here

Issue
1
Commissioners Letter Opposing HB 591 April 2013
HB 591 would result in unwarranted and
unlimited liability to the State by creating a
new and unique cause of action.
Employees Rebuttal
False. HB 591 is warranted and would require state supervisors
to promote a work environment free from abusive conduct.
Per 1002.04 (b) (9) allows a supervisor to issue a written
warning for: “Disruptive, disorderly or disrespectful conduct in
the workplace, including the use of insulting, abusive or obscene
language or gestures.”
False. HB 591 gives department heads authority to develop
policy and procedures to investigate complaints of abusive
conduct which presently do not exist.
2
HB 591 takes authority away from department
heads.
3
HB 591 does not provide DOL or PELRB with
additional resources to manage additional
workload which could reasonably be
anticipated
If the commissioners believe an additional workload “could
reasonably be anticipated”, HB 591 is much needed! Also, the
DOL primarily budgets for its operations through restricted
funds rather than through the general fund.(RSA 273:1-a). The
revised HB 591 removes the PELRB from the discussion.
4
HB 591 presupposes state employees are
without adequate process and remedies to
address on the job disputes.
State employees DO LACK adequate process and timely
remedies to address on the job disputes. The State Personnel
Rules contain numerous examples of how to discipline an
employee, but no guidance about how an employee may lodge a
complaint against another employee or employees whose
behavior causes an abusive workplace.
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5
State Personnel Rules provide “wide latitude”
to department heads and employees to seek
remedy for workplace issues. Employees may
seek informal settlement of a conflict
concerning application of the Personnel Rules.
The State Personnel Rules offers examples supervisors may use
to discipline employees, but does not provide a clear path
whereby employees may seek formal or informal protection from
abusive conduct whether it comes from fellow employees or a
supervisor.
6
Department heads can discipline employees for
“untoward” on the job conduct.
True. Although department heads may discipline employees for
abusive conduct in the workplace; abusive conduct continues to
occur as witnesses have repeatedly testified.
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Many state agencies have policies that
supplement the personnel rules to address
workplace conduct involving processes and
remedies unique to that agency. All of these
policies are reviewed by the director of division
of personnel.
Several federal and state laws protect
employees against adverse conduct:
If there is a state agency which has a workplace policy
prohibiting abusive conduct in the workplace, it should be
brought to the legislature and perhaps considered as a template
for other state agencies to use.
RSA 275-E, Whistleblower Protection Act
RSA 275-E:2, Whistleblower Protection Act, prohibits an
employer for harassing an employee for “reporting the violation
of a law or rule” but does not prohibit or provide protection
from the abusive conduct as defined in HB 591. Attached.
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RSA 98-E, Public Employee Freedom of
Expression
RSA 354-A, NH Commission for Human
Rights
The HB 591 definition of “abusive conduct” is NOT addressed
by the following laws.
RSA 98-E, Public Employee Freedom of Expression. Section
98-E:1, Freedom of Expression, states: “Notwithstanding any
other rule or order to the contrary, a person employed as a public
employee in any capacity shall have a full right to publicly
discuss and give opinions as an individual on all matters
concerning any government entity and its policies.”
2
This RSA does not discuss how an employee may report or
seek protection from abusive conduct in the workplace.
See Attachment.
RSA 354-A. State Commission for Human Rights. This RSA is
known as the "Law Against Discrimination.''. The Human
Rights Commission was created with power ( but few resources)
”to eliminate and prevent discrimination in employment, in
places of public accommodation and in housing accommodations
because of age, sex, race, creed, color, marital status, familial
status, physical or mental disability or national origin as herein
provided; and …no person be discriminated against on account
of sexual orientation. This RSA does not discuss how an
employee may report or seek protection from abusive
conduct in the workplace. See Attachment.
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pg 3
HB 591 would add a new cause of action for
“abusive conduct” in the workplace.
False. HB 591 is warranted and would require state supervisors
to promote a work environment free from abusive conduct.
“In addition to being redundant to the personnel
rules and existing administrative processes, as
written the bill creates a new and unique cause
of action which would arise if an employee
toward whom conduct was directed
subjectively feels intimidated, degraded, or
humiliated.”
Per 1002.04 (b) (9) allows a supervisor to issue a written
warning for: “Disruptive, disorderly or disrespectful conduct in
the workplace, including the use of insulting, abusive or obscene
language or gestures.”
Abusive conduct exists in state government. There are no laws
or statewide policies which clearly prohibit employees from
verbally or physically abusing coworkers. HB 591, amended,
removes subjectivity from the definition of abusive conduct.
The definition is no less descriptive than the definition of
“bullying” passed by the NH legislature in 2010 with RSA 1933
F, Pupil Safety and Violence Protection. See attachment.
Section 193-F:3 defines "bullying'' as a single significant
incident or a pattern of incidents involving a written, verbal, or
electronic communication, or a physical act or gesture, or any
combination thereof, directed at another pupil which:
(1) Physically harms a pupil or damages the pupil's
property;
(2) Causes emotional distress to a pupil;
(3) Interferes with a pupil's educational opportunities;
(4) Creates a hostile educational environment; or
(5) Substantially disrupts the orderly operation of the
school.
Unfortunately, bullying does not end when students leave high
school. Just as teachers and principals could not stop bullying in
their schools without help, state employees cannot stop abusive
conduct in the workplace without help.
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“Any employee who subjectively believes that
someone is taking some kind of action against
them can claim a cause of action even if there
is no intent on the part of the other party to
intimidate, degrade or humiliate…Thus an
employee who may be supervised, evaluated,
or directed to perform work they do not want to
do, would have a cause of action based solely
on their subjective feelings.”
Under HB 591, each state agency would be required to establish
a policy and procedure explaining how an employee would
report abusive conduct in the workplace and how that report
would be investigated. The investigation would show whether
the report was legitimate through a review of pertinent
documents and interviews with people in the workplace.
Employee complaints regarding abusive conduct in the
workplace would not be any more subjective than complaints of
sexual harassment.
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11
HB 591 does not clearly require an employee to An amended version of HB 59 corrects this.
bring their concerns to their supervisor or their
supervisor’s supervisor should they have a
workplace concern.
12
It does not require an employee to seek a
remedy by contacting the hiring authority in the
agency they work for (ie. their Commissioner
or department head). Instead, HB 591 requires
each employer to have a policy allowing an
unhappy employee to file a complaint with the
DOL to have their concerns addressed, but
there are no requirements mandating prior
administrative exhaustion.
False. Under HB 591, each state agency would be required to
establish a policy and procedure explaining how an employee
would report abusive conduct in the workplace and how that
report would be investigated by that agency. An internal
investigation would be the first step. The DOL is listed in the
bill to hear appeals.
There is no requirement to make a formal
complaint in a reasonable and timely fashion.
An amended version of HB 59 corrects this.
13
As passed by the House, HB 591 Section VIII requires each
agency policy to include: “.A requirement for all documentation
regarding the initial claim and all follow up investigations be
provided to the commissioner of labor, or the public employees
labor relations board as appropriate for appealed cases.”
Obviously, the hope is that any complaints will be resolved at
the agency.
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Pg 3
HB 591 does not define “tangible harm” which
leaves the employer open to unwarranted and
potentially unlimited liability.
An amended version of HB 59 corrects this.
15
HB 591 requires a “complaint in the ordinary
course to be appealed to the DOL, but if a DOL
employee files a complaint, that matter is
appealed to the Public Employees’ Labor
Relations Board. That board addresses
collective bargaining disputes and does not
have the jurisdiction or expertise in the matters
contemplated here.”
An amended version of HB 59 corrects this. DOL employees
seeking an appeal will be allowed to bring their complaint to the
Director of Personnel who will assign two investigators from an
agency other than the DOL to investigate and submit a report to
the Director and the complainant(s).
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Pg 3
The bill should require a fiscal note, as there
would be substantial expenses to both the DOL
and PELRB to handle such appeals, just as
there would be substantiated additional
expenses, legal fees and potential civil
judgments for agencies receiving the initial
complaints.”
False. If the agency policies are well crafted and employees
receive appropriate and timely training regarding the prohibition
of abusive conduct in the workplace, the number of complaints
should not be substantial. Just as the number of sexual
harassment complaints have declined with a statewide policy, it
is expected that abusive conduct will also decline. (Of course,
there is no central location where sexual harassment complaints
are tracked.)
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Pg 4
“This legislation is not likely to improve the
workplace or provide a reasonable remedy to
any employee who “subjectively” believes he
or she has been subjected to ‘abusive
conduct’.”
Completely false. Just as the legislature saw the need for an RSA
prohibiting bullying in public schools, the House has already
voted unanimously that such a law is needed to protect NH state
employees.
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Pg 5
“The best approach to address those matters is
to promote a culture of dignity and respect. By
providing an employee with the expectation
that they can simply wait to bring their
complaints to an unrelated agency erodes the
commissioners’ and department heads’ ability
to foster a good working relationship between
and among state employees.”
No comment.
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