AB 1825 currently requires employers with 50 or more employees/independent contractors to provide interactive sexual harassment prevention training to all California supervisors. A brand new law, AB 2053 goes into effect on January 1, 2015. It adds to the mandatory subjects that must be covered in AB 1825 training – a discussion of “abusive conduct” must be included. The new law defines “abusive conduct” 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. [It] 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.” It also specifies that a single act will not constitute abusive conduct unless it is especially severe or egregious.
Are abusive conduct and workplace bullying the same thing?
The definition of abusive conduct in AB 2053 aligns with other definitions of workplace bullying in other proposed laws. In addition, when I do trainings on workplace bullying I offer three different “buckets” of bullying behavior: aggressive communication, humiliation and manipulation. Needless to say I was pleased to see those three items in the definition of abusive conduct used in AB 2053.
However, the definition of abusive conduct in AB 2053 does not match the definitions often used in academic research. Academic research on workplace bullying has found bullying isn’t malicious. In fact it has found that most often bullies don’t realize just how terrible their behavior is until someone points it out to them in a way they understand. Often workplace bullies know they are perceived as mean or harsh, but they think their style is for the greater good until someone can get through to them and explain otherwise.
Not to mention, maliciousness of the behavior doesn’t matter. The bill analysis, located here, describes what I mean (and interestingly, uses workplace bullying and abusive conduct interchangeably):
Writing in support of the measure, the San Diego Chapter of the American Society of Training & Development and the National Workplace Bullying Coalition, are also suggesting a revision to the language of the bill, suggesting that the word “malice” be removed from the definition of “abusive conduct” arguing that it is not possible to determine the prevalence of intentional behavior, and because intention doesn’t matter – they argue, if one individual finds another’s behavior hostile or offensive, it should be stopped whether the behavior was intended or not.
Does AB 2053 stop workplace bullying?
AB 2053 does not require anything other than sexual harassment trainers mention abusive conduct in their trainings. It doesn’t mention the amount of time that should be allocated to abusive conduct over the course of the mandatory two-hours, what kind of training materials are required, or what exactly a trainer should be discussing as it relates to abusive conduct.
Thus the legislation seemed like an easy, low cost to implement, law. In fact Lorena Gonzalez’s office asked me to provide an example of PowerPoint slides that a sexual harassment trainer might include in their AB 1825 training to cover the new AB 2053 material. They wanted to pass them around the Assembly to show that all it takes is a few minutes to add in some information – no major cost for a trainer, thus no major costs passed on to employers who pay the trainers.
But, according to a really great article I found here, including malice in the definition of abusive conduct offers some guidance to sexual harassment trainers and employers, in that trainers should advise supervisors not to act impulsively, and perhaps even provide tools for working through heightened emotions. The article also suggests that supervisors be educated on how to handle peer-to-peer bullying.
The article goes on to say that the definition’s inclusion of “gratuitous sabotage or undermining of a person’s work performance” means that training should also include the difference between being a tough boss and bullying. Here’s an example of the differences:
Bullying managers and supervisors often use performance evaluations as a tool to bully, citing poor performance when there really isn’t any. This counts as “undermining a person’s work performance” so HR is going to have to ensure their performance evaluations are on point and not leaving room for abusive conduct.
In the end, if a trainer mentions abusive conduct and provides examples of what abusive conduct might look like, and there are attendees feeling like they are the target of those behaviors, the attendees’ next stop is HR’s office to file a complaint. AB 2053 doesn’t require employers to have a policy or grievance procedure in place to address abusive conduct complaints, but responsible employers will have one in anticipation of receiving them. Further, I’m not an attorney, but it seems that if an employer has a training where abusive conduct is discussed, receives a complaint about abusive conduct, and then does nothing about it, it would make winning a legal case against the employer a little easier.
In other words, AB 2053 seems to corner employers into addressing abusive conduct, AKA workplace bullying. “Brilliant!” I say.
So what does AB 2053 mean for employers and sexual harassment trainers?
Employers, if your sexual harassment training is mentioning a behavior you don’t have the processes in place to handle, you could get caught “with your pants down” as you receive complaints you don’t know what to do with. And if your trainer is not addressing the topic in the right ways, you may not be in full compliance with AB 1825 or AB 2053.
Sexual harassment prevention trainers, if you don’t know much about abusive conduct or the potential repercussions for the organization you are training for, you could get caught “with your pants down” if 1) you don’t incorporate principles of preventing abusive conduct or 2) you incorporate them but you don’t know the answers to questions that your clients and training attendees will undoubtedly ask.
A colleague and I are going to do a webinar to help employers and sexual harassment trainers learn more about addressing AB 2053. Learn more information and register here.