Employees Rebuttal. 2 HB 591 takes authority away from department heads.

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1 Issue Commissioners Letter Opposing HB April HB 591 would result in unwarranted and unlimited liability to the State by creating a new and unique cause of action. 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 4 HB 591 presupposes state employees are without adequate process and remedies to address on the job disputes. Employees Rebuttal False. HB 591 is warranted and would require state supervisors to promote a work environment free from abusive conduct. Per (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. 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. 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. 1

2 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. 6 Department heads can discipline employees for untoward on the job conduct. 7 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. 8 Several federal and state laws protect employees against adverse conduct: RSA 275-E, Whistleblower Protection Act RSA 98-E, Public Employee Freedom of Expression RSA 354-A, NH Commission for Human Rights 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. True. Although department heads may discipline employees for abusive conduct in the workplace; abusive conduct continues to occur as witnesses have repeatedly testified. 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. The HB 591 definition of abusive conduct is NOT addressed by the following laws. 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. 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

3 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. 9 pg 3 HB 591 would add a new cause of action for abusive conduct in the workplace. 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. False. HB 591 is warranted and would require state supervisors to promote a work environment free from abusive conduct. Per (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 193-3

4 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. 10 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. 4

5 11 HB 591 does not clearly require an employee to bring their concerns to their supervisor or their supervisor s supervisor should they have a workplace concern. An amended version of HB 59 corrects this. 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. 13 There is no requirement to make a formal complaint in a reasonable and timely fashion. 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. 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. An amended version of HB 59 corrects this. 5

6 14 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). 16 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.) 6

7 17 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. 18 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. 7