“Hey, go get me a cup of coffee,” can legally be labeled as abusive conduct if the behavior occurs more than once. On the other hand, if it is expressed in the form of a question or only occurs one time, the abusive conduct classification is invalid. Effective January 1, 2015, AB. 2053 amends California mandatory AB 1825 requiring employers subject to the sexual harassment training requirement to extend the training to include “prevention of abusive conduct, or bullying” as part of the training. JacksonLewis, Carly, B. Plaskin, summarizes key points employers should know.
AB 2053 went into effect on January 1, 2015, thereby requiring that California employers with 50 or more employees provide training on the “prevention of abusive conduct” along with the sexual harassment training already required by law.
“Abusive conduct” is defined under California Government Code section 12950.1(g)(2) as the “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.” For example, abusive conduct “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.” Notably, there is no requirement that the abusive conduct be tied to a protected characteristic.
Proponents in support of AB 2053 argued that abusive work environments are a “growing epidemic throughout the nation.” They believe such circumstances lead to low morale, reduced productivity, absenteeism, turnover, and an increase in medical and workers’ compensation claims. By implementing training and education on abusive conduct, legislators hope to prevent workplace bullying before it starts. Further, because harassment and abusive conduct frequently occur “hand in hand,” the bill, according to its proponents, simply incorporates abusive conduct prevention into the already mandated sexual harassment training.
At present, there are no requirements setting forth what portion of the sexual harassment training must be dedicated to abusive conduct. Moreover, the law currently does not create a private right of action for abusive conduct unless such behavior is based on a protected category. Nevertheless, employers are legally mandated to provide anti-bullying training and should carefully review and revise their sexual harassment curriculum to include materials on the prevention of abusive conduct.