Healthy workplace.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0100

HOUSE BILL
NO.
HB0262

Healthy w
orkplace.

Sponsored by:
Representative(s) Zwonitzer, Dn.

A BILL

for

AN ACT relating to labor and employment; providing for a civil action for unlawful employment practices as specified; establishing affirmative defenses; providing a statement of intent; providing definitions; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 27
‑
15
‑
101 through 27
‑
15
‑
108 are created to read:

CHAPTER 15
HEALTHY WORKPLACE ACT

27
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15
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101.

Short title; statement of intent.

(a)

This act may be cited as the "Wyoming Healthy Workplace Act.
"

(b
)

It is the purpose of this act:

(i)

To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work;

(ii)

To provide legal relief for employees who have been harmed psychologically, physically or economically by being subjected to abusive work environments.

27
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15
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102.

Definitions.

(a)

As used in this act:

(i)

"Abusive conduct" means conduct including acts, omissions or both that a reasonable person would find hostile based on the severity, nature and frequency of the conduct. "Abusive conduct" may include, without limitation:

(A)

Repeated verbal abuse including derogatory remarks, insults or epithets;

(B)

Verbal or physical conduct of a threatening, intimidating or humiliating nature;

(C)

The sabotage or undermining of an employee's work performance;

(D)

Exploiting or attempting to exploit an employee's known psychological or physical vulnerability.

(ii)

"Abusive work environment" means that a person is subject to abusive conduct at a place of work and the abusive conduct causes tangible harm to the employee;

(iii)

"Adverse employment action" includes, without limitation, termination, demotion, unfavorable reassignment, failure to promote, disciplinary action or reduction in compensation;

(iv)

"Constructive discharge" means that an employee reasonably believed he was subject to abusive conduct, the employee resigned employment because of the abusive conduct and the employee notified the employer of the abusive conduct prior to resigning and the employer failed to take reasonable steps to correct the conduct;

(v)

"Malice" means the desire to cause pain, injury or distress to another;

(vi)

"Tangible harm" means:

(A)

Psychological harm through the material impairment of a person's mental health, as established through competent evidence; or

(B)

Physical harm through the material impairment of a person's physical health or bodily integrity as established through competent evidence.

(vii)

"This act" means W.S. 27
‑
15
‑
101 through 27
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15
‑
10
8
.

27
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15
‑
103.

Unlawful employment practices.

(a)

Subjecting an employee to an abusive work environment shall be considered an unlawful employment practice under this act.

(b)

Retaliation against an employee who has opposed an unlawful employment practice under this act or who has made a charge pursuant to this act or testified, assisted or participated in any manner in an investigation or proceeding under this act shall be considered an unlawful employment practice under this act.

27
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15
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104.

Employer liability; defense.

(a)

An employer shall be vicariously liable for any unlawful employment p
ractice under this act committed
by its employee.

(b)

If the unlawful employment practice did not include an adverse employment action, it shall be an affirmative defense to liability under subsection (a) of this section that:

(i)

The employer exercised reasonable care to prevent and promptly corrected any abusive conduct; or

(ii)

The complainant employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.

27
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15
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105.

Employee liability; defense.

(a)

An employee may be held individually liable for an unlawful employment practice under this act.

(b)

It shall be an affirmative defense to liability under subsection (a) of this section that the employee committed an unlawful employment practice under this act at the direction of the employer under threat of adverse employment action.

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15
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106.

Affirmative defenses.

(a)

It shall be an affirmative defense to liability for an unlawful employment practice under this act that:

(i)

The complaint is based on an adverse employment action reasonably made for poor performance, misconduct or economic necessity;

(ii)

The complaint is based on a reasonable performance evaluation; or

(iii)

The complaint is based on a defendant's reasonable investigation into illegal or unethical activity.

27
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15
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107.

Relief.

(a)

If a defendant is found to have committed an unlawful employment practice under this
act
, a court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that the court deems appropriate including, without limitation, reinstatement, removal of the offending party from the complainant's work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages and attorney's fees.

(b)

If an employer is found to have committed an unlawful employment practice that did not result in an adverse employment action against the complainant, the employer's liability for damages and emotional distress shall not exceed twenty-five thousand dollars ($25,000.00). This subsection shall not apply to individually named employee defendants.

(c)

Except as provided in subsection (d) of this section, the provisions of this act shall be in addition to any other provision of law. Nothing in this act shall relieve any person from criminal or civil liability or any duty, penalty or punishment provided by any other law.

(d)

Notwithstanding subsection (c) of this section, if an employee receives worker's compensation benefits for medical costs and receives relief under this act for the same injury or illness for the same time period, the worker's compensation payments shall be re
paid
from any relief paid through a civil action brought under this act.

27
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15
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108.

Civil action; limitations.

(a)

This act shall be enforced solely through a civil action.

(b)

A civil action brought pursuant to this act shall be commenced not later than one (1) year after the last act that constitutes an unlawful employment practice under this act.

Section 2.

W.S. 27
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14
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511 is amended to read:

27
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14
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511.

Recovery of benefits paid by mistake or fraud
; repayment of benefits
.

(a)

The attorney general may bring a civil action to recover the value of any benefits or other monies paid under this act due to mistake, misrepresentation or fraud. The attorney general shall be entitled to recover the costs of suit and reasonable attorney fees in cases of misrepresentation or fraud. Nothing in this section shall prohibit a criminal prosecution where appropriate. Any civil action for recovery of overpayment resulting from a mistake by the division shall be commenced within one (1) year after the alleged overpayment and shall be limited to recovery of those mistaken payments made within twelve (12) months before the commencement of the action.

(b)

As provided in W.S. 27
‑
15
‑
107(d) an employee shall repay any benefits received under this act to the extent that the employee received relief under the
Wyoming
Healthy Workplace Act for the same injury or
illness
for the same time period. The repayment shall be made not less than sixty (60) days after relief is received under the
Wyoming
Healthy Workplace Act.
The attorney general may bring a civil action to recover the value of any benefits or other monies
which are not repaid as required under this subsection.
Any civil action for recovery of
benefits which are not repaid under this
sub
section
shall be commenced within one (1) year after
the expiration of the sixty (60) day period provided under this subsection.

Section 3
.

This act is effective July 1, 2011.

(END)

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HB0262