Enrolled Copy H.B. 12
1 ABUSIVE CONDUCT REPORTING AMENDMENTS
2 2020 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Keven J. Stratton
5 Senate Sponsor: Daniel W. Thatcher
6
7 LONG TITLE
8 General Description:
9 This bill addresses abusive conduct among employees in state government.
10 Highlighted Provisions:
11 This bill:
12 < defines terms;
13 < expands the type of state employees who may file a complaint of abusive conduct;
14 < requires an abusive conduct investigation in relation to an abusive conduct
15 complaint;
16 < requires an administrative review process for an abusive conduct complaint;
17 < requires the Department of Human Resource Management (department) and other
18 state government employers to provide certain training relating to abusive conduct;
19 < requires certain employers to annually report to the department on implementation,
20 numbers, and outcomes of abusive conduct complaints;
21 < requires the department to annually report to the Economic Development and
22 Workforce Services Interim Committee regarding implementation and
23 recommendations concerning the provisions of this bill;
24 < requires the judicial branch and an employer within the Utah System of Higher
25 Education to provide training to their employees regarding abusive conduct, and to
26 create a policy for reporting and resolving abusive conduct, among their employees;
27 and
28 < makes technical and conforming changes.
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29 Money Appropriated in this Bill:
30 None
31 Other Special Clauses:
32 This bill provides a special effective date.
33 Utah Code Sections Affected:
34 AMENDS:
35 67-19a-101, as last amended by Laws of Utah 2018, Chapter 390
36 67-19a-102, as enacted by Laws of Utah 2018, Chapter 390
37 67-19a-202, as last amended by Laws of Utah 2018, Chapter 390
38 67-19a-501, as enacted by Laws of Utah 2018, Chapter 390
39 ENACTS:
40 67-26-101, Utah Code Annotated 1953
41 67-26-102, Utah Code Annotated 1953
42 67-26-103, Utah Code Annotated 1953
43 67-26-201, Utah Code Annotated 1953
44 67-26-202, Utah Code Annotated 1953
45 67-26-203, Utah Code Annotated 1953
46 RENUMBERS AND AMENDS:
47 67-26-301, (Renumbered from 67-19-44, as last amended by Laws of Utah 2018,
48 Chapter 390)
49
50 Be it enacted by the Legislature of the state of Utah:
51 Section 1. Section 67-19a-101 is amended to read:
52 67-19a-101. Definitions.
53 As used in this chapter:
54 (1) "Abusive conduct" means the same as that term is defined in Section [67-19-44]
55 67-26-102.
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56 (2) "Administrator" means the person appointed under Section 67-19a-201 to head the
57 Career Service Review Office.
58 (3) "Career service employee" means a person employed in career service as defined in
59 Section 67-19-3.
60 (4) "Department" means the Department of Human Resource Management.
61 (5) "Employer" means the state of Utah and all supervisory personnel vested with the
62 authority to implement and administer the policies of an agency.
63 (6) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
64 to discover evidence that, through due diligence, could not have been discovered in time to
65 meet the applicable time period, misrepresentation or misconduct by the employer, or any other
66 reason justifying equitable relief.
67 (7) "Grievance" means:
68 (a) a complaint by a career service employee concerning any matter touching upon the
69 relationship between the employee and the employer;
70 (b) any dispute between a career service employee and the employer;
71 (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
72 action against the reporting employee; and
73 (d) a complaint that the employer subjected the employee to conditions that a
74 reasonable person would consider intolerable, including abusive conduct.
75 (8) "Office" means the Career Service Review Office created under Section
76 67-19a-201.
77 (9) "Public entity" means the same as that term is defined in Section 67-21-2.
78 (10) "Reporting employee" means an employee of a public entity who alleges that the
79 public entity engaged in retaliatory action against the employee.
80 (11) "Retaliatory action" means to do any of the following to an employee in violation
81 of Section 67-21-3:
82 (a) dismiss the employee;
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83 (b) reduce the employee's compensation;
84 (c) fail to increase the employee's compensation by an amount that the employee is
85 otherwise entitled to or was promised;
86 (d) fail to promote the employee if the employee would have otherwise been promoted;
87 or
88 (e) threaten to take an action described in Subsections (11)(a) through (d).
89 (12) "Supervisor" means the person:
90 (a) to whom an employee reports; or
91 (b) who assigns and oversees an employee's work.
92 Section 2. Section 67-19a-102 is amended to read:
93 67-19a-102. Work environment policy.
94 As recognized and provided in Section [67-19-44] 67-26-201, it is the policy of the
95 state of Utah to provide and maintain a work environment free from abusive conduct.
96 Section 3. Section 67-19a-202 is amended to read:
97 67-19a-202. Powers -- Scope of authority.
98 (1) The office shall serve as the final administrative body to review a grievance from a
99 career service employee and an agency of a decision regarding:
100 (a) a dismissal;
101 (b) a demotion;
102 (c) a suspension;
103 (d) a reduction in force;
104 (e) a dispute concerning abandonment of position;
105 (f) a wage grievance if an employee is not placed within the salary range of the
106 employee's current position;
107 (g) a violation of a rule adopted under Chapter 19, Utah State Personnel Management
108 Act; or
109 (h) except as provided by Subsection (4), equitable administration of the following
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110 benefits:
111 (i) long-term disability insurance;
112 (ii) medical insurance;
113 (iii) dental insurance;
114 (iv) post-retirement health insurance;
115 (v) post-retirement life insurance;
116 (vi) life insurance;
117 (vii) defined contribution retirement;
118 (viii) defined benefit retirement; and
119 (ix) a leave benefit.
120 (2) The office shall serve as the final administrative body to review a grievance by a
121 reporting employee alleging retaliatory action.
122 (3) The office shall serve as the final administrative body to review, without an
123 evidentiary hearing, the findings of an abusive conduct investigation [without an evidentiary
124 hearing] described in Section 67-26-202 of a state executive branch agency employee.
125 (4) The office may not review or take action on:
126 (a) a personnel matter not listed in Subsections (1) through (3);
127 (b) a personnel matter listed in Subsections (1) through (3) that alleges discrimination
128 or retaliation related to a claim of discrimination that is a violation of a state or federal law for
129 which review and action by the office is preempted by state or federal law; or
130 (c) a personnel matter related to a claim for which an administrative review process is
131 provided by statute and administered by:
132 (i) the Utah State Retirement Systems under Title 49, Utah State Retirement and
133 Insurance Benefit Act;
134 (ii) the Public Employees' Benefit and Insurance Program under Title 49, Chapter 20,
135 Public Employees' Benefit and Insurance Program Act; or
136 (iii) the Public Employees' Long-Term Disability Program under Title 49, Chapter 21,
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137 Public Employees' Long-Term Disability Act.
138 (5) The time limits established in this chapter supersede the procedural time limits
139 established in Title 63G, Chapter 4, Administrative Procedures Act.
140 Section 4. Section 67-19a-501 is amended to read:
141 67-19a-501. Procedural steps to be followed in an administrative review of an
142 abusive conduct investigation.
143 (1) An employee of a state executive branch agency, as defined in Section 67-26-102,
144 may, under Subsection 67-19a-202(3), initiate an administrative review of the findings of an
145 abusive conduct investigation within 10 days after the day on which the employee receives
146 notification of the investigative findings.
147 (2) (a) An employee bringing an administrative review of the findings described in
148 Subsection (1) may file the request for the administrative review directly with the office.
149 (b) The request for administrative review may [set forth] describe the reasons for the
150 [appeal] administrative review and include any submissions the employee desires to submit.
151 (3) (a) When an employee initiates the review described in Subsection (2) with the
152 office:
153 (i) the role of the administrative review is to review and rule upon the [department's]
154 findings [and decision] of the abusive conduct investigation; and
155 (ii) an evidentiary hearing is not required.
156 (b) The department shall make the abusive conduct investigative file available for the
157 [administrator's] office's in camera review.
158 (c) The [administrator] office may:
159 (i) request additional relevant documents from the department or the affected
160 employee; and
161 (ii) interview the employee who initiated the administrative review and the
162 [department's] investigators who conducted the investigation.
163 [(4) (a) If the administrator determines that the investigator's findings are not
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164 reasonable, rational, and sufficiently supported by the record, the administrator may overturn
165 the findings and remand to the agency for appropriate action.]
166 [(b) The administrator may uphold the department's investigative findings if, based on
167 the administrative review, the administrator determines that the investigator's findings are
168 reasonable, rational, and sufficiently supported by the record.]
169 (4) (a) The office may overturn the findings of the abusive conduct investigation if the
170 office determines that:
171 (i) the findings are not reasonable, rational, or sufficiently supported by the evidence;
172 or
173 (ii) the facts on which the findings are based are inaccurate.
174 (b) The office may uphold the findings of the abusive conduct investigation if the
175 office determines that:
176 (i) the findings are reasonable, rational, and sufficiently supported by the evidence; and
177 (ii) the facts on which the findings are based are accurate.
178 (5) (a) Within 30 days after the day on which an employee initiates an administrative
179 review under this section, the [administrator] office shall issue a notice stating whether the
180 [administrator] office upheld or overturned the investigative findings.
181 (b) The office's determination upon administrative review of the findings resulting
182 from an abusive conduct investigation is final and not subject to appeal.
183 (c) The following are classified as protected under Title 63G, Chapter 2, Government
184 Records Access and Management Act, and any other applicable confidentiality provisions:
185 (i) the request for administrative review and any accompanying documents;
186 (ii) documents that any party provides;
187 (iii) the contents of the administrative review file; and
188 (iv) the office's determination.
189 Section 5. Section 67-26-101 is enacted to read:
190 CHAPTER 26. UTAH PUBLIC EMPLOYEES HEALTHY WORKPLACE ACT
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191 Part 1. General Provisions
192 67-26-101. Title.
193 This chapter is known as the "Utah Public Employees Healthy Workplace Act."
194 Section 6. Section 67-26-102 is enacted to read:
195 67-26-102. Definitions.
196 As used in this chapter:
197 (1) (a) "Abusive conduct" means verbal, nonverbal, or physical conduct of an
198 employee to another employee of the same employer that, based on the severity, nature, or
199 frequency of the conduct, a reasonable person would determine:
200 (i) is intended to cause intimidation, humiliation, or unwarranted distress;
201 (ii) results in substantial physical harm or substantial psychological harm as a result of
202 intimidation, humiliation, or unwarranted distress; or
203 (iii) exploits an employee's known physical or psychological disability.
204 (b) "Abusive conduct" does not mean a single act unless the act is an especially severe
205 and egregious act that meets the standard described in Subsection (1)(a)(i), (ii), or (iii).
206 (2) "Abusive conduct complaint process" means the process described in Section
207 67-26-202.
208 (3) "Administrative review process" means a process that allows an employee, in
209 relation to the findings of an abusive conduct investigation, to seek an administrative review
210 that:
211 (a) an employer conducts in accordance with Section 67-26-202; or
212 (b) in relation to a state executive branch agency, the office conducts in accordance
213 with Section 67-19a-501.
214 (4) "Department" means the Department of Human Resource Management.
215 (5) (a) "Employee" means an employee of an employer.
216 (b) "Employee" includes an elected or appointed official of an employer.
217 (6) "Employer" means:
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218 (a) a state executive branch agency; or
219 (b) an independent entity, as defined in Section 63E-1-102.
220 (7) "Office" means the Career Service Review Office created under Section
221 67-19a-201.
222 (8) "Physical harm" means the impairment of an individual's physical health or bodily
223 integrity, as established by competent evidence.
224 (9) "Psychological harm" means the impairment of an individual's mental health, as
225 established by competent evidence.
226 (10) (a) "State executive branch agency" means a department, division, office, bureau,
227 or other organization within the state executive branch.
228 (b) "State executive branch agency" includes an agency under the authority of the
229 governor, lieutenant governor, state treasurer, state auditor, or attorney general.
230 (c) "State executive branch agency" does not include the Utah System of Higher
231 Education or an independent entity, as defined in Section 63E-1-102.
232 Section 7. Section 67-26-103 is enacted to read:
233 67-26-103. Effect of chapter.
234 This chapter does not:
235 (1) exempt or relieve a person from a liability, duty, or penalty provided by another
236 federal or state law;
237 (2) create a private right of action;
238 (3) expand or diminish rights or remedies available to a person before July 1, 2020; or
239 (4) expand or diminish grounds for discipline that existed before July 1, 2020.
240 Section 8. Section 67-26-201 is enacted to read:
241 Part 2. Abusive Conduct
242 67-26-201. State policy on abusive conduct.
243 It is the policy of the state to provide and maintain a work environment free from
244 abusive conduct.
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245 Section 9. Section 67-26-202 is enacted to read:
246 67-26-202. Abusive conduct complaint, investigation, administrative review
247 process.
248 (1) An employee may file a written complaint of abusive conduct with the human
249 resources department of the employee's employer if the complaint is against an employee of the
250 sa