California

CALIFORNIA AB 2053 & ABUSIVE CONDUCT

California’s AB 1825 requires employers with 50 or more employees and independent contractors to provide interactive sexual harassment prevention training to all California supervisors. A law that went into effect on January 1, 2015, adds to the mandatory subjects that must be covered in AB 1825 training – a discussion of “prevention of abusive conduct” must be included. The new law, AB 2053, 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.

Does AB 2053 require employers to stop abusive conduct?

No… but…

AB 2053 actually does not require anything other than sexual harassment trainers discuss prevention of 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.

But, the definition of abusive conduct in AB 2053 leaves employers in an interesting predicament. For example, “malice” is included in the definition, which means that sexual harassment trainers will want to talk about acting with professionalism instead of impulse, and perhaps discuss how to work through heightened emotions. Many targets of abusive conduct certainly believe their abuser was acting maliciously, so anything an employer can do to nip that in the bud is paramount.

The definition of AB 2053 also includes “gratuitous sabotage or undermining of a person’s work performance.” For sexual harassment trainers, that means a discussion of tough boss versus bully is in order. For employers, that means a review of the performance management process and any associated forms is definitely in order, as well as training for managers and supervisors on proper performance management, workflow management and goals setting. HR should also be open to receiving complaints about sabotage, unmanageable workloads, and the withholding of pertinent information. That is, HR should not just assume a person making a complaint about sabotage is really just a poor performer – AB 2053 recognizes that’s not always the case.

In the end, AB 2053 doesn’t actually require employers to stop abusive conduct but a smart employer will pay attention to the definition of abusive conduct and put processes in place to ensure abusive conduct isn’t happening among their workforce.

Really the law says all a trainer has to do is mention preventing abusive conduct, and then you’re done. Right? Not exactly.

Picture this. Your supervisors and managers attend their mandatory training, the trainer mentions abusive conduct, and a few of the managers and supervisors start thinking to themselves, “Abusive conduct is happening among my employees,” or, “Finally! We’re talking about equal-opportunity harassment! I am soooo heading to HR after this training is over to tell them that abusive conduct is definitely happening to me.”

Are you really going to tell people the law doesn’t require you to address their complaints about abusive conduct?

A smart employer knows better than that. You are going to need a policy in place to help you address those complaints. You are going to need measures in place to ensure performance evaluations aren’t being used as a form of sabotage. You are going to need more training to put a stop to abusive conduct once you find out it’s happening in your workplace. And if abusive conduct is indeed rampant in your organization, you might even need a culture shift.

So what does AB 2053 REALLY mean for employers?

It means employers are required to do much more than ensure their AB 1825 sexual harassment trainer mentions prevention of abusive conduct. It means employers have a list of things to do – and we’re here to help you do them. Visit our services page for more information on how we can help.

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