Volume 10, Issue 2
February 28, 2011
The 76th Regular Session of the Nevada Legislature began on February 7, 2011 with both the Assembly and the Senate still under Democrat control. In addition to having the unenviable task of addressing a projected revenue shortfall of between $1 billion to $3 billion, the Legislature must also work its way through over 250 pre-filed bills, including Assembly Bill No. 90 ("A.B. 90"). Submitted by Assemblyman Richard "Tick" Segerblom, a long-time Las Vegas plaintiff's employment lawyer turned legislator, A.B. 90 seeks to expand Nevada's employment anti-discrimination laws to create liability for bullying and the use of personal appearance standards in the workplace, as well as substantially increase the types of damages disgruntled individuals can recover against their employers. The current bill is substantially similar to a prior bill co-sponsored by Assemblyman Segerblom, A.B. 166, which died in committee during the 75th Regular Session in 2009.
In terms of its proposed anti-bullying restrictions, A.B. 90 would create liability for "abusive conduct in a work environment," which does not have to be related to any protected class, such as an individual's race, gender or disability. Rather, the bill defines "abusive conduct" as: "the conduct of an employer or employee occurring in the workplace which a reasonable person would find hostile, offensive and unrelated to the legitimate business interests of the employer, and which, unless especially egregious or severe, is directed at an employee on more than one occasion, including without limitation: (a) Repeated verbal abuse in the form of derogatory remarks, insults or epithets; (b) Verbal or physical conduct, which is threatening, intimidating or humiliating; and (c) The gratuitous sabotage or undermining of a person's work product." This type of anti-bullying legislation remains a hot topic in state legislatures across the nation. For information on the list of states taking up such "model workplace" legislation, see the Workplace Bullying Institute's Legislative Campaign.
The second part of A.B. 90 would limit employers' ability to enforce appearance policies. The bill seeks to make it unlawful for an employer to discriminate against an employee with respect to a "physical characteristic" of the employee, which includes any bodily condition or physical attribute of a person that is the result of birth, injury, disease or natural biological development, including without limitation: (a) Height; (b) Weight; and (c) Physical mannerisms beyond the control of a person. This type of legislation also remains a hot topic around the United States with some city governments and the District of Columbia having already adopted such laws.
Both of these proposed limitations on workplace bullying and appearance standards would be added to the same state employment anti-discrimination laws that already prohibit discrimination on the basis of race, sex, age, religion, national origin, sexual orientation and disability. In addition, the bill seeks to expand the remedies available under the state's employment anti-discrimination laws so they mirror those permitted under federal law, including emotional distress damages, punitive damages and the payment of the employee's attorney's fees. A.B. 90 would also authorize the Nevada Equal Rights Commission ("NERC") to issue a letter providing a person with a notice of their right to sue in court, even where NERC does not find that an unfair employment practice occurred.
This type of legislation should be alarming to all Nevada employers. While very few professionals would disagree that an abusive person in the workplace is not conducive to good morale or good business, it would be nearly impossible to determine when someone crosses the line and becomes a "bully" subjecting the employer to legal and financial liability. The impact such legislation would have on managers' ability to address poor performance and convey negative feedback would be debilitating, as would the cost of fighting out such issues in the courts.
Even without an express anti-bullying law, employees are already using, with some success, state tort causes of action like negligent and/or intentional inflection of emotional distress, assault, battery and defamation to address workplace disputes, all of which provide for punitive damages. As such, prudent employers already broadly interpret their codes of conduct, anti-harassment and anti-workplace violence policies to address abusive behavior in the workplace before it gets out of hand and leads to legal challenge.
For Nevada employers struggling to survive in this economy, the passage of A.B. 90 would mean additional regulatory burdens, increased legal challenges by disgruntled employees and higher human resources and legal costs.
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.