New Hampshire Governor Maggie Hassan has vetoed legislation (House Bill 591) that would have provided protections against workplace bullying for state employees. In a veto message explaining the reasons for her decision, Gov. Hassan outlined her concerns about the legislation’s overly broad coverage, suggesting that if it became law, relatively minor interpersonal slights and everyday workplace interactions could easily be labeled as illegal employment practices.
Most significantly, Gov. Hassan criticized the bill’s definition of “abusive conduct” (i.e., workplace bullying):
Among its most onerous provisions, this legislation defines “abusive conduct” in a broad and unworkable manner based on an individual employee’s subjective perception, not on an unbiased objective standard. While I know it was not the intent of its sponsors, this bill, as written, may make the most routine workplace interactions – and the human give-and-take they entail – potential causes of action.
I share many of the Governor’s core concerns. At first glance the New Hampshire bill contains a lot of language similar to the Healthy Workplace Bill (HWB), model anti-bullying legislation I drafted that has served as a template for workplace anti-bullying bills filed across the country. However, the NH bill is substantially different in its structure, substantive provisions, and operation from the HWB in ways that could create a torrent of unnecessary litigation.
Gov. Hassan’s main concern highlights a key distinction between the vetoed New Hampshire bill and the full Healthy Workplace Bill: Under the HWB, in order to establish a legally actionable “abusive work environment,” the employee must show that the “reasonable person” would perceive it to be abusive. In other words, the “unbiased objective standard” (in Gov. Hassan’s words) missing from the New Hampshire bill is a core piece of the Healthy Workplace Bill.
The definition of an “abusive work environment” in the template version of the Healthy Workplace Bill draws heavily from the U.S. Supreme Court’s definition of hostile work environment for sexual harassment under Title VII of the Civil Rights Act of 1964. The HWB has been crafted to be compatible with other workplace protections and to incentivize preventive and responsive employer behaviors toward workplace bullying.
I know there is disappointment and disagreement over this matter in the state capital. While I firmly believe that the HWB approach is the better legislative option, I also tip my hat to the Granite State for now being among the leaders in weighing how to protect workers from this form of interpersonal abuse.
For the latest version of the Healthy Workplace Bill and an explanation of its key provisions, as well as discussion and analysis of other legal and policy developments concerning workplace bullying, see my 2013 article, “Emerging American Legal Responses to Workplace Bullying,” in the Temple Political & Civil Rights Law Review (link to pdf here).