Current law. Under current law, worker's compensation is generally the
exclusive remedy of an employee against his or her employer, a coemployee, or the
employer's worker's compensation insurer for an injury sustained while performing
services growing out of and incidental to employment.

Civil action for abusive work environment. This bill provides an exception
to that exclusive remedy provision. Under this bill, an employee who alleges that he
or she has been injured by being subjected to an abusive work environment or by
being subjected to retaliation or a threat of retaliation for opposing an abusive work
environment or for initiating, or in any manner participating in, an investigation,
action, or proceeding to enforce the right not to be subjected to an abusive work
environment (collectively "unlawful employment practice") may bring an action in
circuit court against the employer or employee who allegedly engaged in the
unlawful employment practice for such relief as the court may consider appropriate.
The aggrieved employee must commence an action within one year after the last act
constituting the unlawful employment practice occurred.

Relief. If the circuit court finds that an employer or employee has engaged in
an unlawful employment practice, the court may enjoin the employer or employee

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from engaging in that practice and may grant such other relief as the court may
consider appropriate, including reinstatement of the aggrieved employee, removal
from the aggrieved employee's work area of the person who engaged in the abusive
conduct, medical expenses, back pay, front pay, compensation for pain and suffering,
compensation for emotional distress, punitive damages, and reasonable costs and
attorney fees. If the circuit court orders payment of money because of an unlawful
employment practice engaged in by an employee, the employer of the employee is
liable for that payment. If an employer is found to have engaged in an unlawful
employment practice that did not result in an adverse employment action against the
aggrieved employee, the employer is not liable for compensation for emotional
distress or punitive damages unless the abusive conduct was extreme and
outrageous.

Affirmative defenses. The bill allows an employer or employee against whom
an aggrieved employee brings an action for an unlawful employment practice to
plead affirmative defenses as follows:

1. If the alleged unlawful employment practice did not result in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that a) the employer exercised reasonable care to prevent and
promptly correct the abusive conduct that was the basis for the aggrieved employee's
cause of action; and b) the aggrieved employee unreasonably failed to take advantage
of appropriate preventive or corrective opportunities the employer provided to
prevent or correct that abusive conduct.

2. If the alleged unlawful employment practice resulted in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that the aggrieved employee's complaint is based on a) an
adverse employment action that was reasonably taken for poor performance,
misconduct, or economic necessity; b) an adverse employment action that was taken
in response to a reasonable performance evaluation; or c) a reasonable investigation
of a potentially illegal or unethical activity.

3. An employee who is alleged to have engaged in an unlawful employment
practice may plead as an affirmative defense that the employee engaged in that
practice at the direction of the employer under an actual or implied threat of an
adverse employment action against the employee for not engaging in that practice.

Double recovery prohibited. The bill requires the court to reduce the amount
awarded for medical expenses, back pay, or front pay in an action for an unlawful
employment practice by the amount of medical expenses or disability benefits that
the employer's worker's compensation insurer, the employer, if self-insured, or the
Department of Workforce Development (DWD), if the employer is uninsured, has
paid or is obligated to pay under the worker's compensation law for an injury arising
out of the same underlying behavior as the behavior giving rise to the unlawful
employment practice and to order the employer to reimburse the insurer or DWD for
the amount of the medical expenses or disability benefits that the insurer or DWD
has paid or is obligated to pay under the worker's compensation law or for the amount
awarded in the action for medical expenses, back pay, or front pay, whichever is less.

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Similarly, the bill provides that, if the aggrieved employee recovers medical
expenses, back pay, or front pay in an action for an unlawful employment practice
arising out of the same underlying behavior as the behavior giving rise to an injury
that is compensable under the worker's compensation law, the amount payable for
medical expenses or disability benefits under the worker's compensation law for that
injury is reduced by the amount recovered for medical expenses, back pay, or front
pay under the unlawful employment practice action.

Definitions. For purposes of the bill:

1. "Abusive work environment" means a work environment in which an
employer or one or more of its employees, acting with intent to cause pain or distress
to an employee, subjects that employee to abusive conduct that causes physical harm
or psychological harm to that employee.

2. "Abusive conduct" means conduct, including acts or omissions, by an
employer or employee, that a reasonable person would find to be abusive based on
the severity, nature, and frequency of the conduct. "Abusive conduct" includes
repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct that is threatening, intimidating, or
humiliating; sabotage or undermining of an employee's work performance; or, as an
aggravating factor, exploitation of an employee's known psychological or physical
illness or disability. "Abusive conduct," however, does not include a single act unless
that act is especially severe or egregious.

3. "Adverse employment action" means an action taken by an employer with
respect to an employee that has the effect of a penalty, including dismissal or
suspension from employment, demotion, denial of a promotion, unfavorable transfer
or reassignment, reduction in compensation, or denial of increased compensation.
"Adverse employment action" also includes a situation in which an employee resigns
from employment because the employee reasonably believes that he or she was
subjected to an abusive work environment and, prior to the employee resigning, the
employer was aware of the abusive conduct that gave rise to the abusive work
environment and the employer failed to stop it.