There is a developing school of thought that improvements in public school education will become better as soon as government begins to identify and implement strategies to change the management model that governs those institutions. The following is an attempt that was sent out to California State legislators in July 2006 while they were working on Assembly Bill 1381, the law that will define how the Mayor of Los Angeles will become involved to help govern public schools. Below is an addendum that was written to be attached on AB 1381 in order to stress the importance of the elected leaders to include "PROFESSIONAL ETHICS" among public school educators as key to correcting systemic problems. In short, teachers and other credentialed support staff need to be empowered so they could help correct unprofessional  practices that undermine education to children (k-12). Also, the internal auditing division within the Los Angeles Unified School District would be strengthened through the passing of this law, making it more convenient to conduct audits without interference.

The "Healthy Educators" Addendum to AB 1381

A MODEL ACT TO PROVIDE SYSTEMIC REDRESS FOR CALIFORNIA EDUCATORS AGAINST WORKPLACE BULLYING, ABUSE, AND HARASSMENT WITHOUT REGARD TO PROTECTED CLASS STATUS

Derived from "The Phenomenon of 'Workplace Bullying' and the Need for Status-Blind Hostile Work Environment Protection," Georgetown Law Journal  (March) 2000, Vol. 88, No. 3, pp. 475-536.

Authored by Luis South, M.A/PPS utilizing the same format from an original workplace ethics bill written by David C. Yamada, J.D. Professor of Law, Suffolk University Law School Boston, MA

Primary Research support by Dr. Lani Guinier (Harvard University), Gerald Torres (University of Texas) coauthors of The Miners Canary: Enlisting Race, Resisting Power, Transforming Democracy, and Gary Namie, Ph.D. co-founder of The Workplace Bullying & Trauma Institute

Existing law makes it an unlawful employment practice for an employer, including any person acting directly or indirectly as an agent of the employer, to harass any employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. 

The passing of this bill would make it an unlawful employment practice to subject an L.A.U.S.D teacher or support personnel, holding a valid California State credential through California Department of Education, to an abusive work environment, as defined, and would specify that a school district is vicariously liable for a violation committed by any administrator functioning in a supervisory capacity. The bill would also make it an unlawful employment practice to retaliate against a credentialed educator because of the fact that the employee has opposed an unlawful employment practice under the bill or has made a charge, testified, assisted, or participated in an investigation or proceeding under the bill. This bill specifies that it is enforceable solely by the findings of the school district’s inspector general, would authorize injunctive relief and would limit an employer's liability for verifiable state funding that was misappropriated, effectively resulting in the underperformance of the overall education process at a specific school site, especially where it can be deemed students were not provided the most effective services intended by the funding in question. The bill would provide that a complaining employee may elect to file a complaint through this bill or the employee's workers' compensation remedy, but may not accept workers' compensation and bring an action under this bill for the same underlying behavior. A complainant educator, under the bill, could recover loss of wages up to $10,000 due to an ongoing abuse of administrators power over a period not to exceed one year retroactive from the date of first documenting an existing problem to the target administrator.

TIMED REPORTING. Past the initial written complaint from the employee to the target administrator, the clock continues to account for the total time expired even if the resolution process is interrupted by system-wide vacation time.

SECTION I -- FINDINGS AND PURPOSES

LEGISLATIVE FINDINGS

The Legislature finds and declares all of the following:

(1) The social and economic well-being of the state is dependent upon healthy and productive educators and the students who are being educated and influenced by them. This bill is intended to further strengthen professional ethics within Los Angeles Unified School District for the express purpose that this will inculcate values important to the overall economic welfare of this, the Golden State.

(2) Surveys and studies have documented that between 16 percent and 21 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and that this behavior is three to four times more prevalent than sexual harassment alone.

(3) Surveys and studies have documented that abusive work environments can have serious effects on teachers and support services, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, post-traumatic stress disorder, reduced immunity to infection, stress-related gastrointestinal disorders, hypertension, pathophysiologic changes that increase the risk of cardiovascular diseases.

(4) Surveys and studies have documented that abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and significant increases in medical and workers' compensation claims.

(5) Unless mistreated employees have been subjected to abusive treatment at work on the basis of race, color, sex, national origin, or age, they are unlikely to have recourse to redress such treatment.

(6) Federally legislated protection from abusive work environments may not be sufficient to halt the dysfunction existing within Los Angeles Unified School District because it has been essential to prove there has been a violation of at least one member of the protected groups and to further prove the violation was committed by someone not of any protected class.

(7) Existing workers' compensation plans and common-law tort actions are inadequate to discourage this behavior or provide adequate redress to educators who have been harmed by abusive work environments. As important, is the reality that abusive behavior within the school setting works against the education of children.

B. LEGISLATIVE PURPOSE

It is therefore the intent of the Legislature in enacting this part:

(1) To provide a systemic redress for California public school teachers and support services who have been harmed, psychologically, physically, or economically by being deliberately subjected to abusive work environments.

(2) To provide systemic incentive for public school administrators to prevent and respond to mistreatment of employees at work.

SECTION 2 -- DEFINITIONS

(a) "Abusive conduct" is conduct of a school district administrator with malice, that a reasonable person would find hostile, offensive, and unrelated to a school district’s legitimate business interests. In considering whether abusive conduct is present, a trier of fact should weigh the severity, nature, and frequency of the conduct. Abusive conduct may include, but is not limited to, 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. A single act normally will not constitute abusive conduct, unless especially severe and egregious. Indirect or permissive conduct where others are allowed to perform bullying tactics as mentioned above is as actionable as if the administrator, having been informed and/or reasonably knowledgeable, committed the acts themselves.

(b) "Abusive work environment" is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee or can be deemed as undermining the education or support services to students.

(c) "Conduct" is all forms of behavior, including acts and omissions of acts.

(d) "Constructive discharge" is (1) abusive conduct, (2) which causes the undermining of a state funded school program and, (3) where, prior to resigning, the employee brings to the employer's attention the existence of the abusive conduct, and (4) the employer fails to take reasonable steps to eliminate the abusive conduct.

(e) "Employee" for the purposes of this addendum to AB 1381 is any professional with a California Department of Education credential to perform as teacher or support personnel who is employed by Los Angeles Unified School District, whereby the individual's labor is defined and controlled by L.A.U.S.D.

(f) "Employer" includes the school district and all administrators working in a supervisory capacity from the central district and/or the school site in question.

(g) "Malice" is the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice may be inferred from the presence of factors such as, outward expressions of hostility, harmful conduct inconsistent with a public school's legitimate business interests, a continuation of harmful illegitimate conduct after the complainant requests that it cease.

(h) "Negative employment decision" is a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action.

(i) "Physical threat" are existing circumstances documented by a reporting educator and supported by the inspector general’s investigation.

(j) "Psychological harm" are existing circumstances documented by a reporting educator and supported by the inspector general’s investigation.

 SECTION 3 -- UNLAWFUL EMPLOYMENT PRACTICE

It is an unlawful and/or unethical employment practice under this part to subject a credentialed L.A.U.S.D employee to an abusive work environment.

SECTION 4 – SCHOOL DISTRICT LIABILITY

LOS ANGELES UNIFIED SCHOOL DISTRICT is vicariously liable for an unlawful/unethical employment practice in violation of this part committed by all supervising administrators.

SECTION 5 -- DEFENSES

 A. It is an affirmative defense to an action for an abusive work environment that the administrator exercised reasonable care to prevent and promptly correct the abusive conduct and the reporting employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when the abusive conduct culminates in a negative employment decision.

 B. It is an affirmative defense to an action for an abusive work environment if the complaint is grounded primarily upon a negative employment decision made consistent with a school district's legitimate business interests, such as a termination or demotion based on an employee's poor performance, or the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.

 SECTION 6 -- RETALIATION

It is an unlawful employment practice under this part to retaliate in any manner against an employee because he or she has opposed any unethical/unlawful employment practice under this part, or because he or she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including, but not limited to, internal resolution processes that may include arbitration and mediation proceedings.

 SECTION 7 -- RELIEF

Relief generally. Where a defendant (administrator) has been found to have committed an unlawful employment practice under this part, the L.A.U.S.D Board may enjoin the cited administrator from engaging in unlawful employment practices and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement of the reporting educator, possible removal of the offending administrator(s) and others from the complainant's work environment, possible removal of the offending administrators and others from the school district, and correcting back pay earned by the reporting educator. To be clear, none of the following are included to be a part of this addendum: 1) medical expenses or 2) compensation for emotional distress or 3) punitive damages.

Administrator liability. Where an administrator or a group of colluding administrators have been found to have committed an unlawful employment practice under this part that did not result in a negative employment decision, the school district may seek refund up to the amount of funding that was misappropriated and otherwise unrecoverable. This consideration is to be applied in cases where the inspector general’s investigation has determined that there are grounds substantiating unprofessional fiscal practices.

SECTION 8 -- PROCEDURES

Pursuant to the L.A.U.S.D. Board ruling. This part may be enforced solely by a result of the L.A.U.S.D Inspector General’s Office.

 Time limitations. An action commenced under this part may begin no later than one year after an employee has written the initial complaint that comprises the alleged unlawful employment practice.

SECTION 9 -- EFFECT ON OTHER STATE LAWS

Other state laws. Nothing in this part may be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any other law of this state.

Workers' compensation and election of remedies. The remedies in this part are in addition to remedies under workers' compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this part may elect to accept workers' compensation benefits in connection with the underlying behavior inlieu of bringing an action under this part. A person who elects to accept workers' compensation may not bring an action under this part for the same underlying behavior.

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