Politicians in several states have been lobbying for years to make “bullying” in the workplace illegal. While Tennessee is the only state with such a law currently on its books, California took a step closer when Governor Brown signed AB 2053, which will require certain employers to provide “abusive conduct” training as a component of already mandatory sexual harassment prevention training for supervisory employees.

The existing requirement, found in Government Code section 12950.1, applies to employers with 50 or more employees and requires supervisory employees receive two hours of sexual harassment prevention training, within six (6) months following their assumption of a supervisory role. Follow up training is required every two years.

Here is what the amendment adds to Section 12950.1:

• Training must now include a component on the “prevention of abusive conduct.” This need not necessarily extend the length of the training beyond two hours.
• “Abusive conduct” is “conduct with malice that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”
• “Abusive conduct” may include repeated infliction of verbal abuse (e.g., 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.
• “Abusive conduct” need not be based on any otherwise protected classification, such as race, age, gender, disability or religion.
• A single act does not constitute “abusive conduct” for purposes of the training, unless it is especially severe or egregious.
• The amendment takes effect January 1, 2015.

What Employers Should Do – Employers with 50 or more employees should immediately consult with their regular employment attorneys to update training to comply with the new law.

I have a friend who is a BSD in the venture capital world.  I reached out to him a while back because I had read that one of the companies his firm was funding was about to undergo a significant expansion.  I asked my friend if he wouldn’t mind introducing me to the company’s general counsel, so I could get my foot in the door in helping the company establish a solid platform for management of employment issues which were bound to arise, given their imminent hiring.

To my surprise, my friend rebuffed me.  “To tell you the truth,” he said, “it’s really not something that’s on their radar at this point.”  I let it pass–there might have been a variety of reasons he didn’t want to make the introduction.  But, suppose he was telling me the truth, that he thought the general counsel of this emerging tech start-up really didn’t need to be thinking about who to use to prevent and, if necessary, deal with employee “issues.”

If he was telling the truth, I think he was mistaken.  This is particularly true given that the company was domiciled in California, unquestionably the most hostile legal environment in the world for employers.

Granted, I don’t think selecting employment counsel is on par with raising funds or gaining market share. If the company fails, there won’t be employees to make claims or file lawsuits.   On the other hand, meeting and potentially retaining a legal expert to review the company’s policies, draft or revise a handbook and perhaps conduct some training is neither time-consuming nor rocket science.  It is certainly not expensive.  Particularly if the ounce of prevention establishes, at the company’s early stages, a solid foundation which prevents even one otherwise avoidable employment lawsuit.

I have seen up close organizations that started and grew without a solid, systematic adherence to employment laws.  In each instance, I’ve become involved only after the company has been sued and we are trying to frame a defense.  At that point, the company’s management invariably recognizes its shortcomings and vows to do better going forward.  Unfortunately, this only happens after the company is forced to spend tens of thousands (or more) in settlement and defense costs.

It is not unusual for small employers to look to their “business” counsel for guidance on complying with employment issues.  This is the lawyer that drafted their articles of incorporation or negotiated a lease.  However, it is more common for this to occur only after there has been a claim or suit.  Before that time, my friend is right, it’s literally “not on their radar.”

I’m partial to the idea of working with a lawyer that concentrates his or her practice on employment defense, rather than a business generalist.  There are lawyers who do nothing but employment advice and counseling, which is who I–a litigator–will look to if I’m confronted with a particularly unusual question.  The problem for the commercial lawyer in advising on employment issues is the rapidly changing nature of employment laws.  An additional problem arises when the claim goes further, and ripens into an administrative complaint with the Equal Employment Opportunity Commission (EEOC), California’s Department of Fair Employment and Housing (DFEH) or similar agency, or if there is a civil lawsuit filed.  While the company’s business lawyer might be a wizard at negotiating a complex lease, he or she might struggle when conducting a deposition, drafting a solid motion for summary judgment or representing the company in front of a jury.

I have all the respect in the world for entrepreneurs.  And I expect there are a thousand and one issues and headaches to successfully navigate without having another lawyer stick his or her nose into how the company runs its business.  But the last survey I saw said that the average verdict or award in employment lawsuits where the employer lost was over $400,000 (and this was a few years ago).  I’d argue that it’s never too early to put retaining an employment lawyer “on the radar.”