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A04965 Summary:

BILL NOA04965
 
SAME ASSAME AS S03863
 
SPONSOREnglebright (MS)
 
COSPNSRColton, Gunther, Millman, Lavine, Jaffee, Schimel, Kellner, Rosenthal, Rivera, Robinson, Pretlow, Weprin, Lupardo, Moya, Abbate, Roberts, Benedetto, Titone, Miller, Ortiz, Dinowitz, Hevesi, Russell, Goldfeder, Jacobs, Wright, Mosley, Borelli, Skoufis, Peoples-Stokes, Steck, Mayer, Aubry
 
MLTSPNSRArroyo, Brennan, Brindisi, Camara, Ceretto, Clark, Cook, Crespo, Curran, Cusick, Cymbrowitz, Davila, Duprey, Fahy, Galef, Giglio, Goodell, Gottfried, Hooper, Johns, Katz, Lentol, Lifton, Lupinacci, Magee, Malliotakis, Markey, McDonald, McDonough, McKevitt, McLaughlin, Montesano, Nojay, O'Donnell, Paulin, Perry, Ra, Raia, Ramos, Rodriguez, Saladino, Scarborough, Sepulveda, Skartados, Solages, Stec, Sweeney, Tedisco, Thiele, Titus, Weisenberg
 
Add Art 20-D SS760 - 769, Lab L
 
Establishes a civil cause of action for employees who are subjected to an abusive work environment.
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A04965 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4965
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 13, 2013
                                       ___________
 
        Introduced  by  M.  of A. ENGLEBRIGHT, COLTON, GUNTHER, MILLMAN, LAVINE,
          JAFFEE,  GABRYSZAK,  SCHIMEL,  KELLNER,  ROSENTHAL,  BOYLAND,  CASTRO,
          RIVERA,  ROBINSON,  PRETLOW, WEPRIN, LUPARDO, STEVENSON, MOYA, ABBATE,
          GIBSON, ROBERTS, BENEDETTO, TITONE, MILLER, MAISEL,  ORTIZ,  DINOWITZ,
          HEVESI,  RUSSELL, GOLDFEDER, JACOBS, WRIGHT, BARRON -- Multi-Sponsored

          by -- M. of A. ARROYO, BRENNAN, BRINDISI, CERETTO, CLARK, COOK,  CRES-
          PO,  CURRAN,  CUSICK,  CYMBROWITZ,  DUPREY, GALEF, GOODELL, GOTTFRIED,
          HOOPER, JOHNS, KATZ, LENTOL, LIFTON,  LOSQUADRO,  MAGEE,  MALLIOTAKIS,
          MARKEY,  McDONOUGH, McKEVITT, MONTESANO, O'DONNELL, PAULIN, PERRY, RA,
          RAIA,  RAMOS,  RODRIGUEZ,  SALADINO,  SCARBOROUGH,  SWEENEY,  TEDISCO,
          THIELE,  TITUS,  WEISENBERG -- read once and referred to the Committee
          on Labor
 
        AN ACT to amend the labor law, in relation to establishing healthy work-
          places
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  labor law is amended by adding a new article 20-D to
     2  read as follows:
     3                                 ARTICLE 20-D
     4                             HEALTHY WORKPLACES

     5  Section 760. Legislative findings and intent.
     6          761. Definitions.
     7          762. Abusive work environment.
     8          763. Employer liability.
     9          764. Employee liability.
    10          765. Affirmative defenses.
    11          766. Remedies.
    12          767. Enforcement.
    13          768. Effect on collective bargaining agreements.
    14          769. Effect of other laws.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07506-02-3

        A. 4965                             2
 

     1    § 760. Legislative findings and intent. The legislature  hereby  finds
     2  that  the  social and economic well-being of the state is dependent upon
     3  healthy and productive employees. At least one-third  of  all  employees
     4  directly  experience  health  endangering  workplace bullying, abuse and
     5  harassment  during  their  working lives.   Such form of mistreatment is
     6  four times more prevalent  than  sexual  harassment  alone.    Workplace
     7  bullying,  mobbing and harassment can inflict serious harm upon targeted
     8  employees, including feelings of shame and humiliation, severe  anxiety,
     9  depression,  suicidal tendencies, impaired immune systems, hypertension,
    10  increased risk of cardiovascular disease, and symptoms  consistent  with

    11  post-traumatic stress disorder.
    12    Furthermore,  the legislature finds that abusive work environments can
    13  have serious consequences  for  employers,  including  reduced  employee
    14  productivity  and  morale,  higher  turnover  and absenteeism rates, and
    15  significant increases in medical and workers' compensation claims.
    16    The legislature hereby finds that if  mistreated  employees  who  have
    17  been  subjected  to  abusive treatment in the workplace cannot establish
    18  that the behavior was motivated by race, color, sex, sexual orientation,
    19  national origin or age, such employees are unlikely to be  protected  by
    20  the law against such mistreatment.
    21    The  legislature  hereby  declares  that legal protection from abusive

    22  work environments should not  be  limited  to  behavior  grounded  in  a
    23  protected  class  status  as required by employment discrimination stat-
    24  utes. Existing workers' compensation provisions and common law tort  law
    25  are  inadequate  to  discourage such mistreatment or to provide adequate
    26  redress to employees who have been harmed by abusive work environments.
    27    The purpose of this article shall be  to  provide  legal  redress  for
    28  employees  who  have  been harmed psychologically, physically or econom-
    29  ically by deliberate exposure  to  abusive  work  environments;  and  to
    30  provide legal incentives for employers to prevent and respond to abusive
    31  mistreatment of employees at work.

    32    § 761. Definitions. As used in this article, the following terms shall
    33  have the following meanings:
    34    1. "Abusive conduct" means acts, omissions, or both, that a reasonable
    35  person  would find abusive, based on the severity, nature, and frequency
    36  of the conduct, including, but not limited  to:  repeated  verbal  abuse
    37  such  as  the  use of derogatory remarks, insults, and epithets; verbal,
    38  non-verbal, or physical  conduct  of  a  threatening,  intimidating,  or
    39  humiliating nature; or the sabotage or undermining of an employee's work
    40  performance. It shall be considered an aggravating factor if the conduct
    41  exploited an employee's known psychological or physical illness or disa-

    42  bility.  A single act normally shall not constitute abusive conduct, but
    43  an especially severe and egregious act may meet this standard.
    44    2. "Abusive work environment" means an employment  condition  when  an
    45  employer  or  one  or more of its employees, acting with intent to cause
    46  pain or distress to an  employee,  subjects  that  employee  to  abusive
    47  conduct that causes physical harm, psychological harm or both.
    48    3.  "Adverse  employment  action"  means  an  outcome which negatively
    49  impacts an employee, including,  but  not  limited  to,  a  termination,
    50  demotion,  unfavorable  reassignment,  failure  to promote, disciplinary
    51  action or reduction in compensation.
    52    4. "Constructive discharge" means an adverse employment action where:

    53    (a) the employee reasonably believed he or she  was  subjected  to  an
    54  abusive work environment;
    55    (b) the employee resigned because of that conduct; and

        A. 4965                             3
 
     1    (c)  the employer was aware of the abusive conduct prior to the resig-
     2  nation and failed to stop it.
     3    5.  "Physical harm" means the impairment of a person's physical health
     4  or bodily integrity, as established by competent evidence.
     5    6. "Psychological harm" means the  impairment  of  a  person's  mental
     6  health, as established by competent evidence.
     7    §  762. Abusive work environment. 1. No employee shall be subjected to
     8  an abusive work environment.

     9    2. No employer or employee shall retaliate in any  manner  against  an
    10  employee  who  has  opposed  any unlawful employment practice under this
    11  article, or who has made a charge, testified, assisted, or  participated
    12  in  any  manner  in  an  investigation or proceeding under this article,
    13  including, but not limited  to,  internal  complaints  and  proceedings,
    14  arbitration and mediation proceedings and legal actions.
    15    § 763. Employer liability.  1. An employer shall be vicariously liable
    16  for  a  violation  of  section  seven  hundred sixty-two of this article
    17  committed by its employee.
    18    2. Where the alleged violation of such section  does  not  include  an
    19  adverse  employment  action,  it  shall be an affirmative defense for an

    20  employer only that:
    21    (a) the employer exercised reasonable  care  to  prevent  and  correct
    22  promptly any actionable behavior; and
    23    (b)  the complainant employee unreasonably failed to take advantage of
    24  appropriate preventive  or  corrective  opportunities  provided  by  the
    25  employer.
    26    §  764.  Employee liability. 1. An employee may be individually liable
    27  for a violation of section seven hundred sixty-two of this article.
    28    2. It shall be an affirmative defense for an employee  only  that  the
    29  employee  committed  a violation of such section at the direction of the
    30  employer, under actual  or  implied  threat  of  an  adverse  employment
    31  action.

    32    § 765. Affirmative defenses. It shall be an affirmative defense that:
    33    1.  the  complaint is based on an adverse employment action reasonably
    34  made for poor performance, misconduct or economic necessity;
    35    2. the complaint is based on a reasonable performance evaluation; or
    36    3. the complaint is based on an  employer's  reasonable  investigation
    37  about potentially illegal or unethical activity.
    38    §  766.  Remedies.  1.  Where  a defendant has been found liable for a
    39  violation of section seven hundred sixty-two of this article, the  court
    40  may enjoin such defendant from engaging in the unlawful employment prac-
    41  tice  and  may order any other relief that is deemed appropriate includ-

    42  ing, but not limited to, reinstatement, removal of the  offending  party
    43  from  the  plaintiff's  work  environment, reimbursement for lost wages,
    44  front pay,  medical  expenses,  compensation  for  pain  and  suffering,
    45  compensation for emotional distress, punitive damages and attorney fees.
    46    2.  Where  an  employer  is  liable  for  a violation of section seven
    47  hundred sixty-two of this  article  that  did  not  include  an  adverse
    48  employment  action,  emotional distress damages and punitive damages may
    49  be awarded only when the actionable conduct was extreme and  outrageous.
    50  This  limitation  does  not apply to individually named employee defend-
    51  ants.
    52    § 767. Enforcement. 1. The provisions of this article are  enforceable

    53  solely  by  means  of  a  civil  cause of action commenced by an injured
    54  employee.

        A. 4965                             4
 
     1    2.   An action to enforce the provisions  of  this  article  shall  be
     2  commenced  within  one year of the last act that constitutes the alleged
     3  violation of section seven hundred sixty-two of this article.
     4    §  768. Effect on collective bargaining agreements. This article shall
     5  not prevent, interfere, exempt or supersede any current provisions of an
     6  employee's  existing  collective  bargaining  agreement  which  provides
     7  greater rights and protections than prescribed in this article nor shall
     8  this  article  prevent  any  new provisions of the collective bargaining

     9  agreement which provide greater rights and protections from being imple-
    10  mented and applicable to such employee within such collective bargaining
    11  agreement. Where the collective bargaining  agreement  provides  greater
    12  rights  and  protections than prescribed in this article, the recognized
    13  collective bargaining agent may opt to accept or reject to be covered by
    14  the provisions of this article.
    15    § 769. Effect of other laws. 1. No provision of this article shall  be
    16  deemed to exempt any person or entity from any liability, duty or penal-
    17  ty provided by any other state law, rule or regulation.
    18    2.  The  remedies provided in this article shall be in addition to any
    19  remedies provided under any other provision of law, and nothing in  this

    20  article  shall  relieve  any person from any liability, duty, penalty or
    21  punishment provided by any other provision of law,  except  that  if  an
    22  employee  receives  workers' compensation for medical costs for the same
    23  injury or illness pursuant to both this article and the workers' compen-
    24  sation law, or compensation under both this article and such law in cash
    25  payments for the same period of time not working  as  a  result  of  the
    26  compensable  injury  or illness or the unlawful employment practice, the
    27  payments of workers' compensation shall be reimbursed from damages  paid
    28  under this article.
    29    §  2.  This  act  shall  take  effect  immediately, and shall apply to
    30  abusive conduct occurring on or after such date.
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