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A04965 Summary:

BILL NO    A04965 

SAME AS    SAME AS S03863

SPONSOR    Englebright (MS)

COSPNSR    Colton, 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

MLTSPNSR   Arroyo, 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:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         4965

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   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    S 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    S 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    S  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    S 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    S  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    S 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    S  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    S 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    S  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    S 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    S  2.  This  act  shall  take  effect  immediately, and shall apply to
   30  abusive conduct occurring on or after such date.
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