Enacts the "protection in the workplace act"; provides that injuries to employees as a result of the commission of a sexual offense shall entitle such employee to all rights and benefits available pursuant to the workers' compensation law and, in addition, shall permit such employee to pursue any other remedies available at law or in equity; clarifies that workers' compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A946
SPONSOR: Kellner TITLE OF BILL: An act to amend the workers' compensation law, in
relation to enacting the "protection in the workplace act"
PURPOSE OR GENERAL IDEA OF BILL: To clarify that the workers' compen-
sation law was never intended to bar employees suffering a personal
injury as a result of a sexual assault in the workplace from pursuing
legal action seeking damages from their employer.
SUMMARY OF SPECIFIC PROVISIONS: § 1 of the bill provides that this act
shall be known as the Protection in the Workplace Act.
§2 of the bill specifies a legislative intent that workers' compensation
was not intended to bar civil actions by employees suffering personal
injury as a result of a sexual assault by negligent acts or omissions of
their employer.
§3 of the bill provides that an employee suffering personal injury as a
consequence of a sexual offense due to the negligent acts or omissions
of an employer shall be entitled to all rights and benefits of the Work-
ers' Compensation law, and in addition may pursue any remedy available
for damages.
§4 of the bill provides that workers' compensation should be the exclu-
sive remedy except that workers' suffering a personal injury as a result
of a sexual offense should not be barred from civil action. However,
their workers' compensation carrier would be entitled to a lien on the
proceeds of any award in the amount of benefits paid.
§5 of the bill clarifies that workers' compensation should be the exclu-
sive remedy except when the employee suffers personal injury as a result
of a sexual offense.
JUSTIFICATION: Workplace violence is an increasingly prevalent occupa-
tional hazard, and it is a particularly acute problem for women in the
workforce. While workers' compensation should be available to those
injured by a sexual offense committed in the workplace, it should not be
the exclusive remedy, since there are sometimes egregious instances of
employer malfeasance and negligence in the workplace which tragically
lead to the workplace sexual assault or injury.
A recent report by the New York Committee for Occupational Safety and
Health reveals that violence in the workplace is a significant factor in
occupational death in New York City .and the state. It should be clear
that the workers' compensation law was never intended to be a shield in
such situations, and it is indeed unfortunate that an already victimized
employee should be forced to endure an employer's claim that a violent
and repeated sexual assault was a natural condition of her employment.
The purpose of this legislative initiative is to clarify the statute,
consistent with public policy while placing a clear prohibition on
double recovery. According to this bill, if the plaintiff successfully
sues, there would be an offset of that award for workers' compensation
benefits received.
The legislative intent of this amendment is based on several elementary
principles. The primary goal behind this legislation is to confirm that
the entire system of workers' compensation in our state has evolved to
protect employees from those accidents naturally associated with the
businesses' operation. Under New York law, sexual assault should not be
an act within the scope of employment, nor can it ever be construed as
in furtherance of an employer's business.
Accordingly, sexual assault should not be a per se work related injury.
As stated by Professor Larson, the noted workers' compensation scholar,
"there is no clearer example of non-industrial motive than rape." (1
Larson, Workmen's Compensation at 11.11 b). No employer therefore,
should be in a position of advising a woman that she should expect to be
sexually assaulted or abused at her place of employment, that in those
rare instances where she suffers this abuse, she should not be barred
from pursuing civil remedy for her damages. It should also be noted that
New York case law supports this remedy, since it does not apply a "posi-
tional risk" or "but for" standard when determining the compensability
of an injury. New York courts require that the injury be a direct and
natural risk of the job, and specifically, that the injury be suffered
I) while the worker is doing the duty she or he is employed to perform,
and 2) that it be a natural incident of the work.
The injury must be one of the risks connected with the employment, flow-
ing as a natural consequence and directly connected with the risk. (SEE
MATTER OF HERTZ V. RAPERED, 218 N.Y. 148, 151-52 (1916); CALIV V.
CONSOLIDATED RAILROAD COMPANY, 229 N.Y. 489, 494 (1920); MATTER OF
SCHOLZHAUER V. C.& L. LUNCH CO., 233 N.Y.2 (1922); PRYOR V. PRESBYTERI-
AN HOME FORAGED, 9 N.Y.2d 869,870 (1961).
New York State's case law provides that injury arises out of employment
when it has its origin in an employee's work related functions, and is
sufficiently related to the employment function as to be considered a
part of the employee's service to the employer in connection with the
contract of employment. As sexual assault or abuse are not inherent
risks in employment, it is well-founded to conclude that workers'
compensation was never intended to be a bar to civil causes of action.
The legislative incentive of our workers' compensation system to encour-
age a safe work place is lost if a negligent employer is allowed to use
this beneficent system as a shield from liability. Indeed for an
employer to claim that sexual assault is an expected or intended conse-
quence of employment results in the victim again being demeaned and
insulted through a rigid and uncaring system of multiple hearings and
insufficient medical treatment. It has been posted that since the work-
ers' compensation system was never intended to compensate victims of
sexual assault it cannot compensate a woman for a psychological or
emotional injury suffered from such a crime.
The existence of a noncompensable injury should be enough to abrogate
the exclusive remedy provisions of the Workers' Compensation Act. Of
course, this is why intentional torts are not a class of injuries
protected under the workers' compensation scheme. Where the damages
alleged are purely emotional in nature, the legislature never intended
the exclusivity provisions to bar a common law claim. Injuries due to
sexual assault are founded in humiliation, emotional distress, pain and
suffering and leave permanent yet invisible scars with a woman for the
rest of her life. That a workers' compensation award would merely cover
the injured employee's psychiatric bills is a sufficient basis for
granting a woman the right to file a tort claim against all responsible
parties for causing irreparable injury and damage to the plaintiff's
self-esteem, privacy and reputation.
The employer who creates an unsafe workplace due to negligent acts or
omissions should not be permitted to socialize this cost among the many
safe and responsible employers in our state; thus, it is other employers
and ultimately their customers as the public at large who ultimately pay
for such irresponsibility. As a deterrent and as public policy the
negligent employer should not be permitted to use workers' compensation
as a wall protecting their culpability where rape is the tragic conse-
quence.
It is also clear that the workers' compensation statute should be
applied in a manner consistent with our public policy to discourage and
prevent violence in the workplace -- this legislation provides a deter-
rent and an obligation while ensuring that no double enrichment takes
place. The sponsors of this legislation believe in the right of women
and indeed all workers to engage in their livelihood free from the
threat of sexual assault in the workplace. When that aspiration is
diminished, the legislature must respond and clearly enunciate that it
is our sense and understanding that any interpretation that would estab-
lish workers' compensation as the exclusive remedy in such circumstances
is incorrect as a matter of law.
PRIOR LEGISLATIVE HISTORY: A.838 of 2011-12; A.7767 of 2009-10
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
