NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1322
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the penal law, in relation to crimes involving the death
or serious physical injury of an employee; and to amend a chapter of the
laws of 2022 amending the penal law relating to crimes involving the
death or injury of a worker, as proposed in legislative bills numbers S.
621-B and A. 4947-B, in relation to the effectiveness thereof
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to amend Chapter 746 of the Laws of 2022 to
effectuate the intent of the law.
SUMMARY OF PROVISIONS:
Section 1 defines "employee" for the purpose of penal law sections 20.20
and 60.27.
Section 2 makes some clarifying edits to make clear the injuries
discussed resulted in the death or serious physical injury of an employ-
ee; and that the corporation acted negligently, recklessly, inten-
tionally, or knowingly.
Section 3 makes similar conforming changes with regards to "serious
physical injuries" and "an employee".
Section 4 amends the fines to remove the mandatory minimum, while making
the maximum fine no more than five hundred thousand dollars (when
centered around a felony) and no more than three hundred thousand
dollars (when centered around a misdemeanor).
Section 5 amends the effective date of the original bill, so that it
will take effect in ninety days, rather than in thirty days.
Section 6 establishes the effective date.
JUSTIFICATION:
Workplace deaths and serious injuries continue to be commonplace in the
construction industry. Of the more than 400,000 workplace fatalities
since Congress, enacted the Occupational Safety and Health Act (OSHA),
fewer than 80 have been prosecuted, and only about a dozen employers
have been convicted. That is roughly one conviction for every 33,000
fatalities. In the few cases that have resulted in conviction, the
penalty was only $1,000 on average. Under OSHA, the criminal penalty is
considered a class B misdemeanor, which carries, at most, up to six
months imprisonment. The weakness of OSHA's punitive measures has there-
fore, failed to encourage safer work environments.
This bill makes technical edits to a chapter of the laws of 2022 to
ensure that corporations and their agents who ignore or fail to follow
safety protocols and procedures and put employees at risk are less like-
ly to write off serious workplace injuries as a minimal cost of doing
business, and more likely to give workplace safety the serious attention
it requires.
PRIOR LEGISLATIVE HISTORY:
New bill
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Immediately, provided that sections one, two, three and four shall take
effect on the same date and in the same manner as a chapter of the laws
of 2022 amending the penal law relating to crimes involving the death or
injury of a worker, as proposed in legislative bills numbers S.621-B and
A.4947-B, takes effect.
STATE OF NEW YORK
________________________________________________________________________
1322
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. BICHOTTE HERMELYN -- read once and referred to
the Committee on Codes
AN ACT to amend the penal law, in relation to crimes involving the death
or serious physical injury of an employee; and to amend a chapter of
the laws of 2022 amending the penal law relating to crimes involving
the death or injury of a worker, as proposed in legislative bills
numbers S. 621-B and A. 4947-B, in relation to the effectiveness
thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 10.00 of the penal law is amended by adding a new
2 subdivision 22 to read as follows:
3 22. For the purposes of section 20.20 of this part and section 60.27
4 of this chapter, the term "employee" shall mean any person providing
5 labor or services for remuneration for a private entity or business
6 within New York state, without regard to an individual's immigration
7 status, and shall include part-time workers, independent contractors,
8 apprentices, domestic workers, home care and personal care workers, day
9 laborers, farmworkers, and other temporary and seasonal workers.
10 § 2. Paragraph (c) of subdivision 2 of section 20.20 of the penal law,
11 as amended by a chapter of the laws of 2022 amending the penal law
12 relating to crimes involving the death or injury of a worker, as
13 proposed in legislative bills numbers S. 621-B and A. 4947-B, is amended
14 to read as follows:
15 (c) The conduct constituting the offense is engaged in by an agent of
16 the corporation while acting within the scope of his employment and [in]
17 on behalf of the corporation, and the offense is (i) a misdemeanor or a
18 violation, (ii) one defined by a statute which clearly indicates a
19 legislative intent to impose such criminal liability on a corporation,
20 (iii) any offense set forth in title twenty-seven of article seventy-one
21 of the environmental conservation law, or (iv) is in relation to a crime
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04304-01-3
A. 1322 2
1 involving the death or serious physical injury of [a worker] an employee
2 where the corporation acted negligently, recklessly, intentionally, or
3 knowingly.
4 § 3. Paragraph (c) of subdivision 5 of section 60.27 of the penal law,
5 as added by a chapter of the laws of 2022 amending the penal law relat-
6 ing to crimes involving the death or injury of a worker, as proposed in
7 legislative bills numbers S. 621-B and A. 4947-B, is amended to read as
8 follows:
9 (c) If a corporation is found guilty of an offense involving the death
10 or serious physical injury of [a worker] an employee in violation of
11 subparagraph (iv) of paragraph [(a), (b), or] (c) of subdivision two of
12 section 20.20 of this chapter, the court may order restitution or repa-
13 ration in excess of the amounts specified in paragraphs (a) and (b) of
14 this subdivision.
15 § 4. Paragraphs (a) and (b) of subdivision 1 of section 80.10 of the
16 penal law, as amended by a chapter of the laws of 2022 amending the
17 penal law relating to crimes involving the death or injury of a worker,
18 as proposed in legislative bills numbers S. 621-B and A. 4947-B, are
19 amended to read as follows:
20 (a) Ten thousand dollars, when the conviction is of a felony;
21 provided, however, that when the conviction is pursuant to subparagraph
22 (iv) of paragraph [(a), (b), or] (c) of subdivision two of section 20.20
23 of this chapter, such fine shall be fixed by the court and shall [not]
24 be [less] no more than five hundred thousand dollars [nor more than one
25 million dollars];
26 (b) Five thousand dollars, when the conviction is of a class A misde-
27 meanor or of an unclassified misdemeanor for which a term of imprison-
28 ment in excess of three months is authorized; provided, however, that
29 when the conviction is pursuant to subparagraph (iv) of paragraph [(a),
30 (b), or] (c) of subdivision two of section 20.20 of this chapter, such
31 fine shall be fixed by the court and shall [not] be [less] no more than
32 three hundred thousand dollars [nor more than five hundred thousand
33 dollars];
34 § 5. Section 5 of a chapter of the laws of 2022 amending the penal law
35 relating to crimes involving the death or injury of a worker, as
36 proposed in legislative bills numbers S. 621-B and A. 4947-B, is amended
37 to read as follows:
38 § 5. This act shall take effect on the [thirtieth] ninetieth day after
39 it shall have become a law and shall apply to proceedings commencing on
40 or after such date.
41 § 6. This act shall take effect immediately; provided, however, that
42 sections one, two, three and four of this act shall take effect on the
43 same date and in the same manner as a chapter of the laws of 2022 amend-
44 ing the penal law relating to crimes involving the death or injury of a
45 worker, as proposed in legislative bills numbers S. 621-B and A.
46 4947-B, takes effect.
