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
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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
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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.
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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.
