senate Bill S1227

Enacts the protection in the workplace act

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 06 / Jan / 2011
    • REFERRED TO LABOR
  • 04 / Jan / 2012
    • REFERRED TO LABOR

Summary

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.

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Bill Details

See Assembly Version of this Bill:
A838
Versions:
S1227
Legislative Cycle:
2011-2012
Current Committee:
Senate Labor
Law Section:
Workers' Compensation Law
Laws Affected:
Add §10-a, amd §§11 & 29, Work Comp L
Versions Introduced in 2009-2010 Legislative Cycle:
S1795, A7767

Sponsor Memo

BILL NUMBER:S1227

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' compensation 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 Workers' Compensation law, and in addition may pursue any
remedy available for damages.

§4 of the bill provides that workers' compensation should be the
exclusive 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
exclusive remedy except when the employee suffers personal injury as a
result of a sexual offense.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
This is an issue of first impression in New York, but it is clear that
the workers' compensation statute should not be interpreted to bar
otherwise meritorious civil claims by employees injured at work by a
sexual offense. Thus the intent of this bill is to clarify what is
clearly the correct interpretation of the statute that certain
workplace accidents should not be barred from civil remedy by
considering workers' compensation as the exclusive remedy.

As a result of this legislation, no longer would employers be able to
claim that sexual assaults of their employees due to their negligent
acts or omissions (such as lack of security for the safety of its
employees) is a condition of employment.

JUSTIFICATION:
Workplace violence is an increasingly prevalent occupational 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 "positional 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 l) 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,
flowing 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.
Presbyterian Home for Aged, 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
encourage 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
consequence 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
workers' 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 consequence.

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
deterrent 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
establish workers' compensation as the exclusive remedy in such
circumstances is incorrect as a matter of law.

PRIOR LEGISLATIVE HISTORY:
1999-00: S.3955-B Died in Senate Labor Committee
2001-02: S.1986 Died in Senate Labor Committee
2003-04: S.1829 Died in Senate Labor Committee
2005-06: S.307 Died in Senate Labor Committee
2007: S.1572 Died in Senate Labor Committee
2008: S.1572 Died in Senate Labor Committee
2009: S.1795/A.7767 Died in Senate Labor/Died in Assembly Labor


2010: S.1795/A/7767 Died in Senate Third Reading/Died in
Assembly Labor
FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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

                                  1227

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 6, 2011
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the workers' compensation law, in relation  to  enacting
  the "protection in the workplace act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title.  This act shall be known and may be  cited  as
the "protection in the workplace act".
  S  2.  Legislative  intent. It is the finding of this legislature that
violence in the workplace has become  an  increasingly  serious  occupa-
tional hazard, which all too many employees and employers must confront.
While  it  is  the intent of the workers' compensation system to provide
medical aid and monetary compensation to injured workers or their survi-
vors in return for the surrender of their right to petition the  courts,
it  is  the  finding of this body that rape, sexual assault or other sex
crimes should not be classified as a  condition  of  employment  at  the
expense  of  the  workers'  compensation system's ameliorative goals and
that such system is not and should not be used as  a  shield  to  permit
employers  whose  negligent  acts  or  omissions cause injury or harm to
fellow employees without such injured employees having every opportunity
for full and adequate redress.   For purposes  of  determining  benefits
pursuant  to  the  workers' compensation law, sexual assault is not, and
shall not be considered a condition of employment.
  It is therefore the intent of this legislation to ensure that  workers
suffering  sexual assault in the workplace due to the derelict or negli-
gent practices of their employer, receive appropriate medical  care  and
benefits  but also have every opportunity to recover all damages commen-
surate with their injury.
  S 3. The workers' compensation law is amended by adding a new  section
10-a to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00660-01-1

S. 1227                             2

  S 10-A. LIABILITY RESULTING FROM SEXUAL OFFENSES.  NOTWITHSTANDING ANY
OTHER PROVISION OF LAW, ANY EMPLOYEE SUFFERING INJURY OR PERSONAL INJURY
PURSUANT TO SUBDIVISION SEVEN OF SECTION TWO OF THIS CHAPTER AS A CONSE-
QUENCE  OF  A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
THE  PENAL  LAW DUE TO NEGLIGENT ACTS OR OMISSIONS OF THE EMPLOYER SHALL
BE ENTITLED TO ALL RIGHTS AND BENEFITS AVAILABLE PURSUANT TO THIS  CHAP-
TER  AND,  IN  ADDITION  MAY PURSUE ANY REMEDY AVAILABLE IN EQUITY OR AT
LAW, FOR COMPENSATION FOR ANY AND ALL DAMAGES RESULTING FROM SUCH  INJU-
RY.
  S 4.  Section 11 of the workers' compensation law, as amended by chap-
ter 635 of the laws of 1996, the opening paragraph as amended by chapter
169  of  the  laws of 2007, the fifth undesignated paragraph as added by
chapter 49 of the laws of 1999 and the closing  paragraph  as  added  by
chapter 392 of the laws of 2008, is amended to read as follows:
  S  11.  Alternative remedy. 1. The liability of an employer prescribed
by [the last preceding] section TEN OF THIS ARTICLE shall  be  exclusive
and in place of any other liability whatsoever, to such employee, his or
her personal representatives, spouse, parents, dependents, distributees,
or  any  person  otherwise  entitled to recover damages, contribution or
indemnity, at common law or otherwise, on  account  of  such  injury  or
death  or  liability arising therefrom, except that if an employer fails
to secure the payment of compensation for his or her  injured  employees
and  their  dependents  as provided in section fifty of this chapter, an
injured employee, or his or her legal representative in case [of]  death
results  from  the  injury,  may,  at  his or her option, elect to claim
compensation under this chapter, or to maintain an action in the  courts
for  damages  on  account of such injury; and in such an action it shall
not be necessary to plead or prove freedom from contributory  negligence
nor  may  the defendant plead as a defense that the injury was caused by
the negligence of a fellow servant nor that  the  employee  assumed  the
risk  of  his  or  her  employment,  nor  that the injury was due to the
contributory negligence of the employee. The liability under this  chap-
ter  of The New York Jockey Injury Compensation Fund, Inc. created under
section two hundred [thirteen-a] TWENTY-ONE of the  racing,  pari-mutuel
wagering  and breeding law shall be limited to the provision of workers'
compensation  coverage  to  jockeys,  apprentice  jockeys  and  exercise
persons  licensed  under  article two or four of the racing, pari-mutuel
wagering and breeding law and any statutory penalties resulting from the
failure to provide such coverage.
  2. For purposes of this section the terms  "indemnity"  and  "contrib-
ution"  shall not include a claim or cause of action for contribution or
indemnification based upon a provision in  a  written  contract  entered
into  prior  to  the  accident  or  occurrence by which the employer had
expressly agreed to contribution to or indemnification of  the  claimant
or person asserting the cause of action for the type of loss suffered.
  3.  An  employer  shall not be liable for contribution or indemnity to
any third person based upon  liability  for  injuries  sustained  by  an
employee  acting  within  the  scope  of  his or her employment for such
employer unless such  third  person  proves  through  competent  medical
evidence  that  such employee has sustained a "grave injury" which shall
mean only one or more of the following: death, permanent and total  loss
of  use  or  amputation  of  an arm, leg, hand or foot, loss of multiple
fingers, loss of multiple toes, paraplegia or  quadriplegia,  total  and
permanent blindness, total and permanent deafness, loss of nose, loss of
ear,  permanent and severe facial disfigurement, loss of an index finger

S. 1227                             3

or an acquired injury to the brain caused by an external physical  force
resulting in permanent total disability.
  4.  For  purposes of this section "person" means any individual, firm,
company, partnership, corporation, joint  venture,  joint-stock  associ-
ation, association, trust or legal entity.
  5.  The  liability under this chapter of the New York black car opera-
tors' injury compensation fund, inc. shall be limited to:  (i)  securing
the payment of workers' compensation in accordance with article six-F of
the  executive  law  to black car operators, as defined in such article,
whose injury arose out of and in the course of providing services for  a
central  dispatch facility, as defined in such article, that is a regis-
tered member of such fund, and (ii) any statutory penalty resulting from
the failure to secure such payment. The liability under this chapter  of
a  central  dispatch facility, as defined in article six-F of the execu-
tive law, that is a registered member of the New York black  car  opera-
tors'  injury compensation fund, inc. that shall be limited to remaining
a registered member in good standing of  such  fund  and  any  statutory
penalty,  including loss of immunity provided by this section, resulting
from the failure to become or remain a registered member in good  stand-
ing  of  such fund, except, however, that such central dispatch facility
shall be subject to the provisions of section one hundred thirty-one  of
this  chapter  and  shall  be  liable  for any payments for which it may
become responsible pursuant to such section or pursuant to section four-
teen-a of this [chapter] ARTICLE.
  6. The liability under this chapter of the New York independent livery
driver benefit fund, inc. shall be limited to: (i) securing the  payment
of  workers'  compensation  coverage  to cover those matters required by
article six-G of the executive law for independent  livery  drivers,  as
defined  in such article, whose injury arose out of and in the course of
providing covered services for a livery base, as defined in  such  arti-
cle,  that  is  a registered member of such fund, and (ii) any statutory
penalty resulting from the failure to secure such payment.
  7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN  EMPLOYEE  SUFFERING
AN  INJURY OR PERSONAL INJURY AS A RESULT OF A SEXUAL OFFENSE AS DEFINED
IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, DUE TO NEGLIGENT ACTS OR
OMISSIONS OF THE EMPLOYER SHALL BE ENTITLED TO ALL RIGHTS  AND  BENEFITS
AVAILABLE PURSUANT TO THIS CHAPTER AND, IN ADDITION MAY PURSUE ANY REME-
DY  AVAILABLE IN EQUITY OR AT LAW FOR COMPENSATION FOR DAMAGES RESULTING
FROM SUCH INJURY.  ANY INSURANCE CARRIER PROVIDING WORKERS' COMPENSATION
BENEFITS PURSUANT TO THIS SECTION SHALL BE ENTITLED TO  A  LIEN  ON  ANY
DAMAGES  AWARDED  PURSUANT  TO  THIS SECTION, PROVIDED THAT NO SUCH LIEN
SHALL BE IN AN AMOUNT GREATER THAN THE AMOUNT OF BENEFITS PAID  BY  SUCH
INSURANCE CARRIER.
  S  5. Subdivision 6 of section 29 of the workers' compensation law, as
amended by chapter 635 of the laws  of  1996,  is  amended  to  read  as
follows:
  6.  The right to compensation or benefits under this chapter, shall be
the  exclusive  remedy  to  an  employee, or in case of death his or her
dependents, when such employee is injured or killed by the negligence or
wrong of another in the same employ, UNLESS SUCH EMPLOYEE WAS INJURED OR
KILLED AS A CONSEQUENCE OF A SEXUAL OFFENSE, AS DEFINED IN  ARTICLE  ONE
HUNDRED  THIRTY  OF THE PENAL LAW, the employer's insurer or any collec-
tive bargaining agent of the employer's employees or  any  employee,  of
such  insurer  or  such collective bargaining agent (while acting within
the scope of his or her employment).  The limitation of liability of  an
employer  set  forth in section eleven of this article for the injury or

S. 1227                             4

death of an employee shall be applicable to another in the same  employ,
the  employer's  insurer, any collective bargaining agent of the employ-
er's employees or any employee of the employer's insurer or such collec-
tive  bargaining  agent  (while  acting  within  the scope of his or her
employment).  The option to maintain an action in the courts for damages
based on the employer's  failure  to  secure  compensation  for  injured
employees  and  their  dependents as set forth in section eleven of this
article shall not be construed to  include  the  right  to  maintain  an
action  against  another in the same employ, the employer's insurer, any
collective bargaining agent of the employer's employees or any  employee
of  the  employer's  insurer  or such collective bargaining agent (while
acting within the scope of his or her employment).
  S 6. This act shall take effect immediately.

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