senate Bill S3863

Establishes a civil cause of action for employees who are subjected to an abusive work environment

download pdf

Sponsor

Co-Sponsors

view all co-sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 25 / Feb / 2013
    • REFERRED TO LABOR
  • 03 / Jun / 2013
    • REPORTED AND COMMITTED TO FINANCE
  • 08 / Jan / 2014
    • REFERRED TO LABOR
  • 03 / Jun / 2014
    • REPORTED AND COMMITTED TO FINANCE

Summary

Establishes a civil cause of action for employees who are subjected to an abusive work environment.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A4965
Versions:
S3863
Legislative Cycle:
2013-2014
Current Committee:
Senate Finance
Law Section:
Labor Law
Laws Affected:
Add Art 20-D §§760 - 769, Lab L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S4289, A4258
2009-2010: S1823B, A5414B
2007-2008: S8793, A10291

Votes

9
2
9
Aye
2
Nay
5
aye with reservations
0
absent
0
excused
0
abstained
show Labor committee vote details

Sponsor Memo

BILL NUMBER:S3863

TITLE OF BILL: An act to amend the labor law, in relation to
establishing healthy workplaces

PURPOSE OR GENERAL IDEA OF THE BILL: To establish a civil cause of
action for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS: Clearly states the definitions of abusive
conduct; abusive work environment; constructive discharge; adverse
employment decision; physical harm; and psychological harm.

Proposed section 762 of the labor law defines unlawful employment
practice.

Proposed section 763 of the labor law defines employer liability.

Proposed section 764 of the labor law defines employee liability.

Proposed section 765 of the labor law defines affirmative defenses.

Proposed section 766 of the labor law defines remedies.

Proposed section 767 of the labor law defines enforcement.

Proposed section 768 of the labor law defines effect on collective
bargaining agreements.

Proposed section 769 of the labor law defines the effect of other
laws.

JUSTIFICATION: The social and economic well-being of the state is
dependent upon healthy and productive employees. Surveys and studies
have documented that between 16 to 21 percent of employees directly
experience health-endangering workplace bullying, abuse and
harassment, and that this behavior is four times more prevalent than
sexual harassment alone. Surveys and studies have also documented that
abusive work environments can have serious effects on targeted
employees, including feelings of shame and humiliation, stress, loss
of sleep, severe anxiety, depression, post-traumatic stress disorder,
reduced immunity to infection, stress related Gastrointestinal
disorders, hypertension, pathophysiologic changes that increase the
risk of cardiovascular disease and other such effects.

This legislation will, provide legal redress for employees who have
been harmed, psychologically, physically, or economically. It will
also provide legal incentives for employers to prevent and respond to
SPONSOR: Englebright mistreatment of employees at work.

LEGISLATIVE HISTORY: 2011-12: A4258 Referred to Labor 2011-12: S4289
(Sen. Savino) Referred to Labor 2009-10: A5414-B Referred to Labor
2009-10: S1823-B (Sen. Morahan) Passed Senate 2007-08: A10291 Referred
to Labor 2007-08: S8793 (Sen. Morahan) Referred to Rules

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
________________________________________________________________________

                                  3863

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 25, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed 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:

  Section  1.  The  labor law is amended by adding a new article 20-D to
read as follows:
                               ARTICLE 20-D
                           HEALTHY WORKPLACES
SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
        761. DEFINITIONS.
        762. ABUSIVE WORK ENVIRONMENT.
        763. EMPLOYER LIABILITY.
        764. EMPLOYEE LIABILITY.
        765. AFFIRMATIVE DEFENSES.
        766. REMEDIES.
        767. ENFORCEMENT.
        768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.
        769. EFFECT OF OTHER LAWS.
  S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE  HEREBY  FINDS
THAT  THE  SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON
HEALTHY AND PRODUCTIVE EMPLOYEES. AT LEAST ONE-THIRD  OF  ALL  EMPLOYEES
DIRECTLY  EXPERIENCE  HEALTH  ENDANGERING  WORKPLACE BULLYING, ABUSE AND
HARASSMENT DURING THEIR WORKING LIVES.   SUCH FORM  OF  MISTREATMENT  IS
FOUR  TIMES  MORE  PREVALENT  THAN  SEXUAL HARASSMENT ALONE.   WORKPLACE
BULLYING, MOBBING AND HARASSMENT CAN INFLICT SERIOUS HARM UPON  TARGETED
EMPLOYEES,  INCLUDING FEELINGS OF SHAME AND HUMILIATION, SEVERE ANXIETY,
DEPRESSION, SUICIDAL TENDENCIES, IMPAIRED IMMUNE SYSTEMS,  HYPERTENSION,
INCREASED  RISK  OF CARDIOVASCULAR DISEASE, AND SYMPTOMS CONSISTENT WITH
POST-TRAUMATIC STRESS DISORDER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07506-02-3

S. 3863                             2

  FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS  CAN
HAVE  SERIOUS  CONSEQUENCES  FOR  EMPLOYERS,  INCLUDING REDUCED EMPLOYEE
PRODUCTIVITY AND MORALE, HIGHER  TURNOVER  AND  ABSENTEEISM  RATES,  AND
SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
  THE  LEGISLATURE  HEREBY  FINDS  THAT IF MISTREATED EMPLOYEES WHO HAVE
BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE  WORKPLACE  CANNOT  ESTABLISH
THAT THE BEHAVIOR WAS MOTIVATED BY RACE, COLOR, SEX, SEXUAL ORIENTATION,
NATIONAL  ORIGIN  OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO BE PROTECTED BY
THE LAW AGAINST SUCH MISTREATMENT.
  THE LEGISLATURE HEREBY DECLARES THAT  LEGAL  PROTECTION  FROM  ABUSIVE
WORK  ENVIRONMENTS  SHOULD  NOT  BE  LIMITED  TO  BEHAVIOR GROUNDED IN A
PROTECTED CLASS STATUS AS REQUIRED BY  EMPLOYMENT  DISCRIMINATION  STAT-
UTES.  EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW
ARE INADEQUATE TO DISCOURAGE SUCH MISTREATMENT OR  TO  PROVIDE  ADEQUATE
REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS.
  THE  PURPOSE  OF  THIS  ARTICLE  SHALL BE TO PROVIDE LEGAL REDRESS FOR
EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY,  PHYSICALLY  OR  ECONOM-
ICALLY  BY  DELIBERATE  EXPOSURE  TO  ABUSIVE  WORK ENVIRONMENTS; AND TO
PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO ABUSIVE
MISTREATMENT OF EMPLOYEES AT WORK.
  S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  1. "ABUSIVE CONDUCT" MEANS ACTS, OMISSIONS, OR BOTH, THAT A REASONABLE
PERSON WOULD FIND ABUSIVE, BASED ON THE SEVERITY, NATURE, AND  FREQUENCY
OF  THE  CONDUCT,  INCLUDING,  BUT NOT LIMITED TO: REPEATED VERBAL ABUSE
SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS,  AND  EPITHETS;  VERBAL,
NON-VERBAL,  OR  PHYSICAL  CONDUCT  OF  A  THREATENING, INTIMIDATING, OR
HUMILIATING NATURE; OR THE SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
PERFORMANCE. IT SHALL BE CONSIDERED AN AGGRAVATING FACTOR IF THE CONDUCT
EXPLOITED AN EMPLOYEE'S KNOWN PSYCHOLOGICAL OR PHYSICAL ILLNESS OR DISA-
BILITY. A SINGLE ACT NORMALLY SHALL NOT CONSTITUTE ABUSIVE CONDUCT,  BUT
AN ESPECIALLY SEVERE AND EGREGIOUS ACT MAY MEET THIS STANDARD.
  2.  "ABUSIVE  WORK  ENVIRONMENT" MEANS AN EMPLOYMENT CONDITION WHEN AN
EMPLOYER OR ONE OR MORE OF ITS EMPLOYEES, ACTING WITH  INTENT  TO  CAUSE
PAIN  OR  DISTRESS  TO  AN  EMPLOYEE,  SUBJECTS THAT EMPLOYEE TO ABUSIVE
CONDUCT THAT CAUSES PHYSICAL HARM, PSYCHOLOGICAL HARM OR BOTH.
  3. "ADVERSE EMPLOYMENT  ACTION"  MEANS  AN  OUTCOME  WHICH  NEGATIVELY
IMPACTS  AN  EMPLOYEE,  INCLUDING,  BUT  NOT  LIMITED TO, A TERMINATION,
DEMOTION, UNFAVORABLE REASSIGNMENT,  FAILURE  TO  PROMOTE,  DISCIPLINARY
ACTION OR REDUCTION IN COMPENSATION.
  4. "CONSTRUCTIVE DISCHARGE" MEANS AN ADVERSE EMPLOYMENT ACTION WHERE:
  (A)  THE  EMPLOYEE  REASONABLY  BELIEVED HE OR SHE WAS SUBJECTED TO AN
ABUSIVE WORK ENVIRONMENT;
  (B) THE EMPLOYEE RESIGNED BECAUSE OF THAT CONDUCT; AND
  (C) THE EMPLOYER WAS AWARE OF THE ABUSIVE CONDUCT PRIOR TO THE  RESIG-
NATION AND FAILED TO STOP IT.
  5.  "PHYSICAL HARM" MEANS THE IMPAIRMENT OF A PERSON'S PHYSICAL HEALTH
OR BODILY INTEGRITY, AS ESTABLISHED BY COMPETENT EVIDENCE.
  6. "PSYCHOLOGICAL HARM" MEANS THE  IMPAIRMENT  OF  A  PERSON'S  MENTAL
HEALTH, AS ESTABLISHED BY COMPETENT EVIDENCE.
  S  762. ABUSIVE WORK ENVIRONMENT. 1. NO EMPLOYEE SHALL BE SUBJECTED TO
AN ABUSIVE WORK ENVIRONMENT.
  2. NO EMPLOYER OR EMPLOYEE SHALL RETALIATE IN ANY  MANNER  AGAINST  AN
EMPLOYEE  WHO  HAS  OPPOSED  ANY UNLAWFUL EMPLOYMENT PRACTICE UNDER THIS
ARTICLE, OR WHO HAS MADE A CHARGE, TESTIFIED, ASSISTED, OR  PARTICIPATED
IN  ANY  MANNER  IN  AN  INVESTIGATION OR PROCEEDING UNDER THIS ARTICLE,

S. 3863                             3

INCLUDING, BUT NOT LIMITED  TO,  INTERNAL  COMPLAINTS  AND  PROCEEDINGS,
ARBITRATION AND MEDIATION PROCEEDINGS AND LEGAL ACTIONS.
  S 763. EMPLOYER LIABILITY.  1. AN EMPLOYER SHALL BE VICARIOUSLY LIABLE
FOR  A  VIOLATION  OF  SECTION  SEVEN  HUNDRED SIXTY-TWO OF THIS ARTICLE
COMMITTED BY ITS EMPLOYEE.
  2. WHERE THE ALLEGED VIOLATION OF SUCH SECTION  DOES  NOT  INCLUDE  AN
ADVERSE  EMPLOYMENT  ACTION,  IT  SHALL BE AN AFFIRMATIVE DEFENSE FOR AN
EMPLOYER ONLY THAT:
  (A) THE EMPLOYER EXERCISED REASONABLE  CARE  TO  PREVENT  AND  CORRECT
PROMPTLY ANY ACTIONABLE BEHAVIOR; AND
  (B)  THE COMPLAINANT EMPLOYEE UNREASONABLY FAILED TO TAKE ADVANTAGE OF
APPROPRIATE PREVENTIVE  OR  CORRECTIVE  OPPORTUNITIES  PROVIDED  BY  THE
EMPLOYER.
  S  764.  EMPLOYEE LIABILITY. 1. AN EMPLOYEE MAY BE INDIVIDUALLY LIABLE
FOR A VIOLATION OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE.
  2. IT SHALL BE AN AFFIRMATIVE DEFENSE FOR AN EMPLOYEE  ONLY  THAT  THE
EMPLOYEE  COMMITTED  A VIOLATION OF SUCH SECTION AT THE DIRECTION OF THE
EMPLOYER, UNDER ACTUAL  OR  IMPLIED  THREAT  OF  AN  ADVERSE  EMPLOYMENT
ACTION.
  S 765. AFFIRMATIVE DEFENSES. IT SHALL BE AN AFFIRMATIVE DEFENSE THAT:
  1.  THE  COMPLAINT IS BASED ON AN ADVERSE EMPLOYMENT ACTION REASONABLY
MADE FOR POOR PERFORMANCE, MISCONDUCT OR ECONOMIC NECESSITY;
  2. THE COMPLAINT IS BASED ON A REASONABLE PERFORMANCE EVALUATION; OR
  3. THE COMPLAINT IS BASED ON AN  EMPLOYER'S  REASONABLE  INVESTIGATION
ABOUT POTENTIALLY ILLEGAL OR UNETHICAL ACTIVITY.
  S  766.  REMEDIES.  1.  WHERE  A DEFENDANT HAS BEEN FOUND LIABLE FOR A
VIOLATION OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE, THE  COURT
MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN THE UNLAWFUL EMPLOYMENT PRAC-
TICE  AND  MAY ORDER ANY OTHER RELIEF THAT IS DEEMED APPROPRIATE INCLUD-
ING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE  OFFENDING  PARTY
FROM  THE  PLAINTIFF'S  WORK  ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES,
FRONT PAY,  MEDICAL  EXPENSES,  COMPENSATION  FOR  PAIN  AND  SUFFERING,
COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES.
  2.  WHERE  AN  EMPLOYER  IS  LIABLE  FOR  A VIOLATION OF SECTION SEVEN
HUNDRED SIXTY-TWO OF THIS  ARTICLE  THAT  DID  NOT  INCLUDE  AN  ADVERSE
EMPLOYMENT  ACTION,  EMOTIONAL DISTRESS DAMAGES AND PUNITIVE DAMAGES MAY
BE AWARDED ONLY WHEN THE ACTIONABLE CONDUCT WAS EXTREME AND  OUTRAGEOUS.
THIS  LIMITATION  DOES  NOT APPLY TO INDIVIDUALLY NAMED EMPLOYEE DEFEND-
ANTS.
  S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE  ENFORCEABLE
SOLELY  BY  MEANS  OF  A  CIVIL  CAUSE OF ACTION COMMENCED BY AN INJURED
EMPLOYEE.
  2.   AN ACTION TO ENFORCE THE PROVISIONS  OF  THIS  ARTICLE  SHALL  BE
COMMENCED  WITHIN  ONE YEAR OF THE LAST ACT THAT CONSTITUTES THE ALLEGED
VIOLATION OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE.
  S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE  SHALL
NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN
EMPLOYEE'S  EXISTING  COLLECTIVE  BARGAINING  AGREEMENT  WHICH  PROVIDES
GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL
THIS ARTICLE PREVENT ANY NEW PROVISIONS  OF  THE  COLLECTIVE  BARGAINING
AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE-
MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING
AGREEMENT.  WHERE  THE  COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER
RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE,  THE  RECOGNIZED
COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY
THE PROVISIONS OF THIS ARTICLE.

S. 3863                             4

  S  769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE
DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL-
TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION.
  2.  THE  REMEDIES PROVIDED IN THIS ARTICLE SHALL BE IN ADDITION TO ANY
REMEDIES PROVIDED UNDER ANY OTHER PROVISION OF LAW, AND NOTHING IN  THIS
ARTICLE  SHALL  RELIEVE  ANY PERSON FROM ANY LIABILITY, DUTY, PENALTY OR
PUNISHMENT PROVIDED BY ANY OTHER PROVISION OF LAW,  EXCEPT  THAT  IF  AN
EMPLOYEE  RECEIVES  WORKERS' COMPENSATION FOR MEDICAL COSTS FOR THE SAME
INJURY OR ILLNESS PURSUANT TO BOTH THIS ARTICLE AND THE WORKERS' COMPEN-
SATION LAW, OR COMPENSATION UNDER BOTH THIS ARTICLE AND SUCH LAW IN CASH
PAYMENTS FOR THE SAME PERIOD OF TIME NOT WORKING  AS  A  RESULT  OF  THE
COMPENSABLE  INJURY  OR ILLNESS OR THE UNLAWFUL EMPLOYMENT PRACTICE, THE
PAYMENTS OF WORKERS' COMPENSATION SHALL BE REIMBURSED FROM DAMAGES  PAID
UNDER THIS ARTICLE.
  S  2.  This  act  shall  take  effect  immediately, and shall apply to
abusive conduct occurring on or after such date.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.