The New York State Senate

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

                                 1823--B

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 9, 2009
                               ___________

Introduced  by  Sens. MORAHAN, ONORATO, HASSELL-THOMPSON, SAVINO -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee  on  Labor  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the labor law, in relation to establishing a private
  cause of action for an abusive work environment

  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
                        ABUSIVE WORK ENVIRONMENT
SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
        761. DEFINITIONS.
        762. ABUSIVE WORK ENVIRONMENT.
        763. EMPLOYER LIABILITY.
        764. DEFENSES.
        765. RETALIATION.
        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. SURVEYS AND  STUDIES  HAVE  DOCUMENTED
THAT  BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE-
RIENCE HEALTH ENDANGERING  WORKPLACE  BULLYING,  ABUSE  AND  HARASSMENT.
SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00743-04-0

S. 1823--B                          2

SURVEYS  AND  STUDIES  HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS
CAN HAVE SERIOUS EFFECTS ON THE 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,  AND
PATHOPHYSIOLOGIC  CHANGES  THAT  INCREASE  THE  RISK  OF  CARDIOVASCULAR
DISEASES.
  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 UNLESS MISTREATED EMPLOYEES HAVE
BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE  ON  THE  BASIS  OF
RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO
HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT.
  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 ABUSIVE CONDUCT AND 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 BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND
TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS  TO  PREVENT  AND  RESPOND  TO
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  CONDUCT,  WITH MALICE, TAKEN AGAINST AN
EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN  THE  WORKPLACE,  THAT  A
REASONABLE  PERSON  WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO
THE EMPLOYER'S LEGITIMATE BUSINESS  INTERESTS.  IN  CONSIDERING  WHETHER
SUCH  CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY,
NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE,  BUT
NOT  BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE
OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL  CONDUCT
THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI-
ATING;  OR  THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE  CONDUCT,  UNLESS
THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS.
  2.  "ABUSIVE  WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE
IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT  CAUSES  PHYS-
ICAL  OR  PSYCHOLOGICAL  HARM  TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE
PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO
ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF,  FAILS
TO ELIMINATE THE ABUSIVE CONDUCT.
  3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
TO ACT.
  4.  "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE
THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT.
  5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO-
LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE  OR  JUSTI-
FICATION.  MALICE  MAY  BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS
OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT  WITH  AN
EMPLOYER'S  LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND
ILLEGITIMATE CONDUCT AFTER A  COMPLAINANT  REQUESTS  THAT  IT  CEASE  OR

S. 1823--B                          3

DISPLAYS  OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF
THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S  KNOWN  PSYCHOLOG-
ICAL OR PHYSICAL VULNERABILITY.
  6.  "NEGATIVE  EMPLOYMENT  DECISION" MEANS A TERMINATION, CONSTRUCTIVE
DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT,  REFUSAL  TO  PROMOTE  OR
DISCIPLINARY ACTION.
  7.  "PHYSICAL  HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS-
ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT  PHYSICIAN
OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
  8.  "PSYCHOLOGICAL  HARM"  MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S
MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN  OR  SUPPORTED  BY
COMPETENT EXPERT EVIDENCE AT TRIAL.
  S  762.  ABUSIVE  WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN
EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
  S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE
EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER  ITS
CONTROL.
  S  764.  DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF
ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON-
ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT  WHICH  IS
THE  BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED
TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR  CORRECTIVE  OPPORTU-
NITIES  PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE
AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A  NEGA-
TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF.
  2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE
WORK  ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION
WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT  WITH  SUCH  EMPLOYER'S
LEGITIMATE  BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON
THE PLAINTIFF'S POOR PERFORMANCE OR THE  COMPLAINT  IS  BASED  PRIMARILY
UPON  THE  EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS,
ILLEGAL OR UNETHICAL ACTIVITY.
  S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG-
ING A VIOLATION OF THIS ARTICLE SHALL BE  DEEMED  TO  BE  A  RETALIATORY
PERSONNEL  ACTION  AS  PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS
CHAPTER.
  S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO  HAVE  ENGAGED
IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT,
THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV-
ITY  AND  MAY  ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT
NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY  FROM  THE
PLAINTIFF'S  WORK  ENVIRONMENT,  REIMBURSEMENT  FOR  LOST WAGES, MEDICAL
EXPENSES, COMPENSATION FOR  EMOTIONAL  DISTRESS,  PUNITIVE  DAMAGES  AND
ATTORNEY FEES.
  2.  WHERE  AN  EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN
ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN  A  NEGATIVE  EMPLOYMENT
DECISION,  SUCH  EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS
SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO  LIABIL-
ITY  FOR  PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT
APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
  S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE  ENFORCEABLE
BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE.
  2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES,
AN  ACTION  TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED
WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE  BASIS  OF  THE
ALLEGATION OF ABUSIVE WORK ENVIRONMENT.

S. 1823--B                          4

  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 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  OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY
COMPENSATION  AVAILABLE  PURSUANT  TO  THE  WORKERS'  COMPENSATION  LAW;
PROVIDED,  HOWEVER,  THAT  NO  PERSON WHO HAS COLLECTED WORKERS' COMPEN-
SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE  WORK  ENVIRON-
MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS
ARTICLE FOR THE SAME SUCH CONDITIONS.
  S  2.  This  act  shall  take  effect  immediately, and shall apply to
abusive conduct occurring on or after such date.