S T A T E O F N E W Y O R K
________________________________________________________________________
6207
2009-2010 Regular Sessions
I N A S S E M B L Y
February 26, 2009
___________
Introduced by M. of A. BARRA -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to the prevention of abusive
conduct in the workplace
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
PREVENTION OF ABUSIVE CONDUCT IN THE WORKPLACE
SECTION 760. STATEMENT OF PUBLIC POLICY AND FINDINGS.
761. DEFINITIONS.
762. ABUSIVE CONDUCT AN UNLAWFUL ACT.
S 760. STATEMENT OF PUBLIC POLICY AND FINDINGS. THE LEGISLATURE HEREBY
FINDS AND DECLARES IT NECESSARY TO ATTEMPT TO PREVENT ABUSIVE CONDUCT IN
THE WORKPLACE. STUDIES HAVE DOCUMENTED THAT ABUSIVE WORK ENVIRONMENTS
CAN HAVE SERIOUS ADVERSE EFFECTS ON TARGETED EMPLOYEES, INCLUDING FEEL-
INGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, ANXIETY,
DEPRESSION, STRESS RELATED GASTROINTESTINAL DISORDERS AND HYPERTENSION.
THEY ALSO SUGGEST THAT ABUSIVE WORK ENVIRONMENTS CAN ALSO HARM EMPLOY-
ERS, BY RESULTING IN LOWER EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER
TURNOVER AND ABSENTEEISM, AND GREATER MEDICAL AND WORKERS' COMPENSATION
CLAIMS.
S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
1. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
OF ACTS.
2. "MALICE" MEANS THE DESIRE TO SEE ANOTHER PERSON SUFFER PSYCHOLOG-
ICAL, PHYSICAL, OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTIFICA-
TION. MALICE CAN BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS:
OUTWARD EXPRESSIONS OF HOSTILITY; HARMFUL CONDUCT INCONSISTENT WITH AN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07281-01-9
A. 6207 2
EMPLOYER'S LEGITIMATE BUSINESS INTERESTS; A CONTINUATION OF HARMFUL,
ILLEGITIMATE CONDUCT AFTER THE COMPLAINANT REQUESTS THAT IT CEASE OR
DEMONSTRATES OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE
OF THE CONDUCT; OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHO-
LOGICAL OR PHYSICAL VULNERABILITY.
3. "ABUSIVE CONDUCT" MEANS CONDUCT THAT A REASONABLE PERSON WOULD FIND
HOSTILE, OFFENSIVE, AND UNRELATED TO AN EMPLOYER'S LEGITIMATE BUSINESS
INTERESTS. IN CONSIDERING WHETHER ABUSIVE CONDUCT IS PRESENT, A TRIER OF
FACT SHOULD WEIGH THE SEVERITY, NATURE, AND FREQUENCY OF THE DEFENDANT'S
CONDUCT. ABUSIVE CONDUCT MAY INCLUDE, BUT IS NOT 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 HUMILIATING; OR THE
GRATUITOUS SABOTAGE OR UNDERMINING OF A PERSON'S WORK PERFORMANCE. A
SINGLE ACT NORMALLY WILL NOT CONSTITUTE ABUSIVE CONDUCT, BUT AN ESPE-
CIALLY SEVERE AND EGREGIOUS ACT MAY MEET THIS STANDARD.
4. "TANGIBLE HARM" MEANS PSYCHOLOGICAL HARM OR PHYSICAL HARM.
(A) PSYCHOLOGICAL HARM IS THE MATERIAL IMPAIRMENT OF A PERSON'S MENTAL
HEALTH, AS DOCUMENTED BY A COMPETENT PSYCHOLOGIST, PSYCHIATRIST, OR
PSYCHOTHERAPIST, OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
(B) PHYSICAL HARM IS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYSICAL
HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR
SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
(C) A NEGATIVE EMPLOYMENT DECISION IS A TERMINATION, DEMOTION, UNFA-
VORABLE REASSIGNMENT, REFUSAL TO PROMOTE, OR DISCIPLINARY ACTION.
S 762. ABUSIVE CONDUCT AN UNLAWFUL ACT. 1. IT SHALL BE UNLAWFUL FOR
ANY PERSON TO ENGAGE IN ABUSIVE CONDUCT TOWARD ANOTHER PERSON AT THAT
PERSON'S WORKPLACE.
2. A PERSON WHO HAS BEEN OR IS BEING ABUSED MAY BRING AN ACTION IN
SUPREME COURT FOR MONETARY DAMAGES AND INJUNCTIVE RELIEF. SUCH ACTION
SHALL BE BROUGHT AGAINST THE PARTY PERFORMING THE ACT OR ACTS WHICH
CONSTITUTE THE ABUSIVE CONDUCT AND/OR THE EMPLOYER.
3. AN EMPLOYER SHALL BE VICARIOUSLY LIABLE FOR AN UNLAWFUL EMPLOYMENT
PRACTICE, AS DEFINED BY THIS SECTION, COMMITTED BY ITS EMPLOYEE.
4. 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.
THIS DEFENSE IS NOT AVAILABLE WHEN THE ACTIONABLE BEHAVIOR CULMINATES
IN A NEGATIVE EMPLOYMENT DECISION.
5. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE COMMITTED AN UNLAWFUL
EMPLOYMENT PRACTICE UNDER THIS SECTION THAT DID NOT CULMINATE IN A NEGA-
TIVE EMPLOYMENT DECISION, ITS LIABILITY FOR DAMAGES FOR EMOTIONAL
DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS, AND IT SHALL NOT
BE SUBJECT TO PUNITIVE DAMAGES. THIS PROVISION DOES NOT APPLY TO INDI-
VIDUALLY NAMED CO-EMPLOYEE DEFENDANTS.
6. IT SHALL BE AN AFFIRMATIVE DEFENSE THAT:
(A) THE COMPLAINT IS GROUNDED PRIMARILY UPON A NEGATIVE EMPLOYMENT
DECISION MADE CONSISTENT WITH AN EMPLOYER'S LEGITIMATE BUSINESS INTER-
ESTS, SUCH AS A TERMINATION OR DEMOTION BASED ON AN EMPLOYEE'S POOR
PERFORMANCE; OR
(B) THE COMPLAINT IS GROUNDED PRIMARILY UPON AN EMPLOYER'S REASONABLE
INVESTIGATION ABOUT POTENTIALLY ILLEGAL OR UNETHICAL ACTIVITY.
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IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE UNDER THIS SECTION TO
RETALIATE IN ANY MANNER AGAINST AN EMPLOYEE BECAUSE HE OR SHE HAS
OPPOSED ANY ABUSIVE CONDUCT, PRACTICE, OR BECAUSE HE OR SHE HAS MADE A
CHARGE, TESTIFIED, ASSISTED, OR PARTICIPATED IN ANY MANNER IN AN INVES-
TIGATION OR PROCESSING UNDER THIS SECTION, INCLUDING, BUT NOT LIMITED
TO, INTERNAL COMPLAINTS AND PROCEEDINGS, ARBITRATION AND MEDIATION
PROCEEDINGS, AND LEGAL ACTIONS.
S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that the commissioner of
labor shall immediately promulgate any rules or regulations necessary
for the implementation of this act on or before such effective date.