S T A T E O F N E W Y O R K
________________________________________________________________________
4965
2013-2014 Regular Sessions
I N A S S E M B L Y
February 13, 2013
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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:
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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07506-02-3
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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.
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
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(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,
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.
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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 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.