senate Bill S4472

2013-2014 Legislative Session

Establishes the public employee safety and health reform act

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (6)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
Apr 30, 2014 advanced to third reading
Apr 29, 2014 2nd report cal.
Apr 28, 2014 1st report cal.384
Jan 08, 2014 referred to labor
Apr 03, 2013 referred to labor

Votes

view votes

Apr 28, 2014 - Labor committee Vote

S4472
12
0
committee
12
Aye
0
Nay
4
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Labor committee vote details

S4472 - Bill Details

See Assembly Version of this Bill:
A6818
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd ยง27-a, Lab L

S4472 - Bill Texts

view summary

Establishes the "public employee safety and health reform act"; relates to prohibiting retaliatory acts against public employees.

view sponsor memo
BILL NUMBER:S4472

TITLE OF BILL: An act to amend the labor law, in relation to enacting
the "public employee safety and health reform act"

PURPOSE OR GENERAL IDEA OF BILL:

To provide for greater safety and health protections to workers
covered by the public employee safety and health act- Labor Law
Section 27-a.

SUMMARY OF SPECIFIC PROVISIONS:

Section 2 of the bill amends Subdivision 5 of section 27-a to
clarify,that workers have the right to union representation or to have
a co-worker participate in PESH inspections and interviews.

Section 3 of the bill amends Paragraph a of subdivision 6 of section
27-a to make technical corrections as well as to require that
violations of the act shall be issued within 30 days of inspection.
Section 2 further creates new categories of violations with instant
penalties for repeat violations, willful violations, and violations
that result in a fatality.

Section 4 of the bill amends Paragraph b of subdivision 10 of section
27-a to lengthen the period of time in which an employee may file a
charge for retaliation for reporting a violation.

Section 5 of the bill amends Subdivision 12 of section 27-a to clarify
that workers have the right to union representation or to have a
coworker participate in PESH consultation programs.

JUSTIFICATION:

The PESH Act is the backbone of safety and health protections for
worker employed by state and local governments, who in most cases are
not covered by federal OSHA. This bill addresses several deficiencies
in PESH to ensure fhat protections are comparable to those under OSHA.
For example, penalties under PESH only apply when violations are not
abated by employers. Even in cases where an employer knows they are
violating a standard, violated the same standard before, or a fatality
has occurred, an employer may face no penalty whatsoever, so long as
they correct the violation. Clearly abating hazards is a critical
goal, but if it simply can be done after the fact, there is little
financial incentive for employers to proactively abate hazards. By
adding instant penalties in these situations, enforcement of PESH will
be enhanced, and ultimately workers safety and health will be better
protected.

This bill also takes steps to strengthen worker's rights under PESH
such as ensuring that they can be represented by their union during
inspections, interviews, and consultations, as well as lengthening the
period of time that a worker can file discrimination charge if they
have been retaliated against as a result their reporting a violation.
In order for PESH to work optimally, workers must feel secure and free
from intimidation so that they will report hazardous situations and
fully participate in Department of Labor proceedings under the act.


PRIOR LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS:

None, except to the extent that increased penalties are collected.

EFFECTIVE DATE:

This act shall take effect immediately and shall apply to all
violations which occur on or after such date.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4472

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 3, 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  enacting  the  "public
  employee safety and health reform act"

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

  Section 1. This act shall be known and may be  cited  as  the  "public
employee safety and health reform act."
  S 2. Subdivision 5 of section 27-a of the labor law, as added by chap-
ter  729 of the laws of 1980 and paragraph e as amended by chapter 86 of
the laws of 1984, is amended to read as follows:
  5. Inspections. a. Any employee or  representative  of  employees  who
believes that a violation of a safety or health standard exists, or that
an imminent danger exists, may request an inspection by giving notice to
the  commissioner  of  such violation or danger. Such notice and request
shall be in writing, shall set forth with reasonable  particularity  the
grounds  for  the  notice, shall be signed by such employee or represen-
tative of employees, and a copy shall be provided by the commissioner to
the employer or  the  person  in  charge  no  later  than  the  time  of
inspection, except that on the request of the person giving such notice,
his  name  and  the  names of individual employees or representatives of
employees shall be withheld. Such inspections shall be made forthwith.
  b. A representative of the employer and an authorized employee  repre-
sentative  shall  be given the opportunity to accompany the commissioner
during an inspection for the purpose of aiding  such  inspection.  Where
there  is  no authorized employee representative, the commissioner shall
consult with a reasonable number  of  employees  concerning  matters  of
safety and health in the workplace.
  c.   AN AUTHORIZED EMPLOYEE REPRESENTATIVE SHALL BE GIVEN THE OPPORTU-
NITY TO PARTICIPATE IN AN INTERVIEW OF AN EMPLOYEE BY  THE  COMMISSIONER
UPON  THE  REQUEST OF THE EMPLOYEE WHO IS THE SUBJECT OF SUCH INTERVIEW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09953-01-3

S. 4472                             2

WHERE THERE IS NO AUTHORIZED EMPLOYEE REPRESENTATIVE, THE  EMPLOYEE  WHO
IS  THE  SUBJECT  OF  THE  INTERVIEW  MAY  DESIGNATE ANOTHER EMPLOYEE TO
PARTICIPATE IN THE INTERVIEW.
  D. The authority of the commissioner to inspect a premises pursuant to
such an employee complaint shall not be limited to the alleged violation
contained in such complaint. The commissioner may inspect any other area
of  the  premises  in which he has reason to believe that a violation of
this section exists.
  [d.] E. No employee who accompanies the commissioner on an  inspection
OR  PARTICIPATES  IN  AN  INTERVIEW BY THE COMMISSIONER shall suffer any
reduction in wages.
  [e.] F. The commissioner may, upon  his  own  initiative,  conduct  an
inspection  of  any  premises  occupied  by  a public employer if he has
reason to believe that a violation of this section has occurred or if he
has a general administrative plan for the enforcement of  this  section,
including  general schedule inspections, which provide a rational admin-
istrative basis for such inspecting. Within ninety days of enactment  of
this paragraph the commissioner shall publish the general administrative
plan and shall adopt regulations on the conduct of inspections in locker
rooms and other areas involving the personal property and privacy rights
of public employees.
  [f.]  G.  Any  information  obtained  by  the  commissioner under this
section shall be obtained with a minimum burden upon the employers.
  S 3. Paragraph a of subdivision 6 of section 27-a of the labor law, as
amended by chapter 190 of the laws  of  1990,  is  amended  to  read  as
follows:
  a.  If  the  commissioner  determines  that an employer has violated a
provision of this section, or a safety or health standard or  regulation
promulgated under this section, he or she shall [with reasonable prompt-
ness] WITHIN THIRTY DAYS OF THE DATE OF INSPECTION issue to the employer
an  order  to comply which shall describe particularly the nature of the
violation including a reference to the provision of this section, stand-
ard, regulation or order alleged to have  been  violated,  shall  fix  a
reasonable  time  for compliance and may establish the penalty OR PENAL-
TIES to be assessed for failure to correct the  violation  by  the  time
fixed for compliance.
  (1)  An  employer  who fails to correct a non-serious violation by the
time fixed for compliance may be assessed a civil penalty of up to fifty
dollars per day until the violation is corrected. An employer who  fails
to  correct  a serious violation by the time fixed for compliance may be
assessed a civil penalty of up to two hundred dollars per day until  the
violation  is corrected. [Pursuant to section 18(k) of the United States
Occupational Safety and Health Act of 1970 (Public Law,  91-596),  a]  A
serious  violation  shall be deemed to exist in a place of employment if
there is a substantial probability that death or serious  physical  harm
could  result  from  a condition which exists, or from one or more prac-
tices, means, methods, operations, or processes which have been  adopted
or  are in use, in such place of employment unless the employer did not,
and could not with the exercise of reasonable  diligence,  know  of  the
presence  of  the violation. A non-serious violation shall be defined as
any violation that  does  not  fall  under  the  definition  of  serious
violation.  The  commissioner  shall  not  assess  a  penalty against an
employer for failure to correct a violation of a standard which  is  the
subject of an application for a temporary order granting a variance or a
violation  which  is  the  subject of a petition to modify THE ABATEMENT
DATE SET FORTH IN an order to comply, provided however, that upon  issu-

S. 4472                             3

ance  by  the  commissioner  of a determination denying such variance or
petition to modify, or upon expiration of a temporary variance or  modi-
fied  compliance  period, the time fixed for compliance shall recommence
and the employer become liable for the penalties provided herein.
  (2) IN ADDITION TO ANY OTHER PENALTY TO BE ASSESSED IN ACCORDANCE WITH
PARAGRAPHS  ONE,  THREE  OR  FOUR  OF  THIS SUBDIVISION, AN EMPLOYER WHO
COMMITS A WILLFUL VIOLATION SHALL BE ASSESSED A CIVIL PENALTY OF  UP  TO
SEVENTY  THOUSAND  DOLLARS, BUT NOT LESS THAN FIVE THOUSAND DOLLARS, FOR
EACH SUCH VIOLATION UPON ISSUANCE OF THE  VIOLATION.  A  PENALTY  ISSUED
PURSUANT  TO  THIS  PARAGRAPH  SHALL  APPLY  INSTANTLY  AND SHALL NOT BE
CONTINGENT ON  THE  EMPLOYER'S  FAILURE  TO  ABATE  THE  VIOLATION.  FOR
PURPOSES  OF  THIS SECTION, A WILLFUL VIOLATION SHALL BE DEEMED TO EXIST
IN A PLACE OF EMPLOYMENT WHEN AN EMPLOYER KNOWINGLY COMMITS A  VIOLATION
OR  COMMITS  WITH PLAIN INDIFFERENCE TO THE LAW. THE EMPLOYER KNOWS THAT
WHAT HE OR SHE IS DOING CONSTITUTES A VIOLATION, IS AWARE THAT A HAZARD-
OUS CONDITION EXISTED, AND MADE NO REASONABLE EFFORT TO ELIMINATE IT.
  (3) IN ADDITION TO ANY OTHER PENALTY TO BE ASSESSED IN ACCORDANCE WITH
PARAGRAPHS ONE, TWO OR FOUR OF THIS SUBDIVISION, AN EMPLOYER WHO COMMITS
A REPEAT VIOLATION SHALL BE ASSESSED A CIVIL PENALTY OF  UP  TO  SEVENTY
THOUSAND DOLLARS, BUT NOT LESS THAN FIVE THOUSAND DOLLARS, FOR EACH SUCH
VIOLATION  UPON  ISSUANCE OF THE VIOLATION. A PENALTY ISSUED PURSUANT TO
THIS PARAGRAPH SHALL APPLY INSTANTLY AND SHALL NOT BE CONTINGENT ON  THE
EMPLOYER'S  FAILURE  TO  ABATE  THE  VIOLATION.  A REPEAT VIOLATION IS A
VIOLATION OF ANY STANDARD, REGULATION, OR RULE,  OR  ORDER  WHERE,  UPON
REINSPECTION,  A SUBSTANTIALLY SIMILAR VIOLATION EXISTS. TO BE THE BASIS
OF A REPEAT VIOLATION, THE ORIGINAL CITATION MUST BE FINAL;  A  CITATION
UNDER  CONTEST  MAY NOT SERVE AS THE BASIS FOR SUBSEQUENT REPEATED CITA-
TION.
  (4) IN ADDITION TO ANY OTHER PENALTY TO BE ASSESSED IN ACCORDANCE WITH
PARAGRAPHS ONE, TWO OR  THREE  OF  THIS  SUBDIVISION,  AN  EMPLOYER  WHO
COMMITS  A  VIOLATION THAT IS THE PROXIMATE CAUSE OF A FATALITY SHALL BE
ASSESSED A CIVIL PENALTY OF UP TO SEVENTY THOUSAND DOLLARS, BUT NOT LESS
THAN FIVE  THOUSAND  DOLLARS,  FOR  EACH  FATALITY  RESULTING  FROM  THE
VIOLATION.  A  PENALTY  ISSUED  PURSUANT  TO  THIS PARAGRAPH SHALL APPLY
INSTANTLY AND SHALL NOT BE CONTINGENT ON THE EMPLOYER'S FAILURE TO ABATE
THE VIOLATION.
  S 4. Paragraph b of subdivision 10 of section 27-a of the  labor  law,
as  added  by  section  729  of  the laws of 1980, is amended to read as
follows:
  b. Any employee who believes that he has been discharged, disciplined,
or otherwise discriminated against by any person in  violation  of  this
subdivision  may,  within  [thirty]  ONE  HUNDRED EIGHTY days after such
violation occurs, file a complaint with the commissioner  alleging  such
discrimination.  Upon  receipt of such complaint, the commissioner shall
cause such investigation to be made as he deems appropriate, and  shall,
if  requested withhold the name of the complainant from the employer. If
upon such investigation, the commissioner determines that the provisions
of this subdivision have been violated, he shall  request  the  attorney
general  to  bring  an action in the supreme court against the person or
persons alleged to have violated the provisions of this subdivision.  In
any  such  action  the  supreme court shall have jurisdiction, for cause
shown, to restrain violations of this subdivision and order  all  appro-
priate  relief,  including  rehiring or reinstatement of the employee to
his former position with all back pay.
  S 5. Subdivision 12 of section 27-a of the  labor  law,  as  added  by
chapter 706 of the laws of 1990, is amended to read as follows:

S. 4472                             4

  12.  The  commissioner  may  initiate  voluntary  compliance programs,
including, but not limited to, a public employee consultation program to
provide on-site consultation to public employers desiring such  services
as  an  adjunct  to  the  commissioner's  inspections  pursuant  to this
section.    AN  AUTHORIZED  EMPLOYEE  REPRESENTATIVE  SHALL BE GIVEN THE
OPPORTUNITY TO PARTICIPATE IN SUCH VOLUNTARY COMPLIANCE PROGRAMS.  WHERE
THERE  IS NO AUTHORIZED EMPLOYEE REPRESENTATIVE, AN EMPLOYEE TAKING PART
IN SUCH PROGRAM MAY DESIGNATE ANOTHER EMPLOYEE  TO  PARTICIPATE  IN  THE
PROGRAM. Whenever an on-site consultation is performed under this subdi-
vision,  a  report shall be issued of any findings of noncompliance with
the regulations promulgated under this section and the report  shall  be
made public.
  S  6.  This  act  shall take effect immediately and shall apply to all
violations which occur 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.