S T A T E O F N E W Y O R K
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3895
2015-2016 Regular Sessions
I N A S S E M B L Y
January 28, 2015
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Introduced by M. of A. WRIGHT -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to unjust dismissal
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 17-A to
read as follows:
ARTICLE 17-A
UNJUST DISMISSAL ACT
SECTION 480. DEFINITIONS.
481. DISMISSAL PROCEDURE.
482. FILING OF COMPLAINT.
483. APPOINTMENT OF ARBITRATOR.
484. HEARING.
485. REMEDY.
486. NOTICE.
S 480. DEFINITIONS. WHEN USED IN THIS ARTICLE:
1. THE TERM "EMPLOYEE" MEANS ANY PERSON WHO AT THE TIME OF HIS OR HER
DISMISSAL HAS BEEN EMPLOYED FOR NOT LESS THAN FIFTEEN HOURS A WEEK OR
TWELVE CONSECUTIVE MONTHS FOR AN EMPLOYER. SUCH TERM SHALL NOT INCLUDE:
(A) A MANAGERIAL EMPLOYEE OR A PERSON WHO HAS A WRITTEN EMPLOYMENT
CONTRACT FOR NOT LESS THAN TWO YEARS AND WHOSE CONTRACT REQUIRES NOT
LESS THAN SIX MONTHS NOTICE OF TERMINATION; OR
(B) A MEMBER OF A GROUP OF EMPLOYEES SUBJECT TO A COLLECTIVE BARGAIN-
ING AGREEMENT WHICH INCLUDES BINDING ARBITRATION AS PART OF THE CONTRACT
GRIEVANCE PROCESS.
2. THE TERM "EMPLOYER" MEANS ANY PERSON OR ORGANIZATION THAT EMPLOYS
AT LEAST FIFTEEN PERSONS.
3. THE TERM "UNJUST DISMISSAL" SHALL MEAN ANY DISMISSAL OF AN EMPLOYEE
BY AN EMPLOYER WITHOUT CAUSE, OR IF ANY OF THE FOLLOWING WAS A DETERMIN-
ING FACTOR IN SUCH DISMISSAL:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04795-01-5
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(A) THE EMPLOYEE'S AGE, SEX, RACE, RELIGION OR NATIONAL ORIGIN;
(B) THE EMPLOYEE'S EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL
CONSTITUTION;
(C) THE EMPLOYEE'S REFUSAL TO ACT IN A MANNER THAT WOULD VIOLATE
PUBLIC POLICY AS EXPRESSED IN LAW OR ADMINISTRATIVE REGULATIONS;
(D) THE EMPLOYEE'S OFF-DUTY CONDUCT WHICH BEARS NO REASONABLE
RELATIONSHIP TO THE EMPLOYEE'S JOB PERFORMANCE; OR
(E) THE EMPLOYEE'S REFUSAL TO PERFORM ANY TASK WHICH POSES A THREAT OF
SERIOUS INJURY OR DEATH.
S 481. DISMISSAL PROCEDURE. ANY EMPLOYER WHO DISCHARGES AN EMPLOYEE
SHALL GIVE SUCH EMPLOYEE WRITTEN NOTICE WITHIN FIFTEEN DAYS OF DISMISSAL
OF ALL REASONS FOR HIS OR HER DISMISSAL AND OF HIS OR HER RIGHT TO
REQUEST ARBITRATION PURSUANT TO THIS ARTICLE.
S 482. FILING OF COMPLAINT. 1. IF AN EMPLOYER FAILS TO PROVIDE A
DISCHARGED EMPLOYEE WITH A WRITTEN NOTICE OF THE REASONS FOR DISMISSAL
PURSUANT TO SECTION FOUR HUNDRED EIGHTY-ONE OF THIS ARTICLE, SUCH
DISCHARGED EMPLOYEE MAY FILE A WRITTEN COMPLAINT WITH THE EMPLOYMENT
RELATIONS BOARD, AS CREATED BY SECTION SEVEN HUNDRED TWO OF THIS CHAP-
TER, NOT LESS THAN FORTY-FIVE DAYS NOR MORE THAN ONE HUNDRED DAYS AFTER
DISCHARGE OF THE EMPLOYEE.
2. ANY EMPLOYEE WHO BELIEVES HE OR SHE WAS UNJUSTLY DISMISSED MAY FILE
A WRITTEN COMPLAINT WITH THE STATE MEDIATION BOARD NOT LATER THAN ONE
HUNDRED DAYS AFTER THE RECEIPT OF THE WRITTEN NOTICE OF DISMISSAL.
THERE SHALL BE A TWENTY-FIVE DOLLAR FILING FEE CHARGED FOR ANY
COMPLAINT FILED PURSUANT TO THIS SECTION.
S 483. APPOINTMENT OF ARBITRATOR. 1. UPON THE FILING OF A COMPLAINT
PURSUANT TO SECTION FOUR HUNDRED EIGHTY-TWO OF THIS ARTICLE THE STATE
MEDIATION BOARD SHALL SELECT WITHIN TEN DAYS OF THE RECEIPT OF A
COMPLAINT THREE IMPARTIAL, COMPETENT AND REPUTABLE ARBITRATORS TO BE
NOMINEES TO ARBITRATE SUCH COMPLAINT. THE NAMES OF THE THREE ARBITRATOR
NOMINEES SHALL BE DELIVERED TO BOTH THE EMPLOYER AND THE EMPLOYEE. AFTER
RECEIPT OF THE LIST OF NOMINEES, THE EMPLOYER AND EMPLOYEE SHALL HAVE
FIVE DAYS DURING WHICH THEY MAY EACH OBJECT TO ONE OF THE NOMINEES
SELECTED BY THE STATE MEDIATION BOARD. THE STATE MEDIATION BOARD SHALL
SELECT AN ARBITRATOR FROM AMONG THE NOMINEES WHICH HAVE NOT BEEN
OBJECTED TO.
2. THE ARBITRATOR SHALL SET THE TIME, DATE AND PLACE FOR THE HEARING
OF THE FILED COMPLAINT. SUCH HEARING SHALL OCCUR NOT LESS THAN FIFTY
DAYS AFTER THE FILING OF THE COMPLAINT AND THE PARTIES SHALL BE NOTIFIED
OF THE TIME, DATE AND PLACE OF THE HEARING AT LEAST TWENTY-FIVE DAYS
PRIOR TO THE HEARING DATE. FAILURE TO APPEAR AT THE HEARING BY THE
EMPLOYEE OR EMPLOYER SHALL RESULT IN DISMISSAL OR DEFAULT, RESPECTIVELY,
UNLESS THERE IS A JUSTIFIABLE EXCUSE.
S 484. HEARING. 1. THE PROCEEDINGS BEFORE THE ARBITRATOR SHALL BE
INFORMAL. THE ARBITRATOR MAY CONDUCT THE HEARING IN WHATEVER MANNER HE
OR SHE REASONABLY BELIEVES WILL PERMIT THE FULL AND MOST EXPEDITIOUS
PRESENTATION OF THE EVIDENCE AND ARGUMENTS OF THE EMPLOYER AND EMPLOYEE.
THE RULES OF EVIDENCE OF PROOF SHALL NOT APPLY.
2. THE BURDEN OF PROOF SHALL REST WITH THE EMPLOYER.
S 485. REMEDY. 1. IF THE ARBITRATOR DETERMINES THAT THE EMPLOYEE'S
DISMISSAL WAS UNJUST, THE ARBITRATOR MAY ORDER REINSTATEMENT AND MAY
AWARD THE EMPLOYEE LOST EARNINGS.
2. THE RESPECTIVE PARTIES SHALL BEAR ALL EXPENSES ACCRUING FROM
OUTSIDE ASSISTANCE. HOWEVER, IF THE EMPLOYEE'S CLAIM IS UPHELD ALL
EXPENSES SHALL BE PAID BY THE EMPLOYER.
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3. IF THE ARBITRATOR FINDS THAT THE EMPLOYEE'S CLAIM IS FRIVOLOUS,
VEXATIOUS OR MADE FOR THE PURPOSES OF HARASSMENT, THE EMPLOYEE SHALL BE
LIABLE FOR ALL OF THE EMPLOYER'S REASONABLE COSTS.
S 486. NOTICE. ALL EMPLOYERS SHALL CONSPICUOUSLY POST A COPY OF THIS
ARTICLE OR A SUMMARY THEREOF IN AN AREA ACCESSIBLE TO ALL EMPLOYEES.
FAILURE TO POST SUCH NOTICE SHALL CONSTITUTE GROUNDS FOR AN UNJUST
DISMISSAL COMPLAINT.
S 2. This act shall take effect on the sixtieth day after it shall
have become a law provided, however, the commissioner of labor shall
immediately promulgate all rules and regulations necessary to carry out
the provisions of this act.