Senate Bill S5062

                                 
BILL NUMBER: S5062

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law, in relation to civil actions brought by
employees

 
PURPOSE:

To allow for uniform and fair civil actions against employers under the
Act.

 
SUMMARY OF SPECIFIC PROVISIONS:

This bill would amend Sections 27-a(10) and 27-b(6)(e) to include the
following language: An employee may bring a civil action in a court of
competent jurisdiction against any employer or person alleged to have
violated the provisions of this section which must be commenced within
three years after such violation. The court would have jurisdiction to
order all appropriate relief, including enjoining the conduct of any
person or employer; costs and reasonable attorneys' fees to the employee
              

by the person or entity in violation; and, where the person or entity in
violation is an employer, ordering rehiring or reinstatement of the
employee to his or her former position with restoration of seniority or
an award of front pay in lieu of reinstatement, and an award of lost
compensation and damages, costs and reasonable attorneys' fees. The
statute of limitations would also be tolled from the date an employee
files a complaint with the commissioner or the commissioner commences an
investigation, whichever is earlier, until an order to comply issued by
the commissioner becomes final, or where the commissioner does not issue
an order, until the date on which the commissioner notifies the
complainant that the investigation has concluded. Investigation by the
commissioner would not be a prerequisite to nor a bar against a person
bringing a civil action under this section.

 
JUSTIFICATION:

The proposed amendment is modeled on the closely analogous anti-retalia-
tion provision (outlawing retaliation for complaints of violation of
most other Labor Law provisions) of Labor Law Section 215(2)(a). Public
sector workers alleging violations of workplace safety, health, and
violence prevention laws are being disadvantaged by a significant weak-
nets in Labor Law Section 27-a(10) and 27-b(6)(e), the Act's anti-retal-
iation provisions. Unlike nearly all other anti-retaliation provisions,
these do not provide any private right of action. This Amendment will
remedy that disparity.

This Amendment will also remedy a significant statute of limitations
problem. While Section 27a(10) states that on finding retaliation
against a public employee who complained about a dangerous condition,
the DOL "shall request the attorney general to bring an action," Section
27-a(6) states that the employer may petition the IBA for review of the
DOL decision - review that, in practice, often takes several years.
Hartnett v. N.Y. City Transit Authority, 86 N.Y.2d 438, 443-444 (1995),
after noting that the Act "does not expressly provide victims of
discrimination with a private right of action," held that the limita-
tions period during which the Department of Labor ("DOL") must request
that the Office of the Attorney General ("OAG") bring a PESH Act retali-
ation suit in Supreme Court is three years.  The OAG has often received
requests from DOL to sue employers for violations of the PESH Act retal-
iation statutes after the issuance of a decision by the Industrial Board
of Appeals ("IBA"), which usually occurs very close to or after the
expiration date of the limitations period. This has led to a suit being
dismissed by the Supreme Court as untimely.

Under current legislation, workers in this situation are left with no
alternative method to pursue claims of retaliatory actions by employers,
as they have no private right of action and can be deprived of any
effective remedy through DOL or IBA delay. This results in an unfair
process, requiring workers to await a protracted administrative process
and then, possibly, see their cases dismissed as untimely. Furthermore,
the current statute and its judicial interpretation forces DOL to
request that OAG file actions against employers before the administra-
tive process has been completed in order to avoid running afoul of the
statute of limitations, causing the waste of judicial and administrative
resources. These issues could be readily be avoided by amending the Act
to provide a private right of action for workers, making it clear that a
worker does not have to wait indefinitely while the DOL and the IBA
consider their claims, but can sue the public employer directly. Being
able to take action immediately is especially important in situations
where workers are alleging that they have been fired in violation of the
Act and are seeking a remedy of reemployment as soon as possible.

The proposed amendments would bring the Act in line with most other
anti-discrimination statutes, which expressly provide for a private
right of action. Labor Law Section 215, which protects workers other
than state and municipal employees against retaliation for complaints of
illegality, permits workers to file suit within a two-year limitations
period in addition to authorizing the DOL to provide relief. Wage
payment statutes allow workers to sue employers directly (see, e.g.,
Labor Law Sections 198 and 663) in addition to authorizing them to file
complaints with the DOL (Section 196-a); workers are specifically not
required to await the outcome of an administrative complaint before
suing, and the six-year limitations period is "tolled from the date an
employee files a complaint with the commissioner or the commissioner
commences an investigation, whichever is earlier," until the DOL inves-
tigation is completed (see.  Section 198(2) and (3)). Amending the Act
to clarify the statute of limitations and expressly grant a private
right of action during that period would bring the Act in line with
these statutes, allowing public sector workers to enjoy the same level
of protection against retaliation as private sector workers.

 
PRIOR LEGISLATIVE HISTORY:

A10553 of 2022 - Died in Labor.

 
FISCAL IMPACT:

None