NY State Senate Bill 2023-S5698

Current Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to labor
Mar 13, 2023	referred to labor

2023-S5698 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Add §10-a, amd §§11 & 29, Work Comp L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1795
2011-2012: S1227
2013-2014: S990
2015-2016: S1892
2017-2018: S3462
2019-2020: S4537
2021-2022: S4672

2023-S5698 (ACTIVE) - Summary

Enacts the "protection in the workplace act"; provides that injuries to employees as a result of the commission of a sexual offense shall entitle such employee to all rights and benefits available pursuant to the workers' compensation law and, in addition, shall permit such employee to pursue any other remedies available at law or in equity; clarifies that workers' compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.

2023-S5698 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5698

SPONSOR: PARKER
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to enacting
the "protection in the workplace act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify that the workers' compensation law was never intended to bar
employees suffering a personal injury as a result of a sexual assault in
the workplace from pursuing legal action seeking damages from their
employer.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Short title. This act shall and may be cited as the
"protection in the workplace act".

Section 2: Legislative intent.

Section 3: The workers compensation law is amended by adding a new
section 10-a.

Section 4: Section 11 of the workers' compensation law, as amended by
chapter 835 of the laws of 2002, is amended.

Section 5: Subdivision 6 of section 29 of the workers' compensation law,
as amended by chapter 635 of the laws of 1996, is amended.

Section 6: This act shall take effect immediately.

 
JUSTIFICATION:

Workplace violence is an increasingly prevalent occupational hazard, and
it is a particularly acute problem for women in the workforce.  While
workers' compensation should be available to those injured by a sexual
offense, committed in the workplace, it should not be the exclusive
remedy, since there are sometimes egregious instances of employer
malfeasance and negligence in the workplace which tragically lead to the
workplace sexual assault or injury.

A recent report by the New York Committee for Occupational Safety and
Health reveals that violence in the workplace is a significant factor in
occupational death in New York City and the state. It should be clear
that the workers' compensation law was never intended to be a shield in
such situations, and it is indeed unfortunate that an already victimized
employee should be forced to endure an employer's claim that a violent
and repeated sexual assault was a natural condition of her employment.

The purpose of this legislative initiative is to clarify the statute,
consistent with public policy while placing a clear prohibition on
double recovery. According to this bill, if the plaintiff successfully
sues, there would be an offset of that award for workers' compensation
benefits received.

The legislative intent of this amendment is based on several elementary
principles. The primary goal behind this legislation is to confirm that
the entire system of workers' compensation in our state has evolved to
protect employees from those accidents naturally associated with the
businesses' operation. Under New York law, sexual assault should not be
an act within the scope of employment, nor can it ever be construed as
in furtherance of an employer's business.

Accordingly, sexual assault should not be a per se work related injury.
As stated by Professor Larson, the noted workers' compensation scholar,
"there is no clearer example of non-industrial motive than rape." (1
Larson, Workmen's Compensation at 11.11 b). No employer therefore,
should be in a position of advising a woman that she should expect to be
sexually assaulted or abused at her place of employment, that in those
rare instances where she suffers this abuse, she should not be barred
from pursuing civil remedy for her damages. It should also be noted that
New York case law supports this remedy, since it does not apply a "posi-
tional risk" or "but for" standard when determining the compensability
of an injury. New York courts require that the injury be a direct and
natural risk of the job, and specifically, that the injury be suffered
1) while the worker is doing the duty she or he is employed to perform,
and 2) that it be a natural incident of the work. The injury must be one
of the risks connected with the employment, flowing as a natural conse-
quence and directly connected with the risk. (SEE MATTER OF HERTZ V.
RAPERED), 218 N.Y. 148, 151-52 (1916); (CALIV V.  CONSOLIDATED RAILROAD
COMPANY), 229 N.Y. 489, 494 (1920); (MATTER O F SCHOLZHAUER V. C.& L.
LUNCH CO)., 233 N.Y.2 (1922); (PRYOR V.  PRESBYTERIAN HOME FOR AGED), 9
N.Y.2d 869, 870 (1961)). New York State's case law provides that injury
arises out of employment when it has its origin in an employee's work
related functions, and is sufficiently related to the employment func-
tion as to be considered a part of the employee's service to the employ-
er in connection with the contract of employment. As sexual assault or
abuse are not inherent risks in employment, it is well-founded to
conclude that workers' compensation was never intended to be a bar to
civil causes of action.

The legislative incentive of our workers' compensation system to encour-
age a safe work place is lost if a negligent employer is allowed to use
this beneficent system as a shield from liability.  Indeed for an
employer to claim that sexual assault is an expected or intended conse-
quence of employment results in the victim again being demeaned and
insulted through a rigid and uncaring system of multiple hearings and
insufficient medical treatment. It has been posted that since the work-
ers' compensation system was never intended to compensate victims of
sexual assault it cannot compensate a woman for a psychological or
emotional injury suffered from such a crime.

The existence of a no compensable injury should be enough to abrogate
the exclusive remedy provisions of the Workers' Compensation Act. Of
course, this is why intentional torts are not a class of injuries
protected under the workers' compensation scheme. Where the damages
alleged are purely emotional in nature, the legislature never intended
the exclusivity provisions to bar a common law claim.  Injuries due to
sexual assault are founded in humiliation, emotional distress, pain and
suffering and leave permanent yet invisible scars with a woman for the
rest of her life. That a workers' compensation award would merely cover
the injured employee's psychiatric bills is a sufficient basis for
granting a woman the right to file a tort claim against all responsible
parties for causing irreparable injury and damage to the plaintiff's
self-esteem, privacy and reputation.
The employer who creates an unsafe workplace due to negligent acts or
omissions should not be permitted to socialize this cost among the many
safe and responsible employers in our state; thus, it is other employers
and ultimately their customers as the public at large who ultimately pay
for such irresponsibility. As a deterrent and as public policy the
negligent employer should not be permitted to use workers' compensation
as a wall protecting their culpability where rape is the tragic conse-
quence.

It is also clear that the workers' compensation statute should be
applied in a manner consistent with our public policy to discourage and
prevent violence in the workplace -- this legislation provides a deter-
rent and an obligation while ensuring that no double enrichment takes
place. The sponsors of this legislation believe in the right of women
and indeed all workers to engage in their livelihood free from the
threat of sexual assault in the workplace. When that aspiration is
diminished, the legislature must respond and clearly enunciate that it
is our sense and understanding that any interpretation that would estab-
lish workers' compensation as the exclusive remedy in such circumstances
is incorrect as a matter of law.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: S4672 - Referred to Labor

2019-20: S.4537 - Referred to Labor

2017-18: S.3462 - Referred to Labor

2015-16: S.1892 - Died in Labor

2013-14: S.990/A.946 - Died in Labor

2011-12: S.1227/A.838 - Died in Labor

2009-10: S.1795/A.7767 - Died in Senate/Died in Assembly Labor

2007-08: S.1572 - Died in Senate Labor Committee

2005-06: S.307 - Died in Senate Labor Committee

2003-04: S.1829 - Died in Senate Labor Committee

2001-02: S.1986 - Died in Senate Labor Committee

1999-00: S.39555 - Died in Senate Labor Committee

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S5698 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5698
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 13, 2023
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the workers' compensation law, in relation  to  enacting
   the "protection in the workplace act"
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "protection in the workplace act".
   §  2.  Legislative  intent. It is the finding of this legislature that
 violence in the workplace has become  an  increasingly  serious  occupa-
 tional hazard, which all too many employees and employers must confront.
 While  it  is  the intent of the workers' compensation system to provide
 medical aid and monetary compensation to injured workers or their survi-
 vors in return for the surrender of their right to petition the  courts,
 it  is  the  finding of this body that rape, sexual assault or other sex
 crimes should not be classified as a  condition  of  employment  at  the
 expense  of  the  workers'  compensation system's ameliorative goals and
 that such system is not and should not be used as  a  shield  to  permit
 employers  whose  negligent  acts  or  omissions cause injury or harm to
 fellow employees without such injured employees having every opportunity
 for full and adequate redress.   For purposes  of  determining  benefits
 pursuant  to  the  workers' compensation law, sexual assault is not, and
 shall not be considered a condition of employment.
   It is therefore the intent of this legislation to ensure that  workers
 suffering  sexual assault in the workplace due to the derelict or negli-
 gent practices of their employer, receive appropriate medical  care  and
 benefits  but also have every opportunity to recover all damages commen-
 surate with their injury.
   § 3. The workers' compensation law is amended by adding a new  section
 10-a to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07273-01-3
 S. 5698                             2

 
   § 10-A. LIABILITY RESULTING FROM SEXUAL OFFENSES.  NOTWITHSTANDING ANY
 OTHER PROVISION OF LAW, ANY EMPLOYEE SUFFERING INJURY OR PERSONAL INJURY
 PURSUANT TO SUBDIVISION SEVEN OF SECTION TWO OF THIS CHAPTER AS A CONSE-
 QUENCE  OF  A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
 THE  PENAL  LAW DUE TO NEGLIGENT ACTS OR OMISSIONS OF THE EMPLOYER SHALL
 BE ENTITLED TO ALL RIGHTS AND BENEFITS AVAILABLE PURSUANT TO THIS  CHAP-
 TER  AND,  IN  ADDITION  MAY PURSUE ANY REMEDY AVAILABLE IN EQUITY OR AT
 LAW, FOR COMPENSATION FOR ANY AND ALL DAMAGES RESULTING FROM SUCH  INJU-
 RY.
   §  4. Section 11 of the workers' compensation law, as amended by chap-
 ter 835 of the laws of 2022, is amended to read as follows:
   § 11. Alternative remedy. 1. The liability of an  employer  prescribed
 by  [the  last preceding] section TEN OF THIS ARTICLE shall be exclusive
 and in place of any other liability whatsoever, to such employee, his or
 her personal representatives, spouse, parents, dependents, distributees,
 or any person otherwise entitled to  recover  damages,  contribution  or
 indemnity,  at  common  law  or  otherwise, on account of such injury or
 death or liability arising therefrom, except that if an  employer  fails
 to  secure  the payment of compensation for his or her injured employees
 and their dependents as provided in section fifty of  this  chapter,  an
 injured  employee,  or  his or her legal representative in case of death
 results from the injury, may, at his  or  her  option,  elect  to  claim
 compensation  under this chapter, or to maintain an action in the courts
 for damages on account of such injury; and in such an  action  it  shall
 not  be necessary to plead or prove freedom from contributory negligence
 nor may the defendant plead as a defense that the injury was  caused  by
 the  negligence  of  a  fellow servant nor that the employee assumed the
 risk of his or her employment, nor  that  the  injury  was  due  to  the
 contributory  negligence of the employee. The liability under this chap-
 ter of The New York Jockey Injury Compensation Fund, Inc. created  under
 section  two  hundred twenty-one of the racing, pari-mutuel wagering and
 breeding law shall be limited to the provision of workers'  compensation
 coverage  to  jockeys,  apprentice jockeys, exercise persons, and at the
 election of the New York Jockey Injury Compensation Fund, Inc., with the
 approval of the New York state gaming commission, employees of  licensed
 trainers  or  owners  licensed  under article two or four of the racing,
 pari-mutuel wagering  and  breeding  law  and  any  statutory  penalties
 resulting from the failure to provide such coverage.
   2.  For  purposes  of this section the terms "indemnity" and "contrib-
 ution" shall not include a claim or cause of action for contribution  or
 indemnification  based  upon  a  provision in a written contract entered
 into prior to the accident or  occurrence  by  which  the  employer  had
 expressly  agreed  to contribution to or indemnification of the claimant
 or person asserting the cause of action for the type of loss suffered.
   3. An employer shall not be liable for contribution  or  indemnity  to
 any  third  person  based  upon  liability  for injuries sustained by an
 employee acting within the scope of  his  or  her  employment  for  such
 employer  unless  such  third  person  proves  through competent medical
 evidence that such employee has sustained a "grave injury"  which  shall
 mean  only one or more of the following: death, permanent and total loss
 of use or amputation of an arm, leg, hand  or  foot,  loss  of  multiple
 fingers,  loss  of  multiple toes, paraplegia or quadriplegia, total and
 permanent blindness, total and permanent deafness, loss of nose, loss of
 ear, permanent and severe facial disfigurement, loss of an index  finger
 or  an acquired injury to the brain caused by an external physical force
 resulting in permanent total disability.
 S. 5698                             3
 
   4. For purposes of this section "person" means any  individual,  firm,
 company,  partnership,  corporation,  joint venture, joint-stock associ-
 ation, association, trust or legal entity.
   5.  The  liability under this chapter of the New York black car opera-
 tors' injury compensation fund, inc. shall be limited to:  (i)  securing
 the payment of workers' compensation in accordance with article six-F of
 the  executive  law  to black car operators, as defined in such article,
 whose injury arose out of and in the course of providing services for  a
 central  dispatch facility, as defined in such article, that is a regis-
 tered member of such fund, and (ii) any statutory penalty resulting from
 the failure to secure such payment. The liability under this chapter  of
 a  central  dispatch facility, as defined in article six-F of the execu-
 tive law, that is a registered member of the New York black  car  opera-
 tors'  injury compensation fund, inc. that shall be limited to remaining
 a registered member in good standing of  such  fund  and  any  statutory
 penalty,  including loss of immunity provided by this section, resulting
 from the failure to become or remain a registered member in good  stand-
 ing  of  such fund, except, however, that such central dispatch facility
 shall be subject to the provisions of section one hundred thirty-one  of
 this  chapter  and  shall  be  liable  for any payments for which it may
 become responsible pursuant to such section or pursuant to section four-
 teen-a of this article.
   6. The liability under this chapter of the New York independent livery
 driver benefit fund, inc. shall be limited to: (i) securing the  payment
 of  workers'  compensation  coverage  to cover those matters required by
 article six-G of the executive law for independent  livery  drivers,  as
 defined  in such article, whose injury arose out of and in the course of
 providing covered services for a livery base, as defined in  such  arti-
 cle,  that  is  a registered member of such fund, and (ii) any statutory
 penalty resulting from the failure to secure such payment.
   [2.] 7. Determination by the  board  shall  not  be  given  collateral
 estoppel  effect  in  any  other action or proceeding arising out of the
 same occurrence, other than the determination of  the  existence  of  an
 employer employee relationship.
   8.  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, AN EMPLOYEE SUFFERING
 AN INJURY OR PERSONAL INJURY AS A RESULT OF A SEXUAL OFFENSE AS  DEFINED
 IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, DUE TO NEGLIGENT ACTS OR
 OMISSIONS  OF  THE EMPLOYER SHALL BE ENTITLED TO ALL RIGHTS AND BENEFITS
 AVAILABLE PURSUANT TO THIS CHAPTER AND, IN ADDITION MAY PURSUE ANY REME-
 DY AVAILABLE IN EQUITY OR AT LAW FOR COMPENSATION FOR DAMAGES  RESULTING
 FROM SUCH INJURY.  ANY INSURANCE CARRIER PROVIDING WORKERS' COMPENSATION
 BENEFITS  PURSUANT  TO  THIS  SECTION SHALL BE ENTITLED TO A LIEN ON ANY
 DAMAGES AWARDED PURSUANT TO THIS SECTION, PROVIDED  THAT  NO  SUCH  LIEN
 SHALL  BE  IN AN AMOUNT GREATER THAN THE AMOUNT OF BENEFITS PAID BY SUCH
 INSURANCE CARRIER.
   § 5. Subdivision 6 of section 29 of the workers' compensation law,  as
 amended  by  chapter  635  of  the  laws  of 1996, is amended to read as
 follows:
   6.  The right to compensation or benefits under this chapter, shall be
 the exclusive remedy to an employee, or in case  of  death  his  or  her
 dependents, when such employee is injured or killed by the negligence or
 wrong of another in the same employ, UNLESS SUCH EMPLOYEE WAS INJURED OR
 KILLED  AS  A CONSEQUENCE OF A SEXUAL OFFENSE, AS DEFINED IN ARTICLE ONE
 HUNDRED THIRTY OF THE PENAL LAW, the employer's insurer or  any  collec-
 tive  bargaining  agent  of the employer's employees or any employee, of
 such insurer or such collective bargaining agent  (while  acting  within
 S. 5698                             4

 the  scope of his or her employment).  The limitation of liability of an
 employer set forth in section eleven of this article for the  injury  or
 death  of an employee shall be applicable to another in the same employ,
 the  employer's  insurer, any collective bargaining agent of the employ-
 er's employees or any employee of the employer's insurer or such collec-
 tive bargaining agent (while acting within  the  scope  of  his  or  her
 employment).  The option to maintain an action in the courts for damages
 based  on  the  employer's  failure  to  secure compensation for injured
 employees and their dependents as set forth in section  eleven  of  this
 article  shall  not  be  construed  to  include the right to maintain an
 action against another in the same employ, the employer's  insurer,  any
 collective  bargaining agent of the employer's employees or any employee
 of the employer's insurer or such  collective  bargaining  agent  (while
 acting within the scope of his or her employment).
   § 6. This act shall take effect immediately.

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Senate Bill S5698

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

2023-S5698 (ACTIVE) - Details

2023-S5698 (ACTIVE) - Summary

2023-S5698 (ACTIVE) - Sponsor Memo

2023-S5698 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5698

Share this bill

Sponsored By

Kevin S. Parker

Current Bill Status - In Senate Committee Labor Committee

2023-S5698 (ACTIVE) - Details

2023-S5698 (ACTIVE) - Summary

2023-S5698 (ACTIVE) - Sponsor Memo

2023-S5698 (ACTIVE) - Bill Text download pdf

Comments