A01254 Summary:

BILL NOA01254A
 
SAME ASSAME AS S05062
 
SPONSORJoyner
 
COSPNSRArdila, Taylor, Gibbs, Walker
 
MLTSPNSRSeawright
 
Amd §27-a, Lab L
 
Relates to civil actions brought by employees for violations of an employer violating safety and health standards or workplace violence.
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A01254 Actions:

BILL NOA01254A
 
01/13/2023referred to labor
03/07/2023amend and recommit to labor
03/07/2023print number 1254a
01/03/2024referred to labor
01/10/2024enacting clause stricken
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A01254 Committee Votes:

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A01254 Floor Votes:

There are no votes for this bill in this legislative session.
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A01254 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1254A
 
SPONSOR: Joyner
  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. Inv estigation 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
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A01254 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1254--A
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2023
                                       ___________
 
        Introduced  by M. of A. JOYNER, ARDILA, TAYLOR, GIBBS -- Multi-Sponsored
          by -- M. of A.  SEAWRIGHT -- read once and referred to  the  Committee
          on  Labor  -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee
 
        AN ACT to amend the labor law, in relation to civil actions  brought  by
          employees

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 10 of section 27-a of the labor law is  amended
     2  by adding a new paragraph e to read as follows:
     3    e. An employee may bring a civil action in a court of competent juris-
     4  diction  against any employer alleged to have violated the provisions of
     5  this section. Such action must be commenced  within  three  years  after
     6  such violation. The court shall have jurisdiction to order all appropri-
     7  ate  relief,  including  enjoining the conduct of any employer; ordering
     8  payment of costs and reasonable attorneys' fees to the employee  by  the
     9  entity  in  violation;  and  ordering  rehiring  or reinstatement of the
    10  employee to his or her former position with restoration of seniority  or
    11  an  award  of  front  pay in lieu of reinstatement, and an award of lost
    12  compensation and damages, costs  and  reasonable  attorneys'  fees.  The
    13  statute of limitations shall be tolled from the date an employee files a
    14  complaint  with the commissioner or the commissioner commences an inves-
    15  tigation, whichever is earlier, until an order to comply issued  by  the
    16  commissioner  becomes final, or where the commissioner does not issue an
    17  order, until the date on which the commissioner notifies the complainant
    18  that the investigation has concluded. Investigation by the  commissioner
    19  shall  not  be  a  prerequisite to nor a bar against a person bringing a
    20  civil action under this section.
    21    § 2. This act shall take effect immediately.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04469-02-3
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