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A03330 Summary:

COSPNSRRosenthal L, Colton, Weprin, Glick, Sayegh, Aubry, Burdick, Kelles, Darling, Giglio JA, Curran, Raga, Simone, Epstein, Gibbs, Simon, Cruz, Levenberg, Kim, Sillitti, Reyes, Steck, McDonald, Hevesi, Thiele, Novakhov, McDonough, Tapia, Jackson, Dinowitz, Solages, Shimsky, De Los Santos, Fahy, Seawright, Jacobson, Brabenec, DeStefano, Davila, Stirpe, Walker, Taylor, Lupardo, Ardila, Reilly, Durso, Dickens, Giglio JM, Septimo, Otis
MLTSPNSRPaulin, Ramos
Add Art 20-D §§760 - 769, Lab L
Establishes a civil cause of action for employees who are subjected to an abusive work environment; employers shall be vicariously liable for such work environment.
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A03330 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    February 2, 2023
        Introduced by M. of A. JOYNER -- read once and referred to the Committee
          on Labor
        AN ACT to amend the labor law, in relation to establishing healthy work-
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The labor law is amended by adding a new  article  20-D  to
     2  read as follows:
     3                                 ARTICLE 20-D
     4                             HEALTHY WORKPLACES
     5  Section 760. Legislative findings and intent.
     6          761. Definitions.
     7          762. Abusive work environment.
     8          763. Employer liability.
     9          764. Employee liability.
    10          765. Affirmative defenses.
    11          766. Remedies.
    12          767. Enforcement.
    13          768. Effect on collective bargaining agreements.
    14          769. Effect of other laws.
    15    §  760.  Legislative findings and intent. The legislature hereby finds
    16  that the social and economic well-being of the state is  dependent  upon
    17  healthy  and  productive  employees. At least one-third of all employees
    18  directly experience health endangering  workplace  bullying,  abuse  and
    19  harassment  during  their  working lives.   Such form of mistreatment is
    20  four times more prevalent  than  sexual  harassment  alone.    Workplace
    21  bullying,  mobbing and harassment can inflict serious harm upon targeted
    22  employees, including feelings of shame and humiliation, severe  anxiety,
    23  depression,  suicidal tendencies, impaired immune systems, hypertension,
    24  increased risk of cardiovascular disease, and symptoms  consistent  with
    25  post-traumatic stress disorder.

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

        A. 3330                             2
     1    Furthermore,  the legislature finds that abusive work environments can
     2  have serious consequences  for  employers,  including  reduced  employee
     3  productivity  and  morale,  higher  turnover  and absenteeism rates, and
     4  significant increases in medical and workers' compensation claims.
     5    The  legislature  hereby  finds  that if mistreated employees who have
     6  been subjected to abusive treatment in the  workplace  cannot  establish
     7  that the behavior was motivated by race, color, sex, sexual orientation,
     8  national  origin  or age, such employees are unlikely to be protected by
     9  the law against such mistreatment.
    10    The legislature hereby declares that  legal  protection  from  abusive
    11  work  environments  should  not  be  limited  to  behavior grounded in a
    12  protected class status as required by  employment  discrimination  stat-
    13  utes.  Existing workers' compensation provisions and common law tort law
    14  are inadequate to discourage such mistreatment or  to  provide  adequate
    15  redress to employees who have been harmed by abusive work environments.
    16    The  purpose  of  this  article  shall be to provide legal redress for
    17  employees who have been harmed psychologically,  physically  or  econom-
    18  ically  by  deliberate  exposure  to  abusive  work environments; and to
    19  provide legal incentives for employers to prevent and respond to abusive
    20  mistreatment of employees at work.
    21    § 761. Definitions. As used in this article, the following terms shall
    22  have the following meanings:
    23    1. "Abusive conduct" means acts, omissions, or both, that a reasonable
    24  person would find abusive, based on the severity, nature, and  frequency
    25  of  the  conduct,  including,  but not limited to: repeated verbal abuse
    26  such as the use of derogatory remarks, insults,  and  epithets;  verbal,
    27  non-verbal,  or  physical  conduct  of  a  threatening, intimidating, or
    28  humiliating nature; or the sabotage or undermining of an employee's work
    29  performance. It shall be considered an aggravating factor if the conduct
    30  exploited an employee's known psychological or physical illness or disa-
    31  bility. A single act normally shall not constitute abusive conduct,  but
    32  an especially severe and egregious act may meet this standard.
    33    2.  "Abusive  work  environment" means an employment condition when an
    34  employer or one or more of its employees, acting with  intent  to  cause
    35  pain  or  distress  to  an  employee,  subjects that employee to abusive
    36  conduct that causes physical harm, psychological harm or both.
    37    3. "Adverse employment  action"  means  an  outcome  which  negatively
    38  impacts  an  employee,  including,  but  not  limited to, a termination,
    39  demotion, unfavorable reassignment,  failure  to  promote,  disciplinary
    40  action or reduction in compensation.
    41    4. "Constructive discharge" means an adverse employment action where:
    42    (a)  the  employee  reasonably  believed he or she was subjected to an
    43  abusive work environment;
    44    (b) the employee resigned because of that conduct; and
    45    (c) the employer was aware of the abusive conduct prior to the  resig-
    46  nation and failed to stop it.
    47    5.  "Physical harm" means the impairment of a person's physical health
    48  or bodily integrity, as established by competent evidence.
    49    6. "Psychological harm" means the  impairment  of  a  person's  mental
    50  health, as established by competent evidence.
    51    §  762. Abusive work environment. 1. No employee shall be subjected to
    52  an abusive work environment.
    53    2. No employer or employee shall retaliate in any  manner  against  an
    54  employee  who  has  opposed  any unlawful employment practice under this
    55  article, or who has made a charge, testified, assisted, or  participated
    56  in  any  manner  in  an  investigation or proceeding under this article,

        A. 3330                             3
     1  including, but not limited  to,  internal  complaints  and  proceedings,
     2  arbitration and mediation proceedings and legal actions.
     3    § 763. Employer liability.  1. An employer shall be vicariously liable
     4  for  a  violation  of  section  seven  hundred sixty-two of this article
     5  committed by its employee.
     6    2. Where the alleged violation of such section  does  not  include  an
     7  adverse  employment  action,  it  shall be an affirmative defense for an
     8  employer only that:
     9    (a) the employer exercised reasonable  care  to  prevent  and  correct
    10  promptly any actionable behavior; and
    11    (b)  the complainant employee unreasonably failed to take advantage of
    12  appropriate preventive  or  corrective  opportunities  provided  by  the
    13  employer.
    14    §  764.  Employee liability. 1. An employee may be individually liable
    15  for a violation of section seven hundred sixty-two of this article.
    16    2. It shall be an affirmative defense for an employee  only  that  the
    17  employee  committed  a violation of such section at the direction of the
    18  employer, under actual  or  implied  threat  of  an  adverse  employment
    19  action.
    20    § 765. Affirmative defenses. It shall be an affirmative defense that:
    21    1.  the  complaint is based on an adverse employment action reasonably
    22  made for poor performance, misconduct or economic necessity;
    23    2. the complaint is based on a reasonable performance evaluation; or
    24    3. the complaint is based on an  employer's  reasonable  investigation
    25  about potentially illegal or unethical activity.
    26    §  766.  Remedies.  1.  Where  a defendant has been found liable for a
    27  violation of section seven hundred sixty-two of this article, the  court
    28  may enjoin such defendant from engaging in the unlawful employment prac-
    29  tice  and  may order any other relief that is deemed appropriate includ-
    30  ing, but not limited to, reinstatement, removal of the  offending  party
    31  from  the  plaintiff's  work  environment, reimbursement for lost wages,
    32  front pay,  medical  expenses,  compensation  for  pain  and  suffering,
    33  compensation for emotional distress, punitive damages and attorney fees.
    34    2.  Where  an  employer  is  liable  for  a violation of section seven
    35  hundred sixty-two of this  article  that  did  not  include  an  adverse
    36  employment  action,  emotional distress damages and punitive damages may
    37  be awarded only when the actionable conduct was extreme and  outrageous.
    38  This  limitation  does  not apply to individually named employee defend-
    39  ants.
    40    § 767. Enforcement. 1. The provisions of this article are  enforceable
    41  solely  by  means  of  a  civil  cause of action commenced by an injured
    42  employee.
    43    2.   An action to enforce the provisions  of  this  article  shall  be
    44  commenced  within  one year of the last act that constitutes the alleged
    45  violation of section seven hundred sixty-two of this article.
    46    § 768. Effect on collective bargaining agreements. This article  shall
    47  not prevent, interfere, exempt or supersede any current provisions of an
    48  employee's  existing  collective  bargaining  agreement  which  provides
    49  greater rights and protections than prescribed in this article nor shall
    50  this article prevent any new provisions  of  the  collective  bargaining
    51  agreement which provide greater rights and protections from being imple-
    52  mented and applicable to such employee within such collective bargaining
    53  agreement.  Where  the  collective bargaining agreement provides greater
    54  rights and protections than prescribed in this article,  the  recognized
    55  collective bargaining agent may opt to accept or reject to be covered by
    56  the provisions of this article.

        A. 3330                             4
     1    §  769. Effect of other laws. 1. No provision of this article shall be
     2  deemed to exempt any person or entity from any liability, duty or penal-
     3  ty provided by any other state law, rule or regulation.
     4    2.  The  remedies provided in this article shall be in addition to any
     5  remedies provided under any other provision of law, and nothing in  this
     6  article  shall  relieve  any person from any liability, duty, penalty or
     7  punishment provided by any other provision of law,  except  that  if  an
     8  employee  receives  workers' compensation for medical costs for the same
     9  injury or illness pursuant to both this article and the workers' compen-
    10  sation law, or compensation under both this article and such law in cash
    11  payments for the same period of time not working  as  a  result  of  the
    12  compensable  injury  or illness or the unlawful employment practice, the
    13  payments of workers' compensation shall be reimbursed from damages  paid
    14  under this article.
    15    §  2.  This  act  shall  take  effect  immediately, and shall apply to
    16  abusive conduct occurring on or after such date.
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