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S02261 Summary:

Add Art 20-D §§760 - 769, Lab L
Establishes a civil cause of action for employees who are subjected to an abusive work environment.
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S02261 Actions:

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S02261 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 23, 2019
          twice  and  ordered  printed,  and when printed to be committed 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,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 2261                             2
     1  increased  risk  of cardiovascular disease, and symptoms consistent with
     2  post-traumatic stress disorder.
     3    Furthermore,  the legislature finds that abusive work environments can
     4  have serious consequences  for  employers,  including  reduced  employee
     5  productivity  and  morale,  higher  turnover  and absenteeism rates, and
     6  significant increases in medical and workers' compensation claims.
     7    The legislature hereby finds that if  mistreated  employees  who  have
     8  been  subjected  to  abusive treatment in the workplace cannot establish
     9  that the behavior was motivated by race, color, sex, sexual orientation,
    10  national origin or age, such employees are unlikely to be  protected  by
    11  the law against such mistreatment.
    12    The  legislature  hereby  declares  that legal protection from abusive
    13  work environments should not  be  limited  to  behavior  grounded  in  a
    14  protected  class  status  as required by employment discrimination stat-
    15  utes. Existing workers' compensation provisions and common law tort  law
    16  are  inadequate  to  discourage such mistreatment or to provide adequate
    17  redress to employees who have been harmed by abusive work environments.
    18    The purpose of this article shall be  to  provide  legal  redress  for
    19  employees  who  have  been harmed psychologically, physically or econom-
    20  ically by deliberate exposure  to  abusive  work  environments;  and  to
    21  provide legal incentives for employers to prevent and respond to abusive
    22  mistreatment of employees at work.
    23    § 761. Definitions. As used in this article, the following terms shall
    24  have the following meanings:
    25    1. "Abusive conduct" means acts, omissions, or both, that a reasonable
    26  person  would find abusive, based on the severity, nature, and frequency
    27  of the conduct, including, but not limited  to:  repeated  verbal  abuse
    28  such  as  the  use of derogatory remarks, insults, and epithets; verbal,
    29  non-verbal, or physical  conduct  of  a  threatening,  intimidating,  or
    30  humiliating nature; or the sabotage or undermining of an employee's work
    31  performance. It shall be considered an aggravating factor if the conduct
    32  exploited an employee's known psychological or physical illness or disa-
    33  bility.  A single act normally shall not constitute abusive conduct, but
    34  an especially severe and egregious act may meet this standard.
    35    2. "Abusive work environment" means an employment  condition  when  an
    36  employer  or  one  or more of its employees, acting with intent to cause
    37  pain or distress to an  employee,  subjects  that  employee  to  abusive
    38  conduct that causes physical harm, psychological harm or both.
    39    3.  "Adverse  employment  action"  means  an  outcome which negatively
    40  impacts an employee, including,  but  not  limited  to,  a  termination,
    41  demotion,  unfavorable  reassignment,  failure  to promote, disciplinary
    42  action or reduction in compensation.
    43    4. "Constructive discharge" means an adverse employment action where:
    44    (a) the employee reasonably believed he or she  was  subjected  to  an
    45  abusive work environment;
    46    (b) the employee resigned because of that conduct; and
    47    (c)  the employer was aware of the abusive conduct prior to the resig-
    48  nation and failed to stop it.
    49    5. "Physical harm" means the impairment of a person's physical  health
    50  or bodily integrity, as established by competent evidence.
    51    6.  "Psychological  harm"  means  the  impairment of a person's mental
    52  health, as established by competent evidence.
    53    § 762. Abusive work environment. 1. No employee shall be subjected  to
    54  an abusive work environment.
    55    2.  No  employer  or employee shall retaliate in any manner against an
    56  employee who has opposed any unlawful  employment  practice  under  this

        S. 2261                             3
     1  article,  or who has made a charge, testified, assisted, or participated
     2  in any manner in an investigation  or  proceeding  under  this  article,
     3  including,  but  not  limited  to,  internal complaints and proceedings,
     4  arbitration and mediation proceedings and legal actions.
     5    § 763. Employer liability.  1. An employer shall be vicariously liable
     6  for  a  violation  of  section  seven  hundred sixty-two of this article
     7  committed by its employee.
     8    2. Where the alleged violation of such section  does  not  include  an
     9  adverse  employment  action,  it  shall be an affirmative defense for an
    10  employer only that:
    11    (a) the employer exercised reasonable  care  to  prevent  and  correct
    12  promptly any actionable behavior; and
    13    (b)  the complainant employee unreasonably failed to take advantage of
    14  appropriate preventive  or  corrective  opportunities  provided  by  the
    15  employer.
    16    §  764.  Employee liability. 1. An employee may be individually liable
    17  for a violation of section seven hundred sixty-two of this article.
    18    2. It shall be an affirmative defense for an employee  only  that  the
    19  employee  committed  a violation of such section at the direction of the
    20  employer, under actual  or  implied  threat  of  an  adverse  employment
    21  action.
    22    § 765. Affirmative defenses. It shall be an affirmative defense that:
    23    1.  the  complaint is based on an adverse employment action reasonably
    24  made for poor performance, misconduct or economic necessity;
    25    2. the complaint is based on a reasonable performance evaluation; or
    26    3. the complaint is based on an  employer's  reasonable  investigation
    27  about potentially illegal or unethical activity.
    28    §  766.  Remedies.  1.  Where  a defendant has been found liable for a
    29  violation of section seven hundred sixty-two of this article, the  court
    30  may enjoin such defendant from engaging in the unlawful employment prac-
    31  tice  and  may order any other relief that is deemed appropriate includ-
    32  ing, but not limited to, reinstatement, removal of the  offending  party
    33  from  the  plaintiff's  work  environment, reimbursement for lost wages,
    34  front pay,  medical  expenses,  compensation  for  pain  and  suffering,
    35  compensation for emotional distress, punitive damages and attorney fees.
    36    2.  Where  an  employer  is  liable  for  a violation of section seven
    37  hundred sixty-two of this  article  that  did  not  include  an  adverse
    38  employment  action,  emotional distress damages and punitive damages may
    39  be awarded only when the actionable conduct was extreme and  outrageous.
    40  This  limitation  does  not apply to individually named employee defend-
    41  ants.
    42    § 767. Enforcement. 1. The provisions of this article are  enforceable
    43  solely  by  means  of  a  civil  cause of action commenced by an injured
    44  employee.
    45    2.   An action to enforce the provisions  of  this  article  shall  be
    46  commenced  within  one year of the last act that constitutes the alleged
    47  violation of section seven hundred sixty-two of this article.
    48    § 768. Effect on collective bargaining agreements. This article  shall
    49  not prevent, interfere, exempt or supersede any current provisions of an
    50  employee's  existing  collective  bargaining  agreement  which  provides
    51  greater rights and protections than prescribed in this article nor shall
    52  this article prevent any new provisions  of  the  collective  bargaining
    53  agreement which provide greater rights and protections from being imple-
    54  mented and applicable to such employee within such collective bargaining
    55  agreement.  Where  the  collective bargaining agreement provides greater
    56  rights and protections than prescribed in this article,  the  recognized

        S. 2261                             4
     1  collective bargaining agent may opt to accept or reject to be covered by
     2  the provisions of this article.
     3    §  769. Effect of other laws. 1. No provision of this article shall be
     4  deemed to exempt any person or entity from any liability, duty or penal-
     5  ty provided by any other state law, rule or regulation.
     6    2. The remedies provided in this article shall be in addition  to  any
     7  remedies  provided under any other provision of law, and nothing in this
     8  article shall relieve any person from any liability,  duty,  penalty  or
     9  punishment  provided  by  any  other provision of law, except that if an
    10  employee receives workers' compensation for medical costs for  the  same
    11  injury or illness pursuant to both this article and the workers' compen-
    12  sation law, or compensation under both this article and such law in cash
    13  payments  for  the  same  period  of time not working as a result of the
    14  compensable injury or illness or the unlawful employment  practice,  the
    15  payments  of workers' compensation shall be reimbursed from damages paid
    16  under this article.
    17    § 2. This act shall  take  effect  immediately,  and  shall  apply  to
    18  abusive conduct occurring on or after such date.
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