•  Summary 
  •  Actions 
  •  Committee Votes 
  •  Floor Votes 
  •  Memo 
  •  Text 
  •  LFIN 
  •  Chamber Video/Transcript 

S05459 Summary:

Add Art 20-D §§745 - 753, Lab L
Establishes certain rights and remedies for employees who are wrongfully discharged; establishes remedies for wrongful discharge; allows an employee or employer to make a written offer to arbitrate a dispute covered under this act; defines terms.
Go to top    

S05459 Actions:

Go to top

S05459 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                    IN SENATE
                                      March 6, 2023
        Introduced  by  Sens. JACKSON, COMRIE, SALAZAR -- read 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 enacting the  safeguarding
          employees and accountability for termination act
          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
     5  Section 745. Short title.
     6          746. Definitions.
     7          747. Elements of wrongful discharge.
     8          748. Remedies.
     9          749. Probationary period.
    10          750. Limitation of actions.
    11          751. Exemptions.
    12          752. Arbitration.
    13          753. Effect of rejection of offer to arbitrate.
    14    §  745.  Short  title. This act shall be known and may be cited as the
    15  "safeguarding employees and accountability for termination act" or  "the
    16  SEAT act".
    17    § 746. Definitions. When used in this article, the term:
    18    1. "Constructive discharge" means the voluntary termination of employ-
    19  ment by an employee because of a situation created by an act or omission
    20  of the employer which a reasonable person would find so intolerable that
    21  voluntary  termination  is the only reasonable alternative. Constructive
    22  discharge does not mean voluntary termination because of  an  employer's
    23  refusal  to  promote  the employee or improve wages, responsibilities or
    24  other terms and conditions of employment.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5459                             2
     1    2. "Discharge" includes a constructive discharge as defined in  subdi-
     2  vision  one  of  this  section  and any other termination of employment,
     3  including resignation, elimination of the  job,  failure  to  recall  or
     4  rehire and any other cutback in the number of employees for a legitimate
     5  business reason.
     6    3.  "Fringe  benefits"  means  the value of any employer-paid vacation
     7  leave, sick leave, medical insurance plan,  disability  insurance  plan,
     8  and life insurance plan in force on the date of the termination.
     9    4.  "Good  cause"  means  any  reasonable  job-related  grounds for an
    10  employee's dismissal based on:
    11    (a) the employee's failure to satisfactorily perform job duties;
    12    (b) the employee's disruption of the employer's operation except  when
    13  engaging in concerted activity;
    14    (c)  the  employee's  material  or  repeated  violation  of an express
    15  provision of the employer's written policies; or
    16    (d) other legitimate business reasons determined by the employer while
    17  exercising the employer's reasonable business judgment. The legal use of
    18  a consumable product by an employee off the employer's  premises  during
    19  nonworking hours is not a legitimate business reason; provided, however,
    20  that this paragraph shall not apply to:
    21    (i)  the  use  of  a  consumable product that affects in any manner an
    22  employee's ability to perform job-related employment responsibilities or
    23  the safety of other employees;
    24    (ii) an employee who, on a personal basis, has a professional  service
    25  contract with an employer and the unique nature of the services provided
    26  authorizes  the  employer, as part of the service contract, to limit the
    27  use of certain products;
    28    (iii) an employer that is a nonprofit organization that, as one of its
    29  primary purposes or objectives, discourages  the  use  of  one  or  more
    30  lawful products by the general public; or
    31    (iv)  an  employer  that  takes  action  based  on the belief that the
    32  employer's actions are permissible under an established substance  abuse
    33  or  alcohol  program  or  policy,  professional  contract  or collective
    34  bargaining agreement.
    35    6. "Leave of absence" means an employee's  absence  from  work  for  a
    36  period  of  more than five consecutive working days for any reason other
    37  than holidays and vacations.
    38    7. "Lost wages" means the gross amount of wages that would  have  been
    39  reported to the internal revenue service as gross income on form W-2 and
    40  includes  overtime  payments,  any  bonuses, and additional compensation
    41  deferred at the option of the employee.
    42    § 747. Elements of wrongful discharge. 1. A discharge is wrongful only
    43  if:
    44    (a) the discharge  was  not  for  good  cause  and  the  employee  had
    45  completed the employer's probationary period of employment; or
    46    (b)  the  employer materially violated an express provision of its own
    47  written personnel policy prior  to  the  discharge,  and  the  violation
    48  deprived  the employee of a fair and reasonable opportunity to remain in
    49  a position of employment with the employer.
    50    2. During a probationary period of employment, the employment  may  be
    51  terminated at the will of the employer on notice to the employee for any
    52  reason or for no reason.
    53    3.  The  employer  has  broad  discretion  when  making  a decision to
    54  discharge any managerial or supervisory employee.
    55    § 748. Remedies. 1. If an employer has committed a wrongful discharge,
    56  the employee may be awarded lost wages and fringe benefits for a  period

        S. 5459                             3
     1  not  to  exceed  four  years  from  the date of discharge, together with
     2  interest on the lost wages and fringe benefits. The  employee's  interim
     3  earnings,  derived  from  any  new  kind, nature, or type of work, hire,
     4  contractor  status  or  employment  that  did  not  exist at the time of
     5  discharge, including amounts the employee could have earned with reason-
     6  able diligence from the work, hire,  contractor  status  or  employment,
     7  shall be deducted from the amount awarded for lost wages.  Before inter-
     8  im  earnings  are deducted from lost wages, there shall be deducted from
     9  the interim earnings any reasonable amounts expended by the employee  in
    10  searching for, obtaining, or relocating to new employment.
    11    2. Following any verdict or award in favor of the discharged employee,
    12  a  court of competent jurisdiction shall consider any monetary payments,
    13  compensation or benefits the employee received arising from  or  related
    14  to  the  discharge, including unemployment compensation or benefits, and
    15  shall deduct those payments, compensation and benefits from  the  amount
    16  awarded for lost wages before entering judgment.
    17    §  749.  Probationary  period.  1. If an employer does not establish a
    18  specific probationary period or provide that there  is  no  probationary
    19  period  prior  to  or  at  the time the employee begins work, there is a
    20  probationary period of one month commencing on  the  date  the  employee
    21  begins work.
    22    2.  An  employer may extend a probationary period prior to the expira-
    23  tion of a probationary period,  but  the  original  probationary  period
    24  together with any periods of extension shall not exceed six months.  The
    25  probationary period shall not be extended or restarted by discharging an
    26  employee during the probationary period and rehiring the employee within
    27  three months after such discharge.
    28    3.  If  an  employee  has  one  or  more  leaves of absence during the
    29  original probationary period or any extension of the probationary  peri-
    30  od,  the time of each leave of absence shall not be a part of the proba-
    31  tionary period unless the employer affirmatively elects to include  each
    32  leave of absence as part of the probationary period with the affirmative
    33  written consent of the employee.
    34    § 750. Limitation of actions. 1. An action under this article shall be
    35  filed within six years after the date of discharge.
    36    2.  If  an  employer maintains written internal procedures, other than
    37  those specified in section seven  hundred  fifty-one  of  this  article,
    38  under which an employee may appeal a discharge within the organizational
    39  structure of the employer, the employee shall first exhaust those proce-
    40  dures prior to filing an action under this article. The employee's fail-
    41  ure to initiate or exhaust available internal procedures is a defense to
    42  an  action brought under this article. If the employer's internal proce-
    43  dures are not completed within ninety days from the  date  the  employee
    44  initiates the internal procedures, the employee may file an action under
    45  this  article and for purposes of this subdivision the employer's inter-
    46  nal procedures are considered exhausted. The statute of  limitations  in
    47  subdivision  one  of  this  section  is  tolled until the procedures are
    48  exhausted. In no case may the  provisions  of  the  employer's  internal
    49  procedures  extend  the  limitation  period  in  subdivision one of this
    50  section more than one hundred twenty days.
    51    3. If the employer maintains written internal procedures  under  which
    52  an  employee  may appeal a discharge within the organizational structure
    53  of the employer, the employer shall within fourteen days of the date  of
    54  the  discharge  notify  the  discharged employee in writing or electron-
    55  ically of the existence of the internal procedures.  The  timeframe  for
    56  the  employee to initiate the procedures, if any, begins to run from the

        S. 5459                             4
     1  date the employer sends or provides a copy of the internal procedures in
     2  writing or electronically. A copy of the procedures shall be  considered
     3  provided to the employee, if the employer sends a copy of the procedures
     4  to the employee's last-known postal mailing address and electronic mail-
     5  ing  address,  if  provided, or the employee's attorney. If the employer
     6  fails to comply with this subdivision, the discharged employee need  not
     7  comply with subdivision two of this section.
     8    4.  If  a  plaintiff  commences  a civil action for wrongful discharge
     9  under this article, the plaintiff shall make service of process pursuant
    10  to section three hundred six-b of the civil practice law and rules after
    11  filing the complaint. If the plaintiff fails to make service of process,
    12  the court, on motion or on its own initiative, shall dismiss the  action
    13  without  prejudice  as  to a defendant unless that defendant has made an
    14  appearance in the civil action. If the plaintiff fails to  make  service
    15  of  process,  the  remaining six-year statute of limitations for a civil
    16  action under this article resumes regardless of whether the civil action
    17  is dismissed.
    18    § 751. Exemptions. 1. This article does not apply to a discharge:
    19    (a) that is subject  to  any  other  state  or  federal  statute  that
    20  provides  a procedure or remedy for contesting the dispute. The statutes
    21  include those that prohibit discharge for filing complaints, charges, or
    22  claims with administrative bodies or that  prohibit  unlawful  discrimi-
    23  nation  based on age, race, creed, color, national origin, sexual orien-
    24  tation, gender identity or expression, military status, sex, disability,
    25  predisposing genetic characteristics, familial status,  marital  status,
    26  status as a victim of domestic violence and other similar grounds; or
    27    (b)  of  an employee covered by a written collective bargaining agree-
    28  ment or a written contract of employment for a specific term.
    29    2. For the purposes of this section, a "contract of employment  for  a
    30  specific  term"  may  contain  a probationary period pursuant to section
    31  seven hundred forty-nine of this article and may  contain  an  automatic
    32  renewal  clause that automatically renews the contract of employment for
    33  one or more successive terms.
    34    § 752. Arbitration. 1. A party may make a written offer to arbitrate a
    35  dispute that otherwise could be adjudicated under this article.
    36    2. An offer to arbitrate shall be in writing and contain the following
    37  provisions:
    38    (a) A neutral arbitrator shall be selected by mutual agreement or,  in
    39  the  absence of agreement, pursuant to article seventy-five of the civil
    40  practice law and rules.
    41    (b) The arbitration shall be conducted pursuant  to  article  seventy-
    42  five of the civil practice law and rules. If there is a conflict between
    43  the  provisions  of  article  seventy-five of the civil practice law and
    44  rules and the provisions of this article, the provisions of this article
    45  shall apply.
    46    (c) The arbitrator is bound by this article.
    47    3. If a complaint is filed under this article, the offer to  arbitrate
    48  shall  be  made within sixty days after service of the complaint and may
    49  be accepted in writing within thirty days after the date  the  offer  is
    50  made.
    51    4.  A discharged employee who makes a valid offer to arbitrate that is
    52  accepted by the employer and who prevails in such arbitration  shall  be
    53  entitled  to have the arbitrator's fee and all costs of arbitration paid
    54  by the employer.
    55    5. If a valid offer to arbitrate is made and accepted, arbitration  is
    56  the  exclusive remedy for the wrongful discharge dispute and there is no

        S. 5459                             5
     1  right  to  bring  or  continue  a  lawsuit  under  this   article.   The
     2  arbitrator's  award  is  final  and  binding,  subject  to review of the
     3  arbitrator's decision under the provisions of  article  seventy-five  of
     4  the  civil  practice law and rules.  However, this subdivision shall not
     5  apply if the employer maintains written internal procedures that require
     6  arbitration under subdivision two of section seven hundred fifty of this
     7  article.
     8    § 753. Effect of rejection of offer  to  arbitrate.  If  a  discharged
     9  employee  makes  a  valid offer to arbitrate that is not accepted by the
    10  employer and such discharged employee prevails in an action  under  this
    11  article  such discharged employee shall be entitled to reasonable attor-
    12  neys' fees incurred subsequent to the date of the offer.
    13    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
    14  sion, section or part of this act shall be  adjudged  by   any court  of
    15  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    16  impair,  or  invalidate the remainder thereof, but shall  be confined in
    17  its  operation  to the clause, sentence, paragraph, subdivision, section
    18  or part thereof directly involved in the controversy in which such judg-
    19  ment shall have been rendered. It is hereby declared to be the intent of
    20  the legislature that this act would  have  been  enacted even  if   such
    21  invalid provisions had not been included herein.
    22    §  3.  This  act shall take effect on the ninetieth day after it shall
    23  have become a law. Effective immediately, the addition, amendment and/or
    24  repeal of any rule or regulation necessary  for  the  implementation  of
    25  this  act  on its effective date are authorized to be made and completed
    26  on or before such date.
Go to top