Bill Text: NY A06207 | 2009-2010 | General Assembly | Introduced

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Bill Title: An act to amend the labor law, in relation to the prevention of abusive conduct in the workplace

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Introduced - Dead) 2010-06-08 - held for consideration in labor [A06207 Detail]

Download: New_York-2009-A06207-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6207
                              2009-2010 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 26, 2009
                                      ___________
       Introduced  by M. of A. BARRA -- read once and referred to the Committee
         on Labor
       AN ACT to amend the labor law, in relation to the prevention of  abusive
         conduct in the workplace
         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               PREVENTION OF ABUSIVE CONDUCT IN THE WORKPLACE
    5  SECTION 760. STATEMENT OF PUBLIC POLICY AND FINDINGS.
    6          761. DEFINITIONS.
    7          762. ABUSIVE CONDUCT AN UNLAWFUL ACT.
    8    S 760. STATEMENT OF PUBLIC POLICY AND FINDINGS. THE LEGISLATURE HEREBY
    9  FINDS AND DECLARES IT NECESSARY TO ATTEMPT TO PREVENT ABUSIVE CONDUCT IN
   10  THE  WORKPLACE.  STUDIES  HAVE DOCUMENTED THAT ABUSIVE WORK ENVIRONMENTS
   11  CAN HAVE SERIOUS ADVERSE EFFECTS ON TARGETED EMPLOYEES, INCLUDING  FEEL-
   12  INGS   OF  SHAME  AND  HUMILIATION,  STRESS,  LOSS  OF  SLEEP,  ANXIETY,
   13  DEPRESSION, STRESS RELATED GASTROINTESTINAL DISORDERS AND  HYPERTENSION.
   14  THEY  ALSO  SUGGEST THAT ABUSIVE WORK ENVIRONMENTS CAN ALSO HARM EMPLOY-
   15  ERS, BY RESULTING IN LOWER  EMPLOYEE  PRODUCTIVITY  AND  MORALE,  HIGHER
   16  TURNOVER  AND ABSENTEEISM, AND GREATER MEDICAL AND WORKERS' COMPENSATION
   17  CLAIMS.
   18    S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
   19  HAVE THE FOLLOWING MEANINGS:
   20    1. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
   21  OF ACTS.
   22    2. "MALICE" MEANS THE DESIRE TO SEE ANOTHER PERSON  SUFFER  PSYCHOLOG-
   23  ICAL, PHYSICAL, OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTIFICA-
   24  TION.    MALICE  CAN  BE  INFERRED FROM THE PRESENCE OF FACTORS SUCH AS:
   25  OUTWARD EXPRESSIONS OF HOSTILITY; HARMFUL CONDUCT INCONSISTENT  WITH  AN
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07281-01-9
       A. 6207                             2
    1  EMPLOYER'S  LEGITIMATE  BUSINESS  INTERESTS;  A CONTINUATION OF HARMFUL,
    2  ILLEGITIMATE CONDUCT AFTER THE COMPLAINANT REQUESTS  THAT  IT  CEASE  OR
    3  DEMONSTRATES OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE
    4  OF  THE  CONDUCT; OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHO-
    5  LOGICAL OR PHYSICAL VULNERABILITY.
    6    3. "ABUSIVE CONDUCT" MEANS CONDUCT THAT A REASONABLE PERSON WOULD FIND
    7  HOSTILE, OFFENSIVE, AND UNRELATED TO AN EMPLOYER'S  LEGITIMATE  BUSINESS
    8  INTERESTS. IN CONSIDERING WHETHER ABUSIVE CONDUCT IS PRESENT, A TRIER OF
    9  FACT SHOULD WEIGH THE SEVERITY, NATURE, AND FREQUENCY OF THE DEFENDANT'S
   10  CONDUCT.  ABUSIVE  CONDUCT MAY INCLUDE, BUT IS NOT LIMITED TO:  REPEATED
   11  INFLICTION OF VERBAL ABUSE  SUCH  AS  THE  USE  OF  DEROGATORY  REMARKS,
   12  INSULTS,  AND  EPITHETS;  VERBAL  OR  PHYSICAL CONDUCT THAT A REASONABLE
   13  PERSON WOULD FIND THREATENING,  INTIMIDATING,  OR  HUMILIATING;  OR  THE
   14  GRATUITOUS  SABOTAGE  OR  UNDERMINING OF A PERSON'S WORK PERFORMANCE.  A
   15  SINGLE ACT NORMALLY WILL NOT CONSTITUTE ABUSIVE CONDUCT,  BUT  AN  ESPE-
   16  CIALLY SEVERE AND EGREGIOUS ACT MAY MEET THIS STANDARD.
   17    4. "TANGIBLE HARM" MEANS PSYCHOLOGICAL HARM OR PHYSICAL HARM.
   18    (A) PSYCHOLOGICAL HARM IS THE MATERIAL IMPAIRMENT OF A PERSON'S MENTAL
   19  HEALTH,  AS  DOCUMENTED  BY  A  COMPETENT PSYCHOLOGIST, PSYCHIATRIST, OR
   20  PSYCHOTHERAPIST, OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
   21    (B) PHYSICAL HARM IS THE MATERIAL IMPAIRMENT OF  A  PERSON'S  PHYSICAL
   22  HEALTH  OR  BODILY  INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR
   23  SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
   24    (C) A NEGATIVE EMPLOYMENT DECISION IS A TERMINATION,  DEMOTION,  UNFA-
   25  VORABLE REASSIGNMENT, REFUSAL TO PROMOTE, OR DISCIPLINARY ACTION.
   26    S  762.  ABUSIVE  CONDUCT AN UNLAWFUL ACT. 1. IT SHALL BE UNLAWFUL FOR
   27  ANY PERSON TO ENGAGE IN ABUSIVE CONDUCT TOWARD ANOTHER  PERSON  AT  THAT
   28  PERSON'S WORKPLACE.
   29    2.  A  PERSON  WHO  HAS BEEN OR IS BEING ABUSED MAY BRING AN ACTION IN
   30  SUPREME COURT FOR MONETARY DAMAGES AND INJUNCTIVE  RELIEF.  SUCH  ACTION
   31  SHALL  BE  BROUGHT  AGAINST  THE  PARTY PERFORMING THE ACT OR ACTS WHICH
   32  CONSTITUTE THE ABUSIVE CONDUCT AND/OR THE EMPLOYER.
   33    3. AN EMPLOYER SHALL BE VICARIOUSLY LIABLE FOR AN UNLAWFUL  EMPLOYMENT
   34  PRACTICE, AS DEFINED BY THIS SECTION, COMMITTED BY ITS EMPLOYEE.
   35    4. IT SHALL BE AN AFFIRMATIVE DEFENSE FOR AN EMPLOYER ONLY THAT:
   36    (A)  THE  EMPLOYER  EXERCISED  REASONABLE  CARE TO PREVENT AND CORRECT
   37  PROMPTLY ANY ACTIONABLE BEHAVIOR; AND
   38    (B) THE COMPLAINANT EMPLOYEE UNREASONABLY FAILED TO TAKE ADVANTAGE  OF
   39  APPROPRIATE  PREVENTIVE  OR  CORRECTIVE  OPPORTUNITIES  PROVIDED  BY THE
   40  EMPLOYER.
   41    THIS DEFENSE IS NOT AVAILABLE WHEN THE ACTIONABLE BEHAVIOR  CULMINATES
   42  IN A NEGATIVE EMPLOYMENT DECISION.
   43    5.  WHERE  AN  EMPLOYER  HAS  BEEN FOUND TO HAVE COMMITTED AN UNLAWFUL
   44  EMPLOYMENT PRACTICE UNDER THIS SECTION THAT DID NOT CULMINATE IN A NEGA-
   45  TIVE EMPLOYMENT  DECISION,  ITS  LIABILITY  FOR  DAMAGES  FOR  EMOTIONAL
   46  DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS, AND IT SHALL NOT
   47  BE  SUBJECT  TO PUNITIVE DAMAGES. THIS PROVISION DOES NOT APPLY TO INDI-
   48  VIDUALLY NAMED CO-EMPLOYEE DEFENDANTS.
   49    6. IT SHALL BE AN AFFIRMATIVE DEFENSE THAT:
   50    (A) THE COMPLAINT IS GROUNDED PRIMARILY  UPON  A  NEGATIVE  EMPLOYMENT
   51  DECISION  MADE  CONSISTENT WITH AN EMPLOYER'S LEGITIMATE BUSINESS INTER-
   52  ESTS, SUCH AS A TERMINATION OR DEMOTION  BASED  ON  AN  EMPLOYEE'S  POOR
   53  PERFORMANCE; OR
   54    (B)  THE COMPLAINT IS GROUNDED PRIMARILY UPON AN EMPLOYER'S REASONABLE
   55  INVESTIGATION ABOUT POTENTIALLY ILLEGAL OR UNETHICAL ACTIVITY.
       A. 6207                             3
    1    IT SHALL BE AN UNLAWFUL EMPLOYMENT  PRACTICE  UNDER  THIS  SECTION  TO
    2  RETALIATE  IN  ANY  MANNER  AGAINST  AN  EMPLOYEE  BECAUSE HE OR SHE HAS
    3  OPPOSED ANY ABUSIVE CONDUCT, PRACTICE, OR BECAUSE HE OR SHE HAS  MADE  A
    4  CHARGE,  TESTIFIED, ASSISTED, OR PARTICIPATED IN ANY MANNER IN AN INVES-
    5  TIGATION  OR  PROCESSING  UNDER THIS SECTION, INCLUDING, BUT NOT LIMITED
    6  TO, INTERNAL  COMPLAINTS  AND  PROCEEDINGS,  ARBITRATION  AND  MEDIATION
    7  PROCEEDINGS, AND LEGAL ACTIONS.
    8    S 2. This act shall take effect on the one hundred eightieth day after
    9  it  shall have become a law; provided, however, that the commissioner of
   10  labor shall immediately promulgate any rules  or  regulations  necessary
   11  for the implementation of this act on or before such effective date.