Bill Text: NY A07366 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes a civil cause of action for employees who are subjected to an abusive work environment.

Spectrum: Moderate Partisan Bill (Democrat 38-10)

Status: (Introduced) 2019-04-26 - referred to labor [A07366 Detail]

Download: New_York-2019-A07366-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          7366
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                     April 26, 2019
                                       ___________
        Introduced  by  M. of A. ENGLEBRIGHT, COLTON, GUNTHER, JAFFEE, L. ROSEN-
          THAL, RIVERA, PRETLOW,  WEPRIN,  LUPARDO,  ABBATE,  BENEDETTO,  ORTIZ,
          DINOWITZ,  HEVESI,  WRIGHT,  MOSLEY,  PEOPLES-STOKES,  STECK, AUBRY --
          Multi-Sponsored by -- M.    of  A.  ARROYO,  BRABENEC,  COOK,  CRESPO,
          CUSICK,  CYMBROWITZ,  DAVILA, FAHY, GALEF, GIGLIO, GOODELL, GOTTFRIED,
          JOHNS, LENTOL, LIFTON, MALLIOTAKIS,  McDONALD,  McDONOUGH,  MONTESANO,
          O'DONNELL,  PAULIN,  PERRY,  RA, RAIA, RAMOS, RODRIGUEZ, STEC, THIELE,
          TITUS -- read once and referred to the Committee on Labor
        AN ACT to amend the labor law, in relation to establishing healthy work-
          places
          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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05435-01-9

        A. 7366                             2
     1  four  times  more  prevalent  than  sexual harassment alone.   Workplace
     2  bullying, mobbing and harassment can inflict serious harm upon  targeted
     3  employees,  including feelings of shame and humiliation, severe anxiety,
     4  depression,  suicidal tendencies, impaired immune systems, hypertension,
     5  increased risk of cardiovascular disease, and symptoms  consistent  with
     6  post-traumatic stress disorder.
     7    Furthermore,  the legislature finds that abusive work environments can
     8  have serious consequences  for  employers,  including  reduced  employee
     9  productivity  and  morale,  higher  turnover  and absenteeism rates, and
    10  significant increases in medical and workers' compensation claims.
    11    The legislature hereby finds that if  mistreated  employees  who  have
    12  been  subjected  to  abusive treatment in the workplace cannot establish
    13  that the behavior was motivated by race, color, sex, sexual orientation,
    14  national origin or age, such employees are unlikely to be  protected  by
    15  the law against such mistreatment.
    16    The  legislature  hereby  declares  that legal protection from abusive
    17  work environments should not  be  limited  to  behavior  grounded  in  a
    18  protected  class  status  as required by employment discrimination stat-
    19  utes. Existing workers' compensation provisions and common law tort  law
    20  are  inadequate  to  discourage such mistreatment or to provide adequate
    21  redress to employees who have been harmed by abusive work environments.
    22    The purpose of this article shall be  to  provide  legal  redress  for
    23  employees  who  have  been harmed psychologically, physically or econom-
    24  ically by deliberate exposure  to  abusive  work  environments;  and  to
    25  provide legal incentives for employers to prevent and respond to abusive
    26  mistreatment of employees at work.
    27    § 761. Definitions. As used in this article, the following terms shall
    28  have the following meanings:
    29    1. "Abusive conduct" means acts, omissions, or both, that a reasonable
    30  person  would find abusive, based on the severity, nature, and frequency
    31  of the conduct, including, but not limited  to:  repeated  verbal  abuse
    32  such  as  the  use of derogatory remarks, insults, and epithets; verbal,
    33  non-verbal, or physical  conduct  of  a  threatening,  intimidating,  or
    34  humiliating nature; or the sabotage or undermining of an employee's work
    35  performance. It shall be considered an aggravating factor if the conduct
    36  exploited an employee's known psychological or physical illness or disa-
    37  bility.  A single act normally shall not constitute abusive conduct, but
    38  an especially severe and egregious act may meet this standard.
    39    2. "Abusive work environment" means an employment  condition  when  an
    40  employer  or  one  or more of its employees, acting with intent to cause
    41  pain or distress to an  employee,  subjects  that  employee  to  abusive
    42  conduct that causes physical harm, psychological harm or both.
    43    3.  "Adverse  employment  action"  means  an  outcome which negatively
    44  impacts an employee, including,  but  not  limited  to,  a  termination,
    45  demotion,  unfavorable  reassignment,  failure  to promote, disciplinary
    46  action or reduction in compensation.
    47    4. "Constructive discharge" means an adverse employment action where:
    48    (a) the employee reasonably believed he or she  was  subjected  to  an
    49  abusive work environment;
    50    (b) the employee resigned because of that conduct; and
    51    (c)  the employer was aware of the abusive conduct prior to the resig-
    52  nation and failed to stop it.
    53    5. "Physical harm" means the impairment of a person's physical  health
    54  or bodily integrity, as established by competent evidence.
    55    6.  "Psychological  harm"  means  the  impairment of a person's mental
    56  health, as established by competent evidence.

        A. 7366                             3
     1    § 762. Abusive work environment. 1. No employee shall be subjected  to
     2  an abusive work environment.
     3    2.  No  employer  or employee shall retaliate in any manner against an
     4  employee who has opposed any unlawful  employment  practice  under  this
     5  article,  or who has made a charge, testified, assisted, or participated
     6  in any manner in an investigation  or  proceeding  under  this  article,
     7  including,  but  not  limited  to,  internal complaints and proceedings,
     8  arbitration and mediation proceedings and legal actions.
     9    § 763. Employer liability.  1. An employer shall be vicariously liable
    10  for a violation of section  seven  hundred  sixty-two  of  this  article
    11  committed by its employee.
    12    2.  Where  the  alleged  violation of such section does not include an
    13  adverse employment action, it shall be an  affirmative  defense  for  an
    14  employer only that:
    15    (a)  the  employer  exercised  reasonable  care to prevent and correct
    16  promptly any actionable behavior; and
    17    (b) the complainant employee unreasonably failed to take advantage  of
    18  appropriate  preventive  or  corrective  opportunities  provided  by the
    19  employer.
    20    § 764. Employee liability. 1. An employee may be  individually  liable
    21  for a violation of section seven hundred sixty-two of this article.
    22    2.  It  shall  be an affirmative defense for an employee only that the
    23  employee committed a violation of such section at the direction  of  the
    24  employer,  under  actual  or  implied  threat  of  an adverse employment
    25  action.
    26    § 765. Affirmative defenses. It shall be an affirmative defense that:
    27    1. the complaint is based on an adverse employment  action  reasonably
    28  made for poor performance, misconduct or economic necessity;
    29    2. the complaint is based on a reasonable performance evaluation; or
    30    3.  the  complaint  is based on an employer's reasonable investigation
    31  about potentially illegal or unethical activity.
    32    § 766. Remedies. 1. Where a defendant has  been  found  liable  for  a
    33  violation  of section seven hundred sixty-two of this article, the court
    34  may enjoin such defendant from engaging in the unlawful employment prac-
    35  tice and may order any other relief that is deemed  appropriate  includ-
    36  ing,  but  not limited to, reinstatement, removal of the offending party
    37  from the plaintiff's work environment,  reimbursement  for  lost  wages,
    38  front  pay,  medical  expenses,  compensation  for  pain  and suffering,
    39  compensation for emotional distress, punitive damages and attorney fees.
    40    2. Where an employer is  liable  for  a  violation  of  section  seven
    41  hundred  sixty-two  of  this  article  that  did  not include an adverse
    42  employment action, emotional distress damages and punitive  damages  may
    43  be  awarded only when the actionable conduct was extreme and outrageous.
    44  This limitation does not apply to individually  named  employee  defend-
    45  ants.
    46    §  767. Enforcement. 1. The provisions of this article are enforceable
    47  solely by means of a civil cause  of  action  commenced  by  an  injured
    48  employee.
    49    2.    An  action  to  enforce  the provisions of this article shall be
    50  commenced within one year of the last act that constitutes  the  alleged
    51  violation of section seven hundred sixty-two of this article.
    52    §  768. Effect on collective bargaining agreements. This article shall
    53  not prevent, interfere, exempt or supersede any current provisions of an
    54  employee's  existing  collective  bargaining  agreement  which  provides
    55  greater rights and protections than prescribed in this article nor shall
    56  this  article  prevent  any  new provisions of the collective bargaining

        A. 7366                             4
     1  agreement which provide greater rights and protections from being imple-
     2  mented and applicable to such employee within such collective bargaining
     3  agreement. Where the collective bargaining  agreement  provides  greater
     4  rights  and  protections than prescribed in this article, the recognized
     5  collective bargaining agent may opt to accept or reject to be covered by
     6  the provisions of this article.
     7    § 769. Effect of other laws. 1. No provision of this article shall  be
     8  deemed to exempt any person or entity from any liability, duty or penal-
     9  ty provided by any other state law, rule or regulation.
    10    2.  The  remedies provided in this article shall be in addition to any
    11  remedies provided under any other provision of law, and nothing in  this
    12  article  shall  relieve  any person from any liability, duty, penalty or
    13  punishment provided by any other provision of law,  except  that  if  an
    14  employee  receives  workers' compensation for medical costs for the same
    15  injury or illness pursuant to both this article and the workers' compen-
    16  sation law, or compensation under both this article and such law in cash
    17  payments for the same period of time not working  as  a  result  of  the
    18  compensable  injury  or illness or the unlawful employment practice, the
    19  payments of workers' compensation shall be reimbursed from damages  paid
    20  under this article.
    21    §  2.  This  act  shall  take  effect  immediately, and shall apply to
    22  abusive conduct occurring on or after such date.
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