S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4289

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 28, 2011
                               ___________

Introduced  by  Sen.  SAVINO -- 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  establishing  a  private
  cause of action for an abusive work environment

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new  article  20-D  to
read as follows:
                               ARTICLE 20-D
                        ABUSIVE WORK ENVIRONMENT
SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
        761. DEFINITIONS.
        762. ABUSIVE WORK ENVIRONMENT.
        763. EMPLOYER LIABILITY.
        764. DEFENSES.
        765. RETALIATION.
        766. REMEDIES.
        767. ENFORCEMENT.
        768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.
        769. EFFECT OF OTHER LAWS.
  S  760.  LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS
THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS  DEPENDENT  UPON
HEALTHY  AND  PRODUCTIVE  EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED
THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY  EXPE-
RIENCE  HEALTH  ENDANGERING  WORKPLACE  BULLYING,  ABUSE AND HARASSMENT.
SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE
SURVEYS AND STUDIES HAVE FURTHER FOUND THAT  ABUSIVE  WORK  ENVIRONMENTS
CAN  HAVE  SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS
OF SHAME  AND  HUMILIATION,  STRESS,  LOSS  OF  SLEEP,  SEVERE  ANXIETY,
DEPRESSION,   POST-TRAUMATIC   STRESS   DISORDER,  REDUCED  IMMUNITY  TO
INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION,  AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08789-01-1
              

S. 4289                             2

PATHOPHYSIOLOGIC  CHANGES  THAT  INCREASE  THE  RISK  OF  CARDIOVASCULAR
DISEASES.
  FURTHERMORE,  THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN
HAVE SERIOUS CONSEQUENCES  FOR  EMPLOYERS,  INCLUDING  REDUCED  EMPLOYEE
PRODUCTIVITY  AND  MORALE,  HIGHER  TURNOVER  AND ABSENTEEISM RATES, AND
SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
  THE LEGISLATURE HEREBY FINDS THAT  UNLESS  MISTREATED  EMPLOYEES  HAVE
BEEN  SUBJECTED  TO  ABUSIVE  TREATMENT IN THE WORKPLACE ON THE BASIS OF
RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO
HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT.
  THE LEGISLATURE HEREBY DECLARES THAT  LEGAL  PROTECTION  FROM  ABUSIVE
WORK  ENVIRONMENTS  SHOULD  NOT  BE  LIMITED  TO  BEHAVIOR GROUNDED IN A
PROTECTED CLASS STATUS AS REQUIRED BY  EMPLOYMENT  DISCRIMINATION  STAT-
UTES.  EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW
ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND  PROVIDE  ADEQUATE
REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS.
  THE  PURPOSE  OF  THIS  ARTICLE  SHALL BE TO PROVIDE LEGAL REDRESS FOR
EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY,  PHYSICALLY  OR  ECONOM-
ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND
TO  PROVIDE  LEGAL  INCENTIVES  FOR  EMPLOYERS TO PREVENT AND RESPOND TO
MISTREATMENT OF EMPLOYEES AT WORK.
  S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  1. "ABUSIVE CONDUCT" MEANS CONDUCT,  WITH  MALICE,  TAKEN  AGAINST  AN
EMPLOYEE  BY  AN  EMPLOYER  OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A
REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND  UNRELATED  TO
THE  EMPLOYER'S  LEGITIMATE  BUSINESS  INTERESTS. IN CONSIDERING WHETHER
SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE  SEVERITY,
NATURE  AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT
NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE  USE
OF  DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT
THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI-
ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN  EMPLOYEE'S  WORK
PERFORMANCE.  A  SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS
THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS.
  2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH  AN  EMPLOYEE
IS  SUBJECTED  TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS-
ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE,  AND  WHERE  SUCH  EMPLOYEE
PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO
ABUSIVE  CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS
TO ELIMINATE THE ABUSIVE CONDUCT.
  3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
TO ACT.
  4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN  EMPLOYEE
THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT.
  5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO-
LOGICAL,  PHYSICAL  OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI-
FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF  FACTORS  SUCH  AS
OUTWARD  EXPRESSIONS  OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN
EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL  AND
ILLEGITIMATE  CONDUCT  AFTER  A  COMPLAINANT  REQUESTS  THAT IT CEASE OR
DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE  OF
THE  CONDUCT,  OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG-
ICAL OR PHYSICAL VULNERABILITY.

S. 4289                             3

  6. "NEGATIVE EMPLOYMENT DECISION" MEANS  A  TERMINATION,  CONSTRUCTIVE
DISCHARGE,  DEMOTION,  UNFAVORABLE  REASSIGNMENT,  REFUSAL TO PROMOTE OR
DISCIPLINARY ACTION.
  7.  "PHYSICAL  HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS-
ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT  PHYSICIAN
OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
  8.  "PSYCHOLOGICAL  HARM"  MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S
MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN  OR  SUPPORTED  BY
COMPETENT EXPERT EVIDENCE AT TRIAL.
  S  762.  ABUSIVE  WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN
EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
  S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE
EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER  ITS
CONTROL.
  S  764.  DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF
ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON-
ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT  WHICH  IS
THE  BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED
TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR  CORRECTIVE  OPPORTU-
NITIES  PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE
AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A  NEGA-
TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF.
  2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE
WORK  ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION
WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT  WITH  SUCH  EMPLOYER'S
LEGITIMATE  BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON
THE PLAINTIFF'S POOR PERFORMANCE OR THE  COMPLAINT  IS  BASED  PRIMARILY
UPON  THE  EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS,
ILLEGAL OR UNETHICAL ACTIVITY.
  S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG-
ING A VIOLATION OF THIS ARTICLE SHALL BE  DEEMED  TO  BE  A  RETALIATORY
PERSONNEL  ACTION  AS  PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS
CHAPTER.
  S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO  HAVE  ENGAGED
IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT,
THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV-
ITY  AND  MAY  ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT
NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY  FROM  THE
PLAINTIFF'S  WORK  ENVIRONMENT,  REIMBURSEMENT  FOR  LOST WAGES, MEDICAL
EXPENSES, COMPENSATION FOR  EMOTIONAL  DISTRESS,  PUNITIVE  DAMAGES  AND
ATTORNEY FEES.
  2.  WHERE  AN  EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN
ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN  A  NEGATIVE  EMPLOYMENT
DECISION,  SUCH  EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS
SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO  LIABIL-
ITY  FOR  PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT
APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
  S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE  ENFORCEABLE
BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE.
  2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES,
AN  ACTION  TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED
WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE  BASIS  OF  THE
ALLEGATION OF ABUSIVE WORK ENVIRONMENT.
  S  768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL
NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN
EMPLOYEE'S  EXISTING  COLLECTIVE  BARGAINING  AGREEMENT  WHICH  PROVIDES

S. 4289                             4

GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL
THIS  ARTICLE  PREVENT  ANY  NEW PROVISIONS OF THE COLLECTIVE BARGAINING
AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE-
MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING
AGREEMENT.  WHERE  THE  COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER
RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE,  THE  RECOGNIZED
COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY
THE PROVISIONS OF THIS ARTICLE.
  S  769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE
DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL-
TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION.
  2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN  ADDITION  TO  ANY
COMPENSATION  AVAILABLE  PURSUANT  TO  THE  WORKERS'  COMPENSATION  LAW;
PROVIDED, HOWEVER, THAT NO PERSON WHO  HAS  COLLECTED  WORKERS'  COMPEN-
SATION  BENEFITS  FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON-
MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS
ARTICLE FOR THE SAME SUCH CONDITIONS.
  S 2. This act shall  take  effect  immediately,  and  shall  apply  to
abusive conduct occurring on or after such date.