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

                                  6438

                            I N  S E N A T E

                            January 13, 2016
                               ___________

Introduced  by  Sen. SANDERS -- 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 healthy work-
  places

  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
                           HEALTHY WORKPLACES
SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
        761. DEFINITIONS.
        762. ABUSIVE WORK ENVIRONMENT.
        763. EMPLOYER LIABILITY.
        764. EMPLOYEE LIABILITY.
        765. AFFIRMATIVE DEFENSES.
        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. AT LEAST ONE-THIRD  OF  ALL  EMPLOYEES
DIRECTLY  EXPERIENCE  HEALTH  ENDANGERING  WORKPLACE BULLYING, ABUSE AND
HARASSMENT DURING THEIR WORKING LIVES.   SUCH FORM  OF  MISTREATMENT  IS
FOUR  TIMES  MORE  PREVALENT  THAN  SEXUAL HARASSMENT ALONE.   WORKPLACE
BULLYING, MOBBING AND HARASSMENT CAN INFLICT SERIOUS HARM UPON  TARGETED
EMPLOYEES,  INCLUDING FEELINGS OF SHAME AND HUMILIATION, SEVERE ANXIETY,
DEPRESSION, SUICIDAL TENDENCIES, IMPAIRED IMMUNE SYSTEMS,  HYPERTENSION,
INCREASED  RISK  OF CARDIOVASCULAR DISEASE, AND SYMPTOMS CONSISTENT WITH
POST-TRAUMATIC STRESS DISORDER.
  FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS  CAN
HAVE  SERIOUS  CONSEQUENCES  FOR  EMPLOYERS,  INCLUDING REDUCED EMPLOYEE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07296-01-5
              

S. 6438                             2

PRODUCTIVITY AND MORALE, HIGHER  TURNOVER  AND  ABSENTEEISM  RATES,  AND
SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
  THE  LEGISLATURE  HEREBY  FINDS  THAT IF MISTREATED EMPLOYEES WHO HAVE
BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE  WORKPLACE  CANNOT  ESTABLISH
THAT THE BEHAVIOR WAS MOTIVATED BY RACE, COLOR, SEX, SEXUAL ORIENTATION,
NATIONAL  ORIGIN  OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO BE PROTECTED BY
THE LAW AGAINST SUCH MISTREATMENT.
  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 MISTREATMENT OR  TO  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  DELIBERATE  EXPOSURE  TO  ABUSIVE  WORK ENVIRONMENTS; AND TO
PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO ABUSIVE
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 ACTS, OMISSIONS, OR BOTH, THAT A REASONABLE
PERSON WOULD FIND ABUSIVE, BASED ON THE SEVERITY, NATURE, AND  FREQUENCY
OF  THE  CONDUCT,  INCLUDING,  BUT NOT LIMITED TO: REPEATED VERBAL ABUSE
SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS,  AND  EPITHETS;  VERBAL,
NON-VERBAL,  OR  PHYSICAL  CONDUCT  OF  A  THREATENING, INTIMIDATING, OR
HUMILIATING NATURE; OR THE SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
PERFORMANCE. IT SHALL BE CONSIDERED AN AGGRAVATING FACTOR IF THE CONDUCT
EXPLOITED AN EMPLOYEE'S KNOWN PSYCHOLOGICAL OR PHYSICAL ILLNESS OR DISA-
BILITY. A SINGLE ACT NORMALLY SHALL NOT CONSTITUTE ABUSIVE CONDUCT,  BUT
AN ESPECIALLY SEVERE AND EGREGIOUS ACT MAY MEET THIS STANDARD.
  2.  "ABUSIVE  WORK  ENVIRONMENT" MEANS AN EMPLOYMENT CONDITION WHEN AN
EMPLOYER OR ONE OR MORE OF ITS EMPLOYEES, ACTING WITH  INTENT  TO  CAUSE
PAIN  OR  DISTRESS  TO  AN  EMPLOYEE,  SUBJECTS THAT EMPLOYEE TO ABUSIVE
CONDUCT THAT CAUSES PHYSICAL HARM, PSYCHOLOGICAL HARM OR BOTH.
  3. "ADVERSE EMPLOYMENT  ACTION"  MEANS  AN  OUTCOME  WHICH  NEGATIVELY
IMPACTS  AN  EMPLOYEE,  INCLUDING,  BUT  NOT  LIMITED TO, A TERMINATION,
DEMOTION, UNFAVORABLE REASSIGNMENT,  FAILURE  TO  PROMOTE,  DISCIPLINARY
ACTION OR REDUCTION IN COMPENSATION.
  4. "CONSTRUCTIVE DISCHARGE" MEANS AN ADVERSE EMPLOYMENT ACTION WHERE:
  (A)  THE  EMPLOYEE  REASONABLY  BELIEVED HE OR SHE WAS SUBJECTED TO AN
ABUSIVE WORK ENVIRONMENT;
  (B) THE EMPLOYEE RESIGNED BECAUSE OF THAT CONDUCT; AND
  (C) THE EMPLOYER WAS AWARE OF THE ABUSIVE CONDUCT PRIOR TO THE  RESIG-
NATION AND FAILED TO STOP IT.
  5.  "PHYSICAL HARM" MEANS THE IMPAIRMENT OF A PERSON'S PHYSICAL HEALTH
OR BODILY INTEGRITY, AS ESTABLISHED BY COMPETENT EVIDENCE.
  6. "PSYCHOLOGICAL HARM" MEANS THE  IMPAIRMENT  OF  A  PERSON'S  MENTAL
HEALTH, AS ESTABLISHED BY COMPETENT EVIDENCE.
  S  762. ABUSIVE WORK ENVIRONMENT. 1. NO EMPLOYEE SHALL BE SUBJECTED TO
AN ABUSIVE WORK ENVIRONMENT.
  2. NO EMPLOYER OR EMPLOYEE SHALL RETALIATE IN ANY  MANNER  AGAINST  AN
EMPLOYEE  WHO  HAS  OPPOSED  ANY UNLAWFUL EMPLOYMENT PRACTICE UNDER THIS
ARTICLE, OR WHO HAS MADE A CHARGE, TESTIFIED, ASSISTED, OR  PARTICIPATED
IN  ANY  MANNER  IN  AN  INVESTIGATION OR PROCEEDING UNDER THIS ARTICLE,
INCLUDING, BUT NOT LIMITED  TO,  INTERNAL  COMPLAINTS  AND  PROCEEDINGS,
ARBITRATION AND MEDIATION PROCEEDINGS AND LEGAL ACTIONS.

S. 6438                             3

  S 763. EMPLOYER LIABILITY.  1. AN EMPLOYER SHALL BE VICARIOUSLY LIABLE
FOR  A  VIOLATION  OF  SECTION  SEVEN  HUNDRED SIXTY-TWO OF THIS ARTICLE
COMMITTED BY ITS EMPLOYEE.
  2.  WHERE  THE  ALLEGED  VIOLATION OF SUCH SECTION DOES NOT INCLUDE AN
ADVERSE EMPLOYMENT ACTION, IT SHALL BE AN  AFFIRMATIVE  DEFENSE  FOR  AN
EMPLOYER ONLY THAT:
  (A)  THE  EMPLOYER  EXERCISED  REASONABLE  CARE TO PREVENT AND CORRECT
PROMPTLY ANY ACTIONABLE BEHAVIOR; AND
  (B) THE COMPLAINANT EMPLOYEE UNREASONABLY FAILED TO TAKE ADVANTAGE  OF
APPROPRIATE  PREVENTIVE  OR  CORRECTIVE  OPPORTUNITIES  PROVIDED  BY THE
EMPLOYER.
  S 764. EMPLOYEE LIABILITY. 1. AN EMPLOYEE MAY BE  INDIVIDUALLY  LIABLE
FOR A VIOLATION OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE.
  2.  IT  SHALL  BE AN AFFIRMATIVE DEFENSE FOR AN EMPLOYEE ONLY THAT THE
EMPLOYEE COMMITTED A VIOLATION OF SUCH SECTION AT THE DIRECTION  OF  THE
EMPLOYER,  UNDER  ACTUAL  OR  IMPLIED  THREAT  OF  AN ADVERSE EMPLOYMENT
ACTION.
  S 765. AFFIRMATIVE DEFENSES. IT SHALL BE AN AFFIRMATIVE DEFENSE THAT:
  1. THE COMPLAINT IS BASED ON AN ADVERSE EMPLOYMENT  ACTION  REASONABLY
MADE FOR POOR PERFORMANCE, MISCONDUCT OR ECONOMIC NECESSITY;
  2. THE COMPLAINT IS BASED ON A REASONABLE PERFORMANCE EVALUATION; OR
  3.  THE  COMPLAINT  IS BASED ON AN EMPLOYER'S REASONABLE INVESTIGATION
ABOUT POTENTIALLY ILLEGAL OR UNETHICAL ACTIVITY.
  S 766. REMEDIES. 1. WHERE A DEFENDANT HAS  BEEN  FOUND  LIABLE  FOR  A
VIOLATION  OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE, THE COURT
MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN THE UNLAWFUL EMPLOYMENT PRAC-
TICE AND MAY ORDER ANY OTHER RELIEF THAT IS DEEMED  APPROPRIATE  INCLUD-
ING,  BUT  NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY
FROM THE PLAINTIFF'S WORK ENVIRONMENT,  REIMBURSEMENT  FOR  LOST  WAGES,
FRONT  PAY,  MEDICAL  EXPENSES,  COMPENSATION  FOR  PAIN  AND SUFFERING,
COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES.
  2. WHERE AN EMPLOYER IS  LIABLE  FOR  A  VIOLATION  OF  SECTION  SEVEN
HUNDRED  SIXTY-TWO  OF  THIS  ARTICLE  THAT  DID  NOT INCLUDE AN ADVERSE
EMPLOYMENT ACTION, EMOTIONAL DISTRESS DAMAGES AND PUNITIVE  DAMAGES  MAY
BE  AWARDED ONLY WHEN THE ACTIONABLE CONDUCT WAS EXTREME AND OUTRAGEOUS.
THIS LIMITATION DOES NOT APPLY TO INDIVIDUALLY  NAMED  EMPLOYEE  DEFEND-
ANTS.
  S  767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE
SOLELY BY MEANS OF A CIVIL CAUSE  OF  ACTION  COMMENCED  BY  AN  INJURED
EMPLOYEE.
  2.    AN  ACTION  TO  ENFORCE  THE PROVISIONS OF THIS ARTICLE SHALL BE
COMMENCED WITHIN ONE YEAR OF THE LAST ACT THAT CONSTITUTES  THE  ALLEGED
VIOLATION OF SECTION SEVEN HUNDRED SIXTY-TWO OF THIS ARTICLE.
  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
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. 6438                             4

  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 PROVIDED IN THIS ARTICLE SHALL BE IN ADDITION TO ANY
REMEDIES PROVIDED UNDER ANY OTHER PROVISION OF LAW, AND NOTHING IN  THIS
ARTICLE  SHALL  RELIEVE  ANY PERSON FROM ANY LIABILITY, DUTY, PENALTY OR
PUNISHMENT PROVIDED BY ANY OTHER PROVISION OF LAW,  EXCEPT  THAT  IF  AN
EMPLOYEE  RECEIVES  WORKERS' COMPENSATION FOR MEDICAL COSTS FOR THE SAME
INJURY OR ILLNESS PURSUANT TO BOTH THIS ARTICLE AND THE WORKERS' COMPEN-
SATION LAW, OR COMPENSATION UNDER BOTH THIS ARTICLE AND SUCH LAW IN CASH
PAYMENTS FOR THE SAME PERIOD OF TIME NOT WORKING  AS  A  RESULT  OF  THE
COMPENSABLE  INJURY  OR ILLNESS OR THE UNLAWFUL EMPLOYMENT PRACTICE, THE
PAYMENTS OF WORKERS' COMPENSATION SHALL BE REIMBURSED FROM DAMAGES  PAID
UNDER THIS ARTICLE.
  S  2.  This  act  shall  take  effect  immediately, and shall apply to
abusive conduct occurring on or after such date.