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

                                  3250

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2015
                               ___________

Introduced  by  M.  of  A. ENGLEBRIGHT, COLTON, GUNTHER, LAVINE, JAFFEE,
  SCHIMEL, ROSENTHAL, RIVERA, ROBINSON, PRETLOW, WEPRIN, LUPARDO,  MOYA,
  ABBATE,  ROBERTS,  BENEDETTO, TITONE, MILLER, ORTIZ, DINOWITZ, HEVESI,
  RUSSELL, GOLDFEDER, WRIGHT, MOSLEY, BORELLI, SKOUFIS,  PEOPLES-STOKES,
  STECK, MAYER, AUBRY -- Multi-Sponsored by -- M. of A. ARROYO, BRENNAN,
  BRINDISI,  CAMARA,  CERETTO,  CLARK,  COOK,  CRESPO,  CURRAN,  CUSICK,
  CYMBROWITZ, DAVILA, DUPREY, FAHY, GALEF, GIGLIO,  GOODELL,  GOTTFRIED,
  HOOPER,  JOHNS,  KATZ,  LENTOL, LIFTON, LUPINACCI, MAGEE, MALLIOTAKIS,
  MARKEY, McDONALD, McDONOUGH, McKEVITT, McLAUGHLIN,  MONTESANO,  NOJAY,
  O'DONNELL,  PAULIN, PERRY, RA, RAIA, RAMOS, RODRIGUEZ, SALADINO, SCAR-
  BOROUGH, SEPULVEDA, SKARTADOS, SOLAGES, STEC, TEDISCO,  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:

  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.

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

              

A. 3250                             2

  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
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

A. 3250                             3

  (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 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.

A. 3250                             4

  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 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.