S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3632
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 28, 2021
                                ___________
 
 Introduced  by  M.  of  A.  ENGLEBRIGHT,  COLTON, GUNTHER, L. ROSENTHAL,
   J. RIVERA, PRETLOW,  WEPRIN,  LUPARDO,  ABBATE,  BENEDETTO,  DINOWITZ,
   HEVESI,  PEOPLES-STOKES,  STECK,  AUBRY, REYES, RICHARDSON, DeSTEFANO,
   CRUZ, SAYEGH, JACOBSON, LAVINE,  REILLY,  JONES,  BARRON,  FRONTUS  --
   Multi-Sponsored  by  --  M. of A.  BRABENEC, COOK, CUSICK, CYMBROWITZ,
   DAVILA, FAHY,  GALEF,  J. M. GIGLIO,  GOODELL,  GOTTFRIED,  McDONOUGH,
   MONTESANO,  O'DONNELL,  PAULIN,  PERRY, RA, RAMOS, RODRIGUEZ, SCHMITT,
   THIELE -- 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.
   § 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04675-01-1

 A. 3632                             2
 
 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.
   § 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.

 A. 3632                             3
 
   § 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.
   § 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.
   § 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.
   § 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.
   § 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.
   §  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.
   §  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

 A. 3632                             4
 
 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.
   § 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.
   §  2.  This  act  shall  take  effect  immediately, and shall apply to
 abusive conduct occurring on or after such date.