S. 8458 2
REHIRE AND ANY OTHER CUTBACK IN THE NUMBER OF EMPLOYEES FOR A LEGITIMATE
BUSINESS REASON.
3. "FRINGE BENEFITS" MEANS THE VALUE OF ANY EMPLOYER-PAID VACATION
LEAVE, SICK LEAVE, MEDICAL INSURANCE PLAN, DISABILITY INSURANCE PLAN,
AND LIFE INSURANCE PLAN IN FORCE ON THE DATE OF THE TERMINATION.
4. "GOOD CAUSE" MEANS ANY REASONABLE JOB-RELATED GROUNDS FOR AN
EMPLOYEE'S DISMISSAL BASED ON:
(A) THE EMPLOYEE'S FAILURE TO SATISFACTORILY PERFORM JOB DUTIES;
(B) THE EMPLOYEE'S DISRUPTION OF THE EMPLOYER'S OPERATION EXCEPT WHEN
ENGAGING IN CONCERTED ACTIVITY;
(C) THE EMPLOYEE'S MATERIAL OR REPEATED VIOLATION OF AN EXPRESS
PROVISION OF THE EMPLOYER'S WRITTEN POLICIES; OR
(D) OTHER LEGITIMATE BUSINESS REASONS DETERMINED BY THE EMPLOYER WHILE
EXERCISING THE EMPLOYER'S REASONABLE BUSINESS JUDGMENT. THE LEGAL USE OF
A CONSUMABLE PRODUCT BY AN EMPLOYEE OFF THE EMPLOYER'S PREMISES DURING
NONWORKING HOURS IS NOT A LEGITIMATE BUSINESS REASON; PROVIDED, HOWEVER,
THAT THIS PARAGRAPH SHALL NOT APPLY TO:
(I) THE USE OF A CONSUMABLE PRODUCT THAT AFFECTS IN ANY MANNER AN
EMPLOYEE'S ABILITY TO PERFORM JOB-RELATED EMPLOYMENT RESPONSIBILITIES OR
THE SAFETY OF OTHER EMPLOYEES;
(II) AN EMPLOYEE WHO, ON A PERSONAL BASIS, HAS A PROFESSIONAL SERVICE
CONTRACT WITH AN EMPLOYER AND THE UNIQUE NATURE OF THE SERVICES PROVIDED
AUTHORIZES THE EMPLOYER, AS PART OF THE SERVICE CONTRACT, TO LIMIT THE
USE OF CERTAIN PRODUCTS;
(III) AN EMPLOYER THAT IS A NONPROFIT ORGANIZATION THAT, AS ONE OF ITS
PRIMARY PURPOSES OR OBJECTIVES, DISCOURAGES THE USE OF ONE OR MORE
LAWFUL PRODUCTS BY THE GENERAL PUBLIC; OR
(IV) AN EMPLOYER THAT TAKES ACTION BASED ON THE BELIEF THAT THE
EMPLOYER'S ACTIONS ARE PERMISSIBLE UNDER AN ESTABLISHED SUBSTANCE ABUSE
OR ALCOHOL PROGRAM OR POLICY, PROFESSIONAL CONTRACT OR COLLECTIVE
BARGAINING AGREEMENT.
6. "LEAVE OF ABSENCE" MEANS AN EMPLOYEE'S ABSENCE FROM WORK FOR A
PERIOD OF MORE THAN FIVE CONSECUTIVE WORKING DAYS FOR ANY REASON OTHER
THAN HOLIDAYS AND VACATIONS.
7. "LOST WAGES" MEANS THE GROSS AMOUNT OF WAGES THAT WOULD HAVE BEEN
REPORTED TO THE INTERNAL REVENUE SERVICE AS GROSS INCOME ON FORM W-2 AND
INCLUDES OVERTIME PAYMENTS, ANY BONUSES, AND ADDITIONAL COMPENSATION
DEFERRED AT THE OPTION OF THE EMPLOYEE.
§ 747. ELEMENTS OF WRONGFUL DISCHARGE. 1. A DISCHARGE IS WRONGFUL ONLY
IF:
(A) THE DISCHARGE WAS NOT FOR GOOD CAUSE AND THE EMPLOYEE HAD
COMPLETED THE EMPLOYER'S PROBATIONARY PERIOD OF EMPLOYMENT; OR
(B) THE EMPLOYER MATERIALLY VIOLATED AN EXPRESS PROVISION OF ITS OWN
WRITTEN PERSONNEL POLICY PRIOR TO THE DISCHARGE, AND THE VIOLATION
DEPRIVED THE EMPLOYEE OF A FAIR AND REASONABLE OPPORTUNITY TO REMAIN IN
A POSITION OF EMPLOYMENT WITH THE EMPLOYER.
2. DURING A PROBATIONARY PERIOD OF EMPLOYMENT, THE EMPLOYMENT MAY BE
TERMINATED AT THE WILL OF THE EMPLOYER ON NOTICE TO THE EMPLOYEE FOR ANY
REASON OR FOR NO REASON.
3. THE EMPLOYER HAS BROAD DISCRETION WHEN MAKING A DECISION TO
DISCHARGE ANY MANAGERIAL OR SUPERVISORY EMPLOYEE.
§ 748. REMEDIES. 1. IF AN EMPLOYER HAS COMMITTED A WRONGFUL DISCHARGE,
THE EMPLOYEE MAY BE AWARDED LOST WAGES AND FRINGE BENEFITS FOR A PERIOD
NOT TO EXCEED FOUR YEARS FROM THE DATE OF DISCHARGE, TOGETHER WITH
INTEREST ON THE LOST WAGES AND FRINGE BENEFITS. THE EMPLOYEE'S INTERIM
EARNINGS, DERIVED FROM ANY NEW KIND, NATURE, OR TYPE OF WORK, HIRE,
S. 8458 3
CONTRACTOR STATUS OR EMPLOYMENT THAT DID NOT EXIST AT THE TIME OF
DISCHARGE, INCLUDING AMOUNTS THE EMPLOYEE COULD HAVE EARNED WITH REASON-
ABLE DILIGENCE FROM THE WORK, HIRE, CONTRACTOR STATUS OR EMPLOYMENT,
SHALL BE DEDUCTED FROM THE AMOUNT AWARDED FOR LOST WAGES. BEFORE INTER-
IM EARNINGS ARE DEDUCTED FROM LOST WAGES, THERE SHALL BE DEDUCTED FROM
THE INTERIM EARNINGS ANY REASONABLE AMOUNTS EXPENDED BY THE EMPLOYEE IN
SEARCHING FOR, OBTAINING, OR RELOCATING TO NEW EMPLOYMENT.
2. FOLLOWING ANY VERDICT OR AWARD IN FAVOR OF THE DISCHARGED EMPLOYEE,
A COURT OF COMPETENT JURISDICTION SHALL CONSIDER ANY MONETARY PAYMENTS,
COMPENSATION OR BENEFITS THE EMPLOYEE RECEIVED ARISING FROM OR RELATED
TO THE DISCHARGE, INCLUDING UNEMPLOYMENT COMPENSATION OR BENEFITS, AND
SHALL DEDUCT THOSE PAYMENTS, COMPENSATION AND BENEFITS FROM THE AMOUNT
AWARDED FOR LOST WAGES BEFORE ENTERING JUDGMENT.
§ 749. PROBATIONARY PERIOD. 1. IF AN EMPLOYER DOES NOT ESTABLISH A
SPECIFIC PROBATIONARY PERIOD OR PROVIDE THAT THERE IS NO PROBATIONARY
PERIOD PRIOR TO OR AT THE TIME THE EMPLOYEE BEGINS WORK, THERE IS A
PROBATIONARY PERIOD OF ONE MONTH COMMENCING ON THE DATE THE EMPLOYEE
BEGINS WORK.
2. AN EMPLOYER MAY EXTEND A PROBATIONARY PERIOD PRIOR TO THE EXPIRA-
TION OF A PROBATIONARY PERIOD, BUT THE ORIGINAL PROBATIONARY PERIOD
TOGETHER WITH ANY PERIODS OF EXTENSION SHALL NOT EXCEED SIX MONTHS. THE
PROBATIONARY PERIOD SHALL NOT BE EXTENDED OR RESTARTED BY DISCHARGING AN
EMPLOYEE DURING THE PROBATIONARY PERIOD AND REHIRING THE EMPLOYEE WITHIN
THREE MONTHS AFTER SUCH DISCHARGE.
3. IF AN EMPLOYEE HAS ONE OR MORE LEAVES OF ABSENCE DURING THE
ORIGINAL PROBATIONARY PERIOD OR ANY EXTENSION OF THE PROBATIONARY PERI-
OD, THE TIME OF EACH LEAVE OF ABSENCE SHALL NOT BE A PART OF THE PROBA-
TIONARY PERIOD UNLESS THE EMPLOYER AFFIRMATIVELY ELECTS TO INCLUDE EACH
LEAVE OF ABSENCE AS PART OF THE PROBATIONARY PERIOD WITH THE AFFIRMATIVE
WRITTEN CONSENT OF THE EMPLOYEE.
§ 750. LIMITATION OF ACTIONS. 1. AN ACTION UNDER THIS ARTICLE SHALL BE
FILED WITHIN SIX YEARS AFTER THE DATE OF DISCHARGE.
2. IF AN EMPLOYER MAINTAINS WRITTEN INTERNAL PROCEDURES, OTHER THAN
THOSE SPECIFIED IN SECTION SEVEN HUNDRED FIFTY-ONE OF THIS ARTICLE,
UNDER WHICH AN EMPLOYEE MAY APPEAL A DISCHARGE WITHIN THE ORGANIZATIONAL
STRUCTURE OF THE EMPLOYER, THE EMPLOYEE SHALL FIRST EXHAUST THOSE PROCE-
DURES PRIOR TO FILING AN ACTION UNDER THIS ARTICLE. THE EMPLOYEE'S FAIL-
URE TO INITIATE OR EXHAUST AVAILABLE INTERNAL PROCEDURES IS A DEFENSE TO
AN ACTION BROUGHT UNDER THIS ARTICLE. IF THE EMPLOYER'S INTERNAL PROCE-
DURES ARE NOT COMPLETED WITHIN NINETY DAYS FROM THE DATE THE EMPLOYEE
INITIATES THE INTERNAL PROCEDURES, THE EMPLOYEE MAY FILE AN ACTION UNDER
THIS ARTICLE AND FOR PURPOSES OF THIS SUBDIVISION THE EMPLOYER'S INTER-
NAL PROCEDURES ARE CONSIDERED EXHAUSTED. THE STATUTE OF LIMITATIONS IN
SUBDIVISION ONE OF THIS SECTION IS TOLLED UNTIL THE PROCEDURES ARE
EXHAUSTED. IN NO CASE MAY THE PROVISIONS OF THE EMPLOYER'S INTERNAL
PROCEDURES EXTEND THE LIMITATION PERIOD IN SUBDIVISION ONE OF THIS
SECTION MORE THAN ONE HUNDRED TWENTY DAYS.
3. IF THE EMPLOYER MAINTAINS WRITTEN INTERNAL PROCEDURES UNDER WHICH
AN EMPLOYEE MAY APPEAL A DISCHARGE WITHIN THE ORGANIZATIONAL STRUCTURE
OF THE EMPLOYER, THE EMPLOYER SHALL WITHIN FOURTEEN DAYS OF THE DATE OF
THE DISCHARGE NOTIFY THE DISCHARGED EMPLOYEE IN WRITING OR ELECTRON-
ICALLY OF THE EXISTENCE OF THE INTERNAL PROCEDURES. THE TIMEFRAME FOR
THE EMPLOYEE TO INITIATE THE PROCEDURES, IF ANY, BEGINS TO RUN FROM THE
DATE THE EMPLOYER SENDS OR PROVIDES A COPY OF THE INTERNAL PROCEDURES IN
WRITING OR ELECTRONICALLY. A COPY OF THE PROCEDURES SHALL BE CONSIDERED
PROVIDED TO THE EMPLOYEE, IF THE EMPLOYER SENDS A COPY OF THE PROCEDURES
S. 8458 4
TO THE EMPLOYEE'S LAST-KNOWN POSTAL MAILING ADDRESS AND ELECTRONIC MAIL-
ING ADDRESS, IF PROVIDED, OR THE EMPLOYEE'S ATTORNEY. IF THE EMPLOYER
FAILS TO COMPLY WITH THIS SUBDIVISION, THE DISCHARGED EMPLOYEE NEED NOT
COMPLY WITH SUBDIVISION TWO OF THIS SECTION.
4. IF A PLAINTIFF COMMENCES A CIVIL ACTION FOR WRONGFUL DISCHARGE
UNDER THIS ARTICLE, THE PLAINTIFF SHALL MAKE SERVICE OF PROCESS PURSUANT
TO SECTION THREE HUNDRED SIX-B OF THE CIVIL PRACTICE LAW AND RULES AFTER
FILING THE COMPLAINT. IF THE PLAINTIFF FAILS TO MAKE SERVICE OF PROCESS,
THE COURT, ON MOTION OR ON ITS OWN INITIATIVE, SHALL DISMISS THE ACTION
WITHOUT PREJUDICE AS TO A DEFENDANT UNLESS THAT DEFENDANT HAS MADE AN
APPEARANCE IN THE CIVIL ACTION. IF THE PLAINTIFF FAILS TO MAKE SERVICE
OF PROCESS, THE REMAINING SIX-YEAR STATUTE OF LIMITATIONS FOR A CIVIL
ACTION UNDER THIS ARTICLE RESUMES REGARDLESS OF WHETHER THE CIVIL ACTION
IS DISMISSED.
§ 751. EXEMPTIONS. 1. THIS ARTICLE DOES NOT APPLY TO A DISCHARGE:
(A) THAT IS SUBJECT TO ANY OTHER STATE OR FEDERAL STATUTE THAT
PROVIDES A PROCEDURE OR REMEDY FOR CONTESTING THE DISPUTE. THE STATUTES
INCLUDE THOSE THAT PROHIBIT DISCHARGE FOR FILING COMPLAINTS, CHARGES, OR
CLAIMS WITH ADMINISTRATIVE BODIES OR THAT PROHIBIT UNLAWFUL DISCRIMI-
NATION BASED ON AGE, RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIEN-
TATION, GENDER IDENTITY OR EXPRESSION, MILITARY STATUS, SEX, DISABILITY,
PREDISPOSING GENETIC CHARACTERISTICS, FAMILIAL STATUS, MARITAL STATUS,
STATUS AS A VICTIM OF DOMESTIC VIOLENCE AND OTHER SIMILAR GROUNDS; OR
(B) OF AN EMPLOYEE COVERED BY A WRITTEN COLLECTIVE BARGAINING AGREE-
MENT OR A WRITTEN CONTRACT OF EMPLOYMENT FOR A SPECIFIC TERM.
2. FOR THE PURPOSES OF THIS SECTION, A "CONTRACT OF EMPLOYMENT FOR A
SPECIFIC TERM" MAY CONTAIN A PROBATIONARY PERIOD PURSUANT TO SECTION
SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE AND MAY CONTAIN AN AUTOMATIC
RENEWAL CLAUSE THAT AUTOMATICALLY RENEWS THE CONTRACT OF EMPLOYMENT FOR
ONE OR MORE SUCCESSIVE TERMS.
§ 752. ARBITRATION. 1. A PARTY MAY MAKE A WRITTEN OFFER TO ARBITRATE A
DISPUTE THAT OTHERWISE COULD BE ADJUDICATED UNDER THIS ARTICLE.
2. AN OFFER TO ARBITRATE SHALL BE IN WRITING AND CONTAIN THE FOLLOWING
PROVISIONS:
(A) A NEUTRAL ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT OR, IN
THE ABSENCE OF AGREEMENT, PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL
PRACTICE LAW AND RULES.
(B) THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO ARTICLE SEVENTY-
FIVE OF THE CIVIL PRACTICE LAW AND RULES. IF THERE IS A CONFLICT BETWEEN
THE PROVISIONS OF ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND
RULES AND THE PROVISIONS OF THIS ARTICLE, THE PROVISIONS OF THIS ARTICLE
SHALL APPLY.
(C) THE ARBITRATOR IS BOUND BY THIS ARTICLE.
3. IF A COMPLAINT IS FILED UNDER THIS ARTICLE, THE OFFER TO ARBITRATE
SHALL BE MADE WITHIN SIXTY DAYS AFTER SERVICE OF THE COMPLAINT AND MAY
BE ACCEPTED IN WRITING WITHIN THIRTY DAYS AFTER THE DATE THE OFFER IS
MADE.
4. A DISCHARGED EMPLOYEE WHO MAKES A VALID OFFER TO ARBITRATE THAT IS
ACCEPTED BY THE EMPLOYER AND WHO PREVAILS IN SUCH ARBITRATION SHALL BE
ENTITLED TO HAVE THE ARBITRATOR'S FEE AND ALL COSTS OF ARBITRATION PAID
BY THE EMPLOYER.
5. IF A VALID OFFER TO ARBITRATE IS MADE AND ACCEPTED, ARBITRATION IS
THE EXCLUSIVE REMEDY FOR THE WRONGFUL DISCHARGE DISPUTE AND THERE IS NO
RIGHT TO BRING OR CONTINUE A LAWSUIT UNDER THIS ARTICLE. THE
ARBITRATOR'S AWARD IS FINAL AND BINDING, SUBJECT TO REVIEW OF THE
ARBITRATOR'S DECISION UNDER THE PROVISIONS OF ARTICLE SEVENTY-FIVE OF
S. 8458 5
THE CIVIL PRACTICE LAW AND RULES. HOWEVER, THIS SUBDIVISION SHALL NOT
APPLY IF THE EMPLOYER MAINTAINS WRITTEN INTERNAL PROCEDURES THAT REQUIRE
ARBITRATION UNDER SUBDIVISION TWO OF SECTION SEVEN HUNDRED FIFTY OF THIS
ARTICLE.
§ 753. EFFECT OF REJECTION OF OFFER TO ARBITRATE. IF A DISCHARGED
EMPLOYEE MAKES A VALID OFFER TO ARBITRATE THAT IS NOT ACCEPTED BY THE
EMPLOYER AND SUCH DISCHARGED EMPLOYEE PREVAILS IN AN ACTION UNDER THIS
ARTICLE SUCH DISCHARGED EMPLOYEE SHALL BE ENTITLED TO REASONABLE ATTOR-
NEYS' FEES INCURRED SUBSEQUENT TO THE DATE OF THE OFFER.
§ 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
§ 3. This act shall take effect on the ninetieth day after it shall
have become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made on or before
such date.
