TOMORROW OCTOBER 9 DEADLINE - NEW YORK SEXUAL HARASSMENT PREVENTION RULES

By October 9, 2019, all employers must conduct interactive sexual harassment prevention training with all current employees. New employees should be trained as quickly as possible. Sexual harassment prevention training MUST be completed at least once per year.

Employers may choose to use model training developed by the NY Department of Labor; however, to satisfy the “interactive” requirement, employers must engage employees with questions and must answer questions from participants.  The Department of Labor provides free resources here: https://www.labor.ny.gov/immigrants/sexual-harassment-prevention.shtm

NEW WORKPLACE PROTECTIONS SIGNED INTO LAW

Governor Andrew M. Cuomo yesterday signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections. The following is from the Senate Bill: 

"PURPOSE OR GENERAL IDEA OF BILL:

This bill increases protections to employees of all protected classes

who have been subject to discriminatory harassment in the workplace.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: provides that the Human Rights Law covers all employers in
the state, including the state and all political subdivisions thereof

Section 1-a: This section further defines "private employer"

Section 2: Extends protections against all forms of discriminatory
harassment based on all protected categories; eliminates the "severe or
pervasive" standard; combats the Faragher/Ellerth defense

Section 3: Expands protections to domestic workers

Section 4: Expands protections to independent contractors

Section 5: Allows punitive damages and attorney's fees in employment
discrimination cases

Section 6: Expands the construction clause to require courts to inter-
pret Human Rights Law liberally

Section 7: Prohibits non-disclosure agreements from prohibiting the
disclosure of the underlying facts and circumstances to the claim or
action unless the condition of confidentiality is in the plaintiff's
preference in all discrimination cases

Section 8: Prohibits mandatory arbitration to resolve cases of sexual
harassment

Section 9: Expands the prohibition on non-disclosure agreements regard-
ing discriminatory harassment

Section 10: Expands the powers of the Attorney General to enforce the
Human Rights Law

Section 11: Requires employers to provide employees with notice in
English and in the employee's primary language containing the employer's
sexual harassment prevention policy

Section 12: Requires a study on expanding harassment policies to all
types of discrimination

Section 13: Expands the statute of limitations for Human Rights
complaints

Section 14: Requires quadrennial review of sexual harassment policies

Section 15: Established a severability clause

Section 16: Sets forth the effective date

 
JUSTIFICATION:

Despite our reputation as a leader in progressive reform, New York State
is behind the rest of the country when it comes to its statutes regard-
ing discrimination in the workplace, including, but not limited to,
sexual harassment.

Working individuals in the State who have experienced egregious and
debilitating forms of harassment must overcome significant and unwar-
ranted legal barriers before they can seek justice for the wrongdoing
they have been subjected to. One such example is the requirement that an
employee alleging harassment must prove the harassment was severe or
pervasive to prevail on a claim. The legal disparities surrounding
discrimination in the workplace addressed in this particular bill give
workers in the State the impression that the law, as it is currently
written, exists to protect institutions, not it's millions of vulnerable
employees.

In conjunction with the newly enacted legislation coming out of the
Women's Equality Agenda budget items introduced in 2018, the passage and
signage of this bill will bring the State up to speed with widely
accepted reforms. Vital to this bill are the protections against all
forms of discriminatory harassment, not just sexual harassment.  Addi-
tional key aspects of the legislation include, but are not limited to:
the elimination of the aforementioned "severe or pervasive" standard,
which currently allows for significant levels of discriminatory harass-
ment to be endured before an individual's case would be deemed actiona-
ble; it combats the Faragher/Ellerth defense, which enables an employer
to avoid liability; it extends the Human Rights Law to cover all employ-
ers of the state; it allows for punitive damages and attorney's fees in
employment discrimination cases, and prohibits non-disclosure agreements
from preventing the claimant's disclosure of the underlying facts and
circumstances surrounding their discrimination case to certain parties.

It is time for New York State law to recognize and serve all victims of
discrimination, not just protect the powerful."

DISABILITY AND HOSTILE WORK ENVIRONMENT UNDER THE ADA

In this case, the employee Fox suffered from Tourette’s Syndrome and Obsessive‐ Compulsive Disorder since birth. A complaint was filed against his longtime employer for disability discrimination under the Americans with Disabilities Act and New York State Human Rights Law, asserting claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation. The Second Circuit held that his hostile work environment claim is cognizable under the ADA, and with respect to that claim, they found that there were disputes as to material facts.

Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019):

"We have previously assumed without deciding that hostile work environment claims are cognizable under the ADA. See, e.g., Fleiger v. E. Suffolk BOCES, 693 F. App’x 14, 19 (2d Cir. 2018) (summary order) (assuming the plaintiff could bring a hostile work environment claim under the ADA where such claims failed at summary judgment in any event). Moreover, a number of courts that have considered this question have found such claims to be cognizable under the ADA. See Lanman v. Johnson Cty., 393 F.3d 1151, 1155–56 (10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003); Flowers v. S. Reg’l Physicians Servs., Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 175–76 (4th Cir. 2001).

We are persuaded by our sister Circuits, which have reasoned that claims for hostile work environment are actionable under the ADA. Under the ADA, a covered employer “shall [not] discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). “Congress borrowed this language from Title VII, which similarly provides that it ‘shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.’” Lanman, 393 F.3d at 1155 (quoting 42 U.S.C. § 2000e‐2(a)(1)) (emphasis in original). “Thus, when Congress included the phrase ‘terms, conditions, and privileges of employment’ in the ADA, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.” Shaver, 350 F.3d at 720.

“[I]n construing a statute, we must look at how its text was understood at the time that it was passed.” Id. When the ADA was enacted, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims. See Lanman, 393 F.3d at 1155–56. By borrowing Title VII’s language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people. See, e.g., id.

“Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—” it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute, Gen. Motors, 247 F.3d at 176, and we here so recognize.

B.

To prevail on a hostile work environment claim, Fox must show “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Although the victim must subjectively perceive the conduct as abusive, the misconduct shown also must be “severe or pervasive enough to create an objectively hostile or abusive work environment.” Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Even an isolated act may be so serious that it requires the conclusion that the terms and conditions of employment were altered. Id. A plaintiff alleging a hostile work environment claim under the ADA, therefore, “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Id. (internal quotation marks omitted). Courts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff’s] work performance.” Harris, 510 U.S. at 23.

UNEMPLOYMENT INSURANCE - QUITTING WHEN SUPERVISOR IS ABUSIVE

State of New York , Appellate Division Third Judicial Department, Decided and Entered: June 28, 2018,  # 525878, In the Matter of the Claim of NIEAMA BAXTER, Appellant:

""Whether a claimant has voluntarily left employment for good cause is a factual determination to be made by the Board, and its decision will not be disturbed if supported by substantial evidence" (Matter of Sheldon [Commissioner of Labor], 153 AD3d 1480, 1480 [2017] [internal quotation marks and citation omitted]; see Labor Law § 593 [1] [a]). The record reflects that, notwithstanding claimant's allegations of verbal abuse, claimant's supervisor, on at least two occasions, issued a corrective action to claimant regarding incomplete work. Claimant, in turn, spoke to an assistant human resources manager on at least one occasion about the allegedly unprofessional manner in which her supervisor addressed her. In response to her expressed concerns, claimant was repeatedly advised by human resources about how to file a formal internal complaint concerning her supervisor's alleged treatment of her; however, claimant acknowledged that she never filed a complaint, did not call the employee hotline that was also available to her to lodge a complaint, and failed to request an internal transfer. Moreover, the differing versions of what claimant told the assistant human resources manager presented a credibility issue that the Board was free to resolve in the employer's favor (see Matter of Baez [Commissioner of Labor], 126 AD3d 1211, 1212 [2015]). Furthermore, although the record demonstrates that claimant obtained treatment from a clinical social worker, who opined that claimant was suffering from job-related anxiety and depression, that therapist never advised claimant to quit her employment (see Matter of Bielak [Commissioner of Labor], 105 AD3d 1226, 1226 [2013]; Matter of Spaulding [Commissioner of Labor], 264 AD2d 881, 882 [1999]; Matter of Ikoli [Commissioner of Labor], 249 AD2d 673, 673 [1998]). Under the circumstances presented here, the Board's decision that claimant voluntarily left her employment without good cause is supported by substantial evidence, and it will not be disturbed."

ON WORKPLACE DISCRIMINATION

"The New York State Assembly today (May 5) passed a pair of bills to protect New York women from workplace discrimination, legislation initially introduced as part of the Women’s Equality Act and championed by the New York Civil Liberties Union. The vote clears the way for Gov. Andrew Cuomo to sign the legislation into law."

For the full story: http://www.nyclu.org/news/assembly-vote-protects-womens-ability-work-free-discrimination

WORKPLACE BULLYING OR HARASSMENT

For more information on the Healthy Workplace Bill, visit these websites:

New York Healthy Workplace Advocates


The Healthy Workplace Campaign

WORKPLACE BULLYING OR HARASSMENT

Here is a more detailed discussion of the history of the NYS Healthy Workplace Bill from the website of The Healthy Workplace Campaign, Dr. Gary Namie, National Director:

"2011
Assembly bill AB 4258 was introduced. The companion bill S 4289 was introduced.

2010
New York was on the verge of passing this historic bill in 2010 and would have been the first state in the US to do so.

Sponsors of Senate Bill S1823 B that PASSED the Senate in 2010!!!! Senators Thomas P. Morahan (deceased), George Onorato, Joseph Addabbo, Ruth Hassell-Thompson, Diane Savino

NY Assembly Labor Committee Chair Susan John was quoted in the Wall Street Journal saying, "No other state in the country has a law like this." She was referring to the WBI anti-bullying Healthy Workplace Bill. Thanks to a bill-killing vote in her committee on June 8, that will be true for all of 2010. The vote was not on the merits of the bill. Instead, the vote was technically whether to vote or "hold." It was held and is officially dead.

Read the summary of the news coverage about the Senate passage and Bloomberg's fear of the bill.

Assemblyman Bob Barr introduced A 6207.

2009
A2247, the study only bill, passed both the Assembly and Senate but was vetoed Gov. Paterson.

A banner 4-bill year, began with re-introduction of the study-only bills in the Assembly (A 2247) and Senate (S 1948) followed by a second set of companion bills, the complete versions of the HWB in both Assembly (A 5414) and Senate (S 1823). On April 29, 2009, S1823A added a provision to S 1823 to give union workers with collective bargaining agreements the best protection.

A 5414 was co-sponsored by the following:Assemblymember William Colton (D),Assemblymember William Colton (D), Assemblymember Joan L. Millman (D), Assemblymember Charles D. Lavine (D), Assemblymember Ellen Jaffee (D), Assemblyman Mark Schroeder (D), Assemblymember Dennis H. Gabryszak (D), Assemblymember Bob Barra (R),Assemblymember Bob Barra (R), Assemblymember Bob Barra (R), Assemblymember N. Nick Perry (D), Assemblyman Joseph S. Saladino (D), Assemblyman Al Stirpe (D), Assemblywoman Michelle Schimel (D).

2008
Barra (R) graciously relinquished control of the bill to Assemblymember Steven Englebright (D) and the bill became A10291 with Barra leading the list of nine co-sponsors. The Senate companion bill [S8793] to the full HWB was added in 2008 by Senators Thomas Morahan and Dale Volker.

2007
Assemblymember Bob Barra introduced the first full-text versions of the Healthy Workplace Bill [A7801/A7801-A]. The 2006 study-only bills were repeated [S2715 by Stachowski and A4921 by Schroeder].

2006
Senator William Stachowski and Assemblymember Mark Schroeder sponsored the first state bills [S8018 and A11565] calling for the state to study the problem of workplace bullying. Those bills made New York the 9th state to introduce HWB-related legislation in the U.S."

WORKPLACE BULLYING OR HARASSMENT

The NYS Healthy Workplace Bill was first introduced in 2006. Here is a recap of it's history prior to 2011:

"2010 -- S 1823-B PASSED SENATE, 45-16-1
A 5414-B Held in Assembly Labor Comm.; A 6207
2009 -- Study-only bills: A 2247 & S 1948
2008 -- A 10291 & S 8793
2007 -- A 7801-A, S 2715 & A 4921
2006 -- S 8018 & A 11565"

WORKPLACE BULLYING OR HARASSMENT

Here is the current NYS Assembly Bill:

"A04258 Summary:
BILL NO A04258

SAME AS Same as S 4289

SPONSOR Englebright

COSPNSR Colton, Gunther, Millman, Lavine, Jaffee, Schroeder, Gabryszak,
Schimel, Kellner, Rosenthal, Boyland, Castro, Rivera J, Robinson,
Pretlow, Weprin, Rivera P, Lupardo, Stevenson, Moya, Abbate, Rivera
N, Gibson, Roberts, Spano, Benedetto, Titone, Miller M, Maisel,
Ortiz, Dinowitz

MLTSPNSR Boyle, Brennan, Castelli, Ceretto, Curran, Cusick, Cymbrowitz,
Duprey, Galef, Goodell, Gottfried, Hooper, Jeffries, Johns, Katz,
Latimer, Lifton, Losquadro, Magee, Malliotakis, Markey, McDonough,
McEneny, McKevitt, Meng, Miller J, Montesano, O'Donnell, Paulin,
Perry, Ra, Raia, Ramos, Saladino, Scarborough, Sweeney, Tedisco,
Thiele, Titus, Tobacco, Weisenberg

Add Art 20-D SS760 - 769, Lab L

Establishes a civil cause of action for employees who are subjected to an
abusive work environment.Go to top
--------------------------------------------------------------------------------

A04258 Memo:
BILL NUMBER:A4258 REVISED 4/12/11

TITLE OF BILL: An act to amend the labor law, in relation to
establishing a private cause of action for an abusive work environment

PURPOSE: OR GENERAL IDEA OF THE BILL: To establish a civil cause of
action..for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS: Clearly states the definitions of abusive
conduct; abusive work environment; conduct; constructive discharge;
employee; employer; malice; negative employment decision; physical
harm; and psychological harm.

Section 3 Defines Unlawful Employment Practice

Section 4 Defines Employer Liability

Section 5 Defines Defenses

Section 6 Defines Retaliation

Section 7 Defines Relief Relief generally Employer liability

Section 8 Defines Procedures Private right of action Time limitations

Section 9 Defines Effect on other state laws Other state laws Worker's
compensation and election remedies

JUSTIFICATION: The social and economic well-being of the state is
dependent upon healthy and productive employees. Surveys and studies
have documented that between 16 to 21 percent of employees directly
experience health-endangering workplace bullying, abuse and
harassment, and that this behavior is four times more prevalent than
sexual harassment alone. Surveys and studies have also documented that
abusive work environments can have serious effects on 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, pathophysiologic changes that increase the
risk of cardiovascular disease and other such effects.

This legislation will, provide legal redress for employees who have
been harmed, psychologically, physically, or economically. It will
also provide legal incentives for employers to prevent and respond to
mistreatment of employees at work.

LEGISLATIVE HISTORY: 2009-10: A54118 Referred to Labor 2009-10:
519235 (Sen. Morahan)Passed Senate

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.
Go to top
--------------------------------------------------------------------------------

A04258 Text:
S T A T E O F N E W Y O R K
________________________________________________________________________

4258

2011-2012 Regular Sessions

I N A S S E M B L Y

February 2, 2011
___________

Introduced by M. of A. ENGLEBRIGHT -- read once and referred 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:

1 Section 1. The labor law is amended by adding a new article 20-D to
2 read as follows:
3 ARTICLE 20-D
4 ABUSIVE WORK ENVIRONMENT
5 SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
6 761. DEFINITIONS.
7 762. ABUSIVE WORK ENVIRONMENT.
8 763. EMPLOYER LIABILITY.
9 764. DEFENSES.
10 765. RETALIATION.
11 766. REMEDIES.
12 767. ENFORCEMENT.
13 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.
14 769. EFFECT OF OTHER LAWS.
15 S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS
16 THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON
17 HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED
18 THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE-
19 RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT.
20 SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE
21 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS
22 CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS
23 OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY,
24 DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO
25 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
A. 4258 2

1 PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR
2 DISEASES.
3 FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN
4 HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE
5 PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND
6 SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
7 THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE
8 BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF
9 RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO
10 HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT.
11 THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE
12 WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A
13 PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT-
14 UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW
15 ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE
16 REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS.
17 THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR
18 EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM-
19 ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND
20 TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO
21 MISTREATMENT OF EMPLOYEES AT WORK.
22 S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
23 HAVE THE FOLLOWING MEANINGS:
24 1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN
25 EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A
26 REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO
27 THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER
28 SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY,
29 NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT
30 NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE
31 OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT
32 THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI-
33 ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
34 PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS
35 THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS.
36 2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE
37 IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS-
38 ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE
39 PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO
40 ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS
41 TO ELIMINATE THE ABUSIVE CONDUCT.
42 3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
43 TO ACT.
44 4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE
45 THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT.
46 5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO-
47 LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI-
48 FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS
49 OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN
50 EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND
51 ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR
52 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF
53 THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG-
54 ICAL OR PHYSICAL VULNERABILITY.
A. 4258 3

1 6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE
2 DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR
3 DISCIPLINARY ACTION.
4 7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS-
5 ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN
6 OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
7 8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S
8 MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY
9 COMPETENT EXPERT EVIDENCE AT TRIAL.
10 S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN
11 EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
12 S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE
13 EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS
14 CONTROL.
15 S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF
16 ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON-
17 ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS
18 THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED
19 TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU-
20 NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE
21 AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA-
22 TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF.
23 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE
24 WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION
25 WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S
26 LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON
27 THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY
28 UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS,
29 ILLEGAL OR UNETHICAL ACTIVITY.
30 S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG-
31 ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY
32 PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS
33 CHAPTER.
34 S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED
35 IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT,
36 THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV-
37 ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT
38 NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE
39 PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL
40 EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND
41 ATTORNEY FEES.
42 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN
43 ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT
44 DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS
45 SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL-
46 ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT
47 APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
48 S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE
49 BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE.
50 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES,
51 AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED
52 WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE
53 ALLEGATION OF ABUSIVE WORK ENVIRONMENT.
54 S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL
55 NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN
56 EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES
A. 4258 4

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

WORKPLACE BULLYING OR HARASSMENT

Here is the text of the current NYS Senate Bill:

"S4289-2011 Memo
BILL NUMBER:S4289 REVISED 04/12/11

TITLE OF BILL:
An act
to amend the labor law, in relation to establishing a private cause of
action for an abusive work environment

PURPOSE OR GENERAL IDEA OF THE BILL:
To establish a civil cause of action for employees who are subject to
an abusive work environment.

SUMMARY OF PROVISIONS:
Clearly states the definitions of abusive conduct; abusive work
environment; conduct; constructive discharge; employee; employer;
malice; negative employment decision; physical harm; and
psychological harm.

Section 3 Defines Unlawful Employment Practice

Section 4 Defines Employer Liability

Section 5 Defines Defenses

Section 6 Defines Retaliation

Section 7 Defines Relief Relief Generally Employer Liability

Section 8 Defines Procedures Private Right of Action Time Limitations

Section 9 Defines Effect on Other State Laws Other State Laws Worker's
Compensation and Election Remedies

JUSTIFICATION:
The social and economic well-being of the state is dependent upon
healthy and productive employees. Surveys and studies have documented
that between 16 to 21 percent of employees directly experience
health-endangering workplace bullying, abuse and harassment, and that
this behavior is four times more prevalent than sexual harassment
alone. Surveys and studies have also documented that abusive work
environments can have serious effects on targeted employees,
including feelings of shame and humiliation, stress, loss of sleep,
severe anxiety, depression, posttraumatic stress disorder, reduced
immunity to infection, stress related gastrointestinal disorders,
hypertension, pathophysiologic changes that increase the risk of
cardiovascular disease and other such effects.

This legislation will provide legal redress for employees who have
been harmed, psychologically, physically, or economically. It will
also provide legal incentives for employers to prevent and respond to
mistreatment of employees at work.

LEGISLATIVE HISTORY:
2009-10: A.5414B Referred to Labor
2009-10: S.1823B (Sen. Morahan/Passed Senate

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.


S4289-2011 Text
S T A T E O F N E W Y O R K
4289
2011-2012 Regular Sessions
I N SENATE
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."

WORKPLACE BULLYING OR HARASSMENT

According to New York Healthy Workplace Advocates, the current Healthy Workplace Bills are S4289/A4258:

•S4289 – Fifteen Senate Sponsors

•A4258 – Seventy-Two Assembly Sponsors

WORKPLACE BULLYING OR HARASSMENT

Another example is VITO v. BAUSCH & LOME INC., 403 Fed.Appx. 593 (2nd Cir. 2010):

" "In order to establish a hostile work environment . . . [Vito]
must show that the workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the
terms and conditions of her employment were thereby altered."
Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 723-24 (2d Cir. 2010); see Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000).

................

"[I]t is axiomatic that in order to establish a . . . hostile
work environment . . . a plaintiff must demonstrate that the
conduct occurred because of her [membership in a protected
class]." Alfano v. Costello, 294 F.3d 365, 374 (2d
Cir. 2002) (internal quotation marks omitted). Many of the
incidents Vito claims demonstrate a hostile work environment amount to, at most, workplace
bullying completely detached from any discriminatory motive.
For example, we can discern no reason why either Shift
Supervisor Rich Goodburlet ("Goodburlet") ringing a bell in
Vito's presence or co-worker Mehmet Charlayan ("Charlayan")
throwing tape at her constitute anything more than "minor
annoyances" typical of those "all employees experience."
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Similarly,
Vito was only incidentally involved in much of the sexual
banter that allegedly took place in the department. For
example, Vito complains that she witnessed Charlayan "flicking
his tongue up and down in the direction of Deb Rock" ("Rock"),
another one of Vito's coworkers, and that "a note was placed
on Deb Rock's back indicating that she was `property.'" "

WORKPLACE BULLYING OR HARASSMENT

The Healthy Workplace Bill is being proposed because federal and state laws do not cover "workplace bullying" per se. For example, in BORSKI v. STATEN ISLAND RAPID TRANSIT, 413 Fed.Appx. 409 (2nd Cir. 2011):

"In this, case, it would have been futile for the district court to permit Borski to raise his hostile work environment claim because workplace bullying, such as the behavior exhibited by Borski's colleagues in this case, does not constitute discrimination merely because it contains "sexual content or connotations." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Instead, a plaintiff must demonstrate that the offending conduct occurred because of his membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). While Borski was often the target of ridicule, the record reveals no evidence whatsoever that he was targeted because of his sex. Without such evidence, his discrimination claim would necessarily have failed. See Brown v. Henderson, 257 F.3d 246, 255-56 (2d Cir. 2001). We therefore conclude that the district court properly denied Borski's crossmotion to amend his complaint."

WORKPLACE BULLYING OR HARASSMENT

New York was the 9th state to introduce the Healthy Workplace Bill. On Nov. 14, 2011, WCBS-TV, NYC aired a segment about the NY bills. Watch the TV clip at this link:

Nov. 14 coverage of the NY Healthy Workplace Bills on WCBS-TV, New York City

WORKPLACE BULLYING OR HARASSMENT

From the website of The New York Healthy Workplace Advocates:

"At present time, it is currently legal in the United States for an individual (usually a person in a supervisory role) to impair and/or destroy the physical and psychological well being of an employee, their social support network and career using an employer’s resources when a person is not a member of a protected status group. Current State and Federal laws only recognize an unlawful employment practice when a person is a member of a “protected status” group such as race, religious creed, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex age or sexual orientation and the employer or any person acting directly or indirectly as an agent of the employer harasses an employee. Why isn’t workplace bullying covered under current State of Federal law? Because the bully and the target are both members of a protected class, therefore the existing harassment laws are negated and the bully is free to impair the health of another person without ramifications. NYHWA and via the Healthy Workplace Bill seeks to expand current harassment law to make it an unlawful employment practice to subject an employee to an abusive workplace environment regardless of protected status membership or better defined as a “status-blind” harassment protection."

WORKPLACE BULLYING OR HARASSMENT

From Wikipedia, the free encyclopedia:

"Workplace bullying, like childhood bullying, is the tendency of individuals or groups to use persistent aggressive or unreasonable behaviour against a co-worker or subordinate. Workplace bullying can include such tactics as verbal, nonverbal, psychological, physical abuse and humiliation. This type of aggression is particularly difficult because, unlike the typical forms of school bullying, workplace bullies often operate within the established rules and policies of their organization and their society. Bullying in the workplace is in the majority of cases reported as having been perpetrated by management and takes a wide variety of forms. Bullying can be covert or overt."

WORKPLACE BULLYING OR HARASSMENT

The last case (Case No. 7) led me into another UI matter where the same allegations were made by the claimant: the DOL upheld the claimant's decision to voluntary separate stating that the employer's constant nagging and/or harassment gave the claimant a compelling good cause to leave. Since this matter is still pending before the ALJ stage, I cannot discuss it but it led me to research the issue of workplace bullying or harassment.