On May 12, 2010, the New York State Senate passed S1823b, a bill to amend the labor law to prohibit abusive work environments. If the bill were to pass scrutiny in the State Assembly, and be signed into law by the Governor, employees in the State of New York would have expansive protections beyond just the anti-discrimination statutes. In effect, the bill would transform the employment-at-will landscape, requiring that employers make sure that employees are not being subjected to bullying, while also making it more difficult for employers to terminate employees who complain of such.
The purpose of the bill is to provide protections to the New York at-will-employee who does not fall into the protected classes covered by New York State’s anti-discrimination laws. The bill describes what constitutes an abusive work environment, which of course will be open to judicial scrutiny and interpretation.
Abusive conduct includes verbal abuse (derogatory remarks, insults, verbal or physical conduct) and conduct that sabotages or undermines an employee’s work performance. An abusive work environment is one in which the conduct is so severe that the employee suffers physical or psychological harm (such as loss of sleep, severe anxiety, depression, or post-traumatic stress disorder).
The bill provides for affirmative defenses that allow employers to defend against a cause of action for an abusive work environment. The employer is entitled to the defense when it can prove that it exercises reasonable care to prevent and correct the abusive conduct, and the plaintiff unreasonably fails to take advantage of corrective or preventive opportunities. Where the employee suffers an adverse employment action, such as termination or demotion, however, the employer will not be entitled to the affirmative defense.
But, where the employer makes a negative employment decision which is consistent with its legitimate business interests, the employer will be entitled to prove the affirmative defense. The bill provides for a one-year statute of limitations, emotional distress damages, and punitive damages. The bill also authorizes a cause of action for retaliation.
New Jersey and Connecticut had also introduced bills similar to New York; however, Connecticut’s bill failed to make it out of the 2010 legislative session and will have to be reintroduced in 2011. It is anyone’s guess whether New York’s bill will pass in the State Assembly. And, even if it does, there is no guarantee that Governor Patterson will sign this piece of legislation (he vetoed the “study only” bill, passed both the Assembly and Senate in 2009).
We will keep you informed of this and other developments in New York law.