New York State Senate Passes “Healthy Workplace” Bill to Curtail Abusive Workplace Conduct

On May 12, 2010, the New York State Senate passed the “Healthy Workplace” Bill (S. 1823-B). The legislation would amend the New York Labor Law and provide employees who are subjected to an abusive work environment with a direct civil cause of action, and provide an avenue for employees who are not otherwise discriminated against on the basis of race, color, sex, national origin or age, to seek redress against such treatment. An “abusive work environment” is defined as “ a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm.” “Abusive conduct” is defined as 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, such as repeated infliction of verbal abuse (e.g., derogatory remarks, insults and epithets); verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of an employee’s work performance. A single act would not constitute abusive conduct unless the act in question is especially severe or egregious, similar to the Title VII “hostile environment” standard.

The bill places an affirmative obligation on the employee to provide the employer notice of the abuse. Nonetheless, the employer is liable if after receiving notice, it fails to eliminate the abusive conduct. Additionally, the bill provides protection against retaliation to employees who engage in the complaint process.

The bill contains affirmative defenses for employers, first, if the employer can demonstrate that it exercised reasonable care to prevent and promptly correct the abusive conduct which is the basis for the complaint and the employee unreasonably failed to take advantage of the appropriate preventive or corrective opportunities provided by the employer (similar to the Supreme Court’s Ellerth vs.Faragher defense under Title VII). However, this defense is not available if the abusive conduct culminates in a negative employment decision with regard to the employee (i.e., termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, disciplinary action). Additionally, an employer would have an affirmative defense if it can demonstrate that any negative employment decision with regard to the employee is consistent with such employer’s legitimate business interests, such as termination or demotion based on poor performance, or the complaint is based primarily upon the employer’s reasonable investigation of potentially dangerous, illegal or unethical activity.

The bill has yet to face the New York Assembly and will still require the Governor’s signature to become law. However, should the bill become law, the implications for employers are widespread, including additional litigation and exposure to liability for lost wages, medical expenses, emotional distress, punitive damages and attorneys fees. Significantly, the bill specifies that the remedies available are in addition to any compensation available under the workers’ compensation law, provided, however, that an employee who has collected workers’ compensation benefits for conditions arising out of an abusive work environment can not commence a cause of action pursuant to the law for the same such conditions.

For more information on the pending legislation, please contact the Seyfarth attorney with whom you normally work, or any Labor and Employment attorney on our website. We will, of course, keep you apprised of the status of this legislation.