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New York Senate Passes Healthy Workplace Bill

On May 12, 2010, the New York State Senate passed the "Healthy Workplace" bill. If enacted, this legislation would amend the New York Labor Law and create a private cause of action for all employees who are subjected to an "abusive work environment." 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 that a reasonable person would find to be hostile, offensive and unrelated to the employer's legitimate business interest."

The proposed law would allow a court to consider the severity, nature and frequency of the conduct. It further provides that a single act shall not be considered abusive conduct unless the court "finds such act to be especially severe or egregious." The law goes on to provide for various remedies that may include compensation for emotional distress, punitive damages and attorney's fees. The legislation also includes two defenses for employers. One affirmative defense provides that the employer "exercised reasonable care to prevent and promptly correct the abusive conduct" which is the basis of an abusive work environment claim and the employee "unreasonably failed to take advantage of the appropriate preventative or corrective opportunities provided" by the employer. This affirmative defense, however, is not available when the abusive conduct results in a "negative employment decision" with regard to the employee. A "negative employment decision" is defined to mean a "termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote or disciplinary action." A second defense is available if the employer's negative employment decision is consistent with the employer's legitimate business interest, such as termination or demotion based on the employee's poor performance. An action to enforce this law must be commenced within one year of the last abusive conduct.

Of particular significance is the fact that this proposed legislation will provide employees with a basis for suing their employers even in the absence of unlawful discrimination. Indeed, the proposed statute provides that the remedies are in addition to "any other state law" and thus there exists the possibility that this law could also be applicable to situations involving workplace discrimination. More fundamentally, however, is the fact that if this legislation becomes law, it will dramatically change the employment landscape in New York State since it creates a basis for lawsuits which previously did not exist.

Andrew A. Kimler, Esq. is a Partner in the Litigation Practice at Vishnick McGovern Milizio. He focuses in the areas of commercial, corporate and employment law, and is an experienced litigator. Mr. Kimler can be reached at 516-437-4385, ext. 122 or via e-mail at Akimler@vmmlegal.com.