New York May Become First State to Enact a "Healthy Workplace" Law

Workplace bullies beware. On May 12, 2010, the New York Senate passed a landmark bill which would amend the New York Labor Law to provide a civil cause of action for employees who are subjected to an "abusive work environment." Specifically, the bill provides redress for employees who are subjected to "abusive conduct" that is "so severe that it causes physical or psychological harm" to the employee (that is documented by a physician). In order for an employer to be held liable, the employee must have provided notice that he or she has been subjected to such conduct, and the employer failed to eliminate the abusive conduct after receiving such notice. "Abusive conduct" is defined to include 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 and the gratuitous sabotage or undermining of an employee's work performance. The conduct must be taken with "malice" (i.e., intent to cause another person to suffer psychological, physical, or economic harm without legitimate cause or justification).


There are certain affirmative defenses available to employers that are built into the proposed law. Where the abusive conduct does not culminate in a "negative employment decision" with respect to the employee (i.e., termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action), the employer will have an affirmative defense if it exercises "reasonable care to prevent and promptly correct" abusive conduct, and the employee "unreasonably fails to take advantage of" such preventative opportunities. Additionally, if the employer did make a negative employment decision with respect to that employee, the employer would still have a defense if it could show that the decision was consistent with its "legitimate business interests" (for example, a termination or demotion based on the employee's poor performance, or the if the employee's complaint is based primarily on the employer's investigation of potentially dangerous, illegal, or unethical activity).

The bill includes an anti-retaliation provision and specifies the remedies available to plaintiffs (which include injunctive relief, 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 attorneys' fees). Where the abusive conduct does not result in a negative employment action, emotional distress damages are capped at $25,000 and punitive damages are not available.

Through this bill, the legislature has specifically declared that legal protection from abusive work environments should not be limited to behavior based on a protected class, as required by employment discrimination laws like Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law. Therefore, if passed, the implications for employers are significant and could lead to an influx of lawsuits from disgruntled employees. However, regardless of whether this bill becomes law, employers are advised to implement policies aimed at curtailing any abusive conduct at the workplace and to take all employee complaints seriously, regardless of whether the conduct is grounded in protected characteristics like race, national origin, sex, or age.

The bill still needs to pass in the New York State Assembly before it becomes law. The current legislative session ends June 21, 2010.

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