S.4289 (Savino)/ A.4258 (Englebright)

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This bill would establish a new civil cause of action for employees who claim that they are subject to an abusive work environment. The Business Council strongly opposes enactment of this proposal.

Pits employees against their employers

• This proposal sets a terrible tone in day to day employer/employee relations in workplaces across New York State. The assumptions and remedies in this proposal would give employees perverse incentives to fabricate or enhance everyday problems or disagreements between co-workers or employees and their supervisors in an effort to “hit the lottery” with a generous jury. Many employers make great efforts to provide a positive work environment, backing these efforts with formal dispute resolution processes, written codes of conduct and open door policies. This bill undermines these efforts and will only serve to increase litigation and employers’ exposure to liability for lost wages, medical expenses, emotional distress, punitive damages and attorney’s fees.

Sufficient protections already in place

• There is already sufficient federal and state law in place to provide redress to an employee who “…is subjected to abusive conduct that is so severe that it causes physical or psychological harm…,” and indeed, for conduct that falls below this threshold. These include Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, and the New York Human Rights Law.  Taken together, these laws provide broad protection to employees who experience abusive treatment in the workplace on the basis of race, color, creed, gender, national origin, age, religion, sexual orientation, military status, disability, predisposing genetic characteristics, domestic violence victim status, marital status and conviction or arrest records.
• Additional state laws protect employees from abusive treatment in the workplace based on, among other things, an employee’s engagement in lawful off-duty conduct (Labor Law § 201-d), request for or taking a leave of absence for bone marrow donations, military spouses, and blood donations, choosing to express breast milk in the workplace (Labor Law §§ 202-a, 202-i, 202-j); and “blowing the whistle” on an employer’s unlawful activities (Labor Law § 740).  Moreover, to the extent a mental or psychological problem arises out of in the course of employment, including as the result of an abusive work environment, such qualifies as a compensable workers’ compensation claim under New York Workers’ Compensation Law. 

Invites the courts to establish workplace civility codes

• Nothing in the bill or sponsor’s memo addresses the inadequacy of these current protections.  Instead, this proposal essentially seeks to develop a general “civility code” in the workplace, and invites the courts into New York businesses to examine the “motive” behind every comment, perceived slight, performance evaluation, disciplinary action and termination.  The process of determining what constitutes an “abusive work environment” – an uncertain and flexible concept at best – will inevitably lead to increased litigation.

An unworkable retaliation provision

• Moreover, the proposal’s retaliation provision would unreasonably interfere with an employer’s ability to manage performance in the workplace, because even where an employee’s complaint of “abusive conduct” is unreasonable, the employee would nonetheless be protected under the proposal and any disciplinary action taken thereafter would give rise to a claim for retaliation that the employer would be required to defend against.
• The ability to claim physical or psychological harm in the workplace based on common human behavior such as incivility, derogatory or sarcastic remarks or any words or actions judged in the “eye of the beholder” as offensive compounds the “crap shoot” nature of claims and risk to employers.
• Employees who are dissatisfied with their work arrangements or environment have the freedom of choice to leave and seek employment elsewhere. Creating a statutory cause of action on behalf of allegedly aggrieved employees would radically alter New York’s longstanding “employment at will” doctrine and create uncertainty in the employment relationship which will be especially difficult for the 490,000+ small businesses and mom & pop entrepreneurs in New York State.
• Statewide, 845,000 New Yorkers are out of work and searching for jobs while another 375,000 have given up looking or can only find part-time work. Only private sector employers can create real jobs that will offer out-of-work New Yorkers hope and opportunity. New York needs 500,000 new jobs just to return to pre-recession employment levels. Those jobs will come only when employers decide it is worth expanding and creating new jobs in New York State. Positive decisions to create jobs won’t happen with state government encouraging this kind of legislation.

For these reasons, The Business Council opposes this legislation and respectfully urges that it not be enacted by the New York State Legislature.