S1227-2011 Actions

• Jan 4, 2012: REFERRED TO LABOR
• Jan 6, 2011: REFERRED TO LABOR

S1227-2011 Memo

BILL NUMBER:S1227

TITLE OF BILL:
An act to amend the workers' compensation law, in relation to enacting
the "protection in the workplace act"

PURPOSE OR GENERAL IDEA OF BILL:
To  clarify  that  the workers' compensation law was never intended to
bar employees suffering a personal injury as  a  result  of  a  sexual
assault  in  the  workplace from pursuing legal action seeking damages
from their employer.

SUMMARY OF SPECIFIC PROVISIONS:
�1 of the bill provides that this act shall be known as the Protection
in the Workplace Act.

�2  of  the  bill  specifies  a  legislative  intent   that   workers'
compensation  was  not  intended  to  bar  civil  actions by employees
suffering personal injury as a result of a sexual assault by negligent
acts or omissions of their employer.

�3 of the bill provides that an employee suffering personal injury  as
a  consequence  of  a  sexual  offense  due  to  the negligent acts or
omissions of an employer shall be entitled to all rights and  benefits
of  the  Workers'  Compensation  law,  and  in addition may pursue any
remedy available for damages.

�4 of the bill provides  that  workers'  compensation  should  be  the
exclusive remedy except that workers' suffering a personal injury as a
result  of  a  sexual  offense should not be barred from civil action.
However, their workers' compensation carrier would be  entitled  to  a
lien on the proceeds of any award in the amount of benefits paid.

�5  of  the  bill  clarifies  that workers' compensation should be the
exclusive remedy except when the employee suffers personal injury as a
result of a sexual offense.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
This is an issue of first impression in New York, but it is clear that
the workers' compensation statute should not  be  interpreted  to  bar
otherwise  meritorious  civil claims by employees injured at work by a
sexual offense.  Thus the intent of this bill is to  clarify  what  is
clearly  the  correct  interpretation  of  the  statute  that  certain
workplace  accidents  should  not  be  barred  from  civil  remedy  by
considering workers' compensation as the exclusive remedy.

As  a result of this legislation, no longer would employers be able to
claim that sexual assaults of their employees due to  their  negligent
acts  or  omissions  (such  as  lack of security for the safety of its
employees) is a condition of employment.

JUSTIFICATION:
Workplace violence is an increasingly prevalent  occupational  hazard,
and  it  is  a  particularly acute problem for women in the workforce.
While workers' compensation should be available to those injured by  a
sexual  offense  committed  in  the  workplace,  it  should not be the


exclusive remedy, since there are  sometimes  egregious  instances  of
employer  malfeasance and negligence in the workplace which tragically
lead to the workplace sexual assault or injury.

A  recent report by the New York Committee for Occupational Safety and
Health reveals that violence in the workplace is a significant  factor
in  occupational  death  in New York City and the state.  It should be
clear that the workers' compensation law was never intended  to  be  a
shield  in  such  situations,  and  it  is  indeed unfortunate that an
already victimized employee should be forced to endure  an  employer's
claim  that  a  violent  and  repeated  sexual  assault  was a natural
condition of her employment.

The purpose of this legislative initiative is to clarify the  statute,
consistent  with  public  policy  while placing a clear prohibition on
double  recovery.    According  to  this  bill,   if   the   plaintiff
successfully sues, there would be an offset of that award for workers'
compensation benefits received.

The   legislative  intent  of  this  amendment  is  based  on  several
elementary principles.  The primary goal behind this legislation is to
confirm that the entire system of workers' compensation in  our  state
has  evolved  to  protect  employees  from  those  accidents naturally
associated with the businesses' operation.  Under New York law, sexual
assault should not be an act within the scope of employment,  nor  can
it ever be construed as in furtherance of an employer's business.

Accordingly,  sexual  assault  should  not  be  a  per se work related
injury.    As  stated  by  Professor  Larson,   the   noted   workers'
compensation  scholar,  "there is no clearer example of non-industrial
motive than rape." (1 Larson, Workmen's Compensation at 11.11 b).   No
employer  therefore,  should be in a position of advising a woman that
she should expect to be sexually assaulted or abused at her  place  of
employment, that in those rare instances where she suffers this abuse,
she  should  not be barred from pursuing civil remedy for her damages.
It should also be noted that New York case law supports  this  remedy,
since it does not apply a "positional risk" or "but for" standard when
determining  the compensability of an injury.  New York courts require
that the injury  be  a  direct  and  natural  risk  of  the  job,  and
specifically, that the injury be suffered l) while the worker is doing
the duty she or he is employed to perform, and 2) that it be a natural
incident of the work.

The  injury  must  be  one of the risks connected with the employment,
flowing as a natural consequence and directly connected with the risk.
(See Matter of Hertz v.  Rapered, 218 N.Y. 148, 151-52  (1916);  Caliv
v.  Consolidated Railroad Company, 229 N.Y. 489, 494 (1920); Matter of
Scholzhauer  v.  C.&  L.  Lunch  Co.,  233  N.Y.2  (1922);  Pryor   v.
Presbyterian Home for Aged, 9 N.Y.2d 869, 870 (1961)).

New  York  State's  case  law  provides  that  injury  arises  out  of
employment when it has  its  origin  in  an  employee's  work  related
functions,  and  is sufficiently related to the employment function as
to be considered a part of the employee's service to the  employer  in
connection  with  the  contract  of employment.   As sexual assault or
abuse are not inherent risks in  employment,  it  is  well-founded  to


conclude  that workers' compensation was never intended to be a bar to
civil causes of action.

The  legislative  incentive  of  our  workers'  compensation system to
encourage a safe work place is lost if a negligent employer is allowed
to use this beneficent system as a shield from liability.  Indeed  for
an  employer  to  claim that sexual assault is an expected or intended
consequence of employment results in the victim again  being  demeaned
and  insulted through a rigid and uncaring system of multiple hearings
and insufficient medical treatment.  It has been posted that since the
workers' compensation system was never intended to compensate  victims
of  sexual assault it cannot compensate a woman for a psychological or
emotional injury suffered from such a crime.

The existence of a noncompensable injury should be enough to  abrogate
the  exclusive remedy provisions of the Workers' Compensation Act.  Of
course, this is why intentional torts are  not  a  class  of  injuries
protected  under  the workers' compensation scheme.  Where the damages
alleged are purely emotional in nature, the legislature never intended
the exclusivity provisions to bar a common law claim.  Injuries due to
sexual assault are founded in humiliation,  emotional  distress,  pain
and suffering and leave permanent yet invisible scars with a woman for
the rest of her life.  That a workers' compensation award would merely
cover  the  injured employee's psychiatric bills is a sufficient basis
for granting a woman the right  to  file  a  tort  claim  against  all
responsible  parties  for causing irreparable injury and damage to the
plaintiff's self-esteem, privacy and reputation.

The employer who creates an unsafe workplace due to negligent acts  or
omissions  should  not  be  permitted to socialize this cost among the
many safe and responsible employers in our state; thus,  it  is  other
employers  and  ultimately  their customers as the public at large who
ultimately pay for such irresponsibility.    As  a  deterrent  and  as
public  policy  the  negligent employer should not be permitted to use
workers' compensation as a wall  protecting  their  culpability  where
rape is the tragic consequence.

It  is  also  clear  that  the workers' compensation statute should be
applied in a manner consistent with our public  policy  to  discourage
and  prevent  violence in the workplace -- this legislation provides a
deterrent and an obligation while ensuring that no  double  enrichment
takes  place. The sponsors of this legislation believe in the right of
women and indeed all workers to engage in their livelihood  free  from
the  threat  of sexual assault in the workplace.  When that aspiration
is diminished, the legislature must respond and clearly enunciate that
it is our sense and understanding that any interpretation  that  would
establish  workers'  compensation  as  the  exclusive  remedy  in such
circumstances is incorrect as a matter of law.

PRIOR LEGISLATIVE HISTORY:
1999-00: S.3955-B      Died in Senate Labor Committee
2001-02: S.1986        Died in Senate Labor Committee
2003-04: S.1829        Died in Senate Labor Committee
2005-06: S.307         Died in Senate Labor Committee
2007:    S.1572        Died in Senate Labor Committee
2008:    S.1572        Died in Senate Labor Committee
2009:    S.1795/A.7767 Died in Senate Labor/Died in Assembly Labor


2010:    S.1795/A/7767 Died in Senate Third Reading/Died in
Assembly Labor
FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

S1227-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1227
 2011-2012 Regular Sessions
 I N  SENATE
 January 6, 2011
 
 Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
 printed to be committed to the Committee on Labor
 

AN ACT to amend the workers' compensation law, in relation  to  enacting
 the "protection in the workplace act"
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Short title.  This act shall be known and may be  cited  as
 the "protection in the workplace act".
 

S  2.  Legislative  intent. It is the finding of this legislature that
 violence in the workplace has become  an  increasingly  serious  occupa
 tional hazard, which all too many employees and employers must confront.
 While  it  is  the intent of the workers' compensation system to provide
 medical aid and monetary compensation to injured workers or their survi
 vors in return for the surrender of their right to petition the  courts,
 it  is  the  finding of this body that rape, sexual assault or other sex
 crimes should not be classified as a  condition  of  employment  at  the
 expense  of  the  workers'  compensation system's ameliorative goals and
 that such system is not and should not be used as  a  shield  to  permit
 employers  whose  negligent  acts  or  omissions cause injury or harm to
 fellow employees without such injured employees having every opportunity
 for full and adequate redress.   For purposes  of  determining  benefits
 pursuant  to  the  workers' compensation law, sexual assault is not, and
 shall not be considered a condition of employment.
 It is therefore the intent of this legislation to ensure that  workers
 suffering  sexual assault in the workplace due to the derelict or negli
 gent practices of their employer, receive appropriate medical  care  and
 benefits  but also have every opportunity to recover all damages commen
 surate with their injury.
 

S 3. The workers' compensation law is amended by adding a new  section
 10-a to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD00660-01-1
 
       S. 1227                             2
 

S 10-A. LIABILITY RESULTING FROM SEXUAL OFFENSES.  NOTWITHSTANDING ANY
 OTHER PROVISION OF LAW, ANY EMPLOYEE SUFFERING INJURY OR PERSONAL INJURY
 PURSUANT TO SUBDIVISION SEVEN OF SECTION TWO OF THIS CHAPTER AS A CONSE
 QUENCE  OF  A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
 THE  PENAL  LAW DUE TO NEGLIGENT ACTS OR OMISSIONS OF THE EMPLOYER SHALL
 BE ENTITLED TO ALL RIGHTS AND BENEFITS AVAILABLE PURSUANT TO THIS  CHAP
 TER  AND,  IN  ADDITION  MAY PURSUE ANY REMEDY AVAILABLE IN EQUITY OR AT
 LAW, FOR COMPENSATION FOR ANY AND ALL DAMAGES RESULTING FROM SUCH  INJU
 RY.
 

S 4. 

Section 11 of the workers' compensation law, as amended by chap
 ter 635 of the laws of 1996, the opening paragraph as amended by chapter
 169  of  the  laws of 2007, the fifth undesignated paragraph as added by
 chapter 49 of the laws of 1999 and the closing  paragraph  as  added  by
 chapter 392 of the laws of 2008, is amended to read as follows:

 

S  11.  Alternative remedy. 1. The liability of an employer prescribed
 by [the last preceding] section TEN OF THIS ARTICLE shall  be  exclusive
 and in place of any other liability whatsoever, to such employee, his or
 her personal representatives, spouse, parents, dependents, distributees,
 or  any  person  otherwise  entitled to recover damages, contribution or
 indemnity, at common law or otherwise, on  account  of  such  injury  or
 death  or  liability arising therefrom, except that if an employer fails
 to secure the payment of compensation for his or her  injured  employees
 and  their  dependents  as provided in section fifty of this chapter, an
 injured employee, or his or her legal representative in case [of]  death
 results  from  the  injury,  may,  at  his or her option, elect to claim
 compensation under this chapter, or to maintain an action in the  courts
 for  damages  on  account of such injury; and in such an action it shall
 not be necessary to plead or prove freedom from contributory  negligence
 nor  may  the defendant plead as a defense that the injury was caused by
 the negligence of a fellow servant nor that  the  employee  assumed  the
 risk  of  his  or  her  employment,  nor  that the injury was due to the
 contributory negligence of the employee. The liability under this  chap
 ter  of The New York Jockey Injury Compensation Fund, Inc. created under
 section two hundred [thirteen-a] TWENTY-ONE of the  racing,  pari-mutuel
 wagering  and breeding law shall be limited to the provision of workers'
 compensation  coverage  to  jockeys,  apprentice  jockeys  and  exercise
 persons  licensed  under  article two or four of the racing, pari-mutuel
 wagering and breeding law and any statutory penalties resulting from the
 failure to provide such coverage.
 2. For purposes of this section the terms  "indemnity"  and  "contrib
 ution"  shall not include a claim or cause of action for contribution or
 indemnification based upon a provision in  a  written  contract  entered
 into  prior  to  the  accident  or  occurrence by which the employer had
 expressly agreed to contribution to or indemnification of  the  claimant
 or person asserting the cause of action for the type of loss suffered.
 3.  An  employer  shall not be liable for contribution or indemnity to
 any third person based upon  liability  for  injuries  sustained  by  an
 employee  acting  within  the  scope  of  his or her employment for such
 employer unless such  third  person  proves  through  competent  medical
 evidence  that  such employee has sustained a "grave injury" which shall
 mean only one or more of the following: death, permanent and total  loss
 of  use  or  amputation  of  an arm, leg, hand or foot, loss of multiple
 fingers, loss of multiple toes, paraplegia or  quadriplegia,  total  and
 permanent blindness, total and permanent deafness, loss of nose, loss of
 ear,  permanent and severe facial disfigurement, loss of an index finger
 
       S. 1227                             3
 or an acquired injury to the brain caused by an external physical  force
 resulting in permanent total disability.
 4.  For  purposes of this section "person" means any individual, firm,
 company, partnership, corporation, joint  venture,  joint-stock  associ
 ation, association, trust or legal entity.
 5.  The  liability under this chapter of the New York black car opera
 tors' injury compensation fund, inc. shall be limited to:  (i)  securing
 the payment of workers' compensation in accordance with article six-F of
 the  executive  law  to black car operators, as defined in such article,
 whose injury arose out of and in the course of providing services for  a
 central  dispatch facility, as defined in such article, that is a regis
 tered member of such fund, and (ii) any statutory penalty resulting from
 the failure to secure such payment. The liability under this chapter  of
 a  central  dispatch facility, as defined in article six-F of the execu
 tive law, that is a registered member of the New York black  car  opera
 tors'  injury compensation fund, inc. that shall be limited to remaining
 a registered member in good standing of  such  fund  and  any  statutory
 penalty,  including loss of immunity provided by this section, resulting
 from the failure to become or remain a registered member in good  stand
 ing  of  such fund, except, however, that such central dispatch facility
 shall be subject to the provisions of section one hundred thirty-one  of
 this  chapter  and  shall  be  liable  for any payments for which it may
 become responsible pursuant to such section or pursuant to section four
 teen-a of this [chapter] ARTICLE.
 6. The liability under this chapter of the New York independent livery
 driver benefit fund, inc. shall be limited to: (i) securing the  payment
 of  workers'  compensation  coverage  to cover those matters required by
 article six-G of the executive law for independent  livery  drivers,  as
 defined  in such article, whose injury arose out of and in the course of
 providing covered services for a livery base, as defined in  such  arti
 cle,  that  is  a registered member of such fund, and (ii) any statutory
 penalty resulting from the failure to secure such payment.
 7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN  EMPLOYEE  SUFFERING
 AN  INJURY OR PERSONAL INJURY AS A RESULT OF A SEXUAL OFFENSE AS DEFINED
 IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, DUE TO NEGLIGENT ACTS OR
 OMISSIONS OF THE EMPLOYER SHALL BE ENTITLED TO ALL RIGHTS  AND  BENEFITS
 AVAILABLE PURSUANT TO THIS CHAPTER AND, IN ADDITION MAY PURSUE ANY REME
 DY  AVAILABLE IN EQUITY OR AT LAW FOR COMPENSATION FOR DAMAGES RESULTING
 FROM SUCH INJURY.  ANY INSURANCE CARRIER PROVIDING WORKERS' COMPENSATION
 BENEFITS PURSUANT TO THIS SECTION SHALL BE ENTITLED TO  A  LIEN  ON  ANY
 DAMAGES  AWARDED  PURSUANT  TO  THIS SECTION, PROVIDED THAT NO SUCH LIEN
 SHALL BE IN AN AMOUNT GREATER THAN THE AMOUNT OF BENEFITS PAID  BY  SUCH
 INSURANCE CARRIER.
 

S  5. Subdivision 6 of section 29 of the workers' compensation law, as
 amended by chapter 635 of the laws  of  1996,  is  amended  to  read  as
 follows:

 6.  The right to compensation or benefits under this chapter, shall be
 the  exclusive  remedy  to  an  employee, or in case of death his or her
 dependents, when such employee is injured or killed by the negligence or
 wrong of another in the same employ, UNLESS SUCH EMPLOYEE WAS INJURED OR
 KILLED AS A CONSEQUENCE OF A SEXUAL OFFENSE, AS DEFINED IN  ARTICLE  ONE
 HUNDRED  THIRTY  OF THE PENAL LAW, the employer's insurer or any collec
 tive bargaining agent of the employer's employees or  any  employee,  of
 such  insurer  or  such collective bargaining agent (while acting within
 the scope of his or her employment).  The limitation of liability of  an
 employer  set  forth in section eleven of this article for the injury or
 
       S. 1227                             4
 death of an employee shall be applicable to another in the same  employ,
 the  employer's  insurer, any collective bargaining agent of the employ
 er's employees or any employee of the employer's insurer or such collec
 tive  bargaining  agent  (while  acting  within  the scope of his or her
 employment).  The option to maintain an action in the courts for damages
 based on the employer's  failure  to  secure  compensation  for  injured
 employees  and  their  dependents as set forth in section eleven of this
 article shall not be construed to  include  the  right  to  maintain  an
 action  against  another in the same employ, the employer's insurer, any
 collective bargaining agent of the employer's employees or any  employee
 of  the  employer's  insurer  or such collective bargaining agent (while
 acting within the scope of his or her employment).
 

S 6. This act shall take effect immediately.

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