Enacts the "protection in the workplace act"; provides that injuries to employees as a result of the commission of a sexual offense shall entitle such employee to all rights and benefits available pursuant to the workers' compensation law and, in addition, shall permit such employee to pursue any other remedies available at law or in equity; clarifies that workers' compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.
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.
STATE OF NEW YORK ________________________________________________________________________ 1227 2011-2012 Regular Sessions IN 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 fingerS. 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 orS. 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.