Enacts the protection in the workplace act

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.