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Legislative Memo

BILL:

A.9168

Support

SUBJECT:

Protection in the Workplace Act

 

DATE:

February 25, 2002

 

The Business Council of New York State, Inc. a statewide association of more than 4,000 companies, chambers of commerce, and trade associations which employ more than one million individuals, has reviewed the aforementioned legislation and opposes its enactment.

This legislation provides that an employee who suffers injuries as the result of a sexual offense, cannot only collect under the workers' compensation system, but that they may sue their employer for negligent acts or omissions. This bill strikes at the very foundation of the workers' compensation system.

The Workers' Compensation system is an employer-funded "no fault" insurance system designed to provide that workers injured on the job receive both medical assistance and wage supplements. Under the provisions of the workers' compensation system, the employer assumes liability, regardless of fault, for all job related injuries. In return the employee gives up the right to sue their employer. This is referred to as the exclusive remedy.

It should be noted that workers' compensation allows an injured employee to sue a third party who is responsible for the injury. The perpetrator of a sexual assault would be subject to liability for full damages under the current system.

The sponsors of this legislation argue that a sexual assault should not be considered an employment related risk therefore, making it beyond exclusive remedy protection. Yet the sponsors still believe that workers' compensation benefits should be made available to the employee. If the employer is found to be blameless then workers' compensation is paid. If the employer is found to be negligent, then they are responsible for full damages. While the bill stipulates that a double recovery of workers' compensation and civil damages in a case would not be provided, the costs would be the responsibility of the employers of New York.

The legislation contains some distressing provisions in that the employee may file a negligence lawsuit not limited to rape, but for any sexual offense under section 130 of the penal code. This section of law defines sexual contact as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire by either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing."

The Business Council of New York State, Inc. strongly opposes this legislation and urges that it be held.