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Legislative Memo

Lev Ginsburg
Director of Government Afairs
T 518.465.7511 x207
www.bcnys.org

BILL:

S.1795 (Duane)/ A.7767 (Kellner)

Support

SUBJECT:

Permits workers suffering sexual assault in the workplace to recover damages from their employer

 

DATE:

March 4, 2010

 

The Business Council of New York State opposes this bill, which would permit a sexual assault exception to existing workers' compensation exclusivity.

Current law holds that the only statutory exceptions to workers' compensation exclusivity are intentional tort committed by the employer or if the employer has no insurance.  This legislation would create an exception to the workers' compensation exclusivity bar by permitting negligence lawsuits against employers where an employee is injured as a result of a sexual offense that occurred during employment. 

Under existing law, the injury is compensable under workers' compensation and the employee's workers' compensation remedy is exclusive as to the employer, meaning the employee cannot sue the employer for negligence.  If the circumstances are such that the injury is found to be non-compensable under the Workers' Compensation Law - e.g. a boyfriend committed the sexual assault - then the employee can sue the employer on a theory of negligence.  This bill would permit the employee to collect workers' compensation for the injury and sue the employer as well as.  Nothing in the law limits the victim's ability to pursue action against the perpetrator of the crime.

There is a well-established body of case law dating back to the inception of workers' compensation which affirms the exclusive remedy of provisions Article 1 Section 18 of the State Constitution.   As heinous as sexual assault crimes are, there is no justification to substantially redefine the workers' compensation law to allow for this litigation and to fundamentally redefine the relief for which workers' compensation is provided. 

The Business Council opposes this bill and believes the existing exclusivity provisions within the workers' compensation statute should not be broadened to include this particular class of crimes.