Legislative Update/Action Alert: All In A Day’s Work?
Luba Fineson

Protection in the Workplace Act

This proposed legislation is designed to protect the rights of employees who have been sexually assaulted due to the derelict practices of their employers. Another key initiative of the act is to prevent employers from claiming that rape is a natural risk of employment covered by workers’ compensation.

The most recent case of abuse concerns a health care worker who was viciously raped and beaten by a criminal intruder who entered the building where she was working. Prior to the rape, she and her colleagues had repeatedly complained to their employers, The Jewish Board of Family and Children’s Services, about the inadequate security and dangers of working alone in an unsafe building.  In 1998 the victim filed suit stating the rape could have been prevented had her employer complied with the law, and installed working locks on the exterior doors. Her employer is now seeking to deny the rape victim relief in court by claiming that her being raped was a natural and direct risk of her employment, and asks that her only remedy be workers’ compensation.

We are outraged by the employer’s actions.
1. Worker’s compensation was developed to protect employees from those accidents naturally associated with the business operation. The employee was sexually assaulted apparently because her employer was indifferent to her safety concerns and had violated the law. 2. The employer claims that rape is an accidental workplace injury. 3. Not only is this employer attempting to avoid legal responsibility by labeling the rape a job related injury, it is trying to set a legal precedent which would allow all employers to expose their employees to the threat of sexual violence, and not be held accountable for their injuries. 4. Employers have a legal duty to provide their employees with a safe, violence free workplace. 5. New York courts have repeatedly held that rape, as a matter of law, is not a work related injury. 6. Because rape is not to be viewed as a natural risk of employment, we must stop those who abuse the law and protect employees who seek protection under the law.

Rape is NOT all in a day’s work. There are no conditions of work or interests of an employer to support the idea that rape is a normal job risk.

The legislature never intended the exclusive provisions of workers’ compensation 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. In no other crime is the victim blamed for the crime against her. 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 sue responsible parties for causing irreparable injury and damage to her self-esteem, privacy and reputation. The employer who creates an unsafe workplace should not be permitted to socialize this cost among the many safe and responsible employers in our state, and the public at large who ultimately pay for such irresponsibility. As a deterrent and as a 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.

This legislation also provides that no double enrichment takes place from the courts and workers’ compensation. 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 that workers’ compensation, as the exclusive remedy in such circumstances, is incorrect as a matter of law.

ACTION
 
We are working in coalition with New York City NOW and over 40 other organizations to get this bill sponsored and passed in the State Senate. We urge you to support this bill in letters, e-mail messages and telephone calls to your state Senator. The bill passed in the assembly last fall (and will again) but died in committee in the Senate. No employer should be able to argue that rape comes with the job!

Westchester County State Senators:

Vincent L. Leibell, R-C; 37th Senatorial District
Counties: Putnam, parts of Dutchess (eastern), Westchester (northern)
802 Legislative Office Building, Albany, NY 12247
(518) 455-3111

Suzi Oppenheimer, D; 36th Senatorial District
Counties: Part of Westchester
515 Legislative Office Building, Albany, NY 12247
(518) 455-2031

Larry B. Seabrook, D; 33rd Senatorial District
Counties: Parts of Bronx, Westchester
413 Legislative Office Building, Albany, NY 12247
(518) 455-2061

Nicholas A. Spano, R-C; 35th Senatorial District
Counties: Part of Westchester
509 Legislative Office Building, Albany, NY 12247
(518) 455-2231

Guy J. Velella, R-C; 34th Senatorial District
Counties: Parts of Bronx, Westchester
612 Legislative Office Building, Albany, NY 12247
(518) 455-3264

You can also email your state senator. All senators have e-mail addresses that follow this format: lastname@senate.state.ny.us.