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New York Daily News

 

New York's Latest Job Killer: A New Bill Would Give Workers Broad Rights To File Suit When Fired

May 19, 2010

By E. J. McMahon, James R. Copland

Just because they can’t seem to agree on a state budget, don’t assume that New York lawmakers aren’t finding other ways to threaten the state’s economic future.

For example, while the media and public were distracted by Gov. Paterson’s abortive attempt to furlough state workers, the state Senate last Wednesday was passing a bill whose enactment would put a permanent chill on job creation here.

The bill, now pending in a state Assembly committee, would allow employees to sue their employers if they feel they have been “subjected to an abusive work environment” - a potentially elastic concept.

The measure is similar to “workplace bullying” proposals introduced, but not yet passed, in at least 16 other state Legislatures around the country. If enacted, it would undermine the Empire State’s long-standing doctrine of “employment at will” - now one of the very few areas in which New York law actually encourages hiring.

The at-will doctrine means, as one legal authority puts it, that an “employer is free to discharge individuals ’for good cause, or bad cause, or no cause at all,’ and the employee is equally free to quit, strike or otherwise cease work.” At-will employment offers a vital outlet for firms to hire and fire without the prospect of a lawsuit, other than for the causes of action for race, gender, age or disability discrimination covered by other laws. (Union contracts all spell out termination procedures, so union jobs are never “at will.”)

To be sure, plaintiff’s lawyers have persuaded courts to undermine the at-will doctrine by “public policy exceptions” in most other states.

But if the anti-bullying bill were to become law, New York State would become an outlier. Any fired worker in New York could launch a lawsuit, assuming he or she could allege plausible “abusive” practices.

Since the bill language expressly cites “verbal abuse” such as “derogatory remarks” and “the gratuitous sabotage or undermining of an employee’s work performance,” it’s hard to see how a plaintiff’s lawyer could fail to come up with a plausible hook for a legal complaint on behalf of a disgruntled ex-employee. Although potential remedies could include reinstatement of a fired employee and reimbursement of lost wages, the bill does cap damage awards at $25,000. However, the “discovery” process alone could be prohibitively expensive for small firms and a nuisance for deeper-pocketed large employers.

Result: There would no longer be anything like “at will” employment in New York.

So who’s behind this idea? The New York State United Teachers, for one, which filed a memo in support. The state’s politically powerful trial lawyers appear to have kept a lower profile, but make no mistake: The primary beneficiaries of this bill would be attorneys seeking to shake down employers.

The bill is closely patterned after model legislation advocated by the Workplace Bullying Institute, which claims to be part of an “international movement” on the issue. The group’s Web site claims, among other things, that “many of the \[European Union\] nations have substantially more legal employee protections which compel employers to prevent or correct bullying.”

In other words, passing this legislation will make New York State more like Europe, which has hardly been a job creation dynamo. Even if you’re willing to assume this type of law works well in Europe, our neighbors across the Atlantic have radically different legal systems: EU countries have essentially no American-style discovery process and no civil juries. Moreover, in every EU jurisdiction, the loser in a lawsuit pays all costs, which deters shakedown suits because an ultimately victorious employer can recover legal expenses.

Approved by a lopsided margin of 45-16 with no floor debate, the measure was sponsored in the Senate by an ailing Republican who is not seeking reelection, Sen. Thomas Morahan of Rockland County, and inexplicably supported by 13 other Republicans.

The fate of the bill during what’s left of the 2010 session now rests with Assembly Speaker Sheldon Silver, a Democrat and strong ally of the trial bar and public-sector unions. If Silver decides it should pass, Paterson’s veto pen will be the only obstacle to a new wave of big trouble for New York employers.

Original Source: http://www.nydailynews.com/opinions/2010/05/19/2010-05-19_new_yorks_latest_job_killer_a_new_bill_would_give_workers_broad_rights_to_file_s.html

 

 
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