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Plaintiff Failed To State A Claim For Alleged Workplace Assault (NY)

January 6, 2023

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<p style="text-align: justify;">Plaintiff, a staff accountant, complained to her employer of workplace safety violations following an alleged physical assault by a co-worker. Defendant employer terminated plaintiff shortly after her allegation, and plaintiff filed suit, through counsel, alleging that defendant employer terminated her in retaliation for her workplace safety complaints in violation of Labor Law §§ 215 and 740. Defendant moved to dismiss the complaint for failure to state a cause of action. The Supreme Court dismissed the complaint.</p>
<p style="text-align: justify;">The First Department in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/01/Sakthivel.pdf">Sakthivel</a> v. Industrious Staffing Company, LLC</em>, 2021-01142, affirmed the lower court’s dismissal of the complaint on two grounds. First, although plaintiff, proceeding pro se on appeal, premised her Labor Law claim on an alleged violation of workplace safety, Labor Law § 200 codifies the common-law duty upon an owner or general contractor to provide a safe worksite for construction workers. Staff accountants like plaintiff are not among the class of workers protected by the Labor Law. Thus, plaintiff could not rely on Labor Law § 200 for her § 215 claim.</p>
<p style="text-align: justify;">Next, the First Department affirmed a previous decision that the alleged co-worker assault did not raise a claim under § 740 as it did not constitute “an activity, policy, or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.”</p>
<p style="text-align: justify;">Thanks to Abed Bhuyan for this post. Please contact <a href="mailto:abhuyan@wcmlaw.com">Abed</a> with any questions.</p>

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