In Sakthivel v. Industrious Staffing Co., LLC, 2023 NY Slip Op 00044 (N.Y. App. Div. 1st Dept. Jan. 5, 2023), the court affirmed the lower court’s dismissal of plaintiff’s claim of retaliation, asserted under the New York Labor Law, arising from an assault by a co-worker.
From the decision:
Plaintiff pro se alleges that defendant unlawfully terminated her employment because she complained of safety law violations after being assaulted by a coworker, and that her complaints about the alleged violations constituted a protected activity under the Labor Law. Although plaintiff did not specify in the complaint which sections of the Labor Law her claims were based on, the parties agree that she intended to assert a claim for retaliation under Labor Law §§ 215 and 740. Further, plaintiff has premised her Labor Law § 215 claim on defendant’s alleged violation of Labor Law § 200, “which codifies the common-law duty of an owner or employer to provide employees with a safe place to work” (Jock v Fien, 80 NY2d 965, 967 ). Although she does not specifically assert a cause of action for intentional infliction of emotional distress, plaintiff does effectively assert it, alleging that she suffered severe mental anguish as a direct and proximate result of the unlawful termination.
Plaintiff does not state a cause of action for violation of Labor Law § 215(1)(a) by relying on Labor Law § 200. Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction workers with a safe worksite (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 ). Plaintiff, as a staff accountant, does not fall within the class of workers protected by the Labor Law (see Maddox v City of New York, 108 AD2d 42, 46-48 [2d Dept 1985], affd 66 NY2d 270 ).
Similarly, plaintiff fails to state a cause of action under Labor Law § 740. As noted, plaintiff’s claim is based entirely on the alleged assault by her coworker, and this Court has held that an assault by a coworker does 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” (Diaz v New York State Catholic Health Plan, Inc., 133 AD3d 473, 473 [1st Dept 2015], quoting Labor Law § 740[a]).
Plaintiff also fails to state a claim for intentional infliction of emotional distress, as she does not allege extreme and outrageous conduct that could be considered “utterly intolerable in a civilized community.”
It should be noted that New York’s general whistleblower law, Labor Law § 740, was recently amended to prohibit retaliation against an employee because the employee “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” N.Y. Labor Law § 740(2)(a) (emphasis added).