Bill Text: NY A05958 | 2013-2014 | General Assembly | Introduced
Bill Title: Enacts the "New York State fair pay act"; provides that it shall be an unlawful employment practice for an employer to discriminate between employees on the basis of sex, race and/or national origin by paying different wages.
Spectrum: Partisan Bill (Democrat 38-0)
Status: (Engrossed - Dead) 2014-01-08 - ordered to third reading cal.278 [A05958 Detail]
Download: New_York-2013-A05958-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 5958 2013-2014 Regular Sessions I N A S S E M B L Y March 11, 2013 ___________ Introduced by M. of A. HEASTIE, WRIGHT, COLTON, CAHILL, ROSENTHAL, LUPARDO, JAFFEE, BRONSON, JACOBS, LIFTON, GUNTHER -- Multi-Sponsored by -- M. of A. CUSICK, FARRELL, GOTTFRIED, MAGNARELLI, PERRY, RAMOS, WEINSTEIN -- read once and referred to the Committee on Labor AN ACT to amend the labor law, in relation to enacting the "New York state fair pay act" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The labor law is amended by adding a new article 21 to read 2 as follows: 3 ARTICLE 21 4 NEW YORK STATE FAIR PAY ACT 5 SECTION 750. SHORT TITLE. 6 751. FINDINGS AND STATEMENT OF PURPOSE. 7 752. DEFINITIONS. 8 753. PROHIBITION AGAINST DISCRIMINATION IN WAGES. 9 754. OTHER PROHIBITED ACTS. 10 755. REMEDIES AND ENFORCEMENT. 11 756. REGULATIONS. 12 S 750. SHORT TITLE. THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE 13 "NEW YORK STATE FAIR PAY ACT". 14 S 751. FINDINGS AND STATEMENT OF PURPOSE. (A) THE LEGISLATURE FINDS 15 THE FOLLOWING: 16 (1) DESPITE FEDERAL AND STATE LAWS BANNING DISCRIMINATION IN EMPLOY- 17 MENT AND PAY, IN BOTH THE PRIVATE AND PUBLIC SECTOR, WAGE DIFFERENTIALS 18 PERSIST BETWEEN WOMEN AND MEN AND BETWEEN MINORITIES AND NON-MINORITIES 19 IN THE SAME JOBS AND IN JOBS THAT ARE DISSIMILAR BUT THAT REQUIRE EQUIV- 20 ALENT COMPOSITES OF SKILL, EFFORT, RESPONSIBILITY AND WORKING CONDI- 21 TIONS; 22 (2) THE EXISTENCE OF SUCH WAGE DIFFERENTIALS-- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00722-01-3 A. 5958 2 1 (A) DEPRESSES WAGES AND LIVING STANDARDS FOR EMPLOYEES NECESSARY FOR 2 THEIR HEALTH AND EFFICIENCY; 3 (B) REDUCES FAMILY INCOMES AND CONTRIBUTES TO THE HIGHER POVERTY RATES 4 AMONG FEMALE-HEADED AND MINORITY HOUSEHOLDS; 5 (C) PREVENTS THE MAXIMUM UTILIZATION OF THE AVAILABLE LABOR RESOURCES; 6 (D) TENDS TO CAUSE LABOR DISPUTES, THEREBY BURDENING, AFFECTING, AND 7 OBSTRUCTING COMMERCE; 8 (E) CONSTITUTES AN UNFAIR METHOD OF COMPETITION; AND 9 (F) VIOLATES THE STATE'S PUBLIC POLICY AGAINST DISCRIMINATION; 10 (3) DISCRIMINATION IN WAGE-SETTING PRACTICES HAS PLAYED A ROLE IN 11 DEPRESSING WAGES FOR WOMEN AND MINORITIES GENERALLY; 12 (4) MANY INDIVIDUALS WORK IN OCCUPATIONS THAT ARE DOMINATED BY INDI- 13 VIDUALS OF THEIR SAME SEX, RACE, AND/OR NATIONAL ORIGIN, AND DISCRIMI- 14 NATION IN HIRING, JOB ASSIGNMENT AND PROMOTION HAS PLAYED A ROLE IN 15 ESTABLISHING AND MAINTAINING SEGREGATED WORK FORCES; 16 (5) ELIMINATING DISCRIMINATION IN COMPENSATION BASED ON SEX, RACE AND 17 NATIONAL ORIGIN WOULD HAVE POSITIVE EFFECTS, INCLUDING-- 18 (A) PROVIDING A SOLUTION TO PROBLEMS IN THE ECONOMY CREATED BY DISCRI- 19 MINATORY WAGE DIFFERENTIALS; 20 (B) REDUCING THE NUMBER OF WORKING WOMEN AND PEOPLE OF COLOR EARNING 21 LOW WAGES, THEREBY LOWERING THEIR INCIDENCE OF POVERTY DURING NORMAL 22 WORKING YEARS AND IN RETIREMENT; AND 23 (C) PROMOTING STABLE FAMILIES BY RAISING FAMILY INCOMES. 24 (B) IT IS THE PURPOSE OF THIS ARTICLE TO CORRECT AND AS RAPIDLY AS 25 PRACTICABLE TO ELIMINATE DISCRIMINATORY WAGE PRACTICES BASED ON SEX, 26 RACE AND/OR NATIONAL ORIGIN. 27 S 752. DEFINITIONS. (A) THE TERM "EMPLOY" SHALL MEAN TO SUFFER OR 28 PERMIT TO WORK. 29 (B) THE TERM "EMPLOYEE" SHALL MEAN ANY PERSON EMPLOYED BY AN EMPLOYER 30 AND INCLUDES ALL OF AN EMPLOYER'S PERMANENT EMPLOYEES, WHETHER WORKING 31 FULL-TIME OR PART-TIME, AND ANY TEMPORARY EMPLOYEE EMPLOYED BY AN 32 EMPLOYER FOR A PERIOD OF AT LEAST THREE MONTHS. "EMPLOYEE" SHALL NOT 33 INCLUDE ANY INDIVIDUAL EMPLOYED BY HIS OR HER PARENTS, SPOUSE OR CHILD. 34 (C) THE TERM "EMPLOYER" SHALL MEAN ANY PERSON WHO EMPLOYS FOUR OR MORE 35 PERSONS AND INCLUDES THE STATE AND ALL POLITICAL SUBDIVISIONS THEREOF. 36 (D) THE TERM "EQUIVALENT JOBS" MEANS JOBS OR OCCUPATIONS THAT ARE 37 EQUAL WITHIN THE MEANING OF THE EQUAL PAY ACT OF 1963, 29 U.S.C. 38 206(D), OR JOBS OR OCCUPATIONS THAT ARE DISSIMILAR BUT WHOSE REQUIRE- 39 MENTS ARE EQUIVALENT, WHEN VIEWED AS A COMPOSITE OF SKILLS, EFFORT, 40 RESPONSIBILITY AND WORKING CONDITIONS. EQUIVALENCY OF SKILL, EFFORT, 41 RESPONSIBILITY AND WORKING CONDITIONS SHALL BE DETERMINED BY UTILIZING 42 JOB COMPARISON METHODOLOGIES THAT DO NOT IGNORE OR UNDERVALUE THE WORTH 43 OF JOBS WHERE WOMEN AND MINORITIES ARE DISPROPORTIONATELY REPRESENTED. 44 (E) THE TERM "PERSON" SHALL MEAN ONE OR MORE INDIVIDUALS, PARTNER- 45 SHIPS, ASSOCIATIONS, CORPORATIONS, LIMITED LIABILITY COMPANIES, LEGAL 46 REPRESENTATIVES, TRUSTEES, TRUSTEES IN BANKRUPTCY, RECEIVERS AND THE 47 STATE AND ALL POLITICAL SUBDIVISIONS AND AGENCIES THEREOF. 48 (F) THE TERM "LABOR ORGANIZATION" SHALL MEAN ANY ORGANIZATION THAT 49 EXISTS FOR THE PURPOSE, IN WHOLE OR PART, OF COLLECTIVE BARGAINING OR OF 50 DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, TERMS OF CONDITIONS OF 51 EMPLOYMENT, OR OF OTHER MUTUAL AID OR PROTECTION IN CONNECTION WITH 52 EMPLOYMENT. 53 (G) THE TERM "MARKET RATES" SHALL MEAN THE RATES THAT EMPLOYERS WITHIN 54 A PRESCRIBED GEOGRAPHIC AREA ACTUALLY PAY, OR ARE REPORTED TO PAY FOR 55 SPECIFIC JOBS, AS DETERMINED BY FORMAL OR INFORMAL SURVEYS, WAGE 56 STUDIES, OR OTHER MEANS. A. 5958 3 1 (H) THE TERM "WAGES" AND WAGE "RATES" SHALL INCLUDE ALL COMPENSATION 2 IN ANY FORM THAT AN EMPLOYER PROVIDES TO EMPLOYEES IN PAYMENT FOR WORK 3 DONE OR SERVICES RENDERED, INCLUDING BUT NOT LIMITED TO BASE PAY, BONUS- 4 ES, COMMISSIONS, AWARDS, TIPS, OR VARIOUS FORMS OF NON-MONETARY COMPEN- 5 SATION IF PROVIDED IN LIEU OF OR IN ADDITION TO MONETARY COMPENSATION 6 AND THAT HAVE ECONOMIC VALUE TO AN EMPLOYEE. 7 S 753. PROHIBITION AGAINST DISCRIMINATION IN WAGES. (A) IT SHALL BE AN 8 UNLAWFUL EMPLOYMENT PRACTICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOY- 9 ER TO DISCRIMINATE BETWEEN EMPLOYEES ON THE BASIS OF SEX, RACE AND/OR 10 NATIONAL ORIGIN BY: 11 (1) PAYING WAGES TO EMPLOYEES AT A RATE LESS THAN THE RATE PAID TO 12 EMPLOYEES OF THE OPPOSITE SEX OR OF A DIFFERENT RACE OR NATIONAL ORIGIN 13 FOR WORK IN EQUIVALENT JOBS; AND/OR 14 (2) PAYING WAGES TO EMPLOYEES IN A JOB THAT IS DOMINATED BY EMPLOYEES 15 OF A PARTICULAR SEX, RACE OR NATIONAL ORIGIN AT A RATE LESS THAN THE 16 RATE AT WHICH SUCH EMPLOYER PAYS TO EMPLOYEES IN ANOTHER JOB THAT IS 17 DOMINATED BY EMPLOYEES OF THE OPPOSITE SEX OR OF A DIFFERENT RACE OR 18 NATIONAL ORIGIN, FOR WORK ON EQUIVALENT JOBS. 19 (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION, 20 IT SHALL NOT BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER TO PAY 21 DIFFERENT WAGE RATES TO EMPLOYEES, WHERE SUCH PAYMENTS ARE MADE PURSUANT 22 TO: 23 (1) A BONA FIDE SENIORITY OR MERIT SYSTEM; 24 (2) A BONA FIDE SYSTEM THAT MEASURES EARNINGS BY QUANTITY OR QUALITY 25 OF PRODUCTION; 26 (3) A BONA FIDE SYSTEM BASED ON GEOGRAPHIC DIFFERENTIALS; OR 27 (4) ANY BONA FIDE FACTOR OTHER THAN SEX, RACE OR NATIONAL ORIGIN, 28 PROVIDED, HOWEVER, THAT SUCH FACTOR DOES NOT RESULT IN DISCRIMINATION 29 BASED ON SEX, RACE OR NATIONAL ORIGIN AND IS NOT THE RESULT OF VARYING 30 MARKET RATES ATTACHED TO HISTORICALLY UNDERVALUED TRADITIONALLY FEMALE 31 AND/OR MINORITY JOB CLASSIFICATIONS. 32 (C) AN EMPLOYER WHO IS PAYING WAGES IN VIOLATION OF THIS SECTION SHALL 33 NOT, IN ORDER TO COMPLY WITH THE PROVISIONS OF THIS SECTION, REDUCE THE 34 WAGE OF ANY EMPLOYEE. 35 (D) NO LABOR ORGANIZATION OR ITS AGENTS REPRESENTING EMPLOYEES OF AN 36 EMPLOYER HAVING EMPLOYEES SUBJECT TO ANY PROVISION OF THIS CHAPTER SHALL 37 CAUSE OR ATTEMPT TO CAUSE SUCH AN EMPLOYER TO DISCRIMINATE AGAINST AN 38 EMPLOYEE IN VIOLATION OF SUBDIVISION (A) OF THIS SECTION. 39 (E) AN AGREEMENT BY ANY EMPLOYEE TO WORK FOR LESS THAN THE COMPEN- 40 SATION TO WHICH THE EMPLOYEE IS ENTITLED UNDER THIS ARTICLE SHALL NOT BE 41 A BAR TO ANY ACTION TO WHICH THE EMPLOYEE WOULD OTHERWISE BE ENTITLED TO 42 ENFORCE THE PROVISIONS OF THIS ARTICLE. 43 (F) NOTHING SET FORTH IN THIS SECTION SHALL BE CONSTRUED TO IMPEDE, 44 INFRINGE OR DIMINISH THE RIGHTS AND BENEFITS WHICH ACCRUE TO EMPLOYEES 45 THROUGH BONA FIDE COLLECTIVE BARGAINING AGREEMENTS, OR OTHERWISE DIMIN- 46 ISH THE INTEGRITY OF THE EXISTING COLLECTIVE BARGAINING RELATIONSHIP. 47 (G) (1) THE DEPARTMENT SHALL PROMULGATE REGULATIONS SPECIFYING THE 48 CRITERIA FOR DETERMINING WHETHER A JOB IS DOMINATED BY EMPLOYEES OF A 49 PARTICULAR SEX, RACE, OR NATIONAL ORIGIN. CRITERIA SHALL INCLUDE, BUT 50 NOT BE LIMITED TO, FACTORS SUCH AS WHETHER THE JOB HAS EVER BEEN FORMAL- 51 LY CLASSIFIED AS OR TRADITIONALLY CONSIDERED TO BE A "MALE" OR "FEMALE" 52 OR "WHITE" OR "MINORITY" JOB; WHETHER THERE IS A HISTORY OF DISCRIMI- 53 NATION AGAINST WOMEN AND/OR PEOPLE OF COLOR WITH REGARD TO WAGES, 54 ASSIGNMENT OR ACCESS TO JOBS, OR OTHER TERMS AND CONDITIONS OF EMPLOY- 55 MENT; AND THE DEMOGRAPHIC COMPOSITION OF THE WORK FORCE IN EQUIVALENT A. 5958 4 1 JOBS E.G., NUMBERS OR PERCENTAGES OF WOMEN, MEN, WHITE PERSONS AND 2 PEOPLE OF COLOR. THE REGULATIONS SHALL NOT INCLUDE A LIST OF JOBS. 3 (2) THE DEPARTMENT SHALL PROMULGATE REGULATIONS SPECIFYING THE METHOD- 4 OLOGY FOR DETERMINING EQUIVALENT SKILL, EFFORT, RESPONSIBILITY AND WORK- 5 ING CONDITIONS. ANY METHODOLOGY PRESCRIBED BY THE DEPARTMENT SHALL 6 ENSURE THAT COMPARISON SYSTEMS DO NOT IGNORE OR UNDERVALUE THE WORTH OF 7 JOBS WHERE WOMEN AND MINORITIES ARE DISPROPORTIONATELY REPRESENTED. 8 (3) THE EQUIVALENCE OF JOBS DOMINATED BY EMPLOYEES OF A PARTICULAR 9 SEX, RACE OR NATIONAL ORIGIN RELATIVE TO JOBS DOMINATED BY EMPLOYEES OF 10 THE OPPOSITE SEX OR OF A DIFFERENT RACE OR ORIGIN WILL BE ESTABLISHED 11 THROUGH THE APPLICATION OF A SINGLE JOB COMPARISON SYSTEM THAT DOES NOT 12 SYSTEMATICALLY IGNORE OR UNDERVALUE THE JOB CONTENT OF TRADITIONALLY 13 FEMALE AND MINORITY JOBS. 14 S 754. OTHER PROHIBITED ACTS. IT SHALL BE AN UNLAWFUL EMPLOYMENT PRAC- 15 TICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOYER: 16 (A) TO TAKE ADVERSE ACTIONS OR OTHERWISE DISCRIMINATE AGAINST ANY 17 INDIVIDUAL BECAUSE SUCH INDIVIDUAL HAS OPPOSED ANY ACT OR PRACTICE MADE 18 UNLAWFUL BY THIS ARTICLE, HAS SOUGHT TO ENFORCE RIGHTS PROTECTED UNDER 19 THIS ARTICLE, OR HAS TESTIFIED, ASSISTED, OR PARTICIPATED IN ANY MANNER 20 IN AN INVESTIGATION, HEARING, OR OTHER PROCEEDING TO ENFORCE THIS ARTI- 21 CLE; OR 22 (B) TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE AGAINST, COERCE, 23 INTIMIDATE, THREATEN, OR INTERFERE WITH ANY EMPLOYEE OR ANY OTHER PERSON 24 BECAUSE THE EMPLOYEE INQUIRED ABOUT, DISCLOSED, COMPARED, OR OTHERWISE 25 DISCUSSED THE EMPLOYEE'S WAGES OR THE WAGES OF ANY OTHER EMPLOYEE, OR 26 BECAUSE THE EMPLOYEE EXERCISED, ENJOYED, AIDED, OR ENCOURAGED ANY OTHER 27 PERSON TO EXERCISE OR ENJOY ANY RIGHT GRANTED OR PROTECTED BY THIS ARTI- 28 CLE. 29 S 755. REMEDIES AND ENFORCEMENT. (A) (1) THE DEPARTMENT SHALL RECEIVE, 30 INVESTIGATE, AND ATTEMPT TO RESOLVE COMPLAINTS OF VIOLATIONS OF THIS 31 ARTICLE. 32 (2) IN THE EVENT THE DEPARTMENT IS UNABLE TO REACH A VOLUNTARY RESOL- 33 UTION OF A COMPLAINT FILED UNDER THIS ARTICLE, THE DEPARTMENT MAY BRING 34 AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO RECOVER THE EQUITA- 35 BLE AND MONETARY RELIEF DESCRIBED IN SUBDIVISION (B) OF THIS SECTION. 36 (3) ANY SUMS RECOVERED BY THE DEPARTMENT PURSUANT TO THIS PARAGRAPH 37 SHALL BE PAID DIRECTLY TO EACH EMPLOYEE AFFECTED BY THE EMPLOYER'S 38 UNLAWFUL ACTS. 39 (B) (1) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER 40 HAS ENGAGED IN ACTS IN VIOLATION OF THIS ARTICLE, THE COURT OR JURY 41 SHALL AWARD TO ANY AFFECTED EMPLOYEE OR EMPLOYEES MONETARY RELIEF, 42 INCLUDING BACK PAY IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE 43 EMPLOYEE'S ACTUAL EARNINGS AND WHAT THE EMPLOYEE WOULD HAVE EARNED BUT 44 FOR THE EMPLOYER'S UNLAWFUL PRACTICES, AND AN ADDITIONAL AMOUNT IN 45 COMPENSATORY AND PUNITIVE DAMAGES, AS APPROPRIATE. 46 (2) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER HAS 47 ENGAGED IN ACTS IN VIOLATION OF THIS ARTICLE, THE COURT SHALL ENJOIN THE 48 EMPLOYER FROM CONTINUING TO DISCRIMINATE AGAINST AFFECTED EMPLOYEES AND 49 SHALL DIRECT THE EMPLOYER TO COMPLY WITH THE PROVISIONS OF THIS ARTICLE; 50 AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS AS 51 ARE NECESSARY, INCLUDING REINSTATEMENT OR RECLASSIFICATION OF AFFECTED 52 WORKERS, TO ENSURE AN END TO UNLAWFUL DISCRIMINATION. 53 (3) IN ANY ACTION IN WHICH AN AFFECTED EMPLOYEE OR EMPLOYEES PREVAIL 54 IN THEIR CLAIMS AGAINST EMPLOYERS, THE COURT MAY, IN ADDITION TO ANY 55 JUDGMENT AWARDED TO THE PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE, A. 5958 5 1 REASONABLE EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO BE PAID 2 BY THE EMPLOYER. 3 (C) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF PRESCRIBED IN 4 SUBDIVISION (B) OF THIS SECTION MAY BE MAINTAINED AGAINST ANY EMPLOYER 5 IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE EMPLOYEES OR 6 THEIR REPRESENTATIVE FOR OR ON BEHALF OF: 7 (1) THE EMPLOYEES; OR 8 (2) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED. 9 S 756. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS 10 ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE. 11 S 2. This act shall take effect on the one hundred twentieth day after 12 it shall have become a law.