Bill Text: NY S00456 | 2019-2020 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to fair, non-biased compensation; provides for remedies and enforcement where an employee believes he or she is being discriminated against in terms of compensation in violation of section 115 of the civil service law; makes related provisions.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2019-12-26 - APPROVAL MEMO.88 [S00456 Detail]

Download: New_York-2019-S00456-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         456--A
            Cal. No. 521

                               2019-2020 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 9, 2019
                                       ___________

        Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Civil Service and Pensions
          -- reported favorably from said committee, ordered to first and second
          report, ordered to a third reading,  amended  and  ordered  reprinted,
          retaining its place in the order of third reading

        AN ACT to amend the civil service law, in relation to a fair, non-biased
          compensation structure

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 115 of the civil service law, as added  by  chapter
     2  790 of the laws of 1958, is amended to read as follows:
     3    § 115. Policy  of  the state. 1. In order to attract unusual merit and
     4  ability to the service of the state of New York and  all  its  political
     5  subdivisions,  to  stimulate  higher  efficiency among the personnel, to
     6  provide skilled leadership  in  administrative  departments,  to  reward
     7  merit  and to insure to the people and the taxpayers of the state of New
     8  York the highest return in services for the necessary costs  of  govern-
     9  ment,  it  is  hereby declared to be the policy of the state [to provide
    10  equal pay for equal work;] and all its political  subdivisions  thereof,
    11  consistent with the federal Equal Pay Act of 1963 (29 U.S.C. § 206), the
    12  federal  Civil  Rights Act (42 U.S.C. § 2000e-2), article fifteen of the
    13  executive law, and section forty-c of the civil rights law, to ensure  a
    14  fair,  non-biased  compensation  structure  for  all  employees in which
    15  status within a protected class is not  considered  either  directly  or
    16  indirectly  in  determining  the  proper  compensation for a title or in
    17  determining the pay for any individual or group  of  employees,  and  to
    18  provide  regular  increases  in  pay in proper proportion to increase of
    19  ability, increase of output and increase of quality of work demonstrated
    20  in service.
    21    2. For the purpose of this section, the term:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01407-03-9
        S. 456--A                           2

     1    (a) "protected class" shall mean any group  of  individuals  that  are
     2  protected  against  an  unlawful  discriminatory practice by an employer
     3  pursuant to section two hundred ninety-six of the executive law.
     4    (b)  "compensation"  shall include but not be limited to: all earnings
     5  of an employee for labor or services rendered, regardless of whether the
     6  amount of earnings is paid on an annual salary, hourly, biweekly or  per
     7  diem  basis;  reimbursement for expenses; health, welfare and retirement
     8  benefits; and vacation pay, sick pay, separation or holiday pay, or  any
     9  other form of remuneration.
    10    3.  (a)  Where  an  employee believes he or she is being discriminated
    11  against in terms of compensation in  violation  of  this  section,  such
    12  employee  may  bring an action in any court of competent jurisdiction to
    13  recover the equitable and monetary relief described in paragraph (b)  of
    14  this subdivision.
    15    (b)  (1) In any action in which a court or jury finds that an employer
    16  has engaged in acts in violation of this  section,  the  court  or  jury
    17  shall  award  to  any  affected  employee  or employees monetary relief,
    18  including back pay in an amount equal  to  the  difference  between  the
    19  employee's  actual  earnings and what the employee would have earned but
    20  for the employer's unlawful practices, including an appropriate increase
    21  in retirement benefits, and an additional  amount  in  compensatory  and
    22  punitive damages, as appropriate.
    23    (2)  In any action in which a court or jury finds that an employer has
    24  engaged in acts in violation of this section, the court shall enjoin the
    25  employer from continuing to discriminate against affected employees  and
    26  shall direct the employer to comply with the provisions of this article;
    27  and  may order the employer to take such additional affirmative steps as
    28  are necessary to ensure an end  to  unlawful  discrimination,  including
    29  reinstatement  to the same or a comparable position for employees in the
    30  unclassified service or employees classified as  management/confidential
    31  or  labor;  reinstatement with back pay; or reclassification of affected
    32  workers.
    33    (3) In any action in which an affected employee or  employees  prevail
    34  in  their  claims  against  employers, the court may, in addition to any
    35  judgement awarded to the plaintiffs, allow a reasonable attorney's  fee,
    36  reasonable expert witness fees, and other costs of the action to be paid
    37  by the employer.
    38    (c) An action to recover the damages or equitable relief prescribed in
    39  paragraph (b) of this subdivision may be maintained against any employer
    40  in  any  court of competent jurisdiction by any one or more employees or
    41  their representative for or on behalf of:
    42    (1) the employees; or
    43    (2) the employees and other employees similarly situated.
    44    4. (a) It shall not be a violation of this section for an employer  to
    45  pay  different  compensation  to employees, where such payments are made
    46  pursuant to:
    47    (1) a bona fide seniority or merit system;
    48    (2) a bona fide system that measures earnings by quantity  or  quality
    49  of production;
    50    (3) a bona fide system based on geographic differentials; or
    51    (4)  any  other  bona fide factor other than status within a protected
    52  class, such as education, training,  or  experience.  Such  factor:  (A)
    53  shall  not  be based upon or derived from a differential in compensation
    54  based on status within a protected class; and (B) shall  be  job-related
    55  with  respect  to  the position in question and shall be consistent with
    56  business necessity. Such exception under this paragraph shall not  apply
        S. 456--A                           3

     1  when  the  employee  demonstrates (i) that an employer uses a particular
     2  employment practice that causes a  disparate  impact  on  the  basis  of
     3  status  within  a  protected  class, (ii) that an alternative employment
     4  practice  exists  that would serve the same purpose and not produce such
     5  differential, and (iii) that the employer  has  refused  to  adopt  such
     6  alternative practice.
     7    (b)  For  the  purpose of paragraph (a) of this subdivision, "business
     8  necessity" shall be defined as a factor that bears a manifest  relation-
     9  ship to the employment in question.
    10    (c)  Nothing  set  forth in this section shall be construed to impede,
    11  infringe or diminish the rights and benefits which accrue  to  employees
    12  through  collective  bargaining  agreements,  or  otherwise diminish the
    13  integrity of the existing collective bargaining relationship.
    14    § 2. This act shall take effect immediately.