STATE OF NEW YORK
________________________________________________________________________
1491
2013-2014 Regular Sessions
IN SENATE(Prefiled)
January 9, 2013
___________
Introduced by Sens. KRUEGER, ADAMS, ADDABBO, BRESLIN, DIAZ, GIANARIS,
HASSELL-THOMPSON, HOYLMAN, KENNEDY, MONTGOMERY, PARKER, RIVERA, STAVI-
SKY, STEWART-COUSINS -- read twice and ordered printed, and when
printed to be committed 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 § 750. Short title. This act shall be known and may be cited as the
13 "New York state fair pay act".
14 § 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
S. 1491 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 § 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.
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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 § 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
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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 § 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 § 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,
S. 1491 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 § 756. Regulations. The department shall prescribe such regulations as
10 are necessary to carry out the provisions of this article.
11 § 2. This act shall take effect on the one hundred twentieth day after
12 it shall have become a law.
