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A06130 Summary:

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A06130 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6130--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 8, 2011
                                       ___________
 
        Introduced  by  M.  of  A.  WRIGHT,  COLTON, CAHILL, LANCMAN, N. RIVERA,
          ROSENTHAL, LUPARDO, JAFFEE, BRONSON, P. RIVERA --  Multi-Sponsored  by
          --  M.  of  A.  CUSICK,  FARRELL,  GOTTFRIED, GUNTHER, JACOBS, LIFTON,
          MAGNARELLI, PERRY, RAMOS, WEINSTEIN -- read once and referred  to  the
          Committee on Labor -- recommitted to the Committee on Labor in accord-

          ance  with  Assembly  Rule  3,  sec. 2 -- reported and referred to the
          Committee on Codes --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 
        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-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets

                              [ ] is old law to be omitted.
                                                                   LBD06280-02-2
        A. 6130--A                          2
 
     1  alent composites of skill, effort,  responsibility  and  working  condi-
     2  tions;
     3    (2) The existence of such wage differentials--
     4    (A)  depresses  wages and living standards for employees necessary for
     5  their health and efficiency;
     6    (B) reduces family incomes and contributes to the higher poverty rates
     7  among female-headed and minority households;
     8    (C) prevents the maximum utilization of the available labor resources;
     9    (D) tends to cause labor disputes, thereby burdening,  affecting,  and
    10  obstructing commerce;

    11    (E) constitutes an unfair method of competition; and
    12    (F) violates the state's public policy against discrimination;
    13    (3)  Discrimination  in  wage-setting  practices  has played a role in
    14  depressing wages for women and minorities generally;
    15    (4) Many individuals work in occupations that are dominated  by  indi-
    16  viduals  of  their same sex, race, and/or national origin, and discrimi-
    17  nation in hiring, job assignment and promotion  has  played  a  role  in
    18  establishing and maintaining segregated work forces;
    19    (5)  Eliminating discrimination in compensation based on sex, race and
    20  national origin would have positive effects, including--
    21    (A) providing a solution to problems in the economy created by discri-

    22  minatory wage differentials;
    23    (B) reducing the number of working women and people of  color  earning
    24  low  wages,  thereby  lowering  their incidence of poverty during normal
    25  working years and in retirement; and
    26    (C) promoting stable families by raising family incomes.
    27    (b) It is the purpose of this article to correct  and  as  rapidly  as
    28  practicable  to  eliminate  discriminatory  wage practices based on sex,
    29  race and/or national origin.
    30    § 752. Definitions. (a) The term "employ"  shall  mean  to  suffer  or
    31  permit to work.
    32    (b)  The term "employee" shall mean any person employed by an employer
    33  and includes all of an employer's permanent employees,  whether  working

    34  full-time  or  part-time,  and  any  temporary  employee  employed by an
    35  employer for a period of at least three months.   "Employee"  shall  not
    36  include any individual employed by his or her parents, spouse or child.
    37    (c) The term "employer" shall mean any person who employs four or more
    38  persons and includes the state and all political subdivisions thereof.
    39    (d)  The  term  "equivalent  jobs"  means jobs or occupations that are
    40  equal within the meaning of  the  Equal  Pay  Act  of  1963,  29  U.S.C.
    41  206(d),  or  jobs  or occupations that are dissimilar but whose require-
    42  ments are equivalent, when viewed as  a  composite  of  skills,  effort,
    43  responsibility  and  working conditions.   Equivalency of skill, effort,

    44  responsibility and working conditions shall be determined  by  utilizing
    45  job  comparison methodologies that do not ignore or undervalue the worth
    46  of jobs where women and minorities are disproportionately represented.
    47    (e) The term "person" shall mean one  or  more  individuals,  partner-
    48  ships,  associations,  corporations,  limited liability companies, legal
    49  representatives, trustees, trustees in  bankruptcy,  receivers  and  the
    50  state and all political subdivisions and agencies thereof.
    51    (f)  The  term  "labor  organization" shall mean any organization that
    52  exists for the purpose, in whole or part, of collective bargaining or of
    53  dealing with employers concerning grievances,  terms  of  conditions  of

    54  employment,  or  of  other  mutual  aid or protection in connection with
    55  employment.
        A. 6130--A                          3
 
     1    (g) The term "market rates" shall mean the rates that employers within
     2  a prescribed geographic area actually pay, or are reported  to  pay  for
     3  specific  jobs,  as  determined  by  formal  or  informal  surveys, wage
     4  studies, or other means.
     5    (h)  The  term "wages" and wage "rates" shall include all compensation
     6  in any form that an employer provides to employees in payment  for  work
     7  done or services rendered, including but not limited to base pay, bonus-
     8  es,  commissions, awards, tips, or various forms of non-monetary compen-

     9  sation if provided in lieu of or in addition  to  monetary  compensation
    10  and that have economic value to an employee.
    11    § 753. Prohibition against discrimination in wages. (a) It shall be an
    12  unlawful employment practice in violation of this article for an employ-
    13  er  to  discriminate  between employees on the basis of sex, race and/or
    14  national origin by:
    15    (1) paying wages to employees at a rate less than  the  rate  paid  to
    16  employees  of the opposite sex or of a different race or national origin
    17  for work in equivalent jobs; and/or
    18    (2) paying wages to employees in a job that is dominated by  employees
    19  of  a  particular  sex,  race or national origin at a rate less than the

    20  rate at which such employer pays to employees in  another  job  that  is
    21  dominated  by  employees  of  the opposite sex or of a different race or
    22  national origin, for work on equivalent jobs.
    23    (b) Notwithstanding the provisions of subdivision (a) of this section,
    24  it shall not be an unlawful employment practice for an employer  to  pay
    25  different wage rates to employees, where such payments are made pursuant
    26  to:
    27    (1) a bona fide seniority or merit system;
    28    (2)  a  bona fide system that measures earnings by quantity or quality
    29  of production;
    30    (3) a bona fide system based on geographic differentials; or
    31    (4) any bona fide factor other than  sex,  race  or  national  origin,

    32  provided,  however,  that  such factor does not result in discrimination
    33  based on sex, race or national origin and is not the result  of  varying
    34  market  rates  attached to historically undervalued traditionally female
    35  and/or minority job classifications.
    36    (c) An employer who is paying wages in violation of this section shall
    37  not, in order to comply with the provisions of this section, reduce  the
    38  wage of any employee.
    39    (d)  No  labor organization or its agents representing employees of an
    40  employer having employees subject to any provision of this chapter shall
    41  cause or attempt to cause such an employer to  discriminate  against  an
    42  employee in violation of subdivision (a) of this section.

    43    (e)  An  agreement  by  any employee to work for less than the compen-
    44  sation to which the employee is entitled under this article shall not be
    45  a bar to any action to which the employee would otherwise be entitled to
    46  enforce the provisions of this article.
    47    (f) Nothing set forth in this section shall be  construed  to  impede,
    48  infringe  or  diminish the rights and benefits which accrue to employees
    49  through bona fide collective bargaining agreements, or otherwise  dimin-
    50  ish the integrity of the existing collective bargaining relationship.
    51    (g)  (1)  The  department  shall promulgate regulations specifying the
    52  criteria for determining whether a job is dominated by  employees  of  a

    53  particular  sex,  race,  or national origin. Criteria shall include, but
    54  not be limited to, factors such as whether the job has ever been formal-
    55  ly classified as or traditionally considered to be a "male" or  "female"
    56  or  "white"  or  "minority" job; whether there is a history of discrimi-
        A. 6130--A                          4
 
     1  nation against women and/or  people  of  color  with  regard  to  wages,
     2  assignment  or  access to jobs, or other terms and conditions of employ-
     3  ment; and the demographic composition of the work  force  in  equivalent
     4  jobs  e.g.,  numbers  or  percentages  of  women, men, white persons and
     5  people of color.  The regulations shall not include a list of jobs.

     6    (2) The department shall promulgate regulations specifying the method-
     7  ology for determining equivalent skill, effort, responsibility and work-
     8  ing conditions. Any  methodology  prescribed  by  the  department  shall
     9  ensure  that comparison systems do not ignore or undervalue the worth of
    10  jobs where women and minorities are disproportionately represented.
    11    (3) The equivalence of jobs dominated by  employees  of  a  particular
    12  sex,  race or national origin relative to jobs dominated by employees of
    13  the opposite sex or of a different race or origin  will  be  established
    14  through  the application of a single job comparison system that does not
    15  systematically ignore or undervalue the  job  content  of  traditionally
    16  female and minority jobs.

    17    § 754. Other prohibited acts. It shall be an unlawful employment prac-
    18  tice in violation of this article for an employer:
    19    (a)  to  take  adverse  actions  or otherwise discriminate against any
    20  individual because such individual has opposed any act or practice  made
    21  unlawful  by  this article, has sought to enforce rights protected under
    22  this article, or has testified, assisted, or participated in any  manner
    23  in  an investigation, hearing, or other proceeding to enforce this arti-
    24  cle; or
    25    (b) to discharge or in any other manner discriminate against,  coerce,
    26  intimidate, threaten, or interfere with any employee or any other person
    27  because  the  employee inquired about, disclosed, compared, or otherwise

    28  discussed the employee's wages or the wages of any  other  employee,  or
    29  because  the employee exercised, enjoyed, aided, or encouraged any other
    30  person to exercise or enjoy any right granted or protected by this arti-
    31  cle.
    32    § 755. Remedies and enforcement. (a) (1) The department shall receive,
    33  investigate, and attempt to resolve complaints  of  violations  of  this
    34  article.
    35    (2)  In the event the department is unable to reach a voluntary resol-
    36  ution of a complaint filed under this article, the department may  bring
    37  an  action in any court of competent jurisdiction to recover the equita-
    38  ble and monetary relief described in subdivision (b) of this section.

    39    (3) Any sums recovered by the department pursuant  to  this  paragraph
    40  shall  be  paid  directly  to  each  employee affected by the employer's
    41  unlawful acts.
    42    (b) (1) In any action in which a court or jury finds that an  employer
    43  has  engaged  in  acts  in  violation of this article, the court or jury
    44  shall award to any  affected  employee  or  employees  monetary  relief,
    45  including  back  pay  in  an  amount equal to the difference between the
    46  employee's actual earnings and what the employee would have  earned  but
    47  for  the  employer's  unlawful  practices,  and  an additional amount in
    48  compensatory and punitive damages, as appropriate.
    49    (2) In any action in which a court or jury finds that an employer  has

    50  engaged in acts in violation of this article, the court shall enjoin the
    51  employer  from continuing to discriminate against affected employees and
    52  shall direct the employer to comply with the provisions of this article;
    53  and may order the employer to take such additional affirmative steps  as
    54  are  necessary,  including reinstatement or reclassification of affected
    55  workers, to ensure an end to unlawful discrimination.
        A. 6130--A                          5
 
     1    (3) In any action in which an affected employee or  employees  prevail
     2  in  their  claims  against  employers, the court may, in addition to any
     3  judgment awarded to the plaintiffs, allow a reasonable  attorney's  fee,

     4  reasonable expert witness fees, and other costs of the action to be paid
     5  by the employer.
     6    (c) An action to recover the damages or equitable relief prescribed in
     7  subdivision  (b)  of this section may be maintained against any employer
     8  in any court of competent jurisdiction by any one or more  employees  or
     9  their representative for or on behalf of:
    10    (1) the employees; or
    11    (2) the employees and other employees similarly situated.
    12    § 756. Regulations. The department shall prescribe such regulations as
    13  are necessary to carry out the provisions of this article.
    14    § 2. This act shall take effect on the one hundred twentieth day after
    15  it shall have become a law.