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S00456 Summary:

S00456 Actions:

S00456 Committee Votes:

S00456 Floor Votes:

S00456 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         456--B
            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 -- again 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 one or more protected class or classes is  not  considered
    16  either directly or indirectly in determining the proper compensation for
    17  a title or in determining the pay for any individual or group of employ-
    18  ees, to ensure that no employee with status within one or more protected
    19  class  or  classes  shall be paid a wage at a rate less than the rate at
    20  which an employee without status within  the  same  protected  class  or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01407-08-9
        S. 456--B                           2
 
     1  classes  in  the same establishment is paid for similar work or substan-
     2  tially similar work and to provide regular increases in  pay  in  proper
     3  proportion  to  increase  of ability, increase of output and increase of
     4  quality of work demonstrated in service.
     5    2. For the purpose of this section:
     6    (a)  the  term  "protected  class"  includes  age, race, creed, color,
     7  national origin, sexual  orientation,  gender  identity  or  expression,
     8  military  status, sex, disability, predisposing genetic characteristics,
     9  familial status, marital status, or domestic violence victim status, and
    10  any employee protected from discrimination pursuant to paragraphs a,  b,
    11  and c of subdivision one of section two hundred ninety-six of the execu-
    12  tive  law,  and  any  intern  protected  from discrimination pursuant to
    13  section two hundred ninety-six-c of the executive law.
    14    (b) the term "compensation" shall include but not be limited  to:  all
    15  earnings  of  an  employee for labor or services rendered, regardless of
    16  whether the amount of earnings is paid  on  an  annual  salary,  hourly,
    17  biweekly  or per diem basis; reimbursement for expenses; health, welfare
    18  and retirement benefits; and vacation pay, sick pay, separation or holi-
    19  day pay, or any other form of remuneration.
    20    (c) employees shall be deemed to work in the same establishment if the
    21  employees work for the same employer at workplaces located in  the  same
    22  geographical  region, no larger than a county, taking into account popu-
    23  lation distribution, economic activity, and/or the presence  of  munici-
    24  palities.
    25    3.  (a)  Where  an  employee believes he or she is being discriminated
    26  against in terms of compensation in  violation  of  this  section,  such
    27  employee  may  bring an action in any court of competent jurisdiction to
    28  recover the equitable and monetary relief described in paragraph (b)  of
    29  this subdivision.
    30    (b)  (1) In any action in which a court or jury finds that an employer
    31  has engaged in acts in violation of this  section,  the  court  or  jury
    32  shall  award  to  any  affected  employee  or employees monetary relief,
    33  including back pay in an amount equal  to  the  difference  between  the
    34  employee's  actual  earnings and what the employee would have earned but
    35  for the employer's unlawful practices, including an appropriate increase
    36  in retirement benefits, and an additional  amount  in  compensatory  and
    37  punitive damages, as appropriate.
    38    (2)  In any action in which a court or jury finds that an employer has
    39  engaged in acts in violation of this section, the court shall enjoin the
    40  employer from continuing to discriminate against affected employees  and
    41  shall direct the employer to comply with the provisions of this article;
    42  and  may order the employer to take such additional affirmative steps as
    43  are necessary to ensure an end  to  unlawful  discrimination,  including
    44  reinstatement  to the same or a comparable position for employees in the
    45  unclassified service or employees classified as  management/confidential
    46  or  labor;  reinstatement with back pay; or reclassification of affected
    47  workers.
    48    (3) In any action in which an affected employee or  employees  prevail
    49  in  their  claims  against  employers, the court may, in addition to any
    50  judgement awarded to the plaintiffs, allow a reasonable attorney's  fee,
    51  reasonable expert witness fees, and other costs of the action to be paid
    52  by the employer.
    53    (c) An action to recover the damages or equitable relief prescribed in
    54  paragraph (b) of this subdivision may be maintained against any employer
    55  in  any  court of competent jurisdiction by any one or more employees or
    56  their representative for or on behalf of:
        S. 456--B                           3
 
     1    (1) the employees; or
     2    (2) the employees and other employees similarly situated.
     3    4.  (a) It shall not be a violation of this section for an employer to
     4  pay different compensation to employees, where such  payments  are  made
     5  pursuant to:
     6    (1) a bona fide seniority or merit system;
     7    (2)  a  bona fide system that measures earnings by quantity or quality
     8  of production;
     9    (3) a bona fide system based on geographic differentials; or
    10    (4) any other bona fide factor other than status within  one  or  more
    11  protected  class or classes, such as education, training, or experience.
    12  Such factor: (A) shall not be based upon or derived from a  differential
    13  in  compensation  based  on status within one or more protected class or
    14  classes; and (B) shall be job-related with respect to  the  position  in
    15  question and shall be consistent with business necessity. Such exception
    16  under  this paragraph shall not apply when the employee demonstrates (i)
    17  that an employer uses a particular employment  practice  that  causes  a
    18  disparate  impact  on  the  basis of status within one or more protected
    19  class or classes, (ii) that an alternative  employment  practice  exists
    20  that would serve the same purpose and not produce such differential, and
    21  (iii) that the employer has refused to adopt such alternative practice.
    22    (b)  For  the  purpose of paragraph (a) of this subdivision, "business
    23  necessity" shall be defined as a factor that bears a manifest  relation-
    24  ship to the employment in question.
    25    (c)  Nothing  set  forth in this section shall be construed to impede,
    26  infringe or diminish the rights and benefits which accrue  to  employees
    27  through  collective  bargaining  agreements,  or  otherwise diminish the
    28  integrity of the existing collective bargaining relationship.
    29    § 2. This act shall take effect immediately.