S05674 Summary:

Add SS742, 743 & 744, amd S740, Lab L
Relates to retaliatory personnel actions by employers.
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S05674 Actions:

11/21/2011PRINT NUMBER 5674A
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S05674 Text:

                STATE OF NEW YORK
                               2011-2012 Regular Sessions
                    IN SENATE
                                      June 9, 2011
        Introduced  by  Sens.  KRUEGER,  ADDABBO,  MONTGOMERY  -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Labor  --  committee  discharged,  bill  amended, ordered reprinted as
          amended and recommitted to said committee
        AN ACT to amend the labor law,  in  relation  to  retaliatory  personnel
          actions by employers

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as the  "wage  and
     2  transparency act."
     3    §  2.  The  labor law is amended by adding three new sections 742, 743
     4  and 744 to read as follows:
     5    § 742. Other prohibited acts. It shall be an unlawful employment prac-
     6  tice in violation of this article for an employer to discharge or in any
     7  other manner discriminate  against,  coerce,  intimidate,  threaten,  or
     8  interfere  with  any  employee  or any other person because the employee
     9  inquired about, disclosed, compared, or otherwise discussed the  employ-
    10  ee's  wages  or the wages of any other employee, or because the employee

    11  exercised, enjoyed, aided, or encouraged any other person to exercise or
    12  enjoy any right granted or protected by this article.
    13    § 743. Remedies and enforcement. (a) (1) In  any  action  in  which  a
    14  court or jury finds that an employer has engaged in acts in violation of
    15  this  article, the court or jury shall award to any affected employee or
    16  employees monetary relief, including back pay in an amount equal to  the
    17  difference  between the employee's actual earnings and what the employee
    18  would have earned but for the  employer's  unlawful  practices,  and  an
    19  additional amount in compensatory and punitive damages, as appropriate.
    20    (2)  In any action in which a court or jury finds that an employer has

    21  engaged in acts in violation of this article, the court shall enjoin the
    22  employer from continuing to discriminate against affected employees  and
    23  shall direct the employer to comply with the provisions of this article;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5674--A                          2
     1  and  may order the employer to take such additional affirmative steps as
     2  are necessary, including reinstatement or reclassification  of  affected
     3  workers, to ensure an end to unlawful discrimination.
     4    (3)  In  any action in which an affected employee or employees prevail

     5  in their claims against employers, the court shall, in addition  to  any
     6  judgment  awarded  to the plaintiffs, allow a reasonable attorney's fee,
     7  reasonable expert witness fees, and other costs of the action to be paid
     8  by the employer.
     9    (b)  (1)  An  action  to  recover  the  damages  or  equitable  relief
    10  prescribed  in subdivision (a) of this section may be maintained against
    11  any employer in any court of competent jurisdiction by any one  or  more
    12  employees or their representative for or on behalf of:
    13    (A) the employees; or
    14    (B) the employees and other employees similarly situated.
    15    (2)  (A)  The  department  shall  receive, investigate, and attempt to
    16  resolve complaints of violations of this article.

    17    (B) In the event the department is unable to reach a voluntary  resol-
    18  ution  of a complaint filed under this article, the department may bring
    19  an action in any court of competent jurisdiction to recover the  equita-
    20  ble and monetary relief described in subdivision (a) of this section.
    21    (C)  Any  sums  recovered by the department pursuant to this paragraph
    22  shall be paid directly to  each  employee  affected  by  the  employer's
    23  unlawful acts.
    24    § 744. Regulations. The department shall prescribe such regulations as
    25  are necessary to carry out the provisions of this article not later than
    26  one hundred twenty days after the effective date of this article.
    27    §  3.  Paragraph (d) of subdivision 4 and subdivision 5 of section 740

    28  of the labor law, paragraph (d) of subdivision 4 as added by chapter  24
    29  of  the  laws  of  2002 and subdivision 5 as added by chapter 660 of the
    30  laws of 1984, are amended to read as follows:
    31    (d) Notwithstanding the provisions of paragraphs (a) and (c)  of  this
    32  subdivision, a health care employee who has been the subject of a retal-
    33  iatory  action  by  a health care employer in violation of section seven
    34  hundred forty-one of this article may institute  a  civil  action  in  a
    35  court  of competent jurisdiction for relief as set forth in [subdivision
    36  five of this] section seven hundred forty-three of this  article  within
    37  two  years  after the alleged retaliatory personnel action was taken. In
    38  addition to the relief set forth in that subdivision, the court, in  its
    39  discretion, based upon a finding that the employer acted in bad faith in

    40  the  retaliatory  action,  may assess the employer a civil penalty of an
    41  amount not to exceed ten thousand dollars, to be paid to  the  improving
    42  quality  of  patient  care fund, established pursuant to section ninety-
    43  seven-aaaa of the state finance law.
    44    [5. Relief. In any action brought pursuant to subdivision four of this
    45  section, the court may order relief as follows:
    46    (a) an injunction to restrain continued violation of this section;
    47    (b) the reinstatement of the employee to the same position held before
    48  the retaliatory personnel action, or to an equivalent position;
    49    (c) the reinstatement of full fringe benefits and seniority rights;
    50    (d) the compensation for lost wages, benefits and other  remuneration;
    51  and

    52    (e)  the  payment  by the employer of reasonable costs, disbursements,
    53  and attorney's fees.]
    54    § 4. Nothing in this act shall be interpreted  or  applied  so  as  to
    55  create any power or duty in conflict with federal law.

        S. 5674--A                          3
     1    § 5. If any provision of this act or application thereof to any person
     2  or circumstance is judged invalid, the invalidity shall not affect other
     3  provisions or applications of the act, which can be given effect without
     4  the invalid provision, or application, and to this end the provisions of
     5  this act are declared severable.
     6    §  6.  This  act shall take effect on the ninetieth day after it shall
     7  have become a law; provided that the commissioner of labor shall promul-
     8  gate rules and regulations necessary to  effectuate  the  provisions  of

     9  this act prior to such effective date.
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