Enacts the "New York State fair pay act"; provides that it shall be an unlawful employment practice for an employer to discriminate between employees on the basis of sex, race and/or national origin by paying different wages.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6130A
SPONSOR: Wright (MS) TITLE OF BILL: An act to amend the labor law, in relation to enacting
the "New York state fair pay act"
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill adds a new article, Article 21 to the labor law.
Article-21 is comprised of § 750: short title
§ 751 is legislative findings and statement of purpose
§ 752 is the definitions section
§ 753 is a prohibition against discrimination in wages 5 754 contains
other prohibited acts
§ 755 is the remedies and enforcement section
§ 756 calls for regulations to implement this act.
Section two of the bill is the effective date.
JUSTIFICATION: Present law does not adequately address the issue of
pay equity, and the need for state enforcement of a prohibition on such
inequities.
The bill has been amended to reflect comments from a broad coalition of
labor and women's groups. The amendments are:
section 752: equivalent jobs has been broadened
section 753: anew paragraph concerning methodology for determining
equivalent skill
section 753: refers to a single job comparison system which does not
undervalue traditionally female or minority jobs
Pay equity has not been universally achieved in our state. Legislative
hearings have consistently received testimony from women performing work
equal to male counterparts but paid less for their labor.
PRIOR LEGISLATIVE HISTORY:;
A.6832 of 2000:referred to labor
A.6691 of 2001-02: Passed Assembly
A.6701 of 2003-04: Passed Assembly
A.3627 of 2005-06: Passed Assembly
A.2712 of 2007-08: Passed Assembly
A.3911 of 2009-10: Passed Assembly
A.6130 of 2011: Passed Assembly
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS; NOT CALCULATED.
EFFECTIVE DATE: On the one hundred and twentieth day. after it shall
have become law.
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.
