NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6775
SPONSOR: Pichardo TITLE OF BILL:
An act to amend the workers' compensation law, in relation to discrimi-
nation and retaliation against employees
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to update the penalties for discriminating
or retaliating against an employee for exercising his or her rights
under the Workers' Compensation Law and would make it explicit that such
discrimination or retaliation includes threatening to contact immi-
gration authorities.
SUMMARY OF PROVISIONS:
Section 1 of the bill would clarify that discriminating or retaliating
against an employee for claiming or attempting to claim compensation or
other benefits under the Workers' Compensation Law shall include threat-
ening to contact or contacting United States immigration authorities, or
otherwise reporting or threatening to report an employee's suspected
citizenship or immigration status or the suspected citizenship or immi-
gration status of an employee's family or household member to a federal,
state or local agency. This section would also increase the minimum and
maximum civil penalties for violations of these provisions to not less
than $500 or more than $2500.
Section 2 of the bill would establish the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
Technical amendment to reflect changes made to section 120 of the Work-
ers' Compensation Law per a chapter of the laws of 2019.
JUSTIFICATION:
This bill is necessary to update and strengthen New York's statutory
protections against discrimination and retaliation for injured workers
and other employees who exercise their rights under the Workers' Compen-
sation Law, including claiming benefits for workers' compensation,
temporary disability insurance, and/or paid family leave. The courts and
the New York State Workers' Compensation Board have made clear that
these benefits are available to employees regardless of their immi-
gration status, and that discriminating against any workers, including
undocumented workers, for filing such claims or otherwise exercising
their rights under the law is illegal.
Similar changes to the Labor Law were recently enacted through Chapter
126 of the Laws of 2019 to prevent employers from exploiting immigrant
workers by threatening them with the risk of deportation in order to
prevent their reporting of wage theft, sexual harassment, misclassifica-
tion, unlawful or dangerous working conditions, and other workplace
violations. This bill would clarify that employers in New York State are
also prohibited from using such actions in order to avoid providing
compensation and other benefits under the Workers' Compensation Law or
discouraging employees from participating in related proceedings. The
bill also recognizes that the civil penalty provisions for violations of
this section have not kept pace with inflation. The minimum and maximum
penalties have not been updated since they were first established in
1973 and thus have lost much of their deterrent effect. Increasing the
penalty levels will help ensure that employees can exercise their rights
to file compensation claims and testify on behalf of themselves or other
co-workers without fear of reprisal.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This bill would take effect 90 days after enactment.
STATE OF NEW YORK
________________________________________________________________________
6775
2021-2022 Regular Sessions
IN ASSEMBLY
April 8, 2021
___________
Introduced by M. of A. PICHARDO, DICKENS, DE LA ROSA, SIMON, REYES,
DeSTEFANO, DURSO, GLICK, GOTTFRIED, BARRON, NIOU, JACOBSON -- read
once and referred to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to discrimi-
nation and retaliation against employees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 120 of the workers' compensation law, as amended by
2 chapter 61 of the laws of 1989, the section heading as amended by
3 section 31 of part SS of chapter 54 of the laws of 2016 and the opening
4 paragraph as amended by chapter 105 of the laws of 2019, is amended to
5 read as follows:
6 § 120. Discrimination and retaliation against employees. It shall be
7 unlawful for any employer or his or her duly authorized agent to
8 discharge or fail to reinstate pursuant to section two hundred three-b
9 of this chapter, or in any other manner discriminate against an employee
10 as to his or her employment or retaliate against an employee because
11 such employee has claimed or attempted to claim compensation from such
12 employer, requested a claim form for injuries received in the course of
13 employment, or claimed or attempted to claim any benefits provided under
14 this chapter or because he or she has testified or is about to testify
15 in a proceeding under this chapter and no other valid reason is shown to
16 exist for such action by the employer. As used in this section, to
17 discriminate or retaliate against an employee includes threatening to
18 contact or contacting United States immigration authorities or otherwise
19 reporting or threatening to report an employee's suspected citizenship
20 or immigration status or the suspected citizenship or immigration status
21 of an employee's family or household member, as defined in subdivision
22 two of section four hundred fifty-nine-a of the social services law, to
23 a federal, state or local agency.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08334-01-1
A. 6775 2
1 Any complaint alleging such an unlawful discriminatory practice must
2 be filed within two years of the commission of such practice. Upon find-
3 ing that an employer has violated this section, the board shall make an
4 order that any employee so discriminated or retaliated against shall be
5 restored to employment or otherwise restored to the position or privi-
6 leges he or she would have had but for the discrimination or retaliation
7 and shall be compensated by his or her employer for any loss of compen-
8 sation arising out of such discrimination or retaliation together with
9 such fees or allowances for services rendered by an attorney or licensed
10 representative as fixed by the board. Any employer who violates this
11 section shall be liable to a penalty of not less than [one] five hundred
12 dollars or more than two thousand five hundred dollars, as may be deter-
13 mined by the board. All such penalties shall be paid into the state
14 treasury. All penalties, compensation and fees or allowances shall be
15 paid solely by the employer. The employer alone and not his or her
16 carrier shall be liable for such penalties and payments. Any provision
17 in an insurance policy undertaking to relieve the employer from liabil-
18 ity for such penalties and payments shall be void.
19 An employer found to be in violation of this section and the aggrieved
20 employee must report to the board as to the manner of the employer's
21 compliance within thirty days of receipt of a final determination. In
22 case of failure to report on compliance, or failure to comply with an
23 order or penalty of the board within thirty days after the order or
24 notice of penalty is served, except where timely application to the
25 board for a modification, rescission or review of such order or penalty
26 has been filed under section twenty-three of this chapter, the chair in
27 any such case or, on the chair's consent, any party may enforce the
28 order or penalty in a like manner as an award of compensation.
29 § 2. This act shall take effect on the ninetieth day after it shall
30 have become a law.
