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S05248 Text:

                STATE OF NEW YORK
            Cal. No. 641
                               2019-2020 Regular Sessions
                    IN SENATE
                                     April 18, 2019
        Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor -- reported  favora-
          bly  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 labor law, in relation to prohibiting wage differen-
          tials based on protected class status
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The section heading and subdivisions 1 and 2 of section 194
     2  of the labor law, the section heading as added by  chapter  548  of  the
     3  laws  of  1966,  subdivision  1 as amended and subdivision 2 as added by
     4  chapter 362 of the laws of 2015, are amended to read as follows:
     5    Differential in rate of pay because of [sex]  protected  class  status
     6  prohibited.    1.  No  employee with status within one or more protected
     7  class or classes shall be paid a wage at a rate less than  the  rate  at
     8  which  an  employee [of the opposite sex] without status within the same
     9  protected class or classes in the same establishment is  paid  for:  (a)
    10  equal  work  on  a  job  the  performance of which requires equal skill,
    11  effort and responsibility, and which is performed under similar  working
    12  conditions,  or (b) substantially similar work, when viewed as a compos-
    13  ite of skill, effort, and responsibility, and  performed  under  similar
    14  working conditions; except where payment is made pursuant to a differen-
    15  tial based on:
    16    [a.] (i) a seniority system;
    17    [b.] (ii) a merit system;
    18    [c.]  (iii) a system which measures earnings by quantity or quality of
    19  production; or
    20    [d.] (iv) a bona fide factor other than [sex]  status  within  one  or
    21  more protected class or classes, such as education, training, or experi-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5248--B                          2
     1  ence.  Such  factor: [(i)] (A) shall not be based upon or derived from a
     2  [sex-based] differential in compensation based on status within  one  or
     3  more protected class or classes and [(ii)] (B) shall be job-related with
     4  respect  to  the position in question and shall be consistent with busi-
     5  ness necessity. Such exception under this paragraph shall not apply when
     6  the employee demonstrates [(A)] (1) that an employer uses  a  particular
     7  employment practice that causes a disparate impact on the basis of [sex]
     8  status  within one or more protected class or classes, [(B)] (2) that an
     9  alternative employment practice exists that would serve the  same  busi-
    10  ness  purpose  and not produce such differential, and [(C)] (3) that the
    11  employer has refused to adopt such alternative practice.
    12    2. For the purpose of subdivision one of this section[,]:  (a)  "busi-
    13  ness  necessity"  shall  be  defined  as  a factor that bears a manifest
    14  relationship to the employment in question, and  (b)  "protected  class"
    15  shall  include  age,  race, creed, color, national origin, sexual orien-
    16  tation, gender identity or expression, military status, sex, disability,
    17  predisposing genetic characteristics, familial status,  marital  status,
    18  or  domestic  violence  victim  status,  and any employee protected from
    19  discrimination pursuant to paragraphs (a), (b), and (c)  of  subdivision
    20  one  of  section  two  hundred  ninety-six and any intern protected from
    21  discrimination pursuant to section two hundred ninety-six-c of the exec-
    22  utive law.
    23    § 2. Section 197 of the labor law, as amended by chapter  564  of  the
    24  laws of 2010, is amended to read as follows:
    25    §  197.  Civil penalty. Any employer who fails to pay the wages of his
    26  employees or shall  differentiate  in  rate  of  pay  because  of  [sex]
    27  protected  class  status,  as provided in this article, shall forfeit to
    28  the people of the state the sum of five hundred dollars  for  each  such
    29  failure,  to be recovered by the commissioner in any legal action neces-
    30  sary, including administrative action or a civil action.
    31    § 3. This act shall take effect on the ninetieth day  after  it  shall
    32  have become a law.
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