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A04696 Summary:

BILL NOA04696
 
SAME ASSAME AS S04482
 
SPONSORTitus
 
COSPNSRBronson, Jaffee, Sepulveda, Seawright, Jenne, Niou, Otis, Galef, Jean-Pierre, Blake, Colton, Barron, Englebright, Espinal
 
MLTSPNSR
 
Add Art 21 §§750 - 756, Lab L
 
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.
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A04696 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4696
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 3, 2017
                                       ___________
 
        Introduced  by M. of A. TITUS -- read once and referred to the Committee
          on Labor
 
        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-
    20  alent  composites  of  skill,  effort, responsibility and working condi-
    21  tions;
    22    (2) The existence of such wage differentials:
    23    (A) depresses wages and living standards for employees  necessary  for
    24  their health and efficiency;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03016-01-7

        A. 4696                             2
 
     1    (B) reduces family incomes and contributes to the higher poverty rates
     2  among female-headed and minority households;
     3    (C) prevents the maximum utilization of the available labor resources;
     4    (D)  tends  to cause labor disputes, thereby burdening, affecting, and
     5  obstructing commerce;
     6    (E) constitutes an unfair method of competition; and
     7    (F) violates the state's public policy against discrimination;
     8    (3) Discrimination in wage-setting practices  has  played  a  role  in
     9  depressing wages for women and minorities generally;
    10    (4)  Many  individuals work in occupations that are dominated by indi-
    11  viduals of their same sex, race, and/or national origin,  and  discrimi-
    12  nation  in  hiring,  job  assignment  and promotion has played a role in
    13  establishing and maintaining segregated work forces;
    14    (5) Eliminating discrimination in compensation based on sex, race  and
    15  national origin would have positive effects, including:
    16    (A) providing a solution to problems in the economy created by discri-
    17  minatory wage differentials;
    18    (B)  reducing  the number of working women and people of color earning
    19  low wages, thereby lowering their incidence  of  poverty  during  normal
    20  working years and in retirement; and
    21    (C) promoting stable families by raising family incomes.
    22    (b)  It  is  the  purpose of this article to correct and as rapidly as
    23  practicable to eliminate discriminatory wage  practices  based  on  sex,
    24  race and/or national origin.
    25    §  752.  Definitions.  (a)  The  term "employ" shall mean to suffer or
    26  permit to work.
    27    (b) The term "employee" shall mean any person employed by an  employer
    28  and  includes  all of an employer's permanent employees, whether working
    29  full-time or part-time,  and  any  temporary  employee  employed  by  an
    30  employer  for  a  period of at least three months.  "Employee" shall not
    31  include any individual employed by his or her parents, spouse or child.
    32    (c) The term "employer" shall mean any person who employs four or more
    33  persons and includes the state and all political subdivisions thereof.
    34    (d) The term "equivalent jobs" means  jobs  or  occupations  that  are
    35  equal  within  the  meaning  of  the  Equal  Pay  Act of 1963, 29 U.S.C.
    36  206(d), or jobs or occupations that are dissimilar  but  whose  require-
    37  ments  are  equivalent,  when  viewed  as a composite of skills, effort,
    38  responsibility and working conditions.   Equivalency of  skill,  effort,
    39  responsibility  and  working conditions shall be determined by utilizing
    40  job comparison methodologies that do not ignore or undervalue the  worth
    41  of jobs where women and minorities are disproportionately represented.
    42    (e)  The  term  "person"  shall mean one or more individuals, partner-
    43  ships, associations, corporations, limited  liability  companies,  legal
    44  representatives,  trustees,  trustees  in  bankruptcy, receivers and the
    45  state and all political subdivisions and agencies thereof.
    46    (f) The term "labor organization" shall  mean  any  organization  that
    47  exists for the purpose, in whole or part, of collective bargaining or of
    48  dealing  with  employers  concerning  grievances, terms of conditions of
    49  employment, or of other mutual aid  or  protection  in  connection  with
    50  employment.
    51    (g)  The  term "wages" and wage "rates" shall include all compensation
    52  in any form that an employer provides to employees in payment  for  work
    53  done or services rendered, including but not limited to base pay, bonus-
    54  es,  commissions, awards, tips, or various forms of non-monetary compen-
    55  sation if provided in lieu of or in addition  to  monetary  compensation
    56  and that have economic value to an employee.

        A. 4696                             3
 
     1    § 753. Prohibition against discrimination in wages. (a) It shall be an
     2  unlawful employment practice in violation of this article for an employ-
     3  er  to  discriminate  between employees on the basis of sex, race and/or
     4  national origin by:
     5    (1)  paying  wages  to  employees at a rate less than the rate paid to
     6  employees of the opposite sex or of a different race or national  origin
     7  for work in equivalent jobs; and/or
     8    (2)  paying wages to employees in a job that is dominated by employees
     9  of a particular sex, race or national origin at a  rate  less  than  the
    10  rate  at  which  such  employer pays to employees in another job that is
    11  dominated by employees of the opposite sex or of  a  different  race  or
    12  national origin, for work on equivalent jobs.
    13    (b) Notwithstanding the provisions of subdivision (a) of this section,
    14  it  shall  not be an unlawful employment practice for an employer to pay
    15  different wage rates to employees, where such payments are made pursuant
    16  to:
    17    (1) a bona fide seniority or merit system;
    18    (2) a bona fide system that measures earnings by quantity  or  quality
    19  of production;
    20    (3) a bona fide system based on geographic differentials; or
    21    (4)  a  bona fide factor other than sex, race or national origin, such
    22  as education, training, or experience. Such factor:  (A)  shall  not  be
    23  based  upon or derived from a sex, race or national origin based differ-
    24  ential in compensation and (B) shall be job-related with respect to  the
    25  position  in  question  and shall be consistent with business necessity.
    26  Such exception under this paragraph shall not apply  when  the  employee
    27  demonstrates  (i) that an employer uses a particular employment practice
    28  that causes a disparate impact on the basis of  sex,  race  or  national
    29  origin,  (ii)  that an alternative employment practice exists that would
    30  serve the same business purpose and not produce such  differential,  and
    31  (iii) that the employer has refused to adopt such alternative practice.
    32    (c)  For  the  purpose  of  subdivision (b) of this section, "business
    33  necessity" shall be defined as a factor that bears a manifest  relation-
    34  ship to the employment in question.
    35    (d) An employer who is paying wages in violation of this section shall
    36  not,  in order to comply with the provisions of this section, reduce the
    37  wage of any employee.
    38    (e) No labor organization or its agents representing employees  of  an
    39  employer having employees subject to any provision of this chapter shall
    40  cause  or  attempt  to cause such an employer to discriminate against an
    41  employee in violation of subdivision (a) of this section.
    42    (f) An agreement by any employee to work for  less  than  the  compen-
    43  sation to which the employee is entitled under this article shall not be
    44  a bar to any action to which the employee would otherwise be entitled to
    45  enforce the provisions of this article.
    46    (g)  Nothing  set  forth in this section shall be construed to impede,
    47  infringe or diminish the rights and benefits which accrue  to  employees
    48  through  bona fide collective bargaining agreements, or otherwise dimin-
    49  ish the integrity of the existing collective bargaining relationship.
    50    (h) (1) The department shall  promulgate  regulations  specifying  the
    51  criteria  for  determining  whether a job is dominated by employees of a
    52  particular sex, race, or national origin. Criteria  shall  include,  but
    53  not be limited to, factors such as whether the job has ever been formal-
    54  ly  classified as or traditionally considered to be a "male" or "female"
    55  or "white" or "minority" job; whether there is a  history  of  discrimi-
    56  nation  against  women  and/or  people  of  color  with regard to wages,

        A. 4696                             4
 
     1  assignment or access to jobs, or other terms and conditions  of  employ-
     2  ment;  and  the  demographic composition of the work force in equivalent
     3  jobs e.g., numbers or percentages  of  women,  men,  white  persons  and
     4  people of color.  The regulations shall not include a list of jobs.
     5    (2) The department shall promulgate regulations specifying the method-
     6  ology for determining equivalent skill, effort, responsibility and work-
     7  ing  conditions.  Any  methodology  prescribed  by  the department shall
     8  ensure that comparison systems do not ignore or undervalue the worth  of
     9  jobs where women and minorities are disproportionately represented.
    10    (3)  The  equivalence  of  jobs dominated by employees of a particular
    11  sex, race or national origin relative to jobs dominated by employees  of
    12  the  opposite  sex  or of a different race or origin will be established
    13  through the application of a single job comparison system that does  not
    14  systematically  ignore  or  undervalue  the job content of traditionally
    15  female and minority jobs.
    16    § 754. Other prohibited acts. It shall be an unlawful employment prac-
    17  tice in violation of this article for an employer:
    18    (a) to take adverse actions  or  otherwise  discriminate  against  any
    19  individual  because such individual has opposed any act or practice made
    20  unlawful by this article, has sought to enforce rights  protected  under
    21  this  article, or has testified, assisted, or participated in any manner
    22  in an investigation, hearing, or other proceeding to enforce this  arti-
    23  cle; or
    24    (b)  to discharge or in any other manner discriminate against, coerce,
    25  intimidate, threaten, or interfere with any employee or any other person
    26  because the employee inquired about, disclosed, compared,  or  otherwise
    27  discussed  the  employee's  wages or the wages of any other employee, or
    28  because the employee exercised, enjoyed, aided, or encouraged any  other
    29  person to exercise or enjoy any right granted or protected by this arti-
    30  cle.
    31    § 755. Remedies and enforcement. (a) (1) The department shall receive,
    32  investigate,  and  attempt  to  resolve complaints of violations of this
    33  article.
    34    (2) In the event the department is unable to reach a voluntary  resol-
    35  ution  of a complaint filed under this article, the department may bring
    36  an action in any court of competent jurisdiction to recover the  equita-
    37  ble and monetary relief described in subdivision (b) of this section.
    38    (3)  Any  sums  recovered by the department pursuant to this paragraph
    39  shall be paid directly to  each  employee  affected  by  the  employer's
    40  unlawful acts.
    41    (b)  (1) In any action in which a court or jury finds that an employer
    42  has engaged in acts in violation of this  article,  the  court  or  jury
    43  shall  award  to  any  affected  employee  or employees monetary relief,
    44  including back pay in an amount equal  to  the  difference  between  the
    45  employee's  actual  earnings and what the employee would have earned but
    46  for the employer's unlawful  practices,  and  an  additional  amount  in
    47  compensatory and punitive damages, as appropriate.
    48    (2)  In any action in which a court or jury finds that an employer has
    49  engaged in acts in violation of this article, the court shall enjoin the
    50  employer from continuing to discriminate against affected employees  and
    51  shall direct the employer to comply with the provisions of this article;
    52  and  may order the employer to take such additional affirmative steps as
    53  are necessary, including reinstatement or reclassification  of  affected
    54  workers, to ensure an end to unlawful discrimination.
    55    (3)  In  any action in which an affected employee or employees prevail
    56  in their claims against employers, the court may,  in  addition  to  any

        A. 4696                             5
 
     1  judgment  awarded  to the plaintiffs, allow a reasonable attorney's fee,
     2  reasonable expert witness fees, and other costs of the action to be paid
     3  by the employer.
     4    (c) An action to recover the damages or equitable relief prescribed in
     5  subdivision  (b)  of this section may be maintained against any employer
     6  in any court of competent jurisdiction by any one or more  employees  or
     7  their representative for or on behalf of:
     8    (1) the employees; or
     9    (2) the employees and other employees similarly situated.
    10    § 756. Regulations. The department shall prescribe such regulations as
    11  are necessary to carry out the provisions of this article.
    12    § 2. This act shall take effect on the one hundred twentieth day after
    13  it shall have become a law.
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