Senate Bill S5610

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5610

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 21, 2009
                               ___________

Introduced  by  Sen.  ROBACH -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to the entitlement to  unpaid
  leave of absence from employment for victims of domestic violence

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new  article  19-C  to
read as follows:
                              ARTICLE 19-C
                       UNPAID LEAVE OF ABSENCE FOR
                 VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE

SECTION 695. DEFINITIONS.
        695-A. ENTITLEMENT TO LEAVE.
        695-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE.
        695-C. NOTICE OF INTENTION TO TAKE LEAVE.
        695-D. CERTIFICATION.
        695-E. CONFIDENTIALITY.
        695-F. RESTORATION TO POSITION.
        695-G. PROHIBITED ACTS.
        695-H. CIVIL ACTION.
        695-I. SAVINGS CLAUSE.
  S 695. DEFINITIONS. AS USED IN THIS ARTICLE:
  1.  "VICTIM OF DOMESTIC OR SEXUAL ABUSE" SHALL MEAN A VICTIM OF DOMES-
TIC VIOLENCE, A SEX OFFENSE, OR STALKING.
  2.  "VICTIM OF DOMESTIC VIOLENCE" SHALL MEAN AN INDIVIDUAL  WHO  IS  A
VICTIM  OF  AN  ACT  WHICH WOULD CONSTITUTE A FAMILY OFFENSE PURSUANT TO
SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT.
  3. "VICTIM OF A SEX OFFENSE" SHALL MEAN A VICTIM OF  AN  ACT  OR  ACTS
THAT  WOULD  CONSTITUTE A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE
PENAL LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02630-04-9
              

S. 5610                             2

  4. "VICTIM OF STALKING" SHALL MEAN A VICTIM OF AN  ACT  OR  ACTS  THAT
WOULD CONSTITUTE A VIOLATION OF SECTION 120.45, 120.50, 120.55 OR 120.60
OF THE PENAL LAW.
  S  695-A. ENTITLEMENT TO LEAVE. ANY EMPLOYEE WHO IS A VICTIM OF DOMES-
TIC OR SEXUAL VIOLENCE SHALL BE ELIGIBLE FOR NINETY DAYS OF UNPAID LEAVE
FROM THEIR EMPLOYMENT DURING ANY TWELVE MONTH PERIOD IN ORDER TO ADDRESS
DOMESTIC OR SEXUAL VIOLENCE OR ONGOING EFFECTS OF SUCH DOMESTIC OR SEXU-
AL VIOLENCE, INCLUDING BUT NOT LIMITED TO:
  1. SEEKING MEDICAL ATTENTION FOR, OR RECOVERING OR TAKING CARE OF  THE
VICTIM'S CHILD WHILE THE CHILD RECOVERS FROM, ANY PHYSICAL OR PSYCHOLOG-
ICAL INJURIES CAUSED BY THE DOMESTIC OR SEXUAL VIOLENCE; OR
  2.  ATTENDING COUNSELING SESSIONS FOR THE VICTIM OF DOMESTIC OR SEXUAL
VIOLENCE OR FOR SUCH VICTIM'S CHILD IN ORDER TO DEAL WITH THE EFFECTS OF
THE DOMESTIC OR SEXUAL VIOLENCE; OR
  3. SEEKING LEGAL ASSISTANCE INCLUDING ATTENDING COURT  PROCEEDINGS  OR
MEETING  OR  COMMUNICATING  WITH AN ATTORNEY OR A MEMBER OF LAW ENFORCE-
MENT; OR
  4. SEEKING SERVICES FOR THE VICTIM OF DOMESTIC OR SEXUAL  VIOLENCE  OR
FOR  SUCH  VICTIM'S  CHILD FROM A RESIDENTIAL OR NON-RESIDENTIAL PROGRAM
FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE; OR
  5. ENGAGING IN SAFETY PLANNING, INCLUDING ARRANGING  TO  RELOCATE  AND
RELOCATING  TO  A  TEMPORARY  OR  PERMANENT  NEW  RESIDENCE, IN ORDER TO
DECREASE THE RISK OF FUTURE DOMESTIC OR SEXUAL VIOLENCE.
  S 695-B.  LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE. THE
LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE  MAY
BE  TAKEN  ON A REDUCED LEAVE SCHEDULE OR INTERMITTENTLY IF THE EMPLOYEE
AND EMPLOYER AGREE ON THE SCHEDULE. TAKING LEAVE ON A REDUCED  LEAVE  OR
INTERMITTENT  SCHEDULE  SHALL NOT RESULT IN A REDUCTION IN THE AMOUNT OF
TOTAL LEAVE A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE IS  ENTITLED  TO  IN
THE TWELVE MONTH PERIOD.
  S 695-C.  NOTICE OF INTENTION TO TAKE LEAVE. AN EMPLOYEE SHALL PROVIDE
AN  EMPLOYER  WITH REASONABLE NOTICE OF THE EMPLOYEE'S INTENTION TO TAKE
LEAVE PURSUANT TO SECTION SIX  HUNDRED  NINETY-FIVE-A  OF  THIS  ARTICLE
UNLESS  PROVIDING  SUCH  NOTICE  IS NOT PRACTICABLE. WHEN AN UNSCHEDULED
ABSENCE OCCURS, THE EMPLOYER MAY NOT TAKE ANY ACTION AGAINST THE EMPLOY-
EE IF THE EMPLOYEE,  WITHIN  A  REASONABLE  PERIOD  OF  TIME  AFTER  THE
ABSENCE,  PROVIDES  CERTIFICATION  AS  SET  FORTH IN SECTION SIX HUNDRED
NINETY-FIVE-D OF THIS ARTICLE.
  S 695-D.  CERTIFICATION. IN ORDER TO DETERMINE WHETHER THE EMPLOYEE IS
A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE, THE EMPLOYER MAY  REQUIRE  THAT
THE REQUEST FOR LEAVE BE SUPPORTED BY ONE OF THE FOLLOWING:
  1.  A  SWORN  STATEMENT  SUBMITTED BY THE VICTIM OF DOMESTIC OR SEXUAL
VIOLENCE DESCRIBING SUCH VICTIM'S NEED FOR LEAVE TO ADDRESS THE  ONGOING
EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE; OR
  2.  ANY  DOCUMENTATION  OF  THE DOMESTIC OR SEXUAL VIOLENCE, INCLUDING
POLICE REPORTS, COURT RECORDS, STATEMENTS FROM  A  SHELTER  WORKER,  LAW
ENFORCEMENT  OFFICER, MEDICAL WORKER, COUNSELOR, CLERGY MEMBER, ATTORNEY
OR ANY OTHER PROFESSIONAL FROM WHOM THE EMPLOYEE HAS  SOUGHT  ASSISTANCE
TO ADDRESS THE DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS; OR
  3.  ANY  OTHER  CORROBORATING  EVIDENCE  INCLUDING  PHYSICAL EVIDENCE,
PHOTOGRAPHS, OR STATEMENTS FROM OTHER INDIVIDUALS WHO ARE AWARE  OF  THE
DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS.
  S  695-E.  CONFIDENTIALITY.  ANY INFORMATION PROVIDED TO THE EMPLOYER,
INCLUDING BUT NOT LIMITED TO INFORMATION UNDER SECTION SIX HUNDRED NINE-
TY-FIVE-D OF THIS ARTICLE, DESCRIBING THE DOMESTIC OR SEXUAL VIOLENCE IN
THE EMPLOYEE'S LIFE AND THE REQUEST TO  TAKE  A  LEAVE  TO  ADDRESS  THE

S. 5610                             3

EFFECTS  OF  DOMESTIC  OR SEXUAL VIOLENCE, SHALL BE KEPT CONFIDENTIAL BY
THE EMPLOYER.   DISCLOSURE SHALL ONLY BE ALLOWED  IF  THE  EMPLOYEE,  IN
WRITING, CONSENTS TO OR REQUESTS DISCLOSURE.
  S  695-F.  RESTORATION  TO  POSITION.  1. ANY EMPLOYEE WHO TAKES LEAVE
UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE, SHALL BE  ENTI-
TLED TO RETURN FROM SUCH LEAVE AND BE RESTORED TO THE SAME POSITION HELD
BY  SUCH  EMPLOYEE  WHEN THE LEAVE BEGAN OR BE RESTORED TO AN EQUIVALENT
POSITION WITH EQUIVALENT BENEFITS, PAY AND OTHER TERMS AND CONDITIONS OF
EMPLOYMENT.
  2. THE TAKING OF LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS
ARTICLE SHALL NOT RESULT IN THE LOSS OF ANY EMPLOYMENT BENEFITS  ACCRUED
PRIOR TO THE DATE ON WHICH THE LEAVE BEGAN.
  3.  (A)  EXCEPT  AS  PROVIDED  IN SUBDIVISION TWO OF THIS SECTION, ANY
EMPLOYEE WHO TAKES LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS
ARTICLE SHALL BE ENTITLED TO CONTINUED COVERAGE UNDER  ANY  HEALTH  CARE
BENEFITS PLAN PROVIDED BY SUCH PERSON'S EMPLOYER FOR THE DURATION OF THE
LEAVE.
  (B)  THE  EMPLOYER  MAY RECOVER THE PREMIUM THAT THE EMPLOYER PAID FOR
MAINTAINING COVERAGE UNDER A HEALTH BENEFITS PLAN FOR THE EMPLOYEE ENTI-
TLED TO LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF  THIS  ARTICLE,
IF:
  (I)  THE EMPLOYEE FAILS TO RETURN TO SUCH PERSON'S EMPLOYMENT ONCE THE
LEAVE HAS EXPIRED; AND
  (II) THE EMPLOYEE FAILS TO RETURN TO WORK FOR A REASON OTHER THAN:
  (A) THE CONTINUATION, RECURRENCE,  OR  ONSET  OF  DOMESTIC  OR  SEXUAL
VIOLENCE  THAT  ENTITLES THE EMPLOYEE TO LEAVE PURSUANT TO THIS SECTION;
OR
  (B) OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE.
  S 695-G. PROHIBITED ACTS. 1. INTERFERENCE WITH RIGHTS.
  (A) EXERCISE OF RIGHTS. IT SHALL  BE  UNLAWFUL  FOR  ANY  EMPLOYER  TO
INTERFERE  WITH,  RESTRAIN,  OR  DENY  THE EXERCISE OF OR THE ATTEMPT TO
EXERCISE ANY RIGHT PROVIDED UNDER THIS ARTICLE.
  (B) EMPLOYER DISCRIMINATION. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER  TO
DISCHARGE  OR  HARASS  ANY INDIVIDUAL, OR OTHERWISE DISCRIMINATE AGAINST
ANY INDIVIDUAL WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIV-
ILEGES OF EMPLOYMENT OF THE INDIVIDUAL  (INCLUDING  RETALIATION  IN  ANY
FORM  OR  MANNER)  BECAUSE  THE  INDIVIDUAL EXERCISED ANY RIGHT PROVIDED
UNDER THIS ARTICLE OR OPPOSED ANY PRACTICE MADE UNLAWFUL BY  THIS  ARTI-
CLE.
  2.  INTERFERENCE  WITH  PROCEEDINGS OR INQUIRIES. IT SHALL BE UNLAWFUL
FOR ANY PERSON TO DISCHARGE OR IN  ANY  OTHER  MANNER  DISCRIMINATE  (AS
DESCRIBED  IN  PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION) AGAINST
ANY INDIVIDUAL BECAUSE SUCH INDIVIDUAL:
  (A) HAS FILED ANY CHARGE, OR HAS INSTITUTED OR CAUSED TO BE INSTITUTED
ANY PROCEEDING, UNDER OR RELATED TO THIS ARTICLE;
  (B) HAS GIVEN, OR IS ABOUT TO GIVE, ANY INFORMATION IN CONNECTION WITH
ANY INQUIRY OR PROCEEDING RELATING TO  ANY  RIGHT  PROVIDED  UNDER  THIS
ARTICLE; OR
  (C)  HAS TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY INQUIRY OR PROCEED-
ING RELATING TO ANY RIGHT PROVIDED UNDER THIS ARTICLE.
  S 695-H. CIVIL ACTION. 1. BY EMPLOYEE.  ANY  PERSON  DENIED  LEAVE  OR
BENEFITS  DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL
BY THIS ARTICLE SHALL HAVE A CAUSE OF ACTION IN ANY COURT OF APPROPRIATE
JURISDICTION FOR DAMAGES, INCLUDING ANY WAGES, SALARY, EMPLOYMENT  BENE-
FITS  OR OTHER COMPENSATION DENIED OR LOST TO SUCH INDIVIDUAL BY REASONS
OF THE VIOLATION AND/OR ANY ACTUAL  MONETARY  LOSSES  SUSTAINED  BY  THE

S. 5610                             4

INDIVIDUAL  AS  A DIRECT RESULT OF THE VIOLATION, AS WELL AS INTEREST ON
SUCH AMOUNT CALCULATED AT THE PREVAILING RATE, AND SUCH EQUITABLE RELIEF
AS  MAY  BE  APPROPRIATE,  INCLUDING  EMPLOYMENT,   REINSTATEMENT,   AND
PROMOTION,  TOGETHER  WITH  COSTS AND SUCH REASONABLE ATTORNEYS' FEES AS
MAY BE ALLOWED BY THE COURT, AND IF THE VIOLATION WAS WILLFUL, AN  ADDI-
TIONAL  AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
  2. BY COMMISSIONER. ON BEHALF OF ANY EMPLOYEE DENIED LEAVE OR BENEFITS
DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL  BY  THIS
ARTICLE,  THE INDUSTRIAL COMMISSIONER MAY BRING A LEGAL ACTION NECESSARY
TO COLLECT DAMAGES DUE TO THE  VIOLATION,  AND  THE  EMPLOYER  SHALL  BE
REQUIRED TO PAY SUCH DAMAGES AND IF SUCH VIOLATION WAS WILLFUL, AN ADDI-
TIONAL  AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
  3. LIMITATION OF TIME. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,  AN
ACTION  TO  RECOVER  UPON  LIABILITY  IMPOSED  BY  THIS  ARTICLE MUST BE
COMMENCED WITHIN TWO YEARS.
  S 695-I. SAVINGS CLAUSE. IF ANY  PROVISION  OF  THIS  ARTICLE  OR  THE
APPLICATION  THEREOF TO ANY PERSON, EMPLOYER, OCCUPATION OR CIRCUMSTANCE
IS HELD INVALID, THE REMAINDER OF THE ARTICLE  AND  THE  APPLICATION  OF
SUCH  PROVISION  TO  OTHER  PERSONS,  EMPLOYEES, OCCUPATIONS, OR CIRCUM-
STANCES SHALL NOT BE AFFECTED THEREBY.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.