Assembly Bill A8348

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

                                 8348--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              June 14, 2011
                               ___________

Introduced  by M. of A. MENG -- Multi-Sponsored by -- M. of A. HEVESI --
  read once  and  referred  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  labor law, in relation to retaliatory personnel
  actions by employers

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

  Section  1.  This act shall be known and may be cited as the "wage and
transparency act."
  S 2. The labor law is amended by adding three new  sections  742,  743
and 744 to read as follows:
  S 742. OTHER PROHIBITED ACTS. IT SHALL BE AN UNLAWFUL EMPLOYMENT PRAC-
TICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOYER TO DISCHARGE OR IN ANY
OTHER  MANNER  DISCRIMINATE  AGAINST,  COERCE,  INTIMIDATE, THREATEN, OR
INTERFERE WITH ANY EMPLOYEE OR ANY OTHER  PERSON  BECAUSE  THE  EMPLOYEE
INQUIRED  ABOUT, DISCLOSED, COMPARED, OR OTHERWISE DISCUSSED THE EMPLOY-
EE'S WAGES OR THE WAGES OF ANY OTHER EMPLOYEE, OR BECAUSE  THE  EMPLOYEE
EXERCISED, ENJOYED, AIDED, OR ENCOURAGED ANY OTHER PERSON TO EXERCISE OR
ENJOY ANY RIGHT GRANTED OR PROTECTED BY THIS ARTICLE.
  S  743.  REMEDIES  AND  ENFORCEMENT.  (A) (1) IN ANY ACTION IN WHICH A
COURT OR JURY FINDS THAT AN EMPLOYER HAS ENGAGED IN ACTS IN VIOLATION OF
THIS ARTICLE, THE COURT OR JURY SHALL AWARD TO ANY AFFECTED EMPLOYEE  OR
EMPLOYEES  MONETARY RELIEF, INCLUDING BACK PAY IN AN AMOUNT EQUAL TO THE
DIFFERENCE BETWEEN THE EMPLOYEE'S ACTUAL EARNINGS AND WHAT THE  EMPLOYEE
WOULD  HAVE  EARNED  BUT  FOR  THE EMPLOYER'S UNLAWFUL PRACTICES, AND AN
ADDITIONAL AMOUNT IN COMPENSATORY AND PUNITIVE DAMAGES, AS APPROPRIATE.
  (2) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER  HAS
ENGAGED IN ACTS IN VIOLATION OF THIS ARTICLE, THE COURT SHALL ENJOIN THE
EMPLOYER  FROM CONTINUING TO DISCRIMINATE AGAINST AFFECTED EMPLOYEES AND
SHALL DIRECT THE EMPLOYER TO COMPLY WITH THE PROVISIONS OF THIS ARTICLE;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13053-02-1
              

A. 8348--A                          2

AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS  AS
ARE  NECESSARY,  INCLUDING REINSTATEMENT OR RECLASSIFICATION OF AFFECTED
WORKERS, TO ENSURE AN END TO UNLAWFUL DISCRIMINATION.
  (3)  IN  ANY ACTION IN WHICH AN AFFECTED EMPLOYEE OR EMPLOYEES PREVAIL
IN THEIR CLAIMS AGAINST EMPLOYERS, THE COURT SHALL, IN ADDITION  TO  ANY
JUDGMENT  AWARDED  TO THE PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE,
REASONABLE EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO BE PAID
BY THE EMPLOYER.
  (B)  (1)  AN  ACTION  TO  RECOVER  THE  DAMAGES  OR  EQUITABLE  RELIEF
PRESCRIBED  IN SUBDIVISION (A) OF THIS SECTION MAY BE MAINTAINED AGAINST
ANY EMPLOYER IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE  OR  MORE
EMPLOYEES OR THEIR REPRESENTATIVE FOR OR ON BEHALF OF:
  (A) THE EMPLOYEES; OR
  (B) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
  (2)  (A)  THE  DEPARTMENT  SHALL  RECEIVE, INVESTIGATE, AND ATTEMPT TO
RESOLVE COMPLAINTS OF VIOLATIONS OF THIS ARTICLE.
  (B) IN THE EVENT THE DEPARTMENT IS UNABLE TO REACH A VOLUNTARY  RESOL-
UTION  OF A COMPLAINT FILED UNDER THIS ARTICLE, THE DEPARTMENT MAY BRING
AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO RECOVER THE  EQUITA-
BLE AND MONETARY RELIEF DESCRIBED IN SUBDIVISION (A) OF THIS SECTION.
  (C)  ANY  SUMS  RECOVERED BY THE DEPARTMENT PURSUANT TO THIS PARAGRAPH
SHALL BE PAID DIRECTLY TO  EACH  EMPLOYEE  AFFECTED  BY  THE  EMPLOYER'S
UNLAWFUL ACTS.
  S 744. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE NOT LATER THAN
ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  S  3.  Paragraph (d) of subdivision 4 and subdivision 5 of section 740
of the labor law, paragraph (d) of subdivision 4 as added by chapter  24
of  the  laws  of  2002 and subdivision 5 as added by chapter 660 of the
laws of 1984, are amended to read as follows:
  (d) Notwithstanding the provisions of paragraphs (a) and (c)  of  this
subdivision, a health care employee who has been the subject of a retal-
iatory  action  by  a health care employer in violation of section seven
hundred forty-one of this article may institute  a  civil  action  in  a
court  of competent jurisdiction for relief as set forth in [subdivision
five of this] section SEVEN HUNDRED FORTY-THREE OF THIS  ARTICLE  within
two  years  after the alleged retaliatory personnel action was taken. In
addition to the relief set forth in that subdivision, the court, in  its
discretion, based upon a finding that the employer acted in bad faith in
the  retaliatory  action,  may assess the employer a civil penalty of an
amount not to exceed ten thousand dollars, to be paid to  the  improving
quality  of  patient  care fund, established pursuant to section ninety-
seven-aaaa of the state finance law.
  [5. Relief. In any action brought pursuant to subdivision four of this
section, the court may order relief as follows:
  (a) an injunction to restrain continued violation of this section;
  (b) the reinstatement of the employee to the same position held before
the retaliatory personnel action, or to an equivalent position;
  (c) the reinstatement of full fringe benefits and seniority rights;
  (d) the compensation for lost wages, benefits and other  remuneration;
and
  (e)  the  payment  by the employer of reasonable costs, disbursements,
and attorney's fees.]
  S 4. Nothing in this act shall be interpreted  or  applied  so  as  to
create any power or duty in conflict with federal law.

A. 8348--A                          3

  S 5. If any provision of this act or application thereof to any person
or circumstance is judged invalid, the invalidity shall not affect other
provisions or applications of the act, which can be given effect without
the invalid provision, or application, and to this end the provisions of
this act are declared severable.
  S  6.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided that the commissioner of labor shall promul-
gate rules and regulations necessary to  effectuate  the  provisions  of
this act prior to such effective date.