senate Bill S5872

2013-2014 Legislative Session

Prohibits differential pay because of sex

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 16, 2014 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1389
Jan 08, 2014 referred to rules
returned to senate
died in assembly
Jun 21, 2013 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1581
Jun 18, 2013 referred to rules

Votes

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Jun 16, 2014 - Rules committee Vote

S5872
22
0
committee
22
Aye
0
Nay
1
Aye with Reservations
0
Absent
2
Excused
0
Abstained
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Jun 21, 2013 - Rules committee Vote

S5872
25
0
committee
25
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Rules committee vote details

Co-Sponsors

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S5872 - Bill Details

Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §§194 & 198, Lab L

S5872 - Bill Texts

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Prohibits differential pay because of sex.

view sponsor memo
BILL NUMBER:S5872 REVISED 6/26/13

TITLE OF BILL: An act to amend the labor law, in relation to the
prohibition of differential pay because of sex

Purpose:

This bill would enact part of the New York Women's Agenda, which would
break down barriers that perpetuate discrimination and inequality
based on gender. New York State has a proud history and tradition of
leading the nation in progressive ideals and reforms This is
especially so with respect to women's rights in 1843, the women's
suffrage movement was born at the first Women's Rights Convention in
Seneca Falls, New York. From that moment in time and continuing
through today, the state has been the home of female leaders and
visionaries, from Elizabeth Cady Stanton who initiated the first
organized women's rights and women's suffrage movements, to Audre
Lorde, a leading African-American poet and essayist who gave voice to
women's issues, and Gloria Steinem, the journalist, author and
activist. These New Yorkers have served as role models for not only
their generation but for every generation to come.

Over the years, New York has fallen behind in its role as a
progressive leader on women's rights. Today, statistics clearly show
that women in New York State are not treated equally to men. Study
after study shows gender inequality in our communities where women are
paid less than men for the same work, women face discrimination in the
workplace based on familial status and pregnancy, and women face
discrimination in housing because of their domestic violence victim
status.

The New York Women's Agenda will break down barriers that perpetuate
discrimination and inequality based on gender. New York has served as
a model for equality and fairness on several issues including women's
rights. The New York Women's Agenda will return the State to its
rightful place as a leader on women's equality.

Summary of Bills:

1) Pay Equity

This bill would amend Labor L § 194, which prohibits a differential in
rate of pay because of sex, to replace the current "any other factor
other than sex" exception with an exception that requires that the
differential in rate of pay he based on a bona fide factor other than
sex such as education, training or experience. Such a factor could not
be based on a sex-based differential, and must be job-related arid
consistent with business necessity. This standard would mirror the
current defense afforded to employers in disparate impact cases under
Title VII of the Civil Rights Act. The exception would not apply if
the employee demonstrated that an employer uses a" particular
employment practice that causes a disparate impact on the basis of sex
and that there was an alternative employment practice that would
accomplish the same-business purpose and the employer has refused to
adopt such a practice. "Business necessity" would be defined as a
factor that bears a manifest relationship to the employment in
question, the definition enunciated by the Supreme Court in Griggs v.


Duke Power Co., 401 U S. 424 (1971) and subsequent cases Additionally,
§ 194 would be amended to clarify that a differential in pay may not
exist even if the two employees whose rate of pay is being compared
work in different physical locations, provided that those locations
were in the same geographic region Section 194 would also be amended
to forbid employers from prohibiting employees from sharing wage
information This protection helps guarantee the individual state right
of equal pay, without interfering with current federal provisions
regarding collective protected activity aimed at "mutual aid and
protection".

This bill would also:

*amend Labor L § 198 to increase the liquidated damages allowed for
willful violations of § 194 to up to 300% of the wages found to be
due; and
*require the Department of Labor and the Division of Human Rights to
make training available to employers to assist them in preventing
discrimination and harassment in the workplace.

Existing Law:

This bill would impact existing protections that are available under
the Labor Law.

Statement in Support:

* Achieving Pay Equity

Wage disparities have a detrimental effect on Society Individuals are
put at an economic disadvantage because of characteristics that bear
no relationship to their job performance. Such disparities prevent
maximum utilization of labor in the state economy. Additionally,
policies adopted by employers that discourage or prohibit employees
from sharing information about their earnings can contribute to unjust
wage disparities going undetected. Despite existing protections under
the law, women in New York earn 84 percent of what men earn and jobs
traditionally held by women pay significantly less than jobs
predominately employing men. In New York, on average, a woman working
full time is paid $42,113 per year, while a man working full time is
paid $50,388 per year. This creates a wage gap of $8,275 between
full-time working men and women in the state.

This bill would amend existing law to ensure that women receive the
wages they were always entitled to, as well as provide for increased
liquidated damages. Individuals who were paid unequal wages would be
entitled to liquidated damages of up to 300% of the amount of unpaid
wages Existing exemptions in the law would be tightened so that pay
differentials are excused where the employer can show that the
differential is truly caused by something other than sex and is
related to job performance and consistent with business necessity
Employers would also be prohibited from forbidding employees from
sharing wage information that would otherwise deny women workers the
ability to discover whether their wages are unequal to their male
counterparts.


Budget Implications:

This bill has no budget implications for the State.

Effective Date:

This bill would take effect 90 days after enactment.

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

                                  5872

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 18, 2013
                               ___________

Introduced  by Sens. SAVINO, LITTLE, BALL, GOLDEN, ROBACH, HANNON -- (at
  request of the Governor) -- read twice and ordered printed,  and  when
  printed to be committed to the Committee on Rules

AN ACT to amend the labor law, in relation to the prohibition of differ-
  ential pay because of sex

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

  Section 1. Subdivision 1 of section 194 of the labor law, as added  by
chapter  548  of the laws of 1966, is amended and three new subdivisions
2, 3 and 4 are added to read as follows:
  1. No employee shall be paid a wage at a rate less than  the  rate  at
which  an employee of the opposite sex in the same establishment is paid
for equal work on a job the performance of which requires  equal  skill,
effort  and responsibility, and which is performed under similar working
conditions, except where payment is  made  pursuant  to  a  differential
based on:
  a. a seniority system;
  b. a merit system;
  c.  a  system  which  measures  earnings  by  quantity  or  quality of
production; or
  d. [any other factor other than sex] A BONA  FIDE  FACTOR  OTHER  THAN
SEX, SUCH AS EDUCATION, TRAINING, OR EXPERIENCE.  SUCH FACTOR: (I) SHALL
NOT  BE  BASED  UPON OR DERIVED FROM A SEX-BASED DIFFERENTIAL IN COMPEN-
SATION AND (II) SHALL BE JOB-RELATED WITH RESPECT  TO  THE  POSITION  IN
QUESTION AND SHALL BE CONSISTENT WITH BUSINESS NECESSITY. SUCH EXCEPTION
UNDER  THIS PARAGRAPH SHALL NOT APPLY WHEN THE EMPLOYEE DEMONSTRATES (A)
THAT AN EMPLOYER USES A PARTICULAR EMPLOYMENT  PRACTICE  THAT  CAUSES  A
DISPARATE IMPACT ON THE BASIS OF SEX, (B) THAT AN ALTERNATIVE EMPLOYMENT
PRACTICE  EXISTS  THAT  WOULD  SERVE  THE  SAME BUSINESS PURPOSE AND NOT
PRODUCE SUCH DIFFERENTIAL, AND (C) THAT  THE  EMPLOYER  HAS  REFUSED  TO
ADOPT SUCH ALTERNATIVE PRACTICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12049-01-3

S. 5872                             2

  2.  FOR  THE  PURPOSE  OF  SUBDIVISION  ONE OF THIS SECTION, "BUSINESS
NECESSITY" SHALL BE DEFINED AS A FACTOR THAT BEARS A MANIFEST  RELATION-
SHIP TO THE EMPLOYMENT IN QUESTION.
  3.  FOR  THE  PURPOSES  OF  SUBDIVISION ONE OF THIS SECTION, EMPLOYEES
SHALL BE DEEMED TO WORK IN THE SAME ESTABLISHMENT IF THE EMPLOYEES  WORK
FOR  THE  SAME  EMPLOYER  AT WORKPLACES LOCATED IN THE SAME GEOGRAPHICAL
REGION, NO LARGER THAN A COUNTY, TAKING INTO ACCOUNT POPULATION DISTRIB-
UTION, ECONOMIC ACTIVITY, AND/OR THE PRESENCE OF MUNICIPALITIES.
  4. (A) NO EMPLOYER SHALL PROHIBIT AN EMPLOYEE  FROM  INQUIRING  ABOUT,
DISCUSSING,  OR DISCLOSING THE WAGES OF SUCH EMPLOYEE OR ANOTHER EMPLOY-
EE.
  (B) AN EMPLOYER MAY, IN A WRITTEN POLICY PROVIDED  TO  ALL  EMPLOYEES,
ESTABLISH  REASONABLE  WORKPLACE  AND  WORKDAY  LIMITATIONS ON THE TIME,
PLACE AND MANNER FOR INQUIRES ABOUT, DISCUSSION OF, OR THE DISCLOSURE OF
WAGES. SUCH LIMITATIONS SHALL BE CONSISTENT WITH  STANDARDS  PROMULGATED
BY  THE  COMMISSIONER  AND  SHALL BE CONSISTENT WITH ALL OTHER STATE AND
FEDERAL LAWS. SUCH LIMITATIONS MAY INCLUDE PROHIBITING AN EMPLOYEE  FROM
DISCUSSING  OR  DISCLOSING  THE  WAGES  OF ANOTHER EMPLOYEE WITHOUT SUCH
EMPLOYEE'S PRIOR PERMISSION.
  (C) NOTHING IN THIS SUBDIVISION SHALL REQUIRE AN EMPLOYEE TO  DISCLOSE
HIS  OR HER WAGES.  THE FAILURE OF AN EMPLOYEE TO ADHERE TO SUCH REASON-
ABLE LIMITATIONS IN SUCH WRITTEN POLICY SHALL BE AN AFFIRMATIVE  DEFENSE
TO  ANY CLAIMS MADE AGAINST AN EMPLOYER UNDER THIS SUBDIVISION, PROVIDED
THAT ANY ADVERSE EMPLOYMENT ACTION TAKEN BY THE EMPLOYER WAS FOR FAILURE
TO ADHERE TO SUCH REASONABLE  LIMITATIONS  AND  NOT  FOR  MERE  INQUIRY,
DISCUSSION  OR  DISCLOSURE  OF  WAGES IN ACCORDANCE WITH SUCH REASONABLE
LIMITATIONS IN SUCH WRITTEN POLICY.
  (D) THIS PROHIBITION SHALL NOT APPLY TO INSTANCES IN WHICH AN EMPLOYEE
WHO HAS ACCESS TO THE WAGE INFORMATION OF OTHER EMPLOYEES AS A  PART  OF
SUCH  EMPLOYEE'S  ESSENTIAL  JOB  FUNCTIONS  DISCLOSES THE WAGES OF SUCH
OTHER EMPLOYEES TO INDIVIDUALS WHO DO NOT OTHERWISE HAVE ACCESS TO  SUCH
INFORMATION,  UNLESS  SUCH  DISCLOSURE  IS IN RESPONSE TO A COMPLAINT OR
CHARGE, OR IN FURTHERANCE OF AN INVESTIGATION, PROCEEDING,  HEARING,  OR
ACTION  UNDER  THIS CHAPTER, INCLUDING AN INVESTIGATION CONDUCTED BY THE
EMPLOYER.
  (E) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE RIGHTS  OF
AN  EMPLOYEE  PROVIDED  UNDER  ANY  OTHER PROVISION OF LAW OR COLLECTIVE
BARGAINING AGREEMENT.
  S 2. Subdivision 1-a of section 198 of the labor law,  as  amended  by
chapter 564 of the laws of 2010, is amended to read as follows:
  1-a.  On behalf of any employee paid less than the wage to which he or
she is entitled under the provisions of this article,  the  commissioner
may  bring  any legal action necessary, including administrative action,
to collect such claim and as part of such legal action, in  addition  to
any other remedies and penalties otherwise available under this article,
the  commissioner  shall  assess against the employer the full amount of
any such underpayment, and an additional amount as  liquidated  damages,
unless  the  employer  proves  a good faith basis for believing that its
underpayment of wages was in compliance with the law. Liquidated damages
shall be calculated by the commissioner as  no  more  than  one  hundred
percent of the total amount of wages found to be due, EXCEPT SUCH LIQUI-
DATED  DAMAGES MAY BE UP TO THREE HUNDRED PERCENT OF THE TOTAL AMOUNT OF
THE WAGES FOUND TO BE DUE FOR A WILLFUL VIOLATION OF SECTION ONE HUNDRED
NINETY-FOUR OF THIS ARTICLE. In any action instituted in the courts upon
a wage claim by an employee or the commissioner in  which  the  employee
prevails, the court shall allow such employee to recover the full amount

S. 5872                             3

of  any underpayment, all reasonable attorney's fees, prejudgment inter-
est as required under the civil practice law and rules, and, unless  the
employer  proves  a good faith basis to believe that its underpayment of
wages was in compliance with the law, an additional amount as liquidated
damages  equal  to  one hundred percent of the total amount of the wages
found to be due, EXCEPT SUCH LIQUIDATED  DAMAGES  MAY  BE  UP  TO  THREE
HUNDRED  PERCENT  OF THE TOTAL AMOUNT OF THE WAGES FOUND TO BE DUE FOR A
WILLFUL VIOLATION OF SECTION ONE HUNDRED NINETY-FOUR OF THIS ARTICLE.
  S 3. The department of labor and the division of  human  rights  shall
make  training  available  to  assist  employers in developing training,
policies and procedures to address discrimination and harassment in  the
workplace  including,  but  not limited to issues relating to pregnancy,
familial status, pay equity and sexual harassment.  Such training  shall
take  into  account the needs of employers of various sizes. The depart-
ment and division shall make such training available through,  including
but  not  limited to, online means.  In developing such training materi-
als, the department and division shall afford the public an  opportunity
to submit comments on such training.
  S 4. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by a court of compe-
tent  jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof, but shall be confined in its opera-
tion to the clause, sentence, paragraph, subdivision,  section  or  part
thereof  directly  involved  in  the  controversy in which such judgment
shall have been rendered. It is hereby declared to be the intent of  the
legislature  that  this act would have been enacted even if such invalid
provisions had not been included herein.
  S 5. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law;  provided, however, that the commissioner of labor
shall take actions necessary to provide for the promulgation  of  stand-
ards pursuant to subdivision 4 of section 194 of the labor law, as added
by  section  one  of  this  act,  prior  to  this act taking effect; and
provided further, however, that the department of labor and division  of
human rights shall take actions necessary to establish training pursuant
to section three of this act prior to this act taking effect.

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