S T A T E O F N E W Y O R K
________________________________________________________________________
9754
I N A S S E M B L Y
April 5, 2016
___________
Introduced by M. of A. SIMOTAS -- read once and referred to the Commit-
tee on Governmental Employees
AN ACT to amend the civil service law, in relation to a fair, non-biased
compensation structure
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 115 of the civil service law, as added by chapter
790 of the laws of 1958, is amended to read as follows:
S 115. Policy of the state.1. In order to attract unusual merit and
ability to the service of the state of New York AND ALL ITS POLITICAL
SUBDIVISIONS, to stimulate higher efficiency among the personnel, to
provide skilled leadership in administrative departments, to reward
merit and to insure to the people and the taxpayers of the state of New
York the highest return in services for the necessary costs of govern-
ment, it is hereby declared to be the policy of the state [to provide
equal pay for equal work;] AND ALL ITS POLITICAL SUBDIVISIONS THEREOF,
CONSISTENT WITH THE FEDERAL EQUAL PAY ACT OF 1963 (29 U.S.C. S 206), THE
FEDERAL CIVIL RIGHTS ACT (42 U.S.C. S 2000E-2), ARTICLE FIFTEEN OF THE
EXECUTIVE LAW, AND SECTION FORTY-C OF THE CIVIL RIGHTS LAW, TO ENSURE A
FAIR, NON-BIASED COMPENSATION STRUCTURE FOR ALL EMPLOYEES IN WHICH SEX,
RACE, OR NATIONAL ORIGIN IS NOT CONSIDERED EITHER DIRECTLY OR INDIRECTLY
IN DETERMINING THE PROPER COMPENSATION FOR A TITLE OR IN DETERMINING THE
PAY FOR ANY INDIVIDUAL OR GROUP OF EMPLOYEES, AND TO PROVIDE regular
increases in pay in proper proportion to increase of ability, increase
of output and increase of quality of work demonstrated in service.
2. FOR THE PURPOSE OF THIS SECTION, THE TERM "COMPENSATION" SHALL
INCLUDE BUT NOT BE LIMITED TO: ALL EARNINGS OF AN EMPLOYEE FOR LABOR OR
SERVICES RENDERED, REGARDLESS OF WHETHER THE AMOUNT OF EARNINGS IS PAID
ON AN ANNUAL SALARY, HOURLY, BIWEEKLY OR PER DIEM BASIS; REIMBURSEMENT
FOR EXPENSES; HEALTH, WELFARE AND RETIREMENT BENEFITS; AND VACATION PAY,
SICK PAY, SEPARATION OR HOLIDAY PAY, OR ANY OTHER FORM OF REMUNERATION.
3. (A) WHERE AN EMPLOYEE BELIEVES HE OR SHE IS BEING DISCRIMINATED
AGAINST IN TERMS OF COMPENSATION IN VIOLATION OF THIS SECTION, SUCH
EMPLOYEE MAY BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO
RECOVER THE EQUITABLE AND MONETARY RELIEF DESCRIBED IN PARAGRAPH (B) OF
THIS SUBDIVISION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14906-01-6
A. 9754 2
(B) (1) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER
HAS ENGAGED IN ACTS IN VIOLATION OF THIS SECTION, 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, INCLUDING AN APPROPRIATE INCREASE
IN RETIREMENT BENEFITS, 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 SECTION, 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;
AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS AS
ARE NECESSARY TO ENSURE AN END TO UNLAWFUL DISCRIMINATION, INCLUDING
REINSTATEMENT TO THE SAME OR A COMPARABLE POSITION FOR EMPLOYEES IN THE
UNCLASSIFIED SERVICE OR EMPLOYEES CLASSIFIED AS MANAGEMENT/CONFIDENTIAL
OR LABOR; REINSTATEMENT WITH BACK PAY; OR RECLASSIFICATION OF AFFECTED
WORKERS.
(3) IN ANY ACTION IN WHICH AN AFFECTED EMPLOYEE OR EMPLOYEES PREVAIL
IN THEIR CLAIMS AGAINST EMPLOYERS, THE COURT MAY, IN ADDITION TO ANY
JUDGEMENT 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.
(C) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF PRESCRIBED IN
PARAGRAPH (B) OF THIS SUBDIVISION 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:
(1) THE EMPLOYEES; OR
(2) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
4. (A) IT SHALL NOT BE A VIOLATION OF THIS SECTION FOR AN EMPLOYER TO
PAY DIFFERENT COMPENSATION TO EMPLOYEES, WHERE SUCH PAYMENTS ARE MADE
PURSUANT TO:
(1) A BONA FIDE SENIORITY OR MERIT SYSTEM;
(2) A BONA FIDE SYSTEM THAT MEASURES EARNINGS BY QUANTITY OR QUALITY
OF PRODUCTION;
(3) A BONA FIDE SYSTEM BASED ON GEOGRAPHIC DIFFERENTIALS; OR
(4) ANY OTHER BONA FIDE FACTOR OTHER THAN SEX, RACE OR NATIONAL
ORIGIN, SUCH AS EDUCATION, TRAINING, OR EXPERIENCE. SUCH FACTOR: (A)
SHALL NOT BE BASED UPON OR DERIVED FROM A SEX, RACE, OR NATIONAL ORIGIN
BASED DIFFERENTIAL IN COMPENSATION; AND (B) SHALL BE JOB-RELATED WITH
RESPECT TO THE POSITION IN QUESTION AND SHALL BE CONSISTENT WITH BUSI-
NESS NECESSITY. SUCH EXCEPTION UNDER THIS PARAGRAPH SHALL NOT APPLY WHEN
THE EMPLOYEE DEMONSTRATES (I) THAT AN EMPLOYER USES A PARTICULAR EMPLOY-
MENT PRACTICE THAT CAUSES A DISPARATE IMPACT ON THE BASIS OF SEX, RACE,
OR NATIONAL ORIGIN, (II) THAT AN ALTERNATIVE EMPLOYMENT PRACTICE EXISTS
THAT WOULD SERVE THE SAME PURPOSE AND NOT PRODUCE SUCH DIFFERENTIAL, AND
(III) THAT THE EMPLOYER HAS REFUSED TO ADOPT SUCH ALTERNATIVE PRACTICE.
(B) FOR THE PURPOSE OF PARAGRAPH (A) OF THIS SUBDIVISION, "BUSINESS
NECESSITY" SHALL BE DEFINED AS A FACTOR THAT BEARS A MANIFEST RELATION-
SHIP TO THE EMPLOYMENT IN QUESTION.
(C) NOTHING SET FORTH IN THIS SECTION SHALL BE CONSTRUED TO IMPEDE,
INFRINGE OR DIMINISH THE RIGHTS AND BENEFITS WHICH ACCRUE TO EMPLOYEES
THROUGH COLLECTIVE BARGAINING AGREEMENTS, OR OTHERWISE DIMINISH THE
INTEGRITY OF THE EXISTING COLLECTIVE BARGAINING RELATIONSHIP.
S 2. This act shall take effect immediately.