The New York State Senate

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

                                 2707--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 28, 2015
                               ___________

Introduced by Sens. KRUEGER, ADDABBO, BRESLIN, DIAZ, GIANARIS, HAMILTON,
  HASSELL-THOMPSON,  HOYLMAN,  KENNEDY,  MONTGOMERY,  PANEPINTO, PARKER,
  PERKINS, RIVERA, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS --  read
  twice  and  ordered  printed,  and when printed to be committed 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 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:

  Section 1. The labor law is amended by adding a new article 21 to read
as follows:
                               ARTICLE 21
                       NEW YORK STATE FAIR PAY ACT
SECTION 750. SHORT TITLE.
        751. FINDINGS AND STATEMENT OF PURPOSE.
        752. DEFINITIONS.
        753. PROHIBITION AGAINST DISCRIMINATION IN WAGES.
        754. OTHER PROHIBITED ACTS.
        755. REMEDIES AND ENFORCEMENT.
        756. REGULATIONS.
  S  750.  SHORT  TITLE. THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE
"NEW YORK STATE FAIR PAY ACT".
  S 751. FINDINGS AND STATEMENT OF PURPOSE. (A)  THE  LEGISLATURE  FINDS
THE FOLLOWING:
  (1)  DESPITE  FEDERAL AND STATE LAWS BANNING DISCRIMINATION IN EMPLOY-
MENT AND PAY, IN BOTH THE PRIVATE AND PUBLIC SECTOR, WAGE  DIFFERENTIALS
PERSIST  BETWEEN WOMEN AND MEN AND BETWEEN MINORITIES AND NON-MINORITIES
IN THE SAME JOBS AND IN JOBS THAT ARE DISSIMILAR BUT THAT REQUIRE EQUIV-
ALENT COMPOSITES OF SKILL, EFFORT,  RESPONSIBILITY  AND  WORKING  CONDI-
TIONS;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03616-05-5

S. 2707--A                          2

  (2) THE EXISTENCE OF SUCH WAGE DIFFERENTIALS:
  (A)  DEPRESSES  WAGES AND LIVING STANDARDS FOR EMPLOYEES NECESSARY FOR
THEIR HEALTH AND EFFICIENCY;
  (B) REDUCES FAMILY INCOMES AND CONTRIBUTES TO THE HIGHER POVERTY RATES
AMONG FEMALE-HEADED AND MINORITY HOUSEHOLDS;
  (C) PREVENTS THE MAXIMUM UTILIZATION OF THE AVAILABLE LABOR RESOURCES;
  (D) TENDS TO CAUSE LABOR DISPUTES, THEREBY BURDENING,  AFFECTING,  AND
OBSTRUCTING COMMERCE;
  (E) CONSTITUTES AN UNFAIR METHOD OF COMPETITION; AND
  (F) VIOLATES THE STATE'S PUBLIC POLICY AGAINST DISCRIMINATION;
  (3)  DISCRIMINATION  IN  WAGE-SETTING  PRACTICES  HAS PLAYED A ROLE IN
DEPRESSING WAGES FOR WOMEN AND MINORITIES GENERALLY;
  (4) MANY INDIVIDUALS WORK IN OCCUPATIONS THAT ARE DOMINATED  BY  INDI-
VIDUALS  OF  THEIR SAME SEX, RACE, AND/OR NATIONAL ORIGIN, AND DISCRIMI-
NATION IN HIRING, JOB ASSIGNMENT AND PROMOTION  HAS  PLAYED  A  ROLE  IN
ESTABLISHING AND MAINTAINING SEGREGATED WORK FORCES;
  (5)  ELIMINATING DISCRIMINATION IN COMPENSATION BASED ON SEX, RACE AND
NATIONAL ORIGIN WOULD HAVE POSITIVE EFFECTS, INCLUDING:
  (A) PROVIDING A SOLUTION TO PROBLEMS IN THE ECONOMY CREATED BY DISCRI-
MINATORY WAGE DIFFERENTIALS;
  (B) REDUCING THE NUMBER OF WORKING WOMEN AND PEOPLE OF  COLOR  EARNING
LOW  WAGES,  THEREBY  LOWERING  THEIR INCIDENCE OF POVERTY DURING NORMAL
WORKING YEARS AND IN RETIREMENT; AND
  (C) PROMOTING STABLE FAMILIES BY RAISING FAMILY INCOMES.
  (B) IT IS THE PURPOSE OF THIS ARTICLE TO CORRECT  AND  AS  RAPIDLY  AS
PRACTICABLE  TO  ELIMINATE  DISCRIMINATORY  WAGE PRACTICES BASED ON SEX,
RACE AND/OR NATIONAL ORIGIN.
  S 752. DEFINITIONS. (A) THE TERM "EMPLOY"  SHALL  MEAN  TO  SUFFER  OR
PERMIT TO WORK.
  (B)  THE TERM "EMPLOYEE" SHALL MEAN ANY PERSON EMPLOYED BY AN EMPLOYER
AND INCLUDES ALL OF AN EMPLOYER'S PERMANENT EMPLOYEES,  WHETHER  WORKING
FULL-TIME  OR  PART-TIME,  AND  ANY  TEMPORARY  EMPLOYEE  EMPLOYED BY AN
EMPLOYER FOR A PERIOD OF AT LEAST THREE MONTHS.   "EMPLOYEE"  SHALL  NOT
INCLUDE ANY INDIVIDUAL EMPLOYED BY HIS OR HER PARENTS, SPOUSE OR CHILD.
  (C) THE TERM "EMPLOYER" SHALL MEAN ANY PERSON WHO EMPLOYS FOUR OR MORE
PERSONS AND INCLUDES THE STATE AND ALL POLITICAL SUBDIVISIONS THEREOF.
  (D)  THE  TERM  "EQUIVALENT  JOBS"  MEANS JOBS OR OCCUPATIONS THAT ARE
EQUAL WITHIN THE MEANING OF  THE  EQUAL  PAY  ACT  OF  1963,  29  U.S.C.
206(D),  OR  JOBS  OR OCCUPATIONS THAT ARE DISSIMILAR BUT WHOSE REQUIRE-
MENTS ARE EQUIVALENT, WHEN VIEWED AS  A  COMPOSITE  OF  SKILLS,  EFFORT,
RESPONSIBILITY  AND  WORKING CONDITIONS.   EQUIVALENCY OF SKILL, EFFORT,
RESPONSIBILITY AND WORKING CONDITIONS SHALL BE DETERMINED  BY  UTILIZING
JOB  COMPARISON METHODOLOGIES THAT DO NOT IGNORE OR UNDERVALUE THE WORTH
OF JOBS WHERE WOMEN AND MINORITIES ARE DISPROPORTIONATELY REPRESENTED.
  (E) THE TERM "PERSON" SHALL MEAN ONE  OR  MORE  INDIVIDUALS,  PARTNER-
SHIPS,  ASSOCIATIONS,  CORPORATIONS,  LIMITED LIABILITY COMPANIES, LEGAL
REPRESENTATIVES, TRUSTEES, TRUSTEES IN  BANKRUPTCY,  RECEIVERS  AND  THE
STATE AND ALL POLITICAL SUBDIVISIONS AND AGENCIES THEREOF.
  (F)  THE  TERM  "LABOR  ORGANIZATION" SHALL MEAN ANY ORGANIZATION THAT
EXISTS FOR THE PURPOSE, IN WHOLE OR PART, OF COLLECTIVE BARGAINING OR OF
DEALING WITH EMPLOYERS CONCERNING GRIEVANCES,  TERMS  OF  CONDITIONS  OF
EMPLOYMENT,  OR  OF  OTHER  MUTUAL  AID OR PROTECTION IN CONNECTION WITH
EMPLOYMENT.
  (G) THE TERM "WAGES" AND WAGE "RATES" SHALL INCLUDE  ALL  COMPENSATION
IN  ANY  FORM THAT AN EMPLOYER PROVIDES TO EMPLOYEES IN PAYMENT FOR WORK
DONE OR SERVICES RENDERED, INCLUDING BUT NOT LIMITED TO BASE PAY, BONUS-

S. 2707--A                          3

ES, COMMISSIONS, AWARDS, TIPS, OR VARIOUS FORMS OF NON-MONETARY  COMPEN-
SATION  IF  PROVIDED  IN LIEU OF OR IN ADDITION TO MONETARY COMPENSATION
AND THAT HAVE ECONOMIC VALUE TO AN EMPLOYEE.
  S 753. PROHIBITION AGAINST DISCRIMINATION IN WAGES. (A) IT SHALL BE AN
UNLAWFUL EMPLOYMENT PRACTICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOY-
ER  TO  DISCRIMINATE  BETWEEN EMPLOYEES ON THE BASIS OF SEX, RACE AND/OR
NATIONAL ORIGIN BY:
  (1) PAYING WAGES TO EMPLOYEES AT A RATE LESS THAN  THE  RATE  PAID  TO
EMPLOYEES  OF THE OPPOSITE SEX OR OF A DIFFERENT RACE OR NATIONAL ORIGIN
FOR WORK IN EQUIVALENT JOBS; AND/OR
  (2) PAYING WAGES TO EMPLOYEES IN A JOB THAT IS DOMINATED BY  EMPLOYEES
OF  A  PARTICULAR  SEX,  RACE OR NATIONAL ORIGIN AT A RATE LESS THAN THE
RATE AT WHICH SUCH EMPLOYER PAYS TO EMPLOYEES IN  ANOTHER  JOB  THAT  IS
DOMINATED  BY  EMPLOYEES  OF  THE OPPOSITE SEX OR OF A DIFFERENT RACE OR
NATIONAL ORIGIN, FOR WORK ON EQUIVALENT JOBS.
  (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION,
IT SHALL NOT BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER  TO  PAY
DIFFERENT WAGE RATES 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) A 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  DIFFER-
ENTIAL  IN COMPENSATION AND (B) 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 (I) THAT AN EMPLOYER USES A PARTICULAR EMPLOYMENT  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 BUSINESS PURPOSE AND NOT PRODUCE SUCH DIFFERENTIAL, AND
(III) THAT THE EMPLOYER HAS REFUSED TO ADOPT SUCH ALTERNATIVE PRACTICE.
  (C) FOR THE PURPOSE OF SUBDIVISION  (B)  OF  THIS  SECTION,  "BUSINESS
NECESSITY"  SHALL BE DEFINED AS A FACTOR THAT BEARS A MANIFEST RELATION-
SHIP TO THE EMPLOYMENT IN QUESTION.
  (D) AN EMPLOYER WHO IS PAYING WAGES IN VIOLATION OF THIS SECTION SHALL
NOT, IN ORDER TO COMPLY WITH THE PROVISIONS OF THIS SECTION, REDUCE  THE
WAGE OF ANY EMPLOYEE.
  (E)  NO  LABOR ORGANIZATION OR ITS AGENTS REPRESENTING EMPLOYEES OF AN
EMPLOYER HAVING EMPLOYEES SUBJECT TO ANY PROVISION OF THIS CHAPTER SHALL
CAUSE OR ATTEMPT TO CAUSE SUCH AN EMPLOYER TO  DISCRIMINATE  AGAINST  AN
EMPLOYEE IN VIOLATION OF SUBDIVISION (A) OF THIS SECTION.
  (F)  AN  AGREEMENT  BY  ANY EMPLOYEE TO WORK FOR LESS THAN THE COMPEN-
SATION TO WHICH THE EMPLOYEE IS ENTITLED UNDER THIS ARTICLE SHALL NOT BE
A BAR TO ANY ACTION TO WHICH THE EMPLOYEE WOULD OTHERWISE BE ENTITLED TO
ENFORCE THE PROVISIONS OF THIS ARTICLE.
  (G) NOTHING SET FORTH IN THIS SECTION SHALL BE  CONSTRUED  TO  IMPEDE,
INFRINGE  OR  DIMINISH THE RIGHTS AND BENEFITS WHICH ACCRUE TO EMPLOYEES
THROUGH BONA FIDE COLLECTIVE BARGAINING AGREEMENTS, OR OTHERWISE  DIMIN-
ISH THE INTEGRITY OF THE EXISTING COLLECTIVE BARGAINING RELATIONSHIP.
  (H)  (1)  THE  DEPARTMENT  SHALL PROMULGATE REGULATIONS SPECIFYING THE
CRITERIA FOR DETERMINING WHETHER A JOB IS DOMINATED BY  EMPLOYEES  OF  A
PARTICULAR  SEX,  RACE,  OR NATIONAL ORIGIN. CRITERIA SHALL INCLUDE, BUT
NOT BE LIMITED TO, FACTORS SUCH AS WHETHER THE JOB HAS EVER BEEN FORMAL-

S. 2707--A                          4

LY CLASSIFIED AS OR TRADITIONALLY CONSIDERED TO BE A "MALE" OR  "FEMALE"
OR  "WHITE"  OR  "MINORITY" JOB; WHETHER THERE IS A HISTORY OF DISCRIMI-
NATION AGAINST WOMEN AND/OR  PEOPLE  OF  COLOR  WITH  REGARD  TO  WAGES,
ASSIGNMENT  OR  ACCESS TO JOBS, OR OTHER TERMS AND CONDITIONS OF EMPLOY-
MENT; AND THE DEMOGRAPHIC COMPOSITION OF THE WORK  FORCE  IN  EQUIVALENT
JOBS  E.G.,  NUMBERS  OR  PERCENTAGES  OF  WOMEN, MEN, WHITE PERSONS AND
PEOPLE OF COLOR.  THE REGULATIONS SHALL NOT INCLUDE A LIST OF JOBS.
  (2) THE DEPARTMENT SHALL PROMULGATE REGULATIONS SPECIFYING THE METHOD-
OLOGY FOR DETERMINING EQUIVALENT SKILL, EFFORT, RESPONSIBILITY AND WORK-
ING CONDITIONS. ANY  METHODOLOGY  PRESCRIBED  BY  THE  DEPARTMENT  SHALL
ENSURE  THAT COMPARISON SYSTEMS DO NOT IGNORE OR UNDERVALUE THE WORTH OF
JOBS WHERE WOMEN AND MINORITIES ARE DISPROPORTIONATELY REPRESENTED.
  (3) THE EQUIVALENCE OF JOBS DOMINATED BY  EMPLOYEES  OF  A  PARTICULAR
SEX,  RACE OR NATIONAL ORIGIN RELATIVE TO JOBS DOMINATED BY EMPLOYEES OF
THE OPPOSITE SEX OR OF A DIFFERENT RACE OR ORIGIN  WILL  BE  ESTABLISHED
THROUGH  THE APPLICATION OF A SINGLE JOB COMPARISON SYSTEM THAT DOES NOT
SYSTEMATICALLY IGNORE OR UNDERVALUE THE  JOB  CONTENT  OF  TRADITIONALLY
FEMALE AND MINORITY JOBS.
  S 754. OTHER PROHIBITED ACTS. IT SHALL BE AN UNLAWFUL EMPLOYMENT PRAC-
TICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOYER:
  (A)  TO  TAKE  ADVERSE  ACTIONS  OR OTHERWISE DISCRIMINATE AGAINST ANY
INDIVIDUAL BECAUSE SUCH INDIVIDUAL HAS OPPOSED ANY ACT OR PRACTICE  MADE
UNLAWFUL  BY  THIS ARTICLE, HAS SOUGHT TO ENFORCE RIGHTS PROTECTED UNDER
THIS ARTICLE, OR HAS TESTIFIED, ASSISTED, OR PARTICIPATED IN ANY  MANNER
IN  AN INVESTIGATION, HEARING, OR OTHER PROCEEDING TO ENFORCE THIS ARTI-
CLE; OR
  (B) 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 EMPLOYEE'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 ARTI-
CLE.
  S 755. REMEDIES AND ENFORCEMENT. (A) (1) THE DEPARTMENT SHALL RECEIVE,
INVESTIGATE, AND ATTEMPT TO RESOLVE COMPLAINTS  OF  VIOLATIONS  OF  THIS
ARTICLE.
  (2)  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 (B) OF THIS SECTION.
  (3) ANY SUMS RECOVERED BY THE DEPARTMENT PURSUANT  TO  THIS  PARAGRAPH
SHALL  BE  PAID  DIRECTLY  TO  EACH  EMPLOYEE AFFECTED BY THE EMPLOYER'S
UNLAWFUL ACTS.
  (B) (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;
AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS  AS

S. 2707--A                          5

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 MAY,  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.
  (C) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF PRESCRIBED IN
SUBDIVISION (B) 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:
  (1) THE EMPLOYEES; OR
  (2) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
  S 756. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.