S T A T E O F N E W Y O R K
________________________________________________________________________
4240
2017-2018 Regular Sessions
I N A S S E M B L Y
February 1, 2017
___________
Introduced by M. of A. NOLAN, CAHILL, COLTON, COOK, DICKENS, GALEF,
GLICK, GOTTFRIED, JAFFEE, JEAN-PIERRE, JENNE, LIFTON, MOSLEY, ROZIC,
SEAWRIGHT, TITUS -- Multi-Sponsored by -- M. of A. ENGLEBRIGHT, HYND-
MAN, SIMON -- read once and referred to the Committee on Labor
AN ACT to amend the labor law and the executive law, in relation to
prohibiting employers from seeking salary history from prospective
employees; to amend the labor law in relation to prohibiting employer
compensation discrimination based on sex, race, or national origin;
and to amend the civil service law, in relation to implementing a
state policy of 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 194 of the labor law, as added by chapter 548 of
the laws of 1966, subdivision 1 as amended and subdivisions 2, 3 and 4
as added by chapter 362 of the laws of 2015, is amended to read as
follows:
§ 194. Differential in rate of pay because of sex, RACE, OR NATIONAL
ORIGIN prohibited. 1. No employee shall be paid a wage at a rate less
than the rate at which an employee of [the opposite] A DIFFERENT sex,
RACE, OR NATIONAL ORIGIN, in the same establishment is paid for equal OR
SUBSTANTIALLY SIMILAR work on a job the performance of which requires
equal OR SUBSTANTIALLY SIMILAR 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. a bona fide factor other than sex, RACE OR NATIONAL ORIGIN, such as
education, training, or experience. Such factor: (i) shall not be based
upon or derived from a [sex-based] SEX, RACE, OR NATIONAL ORIGIN BASED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07473-02-7
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differential in compensation and (ii) shall be job-related with respect
to the position in question and shall be consistent with business neces-
sity. 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, RACE, OR
NATIONAL ORIGIN (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 prac-
tice.
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[,]: (A) employ-
ees shall be deemed to work in the same establishment if the employees
work for the same employer at workplaces located in the same geograph-
ical region, no larger than a county, taking into account population
distribution, economic activity, and/or the presence of municipalities;
AND
(B) JOB DESCRIPTION ALONE SHALL NOT DETERMINE WORK THAT IS THE SAME OR
SUBSTANTIALLY SIMILAR.
4. (a) (I) No employer shall prohibit an employee from inquiring
about, discussing, or disclosing the wages of such employee or another
employee.
(II) NO EMPLOYER SHALL REQUIRE, AS A CONDITION OF EMPLOYMENT, THAT AN
EMPLOYEE REFRAIN FROM INQUIRING ABOUT, DISCUSSING, OR DISCLOSING INFOR-
MATION ABOUT THE EMPLOYEE'S OWN WAGES, OR ABOUT ANY OTHER EMPLOYEE'S
WAGES.
(III) NOTHING IN THIS SUBDIVISION SHALL OBLIGATE AN EMPLOYER TO
DISCLOSE AN EMPLOYEE'S WAGES TO ANOTHER EMPLOYEE OR A THIRD PARTY.
(B) NO EMPLOYER SHALL SEEK THE WAGE OR SALARY HISTORY OF A PROSPECTIVE
EMPLOYEE FROM THE PROSPECTIVE EMPLOYEE OR A CURRENT OR FORMER EMPLOYER
OR TO REQUIRE THAT A PROSPECTIVE EMPLOYEE'S PRIOR WAGE OR SALARY HISTORY
MEET CERTAIN CRITERIA; PROVIDED, HOWEVER, THAT: (I) IF A PROSPECTIVE
EMPLOYEE HAS VOLUNTARILY DISCLOSED SUCH INFORMATION, A PROSPECTIVE
EMPLOYER MAY CONFIRM PRIOR WAGES OR PERMIT A PROSPECTIVE EMPLOYEE TO
CONFIRM PRIOR WAGES OR SALARY; AND (II) A PROSPECTIVE EMPLOYER MAY SEEK
OR CONFIRM A PROSPECTIVE EMPLOYEE'S WAGE OR SALARY HISTORY AFTER AN
OFFER OF EMPLOYMENT WITH COMPENSATION HAS BEEN NEGOTIATED AND MADE TO
THE PROSPECTIVE EMPLOYEE.
[(b)] (C) An employer may, in a written policy provided to all employ-
ees, 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)] (D) Nothing in this subdivision shall require an employee to
disclose his or her wages. The failure of an employee to adhere to such
reasonable 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.
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[(d)] (E) 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)] (F) NO EMPLOYER SHALL DISCHARGE OR IN ANY OTHER MANNER RETALIATE
AGAINST AN EMPLOYEE BECAUSE THE EMPLOYEE: (I) OPPOSED ANY ACT OR PRAC-
TICE MADE UNLAWFUL BY THIS SECTION; (II) MADE OR INDICATED AN INTENT TO
MAKE A COMPLAINT OR HAS OTHERWISE CAUSED TO BE INSTITUTED ANY PROCEEDING
UNDER THIS SECTION; (III) TESTIFIED OR IS ABOUT TO TESTIFY, ASSIST OR
PARTICIPATE IN ANY MANNER IN AN INVESTIGATION OR PROCEEDING UNDER THIS
SECTION; OR (IV) DISCLOSED THE EMPLOYEE'S WAGES OR HAS INQUIRED ABOUT OR
DISCUSSED THE WAGES OF ANY OTHER EMPLOYEE.
(G) 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.
§ 2. Section 197 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 197. Civil penalty. 1. Any employer who fails to pay the wages of
his employees or shall differentiate in rate of pay because of sex,
RACE, OR NATIONAL ORIGIN as provided in this article, shall forfeit to
the people of the state the sum of five hundred dollars for each such
failure, to be recovered by the commissioner in any legal action neces-
sary, including administrative action or a civil action.
2. ANY AGREEMENT BETWEEN THE EMPLOYER AND ANY EMPLOYEE TO WORK FOR
LESS THAN THE WAGE TO WHICH THE EMPLOYEE IS ENTITLED UNDER THIS ARTICLE
SHALL NOT BE A DEFENSE TO AN ACTION. AN EMPLOYEE'S PREVIOUS WAGE OR
SALARY HISTORY SHALL ALSO NOT BE A DEFENSE TO AN ACTION.
§ 3. Section 198-a of the labor law is amended by adding a new subdi-
vision 4 to read as follows:
4. ANY AGREEMENT BETWEEN THE EMPLOYER AND ANY EMPLOYEE TO WORK FOR
LESS THAN THE WAGE TO WHICH THE EMPLOYEE IS ENTITLED UNDER THIS ARTICLE
SHALL NOT BE A DEFENSE TO AN ACTION. AN EMPLOYEE'S PREVIOUS WAGE OR
SALARY HISTORY SHALL ALSO NOT BE A DEFENSE TO AN ACTION.
§ 4. Section 115 of the civil service law, as added by chapter 790 of
the laws of 1958, is amended to read as follows:
§ 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. § 206), THE
FEDERAL CIVIL RIGHTS ACT (42 U.S.C. § 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.
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2. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE, EXCEPT AS PROVIDED
IN SUBDIVISION FIVE OF THIS SECTION, FOR ANY PUBLIC EMPLOYER IN THIS
STATE TO DISCRIMINATE AGAINST AN INDIVIDUAL IN ANY WAY BASED ON AN INDI-
VIDUAL'S SEX, RACE OR NATIONAL ORIGIN IN THE PAYMENT OF COMPENSATION NOR
SHALL THEY COMPENSATE ANY PERSON IN ITS EMPLOY AT A RATE LESS THAN THE
RATES PAID TO ITS EMPLOYEES OF A DIFFERENT SEX, RACE OR NATIONAL ORIGIN
FOR WORK ON A JOB, THE PERFORMANCE OF WHICH REQUIRES EQUAL OR SUBSTAN-
TIALLY SIMILAR SKILL, EFFORT AND RESPONSIBILITY PERFORMED UNDER SIMILAR
WORKING CONDITIONS. FOR THE PURPOSES OF THIS SUBDIVISION, JOB
DESCRIPTION ALONE SHALL NOT DETERMINE WORK THAT IS THE SAME OR SUBSTAN-
TIALLY SIMILAR.
3. 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.
4. (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.
(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.
5. (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;
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(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.
6. ANY AGREEMENT BETWEEN THE EMPLOYER AND ANY EMPLOYEE TO WORK FOR
LESS THAN THE WAGE TO WHICH THE EMPLOYEE IS ENTITLED UNDER THIS SECTION
SHALL NOT BE A DEFENSE TO AN ACTION. AN EMPLOYEE'S PREVIOUS WAGE OR
SALARY HISTORY SHALL ALSO NOT BE A DEFENSE TO AN ACTION.
§ 5. Section 296 of the executive law is amended by adding a new
subdivision 19-a to read as follows:
19-A. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE OF AN EMPLOYER,
LABOR ORGANIZATION, EMPLOYMENT AGENCY OR LICENSING AGENCY, OR ITS
EMPLOYEES, AGENTS, OR MEMBERS TO SEEK A SALARY HISTORY FROM A PROSPEC-
TIVE EMPLOYEE FOR AN INTERVIEW OR AS A CONDITION FOR EMPLOYMENT.
§ 6. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rules or regulations necessary
for the implementation of the foregoing provisions of this act on its
effective date are authorized and directed to be made and completed on
or before such effective date.