S T A T E O F N E W Y O R K
________________________________________________________________________
295
2017-2018 Regular Sessions
I N S E N A T E
(PREFILED)
January 4, 2017
___________
Introduced by Sen. ROBACH -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the labor law, in relation to the entitlement to unpaid
leave of absence from employment for victims of domestic violence
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 19-D to
read as follows:
ARTICLE 19-D
UNPAID LEAVE OF ABSENCE FOR
VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE
SECTION 696. DEFINITIONS.
696-A. ENTITLEMENT TO LEAVE.
696-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE.
696-C. NOTICE OF INTENTION TO TAKE LEAVE.
696-D. CERTIFICATION.
696-E. CONFIDENTIALITY.
696-F. RESTORATION TO POSITION.
696-G. PROHIBITED ACTS.
696-H. CIVIL ACTION.
696-I. SAVINGS CLAUSE.
§ 696. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "VICTIM OF DOMESTIC OR SEXUAL ABUSE" SHALL MEAN A VICTIM OF DOMES-
TIC VIOLENCE, A SEX OFFENSE, OR STALKING.
2. "VICTIM OF DOMESTIC VIOLENCE" SHALL MEAN AN INDIVIDUAL WHO IS A
VICTIM OF AN ACT WHICH WOULD CONSTITUTE A FAMILY OFFENSE PURSUANT TO
SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02884-01-7
S. 295 2
3. "VICTIM OF A SEX OFFENSE" SHALL MEAN A VICTIM OF AN ACT OR ACTS
THAT WOULD CONSTITUTE A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE
PENAL LAW.
4. "VICTIM OF STALKING" SHALL MEAN A VICTIM OF AN ACT OR ACTS THAT
WOULD CONSTITUTE A VIOLATION OF SECTION 120.45, 120.50, 120.55 OR 120.60
OF THE PENAL LAW.
§ 696-A. ENTITLEMENT TO LEAVE. ANY EMPLOYEE WHO IS A VICTIM OF DOMES-
TIC OR SEXUAL VIOLENCE SHALL BE ELIGIBLE FOR NINETY DAYS OF UNPAID LEAVE
FROM THEIR EMPLOYMENT DURING ANY TWELVE MONTH PERIOD IN ORDER TO ADDRESS
DOMESTIC OR SEXUAL VIOLENCE OR ONGOING EFFECTS OF SUCH DOMESTIC OR SEXU-
AL VIOLENCE, INCLUDING BUT NOT LIMITED TO:
1. SEEKING MEDICAL ATTENTION FOR, OR RECOVERING OR TAKING CARE OF THE
VICTIM'S CHILD WHILE THE CHILD RECOVERS FROM, ANY PHYSICAL OR PSYCHOLOG-
ICAL INJURIES CAUSED BY THE DOMESTIC OR SEXUAL VIOLENCE; OR
2. ATTENDING COUNSELING SESSIONS FOR THE VICTIM OF DOMESTIC OR SEXUAL
VIOLENCE OR FOR SUCH VICTIM'S CHILD IN ORDER TO DEAL WITH THE EFFECTS OF
THE DOMESTIC OR SEXUAL VIOLENCE; OR
3. SEEKING LEGAL ASSISTANCE INCLUDING ATTENDING COURT PROCEEDINGS OR
MEETING OR COMMUNICATING WITH AN ATTORNEY OR A MEMBER OF LAW ENFORCE-
MENT; OR
4. SEEKING SERVICES FOR THE VICTIM OF DOMESTIC OR SEXUAL VIOLENCE OR
FOR SUCH VICTIM'S CHILD FROM A RESIDENTIAL OR NON-RESIDENTIAL PROGRAM
FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE; OR
5. ENGAGING IN SAFETY PLANNING, INCLUDING ARRANGING TO RELOCATE AND
RELOCATING TO A TEMPORARY OR PERMANENT NEW RESIDENCE, IN ORDER TO
DECREASE THE RISK OF FUTURE DOMESTIC OR SEXUAL VIOLENCE.
§ 696-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE. THE
LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE MAY
BE TAKEN ON A REDUCED LEAVE SCHEDULE OR INTERMITTENTLY IF THE EMPLOYEE
AND EMPLOYER AGREE ON THE SCHEDULE. TAKING LEAVE ON A REDUCED LEAVE OR
INTERMITTENT SCHEDULE SHALL NOT RESULT IN A REDUCTION IN THE AMOUNT OF
TOTAL LEAVE A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE IS ENTITLED TO IN
THE TWELVE MONTH PERIOD.
§ 696-C. NOTICE OF INTENTION TO TAKE LEAVE. AN EMPLOYEE SHALL PROVIDE
AN EMPLOYER WITH REASONABLE NOTICE OF THE EMPLOYEE'S INTENTION TO TAKE
LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE
UNLESS PROVIDING SUCH NOTICE IS NOT PRACTICABLE. WHEN AN UNSCHEDULED
ABSENCE OCCURS, THE EMPLOYER MAY NOT TAKE ANY ACTION AGAINST THE EMPLOY-
EE IF THE EMPLOYEE, WITHIN A REASONABLE PERIOD OF TIME AFTER THE
ABSENCE, PROVIDES CERTIFICATION AS SET FORTH IN SECTION SIX HUNDRED
NINETY-SIX-D OF THIS ARTICLE.
§ 696-D. CERTIFICATION. IN ORDER TO DETERMINE WHETHER THE EMPLOYEE IS
A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE, THE EMPLOYER MAY REQUIRE THAT
THE REQUEST FOR LEAVE BE SUPPORTED BY ONE OF THE FOLLOWING:
1. A SWORN STATEMENT SUBMITTED BY THE VICTIM OF DOMESTIC OR SEXUAL
VIOLENCE DESCRIBING SUCH VICTIM'S NEED FOR LEAVE TO ADDRESS THE ONGOING
EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE; OR
2. ANY DOCUMENTATION OF THE DOMESTIC OR SEXUAL VIOLENCE, INCLUDING
POLICE REPORTS, COURT RECORDS, STATEMENTS FROM A SHELTER WORKER, LAW
ENFORCEMENT OFFICER, MEDICAL WORKER, COUNSELOR, CLERGY MEMBER, ATTORNEY
OR ANY OTHER PROFESSIONAL FROM WHOM THE EMPLOYEE HAS SOUGHT ASSISTANCE
TO ADDRESS THE DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS; OR
3. ANY OTHER CORROBORATING EVIDENCE INCLUDING PHYSICAL EVIDENCE,
PHOTOGRAPHS, OR STATEMENTS FROM OTHER INDIVIDUALS WHO ARE AWARE OF THE
DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS.
S. 295 3
§ 696-E. CONFIDENTIALITY. ANY INFORMATION PROVIDED TO THE EMPLOYER,
INCLUDING BUT NOT LIMITED TO INFORMATION UNDER SECTION SIX HUNDRED NINE-
TY-SIX-D OF THIS ARTICLE, DESCRIBING THE DOMESTIC OR SEXUAL VIOLENCE IN
THE EMPLOYEE'S LIFE AND THE REQUEST TO TAKE A LEAVE TO ADDRESS THE
EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE, SHALL BE KEPT CONFIDENTIAL BY
THE EMPLOYER. DISCLOSURE SHALL ONLY BE ALLOWED IF THE EMPLOYEE, IN
WRITING, CONSENTS TO OR REQUESTS DISCLOSURE.
§ 696-F. RESTORATION TO POSITION. 1. ANY EMPLOYEE WHO TAKES LEAVE
UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE, SHALL BE ENTI-
TLED TO RETURN FROM SUCH LEAVE AND BE RESTORED TO THE SAME POSITION HELD
BY SUCH EMPLOYEE WHEN THE LEAVE BEGAN OR BE RESTORED TO AN EQUIVALENT
POSITION WITH EQUIVALENT BENEFITS, PAY AND OTHER TERMS AND CONDITIONS OF
EMPLOYMENT.
2. THE TAKING OF LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS
ARTICLE SHALL NOT RESULT IN THE LOSS OF ANY EMPLOYMENT BENEFITS ACCRUED
PRIOR TO THE DATE ON WHICH THE LEAVE BEGAN.
3. (A) EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, ANY
EMPLOYEE WHO TAKES LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS
ARTICLE SHALL BE ENTITLED TO CONTINUED COVERAGE UNDER ANY HEALTH CARE
BENEFITS PLAN PROVIDED BY SUCH PERSON'S EMPLOYER FOR THE DURATION OF THE
LEAVE.
(B) THE EMPLOYER MAY RECOVER THE PREMIUM THAT THE EMPLOYER PAID FOR
MAINTAINING COVERAGE UNDER A HEALTH BENEFITS PLAN FOR THE EMPLOYEE ENTI-
TLED TO LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE,
IF:
(I) THE EMPLOYEE FAILS TO RETURN TO SUCH PERSON'S EMPLOYMENT ONCE THE
LEAVE HAS EXPIRED; AND
(II) THE EMPLOYEE FAILS TO RETURN TO WORK FOR A REASON OTHER THAN:
(A) THE CONTINUATION, RECURRENCE, OR ONSET OF DOMESTIC OR SEXUAL
VIOLENCE THAT ENTITLES THE EMPLOYEE TO LEAVE PURSUANT TO THIS SECTION;
OR
(B) OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE.
§ 696-G. PROHIBITED ACTS. 1. INTERFERENCE WITH RIGHTS.
(A) EXERCISE OF RIGHTS. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO
INTERFERE WITH, RESTRAIN, OR DENY THE EXERCISE OF OR THE ATTEMPT TO
EXERCISE ANY RIGHT PROVIDED UNDER THIS ARTICLE.
(B) EMPLOYER DISCRIMINATION. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO
DISCHARGE OR HARASS ANY INDIVIDUAL, OR OTHERWISE DISCRIMINATE AGAINST
ANY INDIVIDUAL WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIV-
ILEGES OF EMPLOYMENT OF THE INDIVIDUAL (INCLUDING RETALIATION IN ANY
FORM OR MANNER) BECAUSE THE INDIVIDUAL EXERCISED ANY RIGHT PROVIDED
UNDER THIS ARTICLE OR OPPOSED ANY PRACTICE MADE UNLAWFUL BY THIS ARTI-
CLE.
2. INTERFERENCE WITH PROCEEDINGS OR INQUIRIES. IT SHALL BE UNLAWFUL
FOR ANY PERSON TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE (AS
DESCRIBED IN PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION) AGAINST
ANY INDIVIDUAL BECAUSE SUCH INDIVIDUAL:
(A) HAS FILED ANY CHARGE, OR HAS INSTITUTED OR CAUSED TO BE INSTITUTED
ANY PROCEEDING, UNDER OR RELATED TO THIS ARTICLE;
(B) HAS GIVEN, OR IS ABOUT TO GIVE, ANY INFORMATION IN CONNECTION WITH
ANY INQUIRY OR PROCEEDING RELATING TO ANY RIGHT PROVIDED UNDER THIS
ARTICLE; OR
(C) HAS TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY INQUIRY OR PROCEED-
ING RELATING TO ANY RIGHT PROVIDED UNDER THIS ARTICLE.
§ 696-H. CIVIL ACTION. 1. BY EMPLOYEE. ANY PERSON DENIED LEAVE OR
BENEFITS DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL
S. 295 4
BY THIS ARTICLE SHALL HAVE A CAUSE OF ACTION IN ANY COURT OF APPROPRIATE
JURISDICTION FOR DAMAGES, INCLUDING ANY WAGES, SALARY, EMPLOYMENT BENE-
FITS OR OTHER COMPENSATION DENIED OR LOST TO SUCH INDIVIDUAL BY REASONS
OF THE VIOLATION AND/OR ANY ACTUAL MONETARY LOSSES SUSTAINED BY THE
INDIVIDUAL AS A DIRECT RESULT OF THE VIOLATION, AS WELL AS INTEREST ON
SUCH AMOUNT CALCULATED AT THE PREVAILING RATE, AND SUCH EQUITABLE RELIEF
AS MAY BE APPROPRIATE, INCLUDING EMPLOYMENT, REINSTATEMENT, AND
PROMOTION, TOGETHER WITH COSTS AND SUCH REASONABLE ATTORNEYS' FEES AS
MAY BE ALLOWED BY THE COURT, AND IF THE VIOLATION WAS WILLFUL, AN ADDI-
TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
2. BY COMMISSIONER. ON BEHALF OF ANY EMPLOYEE DENIED LEAVE OR BENEFITS
DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL BY THIS
ARTICLE, THE INDUSTRIAL COMMISSIONER MAY BRING A LEGAL ACTION NECESSARY
TO COLLECT DAMAGES DUE TO THE VIOLATION, AND THE EMPLOYER SHALL BE
REQUIRED TO PAY SUCH DAMAGES AND IF SUCH VIOLATION WAS WILLFUL, AN ADDI-
TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
3. LIMITATION OF TIME. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN
ACTION TO RECOVER UPON LIABILITY IMPOSED BY THIS ARTICLE MUST BE
COMMENCED WITHIN TWO YEARS.
§ 696-I. SAVINGS CLAUSE. IF ANY PROVISION OF THIS ARTICLE OR THE
APPLICATION THEREOF TO ANY PERSON, EMPLOYER, OCCUPATION OR CIRCUMSTANCE
IS HELD INVALID, THE REMAINDER OF THE ARTICLE AND THE APPLICATION OF
SUCH PROVISION TO OTHER PERSONS, EMPLOYEES, OCCUPATIONS, OR CIRCUM-
STANCES SHALL NOT BE AFFECTED THEREBY.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law.
