S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6935
 
                             I N  S E N A T E
 
                              January 6, 2020
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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 amended by a chap-
 ter  of  the  laws  of 2019 amending the civil service law relating to a
 fair, non-biased compensation  structure,  as  proposed  in  legislative
 bills numbers S. 456-B and A. 1047-B, 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 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  struc-
 ture  for  all  employees  in  which status within one or more protected
 class or classes 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, to ensure that no employee
 with status within one or more protected class or classes shall be  paid
 a  wage at a rate less than the rate at which an employee without status
 within the same protected class or classes in the same establishment  is
 paid for similar work or substantially similar work and to provide regu-
 lar  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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

 S                                                          LBD01407-09-9

 S. 6935                             2
 
   (a)  the  term  "protected  class"  includes  age, race, creed, color,
 national origin, sexual  orientation,  gender  identity  or  expression,
 military  status, sex, disability, predisposing genetic characteristics,
 familial status, marital status, or domestic violence victim status, and
 any  employee protected from discrimination pursuant to paragraphs a, b,
 and c of subdivision one of section two hundred ninety-six of the execu-
 tive law, and any  intern  protected  from  discrimination  pursuant  to
 section two hundred ninety-six-c of the executive law.
   (b)  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 holi-
 day pay, or any other form of remuneration.
   (c) 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  popu-
 lation  distribution,  economic activity, and/or the presence of munici-
 palities.
   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.
   (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:

 S. 6935                             3
 
   (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 status within  one  or  more
 protected  class or classes, such as education, training, or experience.
 Such factor: (A) shall not be based upon or derived from a  differential
 in  compensation  based  on status within one or more protected class or
 classes; 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 status within one or more protected
 class or classes, (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;
 OR
   (5) A COLLECTIVE BARGAINING AGREEMENT.
   (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.
   §  2.  This  act  shall  take  effect on the same date and in the same
 manner as a chapter of the laws of 2019 amending the civil  service  law
 relating  to  a  fair, non-biased compensation structure, as proposed in
 legislative bills numbers S.  456-B and A. 1047-B, takes effect.