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

                                   955

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 22, 2009
                               ___________

Introduced  by  Sens.  C. JOHNSON, BRESLIN, DIAZ, DUANE, KLEIN, KRUEGER,
  ONORATO, SAVINO, STEWART-COUSINS, THOMPSON, VALESKY -- 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  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. WAGE DISCLOSURE, RECORDKEEPING, AND REPORTING REQUIREMENTS.
        756. REMEDIES AND ENFORCEMENT.
        757. 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;
  (2) THE EXISTENCE OF SUCH WAGE DIFFERENTIALS--

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05959-01-9
              

S. 955                              2

  (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  THREE  OR
MORE PERSONS AND INCLUDES THE STATE AND ALL POLITICAL SUBDIVISIONS THER-
EOF.
  (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 "MARKET RATES" SHALL MEAN THE RATES THAT EMPLOYERS WITHIN
A PRESCRIBED GEOGRAPHIC AREA ACTUALLY PAY, OR ARE REPORTED  TO  PAY  FOR

S. 955                              3

SPECIFIC  JOBS,  AS  DETERMINED  BY  FORMAL  OR  INFORMAL  SURVEYS, WAGE
STUDIES, OR OTHER MEANS.
  (H)  THE  TERM "WAGES" AND WAGE "RATES" SHALL INCLUDE ALL COMPENSATION
IN ANY FORM THAN AN EMPLOYER PROVIDES TO EMPLOYEES IN PAYMENT  FOR  WORK
DONE OR SERVICES RENDERED, INCLUDING BUT NOT LIMITED TO BASE PAY, BONUS-
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  SYSTEM  THAT  MEASURES  EARNINGS  BY  QUANTITY  OR  QUALITY OF
PRODUCTION, OR
  (3) ANY BONA FIDE FACTOR OTHER THAN SEX,  RACE,  OR  NATIONAL  ORIGIN,
PROVIDED, HOWEVER, THAT WAGE DIFFERENTIALS BASED ON VARYING MARKET RATES
FOR  EQUIVALENT  JOBS OR THE DIFFERING ECONOMIC BENEFITS TO THE EMPLOYER
OF EQUIVALENT JOBS SHALL NOT BE CONSIDERED DIFFERENTIALS BASED  ON  BONA
FIDE FACTORS OTHER THAN SEX, RACE OR NATIONAL ORIGIN.
  (C) 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.
  (D) 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.
  (E) (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-
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.

S. 955                              4

  (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. WAGE DISCLOSURE, RECORDKEEPING, AND REPORTING REQUIREMENTS. (A)
UPON  COMMENCEMENT  OF  AN INDIVIDUAL'S EMPLOYMENT AND AT LEAST ANNUALLY
THEREAFTER, EVERY EMPLOYER SUBJECT TO THIS ARTICLE SHALL PROVIDE TO EACH
EMPLOYEE A WRITTEN STATEMENT SUFFICIENT TO INFORM THE EMPLOYEE OF HIS OR
HER JOB TITLE, WAGE RATE, AND HOW THE WAGE IS  CALCULATED.  THIS  NOTICE
SHALL  BE SUPPLEMENTED WHENEVER AN EMPLOYEE IS PROMOTED OR REASSIGNED TO
A DIFFERENT POSITION WITH THE  EMPLOYER,  PROVIDED,  HOWEVER,  THAT  THE
EMPLOYER  IS NOT REQUIRED TO ISSUE SUPPLEMENTAL NOTIFICATIONS FOR TEMPO-
RARY REASSIGNMENTS THAT ARE NO GREATER THAN THREE MONTHS IN DURATION.
  (B) EVERY EMPLOYER SUBJECT TO THIS ARTICLE  SHALL  MAKE  AND  PRESERVE
RECORDS  THAT DOCUMENT THE WAGES PAID TO EMPLOYEES AND THAT DOCUMENT AND
SUPPORT THE METHOD, SYSTEM, CALCULATIONS, AND OTHER BASES USED TO ESTAB-
LISH, ADJUST, AND DETERMINE THE  WAGE  RATES  PAID  TO  SAID  EMPLOYER'S
EMPLOYEES.  EVERY  EMPLOYER  SUBJECT TO THIS ARTICLE SHALL PRESERVE SUCH
RECORDS FOR SUCH PERIODS OF TIME AND SHALL MAKE SUCH  REPORTS  FROM  THE
RECORDS AS SHALL BE PRESCRIBED BY REGULATION OF THE DEPARTMENT.
  (C)  THE  REGULATIONS  PROMULGATED UNDER THIS ARTICLE, RELATING TO THE
FORM OF REPORTS REQUIRED BY  SUBDIVISION  (B)  OF  THIS  SECTION,  SHALL
PROVIDE  FOR  PROTECTION  OF THE CONFIDENTIALITY OF EMPLOYEES, AND SHALL
EXPRESSLY REQUIRE THAT REPORTS SHALL NOT  INCLUDE  THE  NAMES  OR  OTHER
IDENTIFYING  INFORMATION FROM WHICH READERS COULD DISCERN THE IDENTITIES
OF EMPLOYEES. THE  REGULATIONS  MAY  ALSO  IDENTIFY  CIRCUMSTANCES  THAT
WARRANT  A PROHIBITION ON DISCLOSURE OF REPORTS OR INFORMATION IDENTIFY-
ING THE EMPLOYER.
  (D) THE DEPARTMENT MAY USE THE INFORMATION AND DATA IT COLLECTS PURSU-
ANT TO SUBDIVISION (B) OF THIS  SECTION  FOR  STATISTICAL  AND  RESEARCH
PURPOSES,  AND  MAY COMPILE AND PUBLISH SUCH STUDIES, ANALYSES, REPORTS,
AND SURVEYS BASED ON THE INFORMATION AND DATA, AS IT MAY CONSIDER APPRO-
PRIATE.
  S 756. REMEDIES AND ENFORCEMENT. (A) (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

S. 955                              5

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
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 SHALL, 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.
  (B)  (1)  AN  ACTION  TO  RECOVER  THE  DAMAGES  OR  EQUITABLE  RELIEF
PRESCRIBED  IN SUBDIVISION (A) 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:
  (A) THE EMPLOYEES; OR
  (B) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
  (2)  (A)  THE  DEPARTMENT  SHALL  RECEIVE, INVESTIGATE, AND ATTEMPT TO
RESOLVE COMPLAINTS OF VIOLATIONS OF THIS ARTICLE.
  (B) 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 (A) OF THIS SECTION.
  (C)  ANY  SUMS  RECOVERED BY THE DEPARTMENT PURSUANT TO THIS PARAGRAPH
SHALL BE PAID DIRECTLY TO  EACH  EMPLOYEE  AFFECTED  BY  THE  EMPLOYER'S
UNLAWFUL ACTS.
  S 757. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE NOT LATER THAN
ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided that the commissioner of labor shall promul-
gate rules and regulations necessary to  effectuate  the  provisions  of
this act prior to such effective date.