S T A T E   O F   N E W   Y O R K
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                                  1491

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  KRUEGER, ADAMS, ADDABBO, BRESLIN, DIAZ, GIANARIS,
  HASSELL-THOMPSON, HOYLMAN, KENNEDY, MONTGOMERY, PARKER, RIVERA, STAVI-
  SKY, STEWART-COUSINS -- 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. 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;
  (2) THE EXISTENCE OF SUCH WAGE DIFFERENTIALS--

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

                                                           LBD00722-01-3

S. 1491                             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 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 "MARKET RATES" SHALL MEAN THE RATES THAT EMPLOYERS WITHIN
A  PRESCRIBED  GEOGRAPHIC  AREA ACTUALLY PAY, OR ARE REPORTED TO PAY FOR
SPECIFIC JOBS,  AS  DETERMINED  BY  FORMAL  OR  INFORMAL  SURVEYS,  WAGE
STUDIES, OR OTHER MEANS.

S. 1491                             3

  (H)  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-
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)  ANY  BONA  FIDE  FACTOR  OTHER THAN SEX, RACE OR NATIONAL ORIGIN,
PROVIDED, HOWEVER, THAT SUCH FACTOR DOES NOT  RESULT  IN  DISCRIMINATION
BASED  ON  SEX, RACE OR NATIONAL ORIGIN AND IS NOT THE RESULT OF VARYING
MARKET RATES ATTACHED TO HISTORICALLY UNDERVALUED  TRADITIONALLY  FEMALE
AND/OR MINORITY JOB CLASSIFICATIONS.
  (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) 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.
  (F)  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.
  (G) (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

S. 1491                             4

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
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,

S. 1491                             5

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.