S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8087
 
                             I N  S E N A T E
 
                              March 27, 2018
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
 
 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 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.
   2.  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.
   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.
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04560-01-7

 S. 8087                             2
 
   (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:
   (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 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.
   § 2. This act shall take effect immediately.