S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4696
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced  by M. of A. TITUS -- read once and referred 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.
   § 750. SHORT TITLE. THIS ACT SHALL BE KNOWN AND MAY BE  CITED  AS  THE
 "NEW YORK STATE FAIR PAY ACT".
   §  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:
   (A) DEPRESSES WAGES AND LIVING STANDARDS FOR EMPLOYEES  NECESSARY  FOR
 THEIR HEALTH AND EFFICIENCY;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03016-01-7
              

 A. 4696                             2
 
   (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.
   §  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 "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.

 A. 4696                             3
 
   § 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)  A  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 DIFFER-
 ENTIAL IN COMPENSATION 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  SEX,  RACE  OR  NATIONAL
 ORIGIN,  (II)  THAT AN ALTERNATIVE EMPLOYMENT PRACTICE EXISTS THAT WOULD
 SERVE THE SAME BUSINESS PURPOSE AND NOT PRODUCE SUCH  DIFFERENTIAL,  AND
 (III) THAT THE EMPLOYER HAS REFUSED TO ADOPT SUCH ALTERNATIVE PRACTICE.
   (C)  FOR  THE  PURPOSE  OF  SUBDIVISION (B) OF THIS SECTION, "BUSINESS
 NECESSITY" SHALL BE DEFINED AS A FACTOR THAT BEARS A MANIFEST  RELATION-
 SHIP TO THE EMPLOYMENT IN QUESTION.
   (D) 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.
   (E) 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.
   (F) 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.
   (G)  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.
   (H) (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,

 A. 4696                             4
 
 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.
   (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.
   § 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.
   § 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

 A. 4696                             5
 
 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.
   (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.
   § 756. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
 ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE.
   § 2. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.