S T A T E O F N E W Y O R K
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456--B
Cal. No. 521
2019-2020 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2019
___________
Introduced by Sen. BENJAMIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Civil Service and Pensions
-- reported favorably from said committee, ordered to first and second
report, ordered to a third reading, amended and ordered reprinted,
retaining its place in the order of third reading -- again amended and
ordered reprinted, retaining its place in the order of third reading
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
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 EMPLOY-
EES, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01407-08-9
S. 456--B 2
CLASSES IN THE SAME ESTABLISHMENT IS PAID FOR SIMILAR WORK OR SUBSTAN-
TIALLY SIMILAR WORK 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:
(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:
S. 456--B 3
(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 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.
(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.
