NY State Senate Bill 2023-S1027B

Current Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 12, 2024	referred to labor delivered to assembly passed senate
Mar 04, 2024	advanced to third reading
Feb 28, 2024	2nd report cal.
Feb 27, 2024	1st report cal.527
Feb 22, 2024	print number 1027b
Feb 22, 2024	amend and recommit to labor
Jan 03, 2024	referred to labor returned to senate died in assembly
Jun 08, 2023	referred to labor delivered to assembly passed senate
Mar 08, 2023	advanced to third reading
Mar 01, 2023	2nd report cal.
Feb 28, 2023	1st report cal.416
Feb 22, 2023	print number 1027a
Feb 22, 2023	amend and recommit to labor
Jan 09, 2023	referred to labor

Votes

- Mar 12, 2024 - Floor Vote
  S1027B
  
  49
  
  Aye
  
  9
  
  Nay
  
  1
  
  Absent
  
  4
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Mar 12, 2024
      
      aye (49)
      
      Addabbo Jr.
      
      Ashby
      
      Bailey
      
      Breslin
      
      Brisport
      
      Brouk
      
      Canzoneri-Fitzpatrick
      
      Chu
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Fernandez
      
      Gianaris
      
      Gonzalez
      
      Gounardes
      
      Harckham
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Liu
      
      Mannion
      
      Martinez
      
      Martins
      
      Mattera
      
      May
      
      Mayer
      
      Murray
      
      Myrie
      
      Oberacker
      
      Palumbo
      
      Persaud
      
      Ramos
      
      Rhoads
      
      Rivera
      
      Rolison
      
      Ryan
      
      Salazar
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Thomas
      
      Webb
      
      Weber
      
      nay (9)
      
      Borrello
      
      Gallivan
      
      Griffo
      
      Helming
      
      Lanza
      
      O'Mara
      
      Ortt
      
      Tedisco
      
      Weik
      
      absent (1)
      
      Sanders Jr.
      
      excused (4)
      
      Parker
      
      Scarcella-Spanton
      
      Sepúlveda
      
      Walczyk
  Jun 8, 2023 - Floor Vote
  S1027B
  
  62
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 8, 2023
      
      aye (62)
      
      Addabbo Jr.
      
      Ashby
      
      Bailey
      
      Borrello
      
      Breslin
      
      Brisport
      
      Brouk
      
      Canzoneri-Fitzpatrick
      
      Chu
      
      Cleare
      
      Comrie
      
      Felder
      
      Fernandez
      
      Gallivan
      
      Gianaris
      
      Gonzalez
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Mannion
      
      Martinez
      
      Martins
      
      Mattera
      
      May
      
      Mayer
      
      Murray
      
      Myrie
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Rhoads
      
      Rivera
      
      Rolison
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Scarcella-Spanton
      
      Sepúlveda
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Walczyk
      
      Webb
      
      Weber
      
      Weik
      
      excused (1)
      
      Cooney
  Feb 27, 2024 - Labor Committee Vote
  S1027B
  
  12
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Labor Committee Vote: Feb 27, 2024
      
      aye (12)
      
      Fernandez
      
      Gounardes
      
      Jackson
      
      Martins
      
      Mattera
      
      Mayer
      
      Oberacker
      
      Ramos
      
      Rhoads
      
      Ryan
      
      Scarcella-Spanton
      
      Skoufis
      
      aye wr (1)
      
      Sanders Jr.
  Feb 28, 2023 - Labor Committee Vote
  S1027B
  
  11
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Labor Committee Vote: Feb 28, 2023
      
      aye (11)
      
      Fernandez
      
      Gounardes
      
      Jackson
      
      Martins
      
      Mattera
      
      Mayer
      
      Ramos
      
      Rhoads
      
      Ryan
      
      Scarcella-Spanton
      
      Skoufis
      
      aye wr (1)
      
      Sanders Jr.
      
      excused (1)
      
      Oberacker

Bill Amendments

Original

B (Active)

co-Sponsors

2023-S1027 - Details

See Assembly Version of this Bill:: A6108
Current Committee:: Assembly Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §§120 & 203-b, Work Comp L

2023-S1027 - Summary

Provides that an employee shall not be required to request reinstatement in order to file a discrimination claim regarding paid family medical leave benefits; permits a private right of action for certain violations as an alternative to a workers' compensation claim; provides for attorneys' fees and costs.

2023-S1027 - Sponsor Memo

                                 
BILL NUMBER: S1027

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to paid fami-
ly medical leave

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide justice for employees discriminated against for utilizing or
requesting to utilize New York's paid family leave program, eliminate
the requirement that an employee request reinstatement before filing a
complaint of discrimination, and eliminate the public employee carveout
for paid family leave

 
SUMMARY OF PROVISIONS:

Section one amends section 120 of the Workers Compensation Law (WCL) to
provide that an employee shall not be required to request reinstatement
to his or her job before filing a complaint of unlawful discrimination.
This section of Workers Compensation Law bars discriminatory conduct

towards an employee by an employer for claiming or attempting to claim
paid family leave.

Section two amends section 203-a of the Workers Compensation Law to
create a private right of action for employees who have been unlawfully
discriminated against for requesting or using paid family leave, pursu-
ing to WCL § 120, or unlawfully not restored to his or her former posi-
tion, pursuant to WCL § 203-b. Such aggrieved employee may be eligible
for compensatory, actual, and punitive damages, attorneys fees, injunc-
tive relief, and other remedies a court may deem appropriate.

Section three amends section 203-b of Workers Compensation Law to reit-
erate again that an employee shall not be required to request rein-
statement to his or her former position before initiating a complaint of
illegal discrimination under WCL § 120.

Section four amends section 212-b of Workers Compensation Law to elimi-
nate the paid family carveout for non-unionized public employees. Unions
representing public employees would retain the discretion to negotiate
for paid family leave under WCL § 212-b(3)(a).

Section five sets the effective date.

 
JUSTIFICATION:

New York's landmark paid family leave (PFL) law, first enacted in the
FY2017 budget (Ch. 54 of 2016, Part SS) pays 67% of an employee's Aver-
age Weekly Wage (AWW), which is the average wage of the last eight weeks
prior to taking leave, for up to 12 weeks. Employees can take PFL so
long as they have worked at least 25 or 26 weeks, depending on if they
are full- or part-time, and have a "qualifying event," defined as the
birth or adoption of a child, the placement of a child in foster care,
needing to care for a child because of a physical or mental disability,
needing to care for a close relative because of a serious health condi-
tion, or assisting a loved one when a family member is deployed on
active military service. The vast majority of private sector employees
in New York State are automatically provided PFL.
New York's paid family leave also provides important safeguards against
retaliation for employees wishing to use it. Under Workers Compensation
Law § 120, an employer is not allowed to discriminate against an employ-
ee who has requested or used PFL. Under Workers Compensation Law §
203-b, employers are required to reinstate employees coming off of PFL
to their former position or a comparable position with similar pay and
benefits. Employees experiencing mistreatment under these provisions of
Workers Compensation Law can file a request for reinstatement on "Form
PFL-DC-119," and wait 30 days for a response. If the employee receives
no response or is dissatisfied with the response, he or she can then
file a second form "Form PFL-DC-120" alleging discrimination/retaliation
and wait 45 days for a hearing before a Workers Compensation Law Judge.
The employee may be entitled to reinstatement, back wages, and attor-
neys' fees if he or she prevails. The employer can be liable for up to
$500 in penalties (see: https://paidfamilyleave.ny.gov/protections).

The lack of any formal remedy for violations of WCL § 120 and § 203-b
outside of the backlogged workers' compensation system means that many
attorneys can't or won't handle claims of PFL-related retaliation, deny-
ing aggrieved workers the recourse they enjoy for any other type of
disparate treatment claim such as workplace discrimination based on
protected class characteristics under the New York State Human Rights
Law. Additionally, the illogical administrative requirement, laid out in
12 CRR-NY 380-8.2, that an employee must request his or her job back
before filing a complaint of discrimination, belies the reality that
many employees are unable or unwilling to return to their former jobs by
the time they resort to filing a complaint.

This bill rectifies both of the above problems by creating a private
right of action, separate and apart from the Workers Compensation Board
(WCB), for violations of WCL § 120 and § 203-b. It also provides that an
employee should not be required to request reinstatement before pursuing
corrective action through WCB or a civil court.

Finally, this bill addresses the egregious paid family leave exclusion
for the public sector workforce. Under current law, public employers can
choose to opt into PFL for non-unionized employees, funding coverage by
payroll deductions after 90 days' notice. Comparatively, unionized
public employees may obtain PFL coverage if their union negotiates and
pays for it at the bargaining table. This bill closes this loophole for
non-unionized public employees by mandating that public employers
provide PFL at the same level as their private sector counterparts,
while retaining the discretion that labor unions have to negotiate PFL
in a contract (it is worth noting that many labor unions in NYS have
already negotiated leave policies that provide 100% AWW).

This bill provides three commonsense reforms to provide justice to
employees unlawfully punished for using PFL while expanding access to
this widely used and celebrated program. A worker treated unfairly for
using or attempting to use paid family leave should be afforded the
opportunity to pursue their claim without the need to request rein-
statement to a position they may no longer have any desire to return to.
Secondly, the worker should be granted full access to our state's civil
court system, able to pursue claims of retaliation in the context of PFL
the same as they can for many other types of illegal discrimination in
our state's labor laws. Finally, a worker should not be constrained in
their ability to access PFL simply because they are a civil servant.

The legislature created our state's paid family leave program in 2016 so
that no worker would have to choose between caring for a sick family
member and putting food on the table. This bill proposes three simple
reforms to expand PFL to ensure that employees never have to make such a
choice.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.

2023-S1027 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1027
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the workers' compensation law, in relation to paid fami-
   ly medical leave
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Section 120 of the workers' compensation law, as amended by
 chapter 61 of the laws of  1989,  the  section  heading  as  amended  by
 section  31  of  part  SS of chapter 54 of the laws of 2016, the opening
 paragraph as amended by chapter 105 of the laws of 2019, is  amended  to
 read as follows:
   §  120.  Discrimination against employees. 1. It shall be unlawful for
 any employer or his or her duly authorized agent to discharge or fail to
 reinstate pursuant to section two hundred three-b of this chapter, or in
 any other manner discriminate against an  employee  as  to  his  or  her
 employment  because  such  employee  has  claimed  or attempted to claim
 compensation from such employer, requested a  claim  form  for  injuries
 received  in  the course of employment, or claimed or attempted to claim
 any benefits provided under this chapter or because he or she has testi-
 fied or is about to testify in a proceeding under this  chapter  and  no
 other valid reason is shown to exist for such action by the employer.
   2.  Any  complaint  alleging  such an unlawful discriminatory practice
 must be filed within two years of the commission of such practice.  Upon
 finding that an employer has violated this section, the board shall make
 an order that any employee so discriminated against shall be restored to
 employment or otherwise restored to the position or privileges he or she
 would  have  had  but  for  the discrimination, IF SUCH REINSTATEMENT IS
 REQUESTED BY SUCH EMPLOYEE, and shall  be  compensated  by  his  or  her
 employer for any loss of compensation arising out of such discrimination
 together with such fees or allowances for services rendered by an attor-
 ney  or  licensed representative as fixed by the board. Any employer who
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03171-01-3

 S. 1027                             2
 
 violates this section shall be liable to a penalty of not less than  one
 hundred  dollars or more than five hundred dollars, as may be determined
 by the board. All such penalties shall be paid into the state  treasury.
 All  penalties, compensation and fees or allowances shall be paid solely
 by the employer. The employer alone and not his or her carrier shall  be
 liable  for  such penalties and payments.  Any provision in an insurance
 policy undertaking to relieve  the  employer  from  liability  for  such
 penalties and payments shall be void.
   3.  An  employer  found  to  be  in  violation of this section and the
 aggrieved employee must report to the board as  to  the  manner  of  the
 employer's  compliance within thirty days of receipt of a final determi-
 nation. In case of failure to report on compliance, or failure to comply
 with an order or penalty of the board within thirty days after the order
 or notice of penalty is served, except where timely application  to  the
 board  for a modification, rescission or review of such order or penalty
 has been filed under section twenty-three of this chapter, the chair  in
 any  such  case  or,  on  the chair's consent, any party may enforce the
 order or penalty in a like manner as an award of compensation.
   4. PURSUANT WITH THE PROVISIONS OF SECTION TWO HUNDRED THREE-B OF THIS
 CHAPTER, AN EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST  REINSTATEMENT  TO
 SUCH  EMPLOYEE'S FORMER POSITION OF EMPLOYMENT BEFORE FILING A COMPLAINT
 OF UNLAWFUL DISCRIMINATORY PRACTICE AS DESCRIBED IN THIS SECTION.
   § 2. Section 203-a of the workers'  compensation  law  is  amended  by
 adding a new subdivision 3 to read as follows:
   3. AN ACTION MAY BE BROUGHT AGAINST ANY COVERED EMPLOYER, AS DESCRIBED
 IN  SECTION TWO HUNDRED TWO OF THIS ARTICLE, WHO VIOLATES THE PROVISIONS
 OF SECTION ONE HUNDRED TWENTY OR TWO HUNDRED THREE-B OF THIS CHAPTER, BY
 OR ON BEHALF OF AN EMPLOYEE, AS THAT TERM IS DEFINED IN SUBDIVISION FIVE
 OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, WHO HAS CLAIMED OR ATTEMPTED
 TO CLAIM PAID FAMILY LEAVE BENEFITS. A PLAINTIFF WHO PREVAILS ON A CLAIM
 ALLEGING A VIOLATION OF  SECTION  ONE  HUNDRED  TWENTY  OR  TWO  HUNDRED
 THREE-B OF THIS CHAPTER WITH REGARDS TO PAID FAMILY LEAVE SHALL BE ENTI-
 TLED  TO  COMPENSATORY, ACTUAL, AND PUNITIVE DAMAGES, INJUNCTIVE RELIEF,
 REASONABLE ATTORNEYS' FEES AND COSTS, AND OTHER SUCH REMEDIES AS A COURT
 MAY DEEM APPROPRIATE.
   § 3. Section 203-b of the  workers'  compensation  law,  as  added  by
 section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203-b. Reinstatement following family leave. Any  eligible  employee
 of  a covered employer who takes leave under this article shall be enti-
 tled, on return from such leave, to be restored by the employer  to  the
 position of employment held by the employee when the leave commenced, or
 to be restored to a comparable position with comparable employment bene-
 fits, pay and other terms and conditions of employment, PROVIDED, HOWEV-
 ER,  THAT  SUCH ELIGIBLE EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST REIN-
 STATEMENT TO ANY SUCH POSITION. The taking of  family  leave  shall  not
 result  in  the loss of any employment benefit accrued prior to the date
 on which the leave commenced. Nothing in this section shall be construed
 to entitle any restored employee to the  accrual  of  any  seniority  or
 employment benefits during any period of leave, or any right, benefit or
 position to which the employee would have been entitled had the employee
 not  taken  the  leave.  FURTHERMORE,  NOTHING  IN THIS SECTION SHALL BE
 CONSTRUED TO REQUIRE AN EMPLOYEE TO REQUEST REINSTATEMENT TO HIS OR  HER
 FORMER POSITION OF EMPLOYMENT, OR TO A COMPARABLE POSITION WITH COMPARA-
 BLE  EMPLOYMENT BENEFITS, PAY, AND OTHER TERMS AND CONDITIONS OF EMPLOY-
 S. 1027                             3
 
 MENT, BEFORE INITIATING A COMPLAINT AGAINST A COVERED EMPLOYER  PURSUANT
 TO THE PROVISIONS OF SECTION ONE HUNDRED TWENTY OF THIS CHAPTER.
   §  4. Subdivision 3 of section 212-b of the workers' compensation law,
 as added by section 14 of part SS of chapter 54 of the laws of 2016,  is
 amended to read as follows:
   3.  (a)  An employee organization may, pursuant to collective bargain-
 ing, opt in to paid family leave benefits  on  behalf  of  those  public
 employees  it is either certified or recognized to represent, within the
 meaning of article fourteen of the civil service law.  Nothing  in  this
 section  shall  prohibit  an  agreement  to  opt in to paid family leave
 between the employee organization and any public employer.  An  employee
 organization that has opted in to paid family leave benefits may, pursu-
 ant  to  collective bargaining, opt out of it as is mutually agreed upon
 between the employee organization and any public employer.
   [b.] (B) For public employees who are not represented by  an  employee
 organization, the public employer [may opt-in to paid family leave bene-
 fits  within ninety days notice to such public employees. Following opt-
 in by a public employer for  public  employees  not  represented  by  an
 employee  organization,  the  public employer may opt-out of paid family
 leave benefits with twelve months  notice  to  those  public  employees]
 SHALL  PROVIDE  PAID  FAMILY  LEAVE  BENEFITS  IN  ACCORDANCE  WITH  THE
 PROVISIONS OF SECTION TWO HUNDRED EIGHT OF THIS ARTICLE.
   § 5. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

co-Sponsors

View additional co-sponsors

2023-S1027A - Details

See Assembly Version of this Bill:: A6108
Current Committee:: Assembly Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §§120 & 203-b, Work Comp L

2023-S1027A - Summary

2023-S1027A - Sponsor Memo

                                 
BILL NUMBER: S1027A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to paid fami-
ly medical leave

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide justice for employees discriminated against for utilizing or
requesting to utilize New York's paid family leave program and eliminate
the requirement that an employee request reinstatement before filing a
complaint of discrimination.

 
SUMMARY OF PROVISIONS:

Section one amends section 120 of the Workers Compensation Law (WCL) to
provide that an employee shall not be required to request reinstatement
to his or her job before filing a complaint of unlawful discrimination.
This section of Workers Compensation Law bars discriminatory conduct
towards an employee by an employer for claiming or attempting to claim

paid family leave.

Section two amends section 203-a of the Workers Compensation Law to
create a private right of action for employees who have been unlawfully
discriminated against for requesting or using paid family leave, pursu-
ing to WCL § 120, or unlawfully not restored to his or her former posi-
tion, pursuant to WCL § 203-b. Such aggrieved employee may be eligible
for compensatory, actual, and punitive damages, attorneys fees, injunc-
tive relief, and other remedies a court may deem appropriate.

Section three amends section 203-b of Workers Compensation Law to reit-
erate again that an employee shall not be required to request rein-
statement to his or her former position before initiating a complaint of
illegal discrimination under WCL § 120.

Section four sets the effective date.

 
JUSTIFICATION:

New York's landmark paid family leave (PFL) law, first enacted in the
FY2017 budget (Ch. 54 of 2016, Part SS) pays 67% of an employee's Aver-
age Weekly Wage (AWW), which is the average wage of the last eight weeks
prior to taking leave, for up to 12 weeks. Employees can take PFL so
long as they have worked at least 25 or 26 weeks, depending on if they
are full- or part-time, and have a "qualifying event," defined as the
birth or adoption of a child, the placement of a child in foster care,
needing to care for a child because of a physical or mental disability,
needing to care for a close relative because of a serious health condi-
tion, or assisting a loved one when a family member is deployed on
active military service. The vast majority of private sector employees
in New York State are automatically provided PFL.

New York's paid family leave also provides important safeguards against
retaliation for employees wishing to use it. Under Workers Compensation
Law § 120, an employer is not allowed to discriminate against an employ-
ee who has requested or used PFL. Under Workers Compensation Law §
203-b, employers are required to reinstate employees coming off of PFL
to their former position or a comparable position with similar pay and
benefits. Employees experiencing mistreatment under these provisions of
Workers Compensation Law can file a request for reinstatement on "Form
PFL-DC-119," and wait 30 days for a response. If the employee receives
no response or is dissatisfied with the response, he or she can then
file a second form "Form PFL-DC-120" alleging discrimination/retaliation
and wait 45 days for a hearing before a Workers Compensation Law Judge.
The employee may be entitled to reinstatement, back wages, and attor-
neys' fees if he or she prevails. The employer can be liable for up to
$500 in penalties (see: https://paidfamilyleave.ny.govfprotections).

The lack of any formal remedy for violations of WCL § 120 and § 203-b
outside of the backlogged workers' compensation system means that many
attorneys can't or won't handle claims of PFL-related retaliation, deny-
ing aggrieved workers the recourse they enjoy for any other type of
disparate treatment claim such as workplace discrimination based on
protected class characteristics under the New York State Human Rights
Law. Additionally, the illogical administrative requirement, laid out in
12 CRR-NY 380-8.2, that an employee must request his or her job back
before filing a complaint of discrimination, belies the reality that
many employees are unable or unwilling to return to their former jobs by
the time they resort to filing a complaint.

This bill rectifies both of the above problems by creating a private
right of action, separate and apart from the Workers Compensation Board
(WCB), for violations of WCL § 120 and § 203-b. It also provides that an
employee should not be required to request reinstatement before pursuing
corrective action through WCB or a civil court.

This bill provides two commonsense reforms to PFL. A worker treated
unfairly for using or attempting to use paid family leave should be
afforded the opportunity to pursue their claim without the need to
request reinstatement to a position they may no longer have any desire
to return to. Secondly, the worker should be granted full access to our
state's civil court system, able to pursue claims of retaliation in the
context of PFL the same as they can for many other types of illegal
discrimination in our state's labor laws.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.

2023-S1027A - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1027--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by  Sens. GOUNARDES, HOYLMAN-SIGAL, MYRIE, PARKER, SEPULVEDA
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Labor -- committee discharged, bill amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the workers' compensation law, in relation to paid fami-
   ly medical leave
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 120 of the workers' compensation law, as amended by
 chapter 61 of the laws of  1989,  the  section  heading  as  amended  by
 section  31  of  part  SS of chapter 54 of the laws of 2016, the opening
 paragraph as amended by chapter 105 of the laws of 2019, is  amended  to
 read as follows:
   §  120.  Discrimination against employees. 1. It shall be unlawful for
 any employer or his or her duly authorized agent to discharge or fail to
 reinstate pursuant to section two hundred three-b of this chapter, or in
 any other manner discriminate against an  employee  as  to  his  or  her
 employment  because  such  employee  has  claimed  or attempted to claim
 compensation from such employer, requested a  claim  form  for  injuries
 received  in  the course of employment, or claimed or attempted to claim
 any benefits provided under this chapter or because he or she has testi-
 fied or is about to testify in a proceeding under this  chapter  and  no
 other valid reason is shown to exist for such action by the employer.
   2.  Any  complaint  alleging  such an unlawful discriminatory practice
 must be filed within two years of the commission of such practice.  Upon
 finding that an employer has violated this section, the board shall make
 an order that any employee so discriminated against shall be restored to
 employment or otherwise restored to the position or privileges he or she
 would  have  had  but  for  the discrimination, IF SUCH REINSTATEMENT IS
 REQUESTED BY SUCH EMPLOYEE, and shall  be  compensated  by  his  or  her
 employer for any loss of compensation arising out of such discrimination
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03171-02-3

 S. 1027--A                          2
 
 together with such fees or allowances for services rendered by an attor-
 ney  or  licensed representative as fixed by the board. Any employer who
 violates this section shall be liable to a penalty of not less than  one
 hundred  dollars or more than five hundred dollars, as may be determined
 by the board. All such penalties shall be paid into the state  treasury.
 All  penalties, compensation and fees or allowances shall be paid solely
 by the employer. The employer alone and not his or her carrier shall  be
 liable  for  such penalties and payments.  Any provision in an insurance
 policy undertaking to relieve  the  employer  from  liability  for  such
 penalties and payments shall be void.
   3.  An  employer  found  to  be  in  violation of this section and the
 aggrieved employee must report to the board as  to  the  manner  of  the
 employer's  compliance within thirty days of receipt of a final determi-
 nation. In case of failure to report on compliance, or failure to comply
 with an order or penalty of the board within thirty days after the order
 or notice of penalty is served, except where timely application  to  the
 board  for a modification, rescission or review of such order or penalty
 has been filed under section twenty-three of this chapter, the chair  in
 any  such  case  or,  on  the chair's consent, any party may enforce the
 order or penalty in a like manner as an award of compensation.
   4. PURSUANT WITH THE PROVISIONS OF SECTION TWO HUNDRED THREE-B OF THIS
 CHAPTER, AN EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST  REINSTATEMENT  TO
 SUCH  EMPLOYEE'S FORMER POSITION OF EMPLOYMENT BEFORE FILING A COMPLAINT
 OF UNLAWFUL DISCRIMINATORY PRACTICE AS DESCRIBED IN THIS SECTION.
   § 2. Section 203-a of the workers'  compensation  law  is  amended  by
 adding a new subdivision 3 to read as follows:
   3. AN ACTION MAY BE BROUGHT AGAINST ANY COVERED EMPLOYER, AS DESCRIBED
 IN  SECTION TWO HUNDRED TWO OF THIS ARTICLE, WHO VIOLATES THE PROVISIONS
 OF SECTION ONE HUNDRED TWENTY OR TWO HUNDRED THREE-B OF THIS CHAPTER, BY
 OR ON BEHALF OF AN EMPLOYEE, AS THAT TERM IS DEFINED IN SUBDIVISION FIVE
 OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, WHO HAS CLAIMED OR ATTEMPTED
 TO CLAIM PAID FAMILY LEAVE BENEFITS. A PLAINTIFF WHO PREVAILS ON A CLAIM
 ALLEGING A VIOLATION OF  SECTION  ONE  HUNDRED  TWENTY  OR  TWO  HUNDRED
 THREE-B OF THIS CHAPTER WITH REGARDS TO PAID FAMILY LEAVE SHALL BE ENTI-
 TLED  TO  COMPENSATORY, ACTUAL, AND PUNITIVE DAMAGES, INJUNCTIVE RELIEF,
 REASONABLE ATTORNEYS' FEES AND COSTS, AND OTHER SUCH REMEDIES AS A COURT
 MAY DEEM APPROPRIATE.
   § 3. Section 203-b of the  workers'  compensation  law,  as  added  by
 section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203-b. Reinstatement following family leave. Any  eligible  employee
 of  a covered employer who takes leave under this article shall be enti-
 tled, on return from such leave, to be restored by the employer  to  the
 position of employment held by the employee when the leave commenced, or
 to be restored to a comparable position with comparable employment bene-
 fits, pay and other terms and conditions of employment, PROVIDED, HOWEV-
 ER,  THAT  SUCH ELIGIBLE EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST REIN-
 STATEMENT TO ANY SUCH POSITION. The taking of  family  leave  shall  not
 result  in  the loss of any employment benefit accrued prior to the date
 on which the leave commenced. Nothing in this section shall be construed
 to entitle any restored employee to the  accrual  of  any  seniority  or
 employment benefits during any period of leave, or any right, benefit or
 position to which the employee would have been entitled had the employee
 not  taken  the  leave.  FURTHERMORE,  NOTHING  IN THIS SECTION SHALL BE
 CONSTRUED TO REQUIRE AN EMPLOYEE TO REQUEST REINSTATEMENT TO HIS OR  HER
 FORMER POSITION OF EMPLOYMENT, OR TO A COMPARABLE POSITION WITH COMPARA-
 S. 1027--A                          3
 
 BLE  EMPLOYMENT BENEFITS, PAY, AND OTHER TERMS AND CONDITIONS OF EMPLOY-
 MENT, BEFORE INITIATING A COMPLAINT AGAINST A COVERED EMPLOYER  PURSUANT
 TO THE PROVISIONS OF SECTION ONE HUNDRED TWENTY OF THIS CHAPTER.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

co-Sponsors

View additional co-sponsors

2023-S1027B (ACTIVE) - Details

See Assembly Version of this Bill:: A6108
Current Committee:: Assembly Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §§120 & 203-b, Work Comp L

2023-S1027B (ACTIVE) - Summary

2023-S1027B (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S1027B

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to paid fami-
ly medical leave

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide justice for employees discriminated against for utilizing or
requesting to utilize New York's paid family leave program and eliminate
the requirement that an employee request reinstatement before filing a
complaint of discrimination.

 
SUMMARY OF PROVISIONS:

Section one amends section 120 of the Workers Compensation Law (WCL) to
provide that an employee shall not be required to request reinstatement
to their job before filing a complaint of unlawful discrimination. This
section of Workers Compensation Law bars discriminatory conduct towards
an employee by an employer for claiming or attempting to claim paid

family leave.

Section one also provides that, as an alternative to filing a complaint
with the Workers Compensation Board (WCB), an aggrieved employee unlaw-
fully discriminated against for requesting or using paid family leave
may bring a private right of action against an employer and be eligible
for compensatory, actual, and punitive damages, attorneys fees, injunc-
tive relief, and other remedies a court may deem appropriate. Employees
with pending WCB complaints at the time of the bill's passage may with-
draw such complaints and file in civil court instead.

Section two amends section 203-b of Workers Compensation Law to reiter-
ate again that an employee shall not be required to request rein-
statement to their former position before initiating a complaint of
illegal discrimination under WCL § 120.

Section four sets the effective date.

 
JUSTIFICATION:

New York's landmark paid family leave (PFL) law, first enacted in the
FY2017 budget (Ch. 54 of 2016, Part SS) pays 67% of an employee's Aver-
age Weekly Wage (AWW), which is the average wage of the last eight weeks
prior to taking leave, for up to 12 weeks. Employees can take PFL so
long as they have worked at least 26 weeks or 175 days, depending on if
they are full- or part-time, and have a "qualifying event," defined as
the birth or adoption of a child, the placement of a child in foster
care, needing to care for a child because of a physical or mental disa-
bility, needing to care for a close relative because of a serious health
condition, or assisting a loved one when a family member is deployed on
active military service. The vast majority of private sector employees
in New York State are automatically provided PFL.

New York's paid family leave also provides important safeguards against
retaliation for employees wishing to use it. Under Workers Compensation
Law § 120, an employer is not allowed to discriminate against an employ-
ee who has requested or used PFL. Under Workers Compensation Law §
203-b, employers are required to reinstate employees coming off of PFL
to their former position or a comparable one with similar pay and bene-
fits. Employees experiencing mistreatment under these provisions of
Workers Compensation Law can file a request for reinstatement on "Form
PFL-DC-119," and wait 30 days for a response. If the employee receives
no response or is dissatisfied with the response, they can then file a
second form "Form PFL-DC-120" alleging discrimination/retaliation and
wait 45 days for a hearing before a Workers Compensation Law Judge. The
employee may be entitled to reinstatement, back wages, and attorneys'
fees if they prevail. The employer can be liable for up to $500 in
penalties (see:  https://paidfamilyleave.ny.gov/protections).

The  lack  of  any formal remedy for violations of WCL § 120 and § 203-b
outside of the backlogged workers' compensation system means  that  many
attorneys can't or won't handle claims of PFL-related retaliation, deny-
ing  aggrieved  workers  the  recourse  they enjoy for any other type of
disparate treatment claim such  as  workplace  discrimination  based  on
protected  class  characteristics  under the New York State Human Rights
Law.

Additionally, the illogical administrative requirement, laid out  in  12
CRR-NY  380-8.2,  that  an  employee  must request their job back before
filing a complaint of  discrimination,  belies  the  reality  that  many
employees  are unable or unwilling to return to their former jobs by the
time they resort to filing  a  complaint.  Furthermore,  many  real-life
forms  of  PFL-related  discrimination, such as insults and jokes at the
jobsite, harsher feedback, requests to attend meetings  in  person  that
can  easily be done virtually, removal from high-level projects that the
employee was previously working on, or sabotaging of breastmilk  pumping
at  the worksite, can all occur while someone is still actively employed
- and so the  requirement  to  request  reinstatement  before  filing  a
complaint  makes no sense, as the employee has not left their job and so
there is nothing to be reinstated to. Furthermore, WCL §  120  prohibits
discrimination  for  requests  to merely use PFL, which would also occur
while someone is still at the job site.  The  legislature  very  clearly
intended  to  bar  PFL  discrimination in all of its forms when it first
drafted these provisions in 2016 - yet in practice they provide  justice
only  for  those  who  have  both actually left their jobs (where in all
likelihood the retaliation they faced was a major factor in their  deci-
sion to leave) and then are somehow willing and able to ask for it back.

This  bill  rectifies  both  of the above problems by creating a private
right of action, separate and apart from the Workers Compensation  Board
(WCB),  for  violations of WCL § 120 and § 203-b. It also clarifies that
an employee should not  be  required  to  request  reinstatement  before
pursuing corrective action through WCB or a civil court.

This  bill  provides  two  commonsense  reforms to PFL. A worker treated
unfairly for using or attempting to use  paid  family  leave  should  be
afforded  the  opportunity  to  pursue  their  claim without the need to
request reinstatement to a position they may no longer have  any  desire
to  return  to or may never have left in the first place.  Secondly, the
worker should be granted full access to our state's civil court  system,
able  to  pursue claims of retaliation in the context of PFL the same as
they can for many other types of illegal discrimination in  our  state's
labor laws.

 
PRIOR LEGISLATIVE HISTORY:
None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This  act  shall take effect immediately and apply to all complaints and
actions filed on or after the effective date.

2023-S1027B (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1027--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by  Sens. GOUNARDES, BROUK, FERNANDEZ, HOYLMAN-SIGAL, MYRIE,
   PARKER, SEPULVEDA -- read twice and ordered printed, and when  printed
   to  be  committed  to  the Committee on Labor -- committee discharged,
   bill amended, ordered reprinted as amended  and  recommitted  to  said
   committee  -- recommitted to the Committee on Labor in accordance with
   Senate Rule 6, sec. 8 -- committee discharged, bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the workers' compensation law, in relation to paid fami-
   ly medical leave
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 120 of the workers' compensation law, as amended by
 chapter 61 of the laws of  1989,  the  section  heading  as  amended  by
 section  31  of  part  SS of chapter 54 of the laws of 2016, the opening
 paragraph as amended by chapter 105 of the laws of 2019, is  amended  to
 read as follows:
   §  120.  Discrimination against employees. 1. It shall be unlawful for
 any employer or [his or her] THEIR duly authorized agent to discharge or
 fail to reinstate pursuant to section two hundred three-b of this  chap-
 ter,  or in any other manner discriminate against an employee as to [his
 or her] THEIR employment because such employee has claimed or  attempted
 to  claim  compensation  from  such employer, requested a claim form for
 injuries received in the course of employment, or claimed  or  attempted
 to claim any benefits provided under this chapter or because [he or she]
 SUCH EMPLOYEE has testified or is about to testify in a proceeding under
 this chapter and no other valid reason is shown to exist for such action
 by the employer.
   2.  Any  complaint  alleging  such an unlawful discriminatory practice
 must be filed within two years of the commission of such practice.  Upon
 finding that an employer has violated this section, the board shall make
 an order that any employee so discriminated against shall be restored to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03171-06-4

 S. 1027--B                          2
 
 employment  or  otherwise  restored to the position or privileges [he or
 she] THEY would have had but  for  the  discrimination,  IF  SUCH  REIN-
 STATEMENT  IS  REQUESTED  BY  SUCH EMPLOYEE, and shall be compensated by
 [his  or her] THEIR employer for any loss of compensation arising out of
 such discrimination together with such fees or allowances  for  services
 rendered  by  an  attorney  or  licensed  representative as fixed by the
 board. Any employer who violates this  section  shall  be  liable  to  a
 penalty  of  not less than one hundred dollars or more than five hundred
 dollars, as may be determined by the board. All such penalties shall  be
 paid  into  the  state treasury. All penalties, compensation and fees or
 allowances shall be paid solely by the employer. The employer alone  and
 not  [his  or  her] THEIR carrier shall be liable for such penalties and
 payments.  Any provision in an insurance policy undertaking  to  relieve
 the  employer  from  liability  for such penalties and payments shall be
 void.
   3. An employer found to be  in  violation  of  this  section  and  the
 aggrieved  employee  must  report  to  the board as to the manner of the
 employer's compliance within thirty days of receipt of a final  determi-
 nation. In case of failure to report on compliance, or failure to comply
 with an order or penalty of the board within thirty days after the order
 or  notice  of penalty is served, except where timely application to the
 board for a modification, rescission, or review of such order or penalty
 has been filed under section twenty-three of this chapter, the chair  in
 any  such  case  or,  on  the chair's consent, any party may enforce the
 order or penalty in a like manner as an award of compensation.
   4. PURSUANT WITH THE PROVISIONS OF SECTION TWO HUNDRED THREE-B OF THIS
 CHAPTER, AN EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST  REINSTATEMENT  TO
 SUCH  EMPLOYEE'S FORMER POSITION OF EMPLOYMENT BEFORE FILING A COMPLAINT
 OF UNLAWFUL DISCRIMINATORY PRACTICE AS DESCRIBED IN THIS SECTION.
   5. AS AN ALTERNATIVE TO FILING A COMPLAINT WITH THE  BOARD  AS  HEREIN
 PROVIDED,  AN EMPLOYEE MAY BRING AN ACTION AGAINST ANY COVERED EMPLOYER,
 AS DESCRIBED IN SECTION TWO HUNDRED TWO OF THIS  CHAPTER,  WHO  VIOLATES
 THE  PROVISIONS  OF  THIS SECTION OR SECTION TWO HUNDRED THREE-B OF THIS
 CHAPTER, BY OR ON BEHALF OF AN EMPLOYEE, AS  THAT  TERM  IS  DEFINED  IN
 SUBDIVISION  FIVE  OF  SECTION  TWO HUNDRED ONE OF THIS CHAPTER, WHO HAS
 CLAIMED OR ATTEMPTED TO CLAIM PAID FAMILY LEAVE  BENEFITS.  A  PLAINTIFF
 WHO  PREVAILS  ON  A  CLAIM  ALLEGING  A VIOLATION OF THIS SECTION OR OF
 SECTION TWO HUNDRED THREE-B OF THIS CHAPTER WITH REGARDS TO PAID  FAMILY
 LEAVE  SHALL  BE ENTITLED TO COMPENSATORY, ACTUAL, AND PUNITIVE DAMAGES,
 INJUNCTIVE RELIEF, REASONABLE ATTORNEYS' FEES AND COSTS, AND OTHER  SUCH
 REMEDIES AS A COURT MAY DEEM APPROPRIATE.
   6.  AN  EMPLOYEE WITH A PENDING CLAIM BEFORE THE BOARD WHERE A FINDING
 HAS NOT YET BEEN ISSUED AS OF THE EFFECTIVE  DATE  OF  THIS  SUBDIVISION
 SHALL  BE PERMITTED TO WITHDRAW SUCH CLAIM AND FILE THE ACTION DESCRIBED
 IN SUBDIVISION FIVE OF THIS SECTION AGAINST A COVERED EMPLOYER.
   § 2. Section 203-b of the  workers'  compensation  law,  as  added  by
 section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203-b. Reinstatement following family leave. Any  eligible  employee
 of  a covered employer who takes leave under this article shall be enti-
 tled, on return from such leave, to be restored by the employer  to  the
 position of employment held by the employee when the leave commenced, or
 to be restored to a comparable position with comparable employment bene-
 fits, pay and other terms and conditions of employment, PROVIDED, HOWEV-
 ER,  THAT  SUCH ELIGIBLE EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST REIN-
 STATEMENT TO ANY SUCH POSITION. The taking of  family  leave  shall  not
 S. 1027--B                          3
 
 result  in  the loss of any employment benefit accrued prior to the date
 on which the leave commenced. Nothing in this section shall be construed
 to entitle any restored employee to the  accrual  of  any  seniority  or
 employment benefits during any period of leave, or any right, benefit or
 position to which the employee would have been entitled had the employee
 not  taken  the  leave.  FURTHERMORE,  NOTHING  IN THIS SECTION SHALL BE
 CONSTRUED TO REQUIRE AN  EMPLOYEE  TO  REQUEST  REINSTATEMENT  TO  THEIR
 FORMER POSITION OF EMPLOYMENT, OR TO A COMPARABLE POSITION WITH COMPARA-
 BLE  EMPLOYMENT BENEFITS, PAY, AND OTHER TERMS AND CONDITIONS OF EMPLOY-
 MENT, BEFORE INITIATING A COMPLAINT AGAINST A COVERED EMPLOYER  PURSUANT
 TO THE PROVISIONS OF SECTION ONE HUNDRED TWENTY OF THIS CHAPTER.
   §  3.  This  act  shall take effect immediately and shall apply to all
 complaints and actions filed on or after such effective date;  provided,
 however,  that  the  provisions  of  subdivision 6 of section 120 of the
 workers' compensation law added by section one of this act  shall  apply
 to claims pending before the workers' compensation board where a finding
 has not yet been issued as of the effective date of this act.

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Senate Bill S1027B

Sponsored By

Current Bill Status - In Assembly Committee

Mar 12, 2024 - Floor Vote

Floor Vote: Mar 12, 2024

Jun 8, 2023 - Floor Vote

Floor Vote: Jun 8, 2023

Feb 27, 2024 - Labor Committee Vote

Labor Committee Vote: Feb 27, 2024

Feb 28, 2023 - Labor Committee Vote

Labor Committee Vote: Feb 28, 2023

Bill Amendments

co-Sponsors

2023-S1027 - Details

2023-S1027 - Summary

2023-S1027 - Sponsor Memo

2023-S1027 - Bill Text download pdf

co-Sponsors

2023-S1027A - Details

2023-S1027A - Summary

2023-S1027A - Sponsor Memo

2023-S1027A - Bill Text download pdf

co-Sponsors

2023-S1027B (ACTIVE) - Details

2023-S1027B (ACTIVE) - Summary

2023-S1027B (ACTIVE) - Sponsor Memo

2023-S1027B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S1027B

Share this bill

Sponsored By

Current Bill Status - In Assembly Committee

Bill Amendments

co-Sponsors

2023-S1027 - Details

2023-S1027 - Summary

2023-S1027 - Sponsor Memo

2023-S1027 - Bill Text download pdf

co-Sponsors

2023-S1027A - Details

2023-S1027A - Summary

2023-S1027A - Sponsor Memo

2023-S1027A - Bill Text download pdf

co-Sponsors

2023-S1027B (ACTIVE) - Details

2023-S1027B (ACTIVE) - Summary

2023-S1027B (ACTIVE) - Sponsor Memo

2023-S1027B (ACTIVE) - Bill Text download pdf

Comments