NY State Senate Bill 2025-S2499

Current Bill Status - In Senate Committee Labor 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 21, 2025	referred to labor

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2025-S2499 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §§120 & 203-b, Work Comp L
Versions Introduced in 2023-2024 Legislative Session:: S1027

2025-S2499 (ACTIVE) - 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.

2025-S2499 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S2499

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 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, 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 on which
the employee was previously working, 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 is a paradox, 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 the employ-
ee's decision 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:

2024: S1027B - Passed Senate, died in Assembly

2023: S1027A - Passed Senate, died in Assembly

 
FISCAL IMPLICATIONS:

None

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

2025-S2499 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2499
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             January 21, 2025
                                ___________
 
 Introduced by Sens. GOUNARDES, BROUK, FERNANDEZ, HOYLMAN-SIGAL, JACKSON,
   MYRIE,  PARKER,  SEPULVEDA -- 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] 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05173-01-5

 S. 2499                             2
 
 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
 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
 S. 2499                             3
 
 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 S2499

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

co-Sponsors

2025-S2499 (ACTIVE) - Details

2025-S2499 (ACTIVE) - Summary

2025-S2499 (ACTIVE) - Sponsor Memo

2025-S2499 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2499

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Sponsored By

Current Bill Status - In Senate Committee Labor Committee

co-Sponsors

2025-S2499 (ACTIVE) - Details

2025-S2499 (ACTIVE) - Summary

2025-S2499 (ACTIVE) - Sponsor Memo

2025-S2499 (ACTIVE) - Bill Text download pdf

Comments