STATE OF NEW YORK ________________________________________________________________________ 1454 2019-2020 Regular Sessions IN SENATE January 15, 2019 ___________ Introduced by Sens. SANDERS, HOYLMAN, KENNEDY, KRUEGER, PARKER, RIVERA, SEPULVEDA, SERRANO -- read twice and ordered printed, and when printed to be committed 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: 1 Section 1. The labor law is amended by adding a new article 21 to read 2 as follows: 3 ARTICLE 21 4 NEW YORK STATE FAIR PAY ACT 5 Section 750. Short title. 6 751. Findings and statement of purpose. 7 752. Definitions. 8 753. Prohibition against discrimination in wages. 9 754. Other prohibited acts. 10 755. Remedies and enforcement. 11 756. Regulations. 12 § 750. Short title. This act shall be known and may be cited as the 13 "New York state fair pay act". 14 § 751. Findings and statement of purpose. (a) The legislature finds 15 the following: 16 (1) Despite federal and state laws banning discrimination in employ- 17 ment and pay, in both the private and public sector, wage differentials 18 persist between women and men and between minorities and non-minorities 19 in the same jobs and in jobs that are dissimilar but that require equiv- 20 alent composites of skill, effort, responsibility and working condi- 21 tions; 22 (2) The existence of such wage differentials: 23 (A) depresses wages and living standards for employees necessary for 24 their health and efficiency; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05881-01-9

S. 1454 2 1 (B) reduces family incomes and contributes to the higher poverty rates 2 among female-headed and minority households; 3 (C) prevents the maximum utilization of the available labor resources; 4 (D) tends to cause labor disputes, thereby burdening, affecting, and 5 obstructing commerce; 6 (E) constitutes an unfair method of competition; and 7 (F) violates the state's public policy against discrimination; 8 (3) Discrimination in wage-setting practices has played a role in 9 depressing wages for women and minorities generally; 10 (4) Many individuals work in occupations that are dominated by indi- 11 viduals of their same sex, race, and/or national origin, and discrimi- 12 nation in hiring, job assignment and promotion has played a role in 13 establishing and maintaining segregated work forces; 14 (5) Eliminating discrimination in compensation based on sex, race and 15 national origin would have positive effects, including: 16 (A) providing a solution to problems in the economy created by discri- 17 minatory wage differentials; 18 (B) reducing the number of working women and people of color earning 19 low wages, thereby lowering their incidence of poverty during normal 20 working years and in retirement; and 21 (C) promoting stable families by raising family incomes. 22 (b) It is the purpose of this article to correct and as rapidly as 23 practicable to eliminate discriminatory wage practices based on sex, 24 race and/or national origin. 25 § 752. Definitions. (a) The term "employ" shall mean to suffer or 26 permit to work. 27 (b) The term "employee" shall mean any person employed by an employer 28 and includes all of an employer's permanent employees, whether working 29 full-time or part-time, and any temporary employee employed by an 30 employer for a period of at least three months. "Employee" shall not 31 include any individual employed by his or her parents, spouse or child. 32 (c) The term "employer" shall mean any person who employs four or more 33 persons and includes the state and all political subdivisions thereof. 34 (d) The term "equivalent jobs" means jobs or occupations that are 35 equal within the meaning of the Equal Pay Act of 1963, 29 U.S.C. 36 206(d), or jobs or occupations that are dissimilar but whose require- 37 ments are equivalent, when viewed as a composite of skills, effort, 38 responsibility and working conditions. Equivalency of skill, effort, 39 responsibility and working conditions shall be determined by utilizing 40 job comparison methodologies that do not ignore or undervalue the worth 41 of jobs where women and minorities are disproportionately represented. 42 (e) The term "person" shall mean one or more individuals, partner- 43 ships, associations, corporations, limited liability companies, legal 44 representatives, trustees, trustees in bankruptcy, receivers and the 45 state and all political subdivisions and agencies thereof. 46 (f) The term "labor organization" shall mean any organization that 47 exists for the purpose, in whole or part, of collective bargaining or of 48 dealing with employers concerning grievances, terms of conditions of 49 employment, or of other mutual aid or protection in connection with 50 employment. 51 (g) The term "wages" and wage "rates" shall include all compensation 52 in any form that an employer provides to employees in payment for work 53 done or services rendered, including but not limited to base pay, bonus- 54 es, commissions, awards, tips, or various forms of non-monetary compen- 55 sation if provided in lieu of or in addition to monetary compensation 56 and that have economic value to an employee.

S. 1454 3 1 § 753. Prohibition against discrimination in wages. (a) It shall be an 2 unlawful employment practice in violation of this article for an employ- 3 er to discriminate between employees on the basis of sex, race and/or 4 national origin by: 5 (1) paying wages to employees at a rate less than the rate paid to 6 employees of the opposite sex or of a different race or national origin 7 for work in equivalent jobs; and/or 8 (2) paying wages to employees in a job that is dominated by employees 9 of a particular sex, race or national origin at a rate less than the 10 rate at which such employer pays to employees in another job that is 11 dominated by employees of the opposite sex or of a different race or 12 national origin, for work on equivalent jobs. 13 (b) Notwithstanding the provisions of subdivision (a) of this section, 14 it shall not be an unlawful employment practice for an employer to pay 15 different wage rates to employees, where such payments are made pursuant 16 to: 17 (1) a bona fide seniority or merit system; 18 (2) a bona fide system that measures earnings by quantity or quality 19 of production; 20 (3) a bona fide system based on geographic differentials; or 21 (4) a bona fide factor other than sex, race or national origin, such 22 as education, training, or experience. Such factor: (A) shall not be 23 based upon or derived from a sex, race or national origin based differ- 24 ential in compensation and (B) shall be job-related with respect to the 25 position in question and shall be consistent with business necessity. 26 Such exception under this paragraph shall not apply when the employee 27 demonstrates (i) that an employer uses a particular employment practice 28 that causes a disparate impact on the basis of sex, race or national 29 origin, (ii) that an alternative employment practice exists that would 30 serve the same business purpose and not produce such differential, and 31 (iii) that the employer has refused to adopt such alternative practice. 32 (c) For the purpose of subdivision (b) of this section, "business 33 necessity" shall be defined as a factor that bears a manifest relation- 34 ship to the employment in question. 35 (d) An employer who is paying wages in violation of this section shall 36 not, in order to comply with the provisions of this section, reduce the 37 wage of any employee. 38 (e) No labor organization or its agents representing employees of an 39 employer having employees subject to any provision of this chapter shall 40 cause or attempt to cause such an employer to discriminate against an 41 employee in violation of subdivision (a) of this section. 42 (f) An agreement by any employee to work for less than the compen- 43 sation to which the employee is entitled under this article shall not be 44 a bar to any action to which the employee would otherwise be entitled to 45 enforce the provisions of this article. 46 (g) Nothing set forth in this section shall be construed to impede, 47 infringe or diminish the rights and benefits which accrue to employees 48 through bona fide collective bargaining agreements, or otherwise dimin- 49 ish the integrity of the existing collective bargaining relationship. 50 (h) (1) The department shall promulgate regulations specifying the 51 criteria for determining whether a job is dominated by employees of a 52 particular sex, race, or national origin. Criteria shall include, but 53 not be limited to, factors such as whether the job has ever been formal- 54 ly classified as or traditionally considered to be a "male" or "female" 55 or "white" or "minority" job; whether there is a history of discrimi- 56 nation against women and/or people of color with regard to wages,

S. 1454 4 1 assignment or access to jobs, or other terms and conditions of employ- 2 ment; and the demographic composition of the work force in equivalent 3 jobs e.g., numbers or percentages of women, men, white persons and 4 people of color. The regulations shall not include a list of jobs. 5 (2) The department shall promulgate regulations specifying the method- 6 ology for determining equivalent skill, effort, responsibility and work- 7 ing conditions. Any methodology prescribed by the department shall 8 ensure that comparison systems do not ignore or undervalue the worth of 9 jobs where women and minorities are disproportionately represented. 10 (3) The equivalence of jobs dominated by employees of a particular 11 sex, race or national origin relative to jobs dominated by employees of 12 the opposite sex or of a different race or origin will be established 13 through the application of a single job comparison system that does not 14 systematically ignore or undervalue the job content of traditionally 15 female and minority jobs. 16 § 754. Other prohibited acts. It shall be an unlawful employment prac- 17 tice in violation of this article for an employer: 18 (a) to take adverse actions or otherwise discriminate against any 19 individual because such individual has opposed any act or practice made 20 unlawful by this article, has sought to enforce rights protected under 21 this article, or has testified, assisted, or participated in any manner 22 in an investigation, hearing, or other proceeding to enforce this arti- 23 cle; or 24 (b) to discharge or in any other manner discriminate against, coerce, 25 intimidate, threaten, or interfere with any employee or any other person 26 because the employee inquired about, disclosed, compared, or otherwise 27 discussed the employee's wages or the wages of any other employee, or 28 because the employee exercised, enjoyed, aided, or encouraged any other 29 person to exercise or enjoy any right granted or protected by this arti- 30 cle. 31 § 755. Remedies and enforcement. (a) (1) The department shall receive, 32 investigate, and attempt to resolve complaints of violations of this 33 article. 34 (2) In the event the department is unable to reach a voluntary resol- 35 ution of a complaint filed under this article, the department may bring 36 an action in any court of competent jurisdiction to recover the equita- 37 ble and monetary relief described in subdivision (b) of this section. 38 (3) Any sums recovered by the department pursuant to this paragraph 39 shall be paid directly to each employee affected by the employer's 40 unlawful acts. 41 (b) (1) In any action in which a court or jury finds that an employer 42 has engaged in acts in violation of this article, the court or jury 43 shall award to any affected employee or employees monetary relief, 44 including back pay in an amount equal to the difference between the 45 employee's actual earnings and what the employee would have earned but 46 for the employer's unlawful practices, and an additional amount in 47 compensatory and punitive damages, as appropriate. 48 (2) In any action in which a court or jury finds that an employer has 49 engaged in acts in violation of this article, the court shall enjoin the 50 employer from continuing to discriminate against affected employees and 51 shall direct the employer to comply with the provisions of this article; 52 and may order the employer to take such additional affirmative steps as 53 are necessary, including reinstatement or reclassification of affected 54 workers, to ensure an end to unlawful discrimination. 55 (3) In any action in which an affected employee or employees prevail 56 in their claims against employers, the court may, in addition to any

S. 1454 5 1 judgment awarded to the plaintiffs, allow a reasonable attorney's fee, 2 reasonable expert witness fees, and other costs of the action to be paid 3 by the employer. 4 (c) An action to recover the damages or equitable relief prescribed in 5 subdivision (b) of this section may be maintained against any employer 6 in any court of competent jurisdiction by any one or more employees or 7 their representative for or on behalf of: 8 (1) the employees; or 9 (2) the employees and other employees similarly situated. 10 § 756. Regulations. The department shall prescribe such regulations as 11 are necessary to carry out the provisions of this article. 12 § 2. This act shall take effect on the one hundred twentieth day after 13 it shall have become a law.

Enacts the New York state fair pay act

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