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A01047 Summary:

BILL NOA01047B
 
SAME ASSAME AS S00456-B
 
SPONSORSimotas
 
COSPNSRColton, Seawright, Blake, Otis, Ortiz, Wallace, Bronson, Perry, Cruz, Wright, Fernandez, Weprin, Niou, Simon, Rosenthal L
 
MLTSPNSR
 
Amd §115, Civ Serv L
 
Relates to fair, non-biased compensation; provides for remedies and enforcement where an employee believes he or she is being discriminated against in terms of compensation in violation of section 115 of the civil service law; makes related provisions.
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A01047 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1047B
 
SPONSOR: Simotas
  TITLE OF BILL: An act to amend the civil service law, in relation to a fair, non-biased compensation structure   PURPOSE OR GENERAL IDEA OF BILL: To ensure public employees have a mechanism to enforce their right to equal pay for equal and equivalent work.   SUMMARY OF PROVISIONS: Section one of the bill amends § 115 of the civil service law to: -Define the intent of New York State to comply with the federal "Equal Pay Act of 1963" and "Civil Rights Act of 1964" and to state its intent to ensure a fair and non-biased wage structure for all employees regard- less of status within a protected class; -Define protected class as a group of individuals that are protected against an unlawful discriminatory by an employer pursuant to § 296 of the executive law; -Add a private right of action for public employees who are discrimi- nated against in terms of compensation; and -Provide that it is not a violation of this section to pay different compensation to employees based on bona fide factors other status within a protected class. Section two of the bill sets forth the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): Amended version of the bill extends the policy of a fair and non-biased wage structure for all employees regardless of status within a protected class.   JUSTIFICATION: In 2014, the Court of Appeals held that Civil Service Law § 115 did not confer a private right of action on public employees. Rather, the Court found that this section merely stated a general policy of the state to provide equal pay for equal work. Under this holding, public employees are stripped of their right to bring an action in state court when they are discriminated against in teams of compensation. This legislation would clarify that public employees have the same rights as private employees and may bring a private right of action to enforce their right to equal pay for equal and equivalent work. ;0us on;PRIOR LEGISLATIVE HISTORY: 2018: A2425 (Simotas) - Passed Assembly 2017: A2425 (Simotas) - Passed Assembly 2016: A9754 (Simotas) - Passed Assembly 2015: A9754 (Simotas) - Passed Assembly   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Immediately.
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A01047 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1047--B
                                                                Cal. No. 176
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 14, 2019
                                       ___________
 
        Introduced  by  M. of A. SIMOTAS, COLTON, SEAWRIGHT, BLAKE, OTIS, ORTIZ,
          WALLACE, BRONSON, PERRY, CRUZ, WRIGHT,  FERNANDEZ  --  read  once  and
          referred  to  the  Committee on Governmental Employees -- reported and
          referred to  the  Committee  on  Codes  --  reported  from  committee,
          advanced  to a third reading, amended and ordered reprinted, retaining
          its place on the order of third reading  --  again  amended  on  third
          reading,  ordered reprinted, retaining its place on 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:
 
     1    Section  1.  Section 115 of the civil service law, as added by chapter
     2  790 of the laws of 1958, is amended to read as follows:
     3    § 115. Policy of the state. 1. In order to attract unusual  merit  and
     4  ability  to  the  service of the state of New York and all its political
     5  subdivisions, to stimulate higher efficiency  among  the  personnel,  to
     6  provide  skilled  leadership  in  administrative  departments, to reward
     7  merit and to insure to the people and the taxpayers of the state of  New
     8  York  the  highest return in services for the necessary costs of govern-
     9  ment, it is hereby declared to be the policy of the  state  [to  provide
    10  equal  pay  for equal work;] and all its political subdivisions thereof,
    11  consistent with the federal Equal Pay Act of 1963 (29 U.S.C. § 206), the
    12  federal Civil Rights Act (42 U.S.C. § 2000e-2), article fifteen  of  the
    13  executive  law, and section forty-c of the civil rights law, to ensure a
    14  fair, non-biased compensation  structure  for  all  employees  in  which
    15  status  within  one or more protected class or classes is not considered
    16  either directly or indirectly in determining the proper compensation for
    17  a title or in determining the pay for any individual or group of employ-
    18  ees, to ensure that no employee with status within one or more protected
    19  class or classes shall be paid a wage at a rate less than  the  rate  at
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01407-07-9

        A. 1047--B                          2
 
     1  which  an  employee  without  status  within the same protected class or
     2  classes in the same establishment is paid for similar work  or  substan-
     3  tially  similar  work  and to provide regular increases in pay in proper
     4  proportion  to  increase  of ability, increase of output and increase of
     5  quality of work demonstrated in service.
     6    2. For the purpose of this section:
     7    (a) the term "protected  class"  includes  age,  race,  creed,  color,
     8  national  origin,  sexual  orientation,  gender  identity or expression,
     9  military status, sex, disability, predisposing genetic  characteristics,
    10  familial status, marital status, or domestic violence victim status, and
    11  any  employee protected from discrimination pursuant to paragraphs a, b,
    12  and c of subdivision one of section two hundred ninety-six of the execu-
    13  tive law, and any  intern  protected  from  discrimination  pursuant  to
    14  section two hundred ninety-six-c of the executive law.
    15    (b)  the  term "compensation" shall include but not be limited to: all
    16  earnings of an employee for labor or services  rendered,  regardless  of
    17  whether  the  amount  of  earnings  is paid on an annual salary, hourly,
    18  biweekly or per diem basis; reimbursement for expenses; health,  welfare
    19  and retirement benefits; and vacation pay, sick pay, separation or holi-
    20  day pay, or any other form of remuneration.
    21    (c) employees shall be deemed to work in the same establishment if the
    22  employees  work  for the same employer at workplaces located in the same
    23  geographical region, no larger than a county, taking into account  popu-
    24  lation  distribution,  economic activity, and/or the presence of munici-
    25  palities.
    26    3. (a) Where an employee believes he or  she  is  being  discriminated
    27  against  in  terms  of  compensation  in violation of this section, such
    28  employee may bring an action in any court of competent  jurisdiction  to
    29  recover  the equitable and monetary relief described in paragraph (b) of
    30  this subdivision.
    31    (b) (1) In any action in which a court or jury finds that an  employer
    32  has  engaged  in  acts  in  violation of this section, the court or jury
    33  shall award to any  affected  employee  or  employees  monetary  relief,
    34  including  back  pay  in  an  amount equal to the difference between the
    35  employee's actual earnings and what the employee would have  earned  but
    36  for the employer's unlawful practices, including an appropriate increase
    37  in  retirement  benefits,  and  an additional amount in compensatory and
    38  punitive damages, as appropriate.
    39    (2) In any action in which a court or jury finds that an employer  has
    40  engaged in acts in violation of this section, the court shall enjoin the
    41  employer  from continuing to discriminate against affected employees and
    42  shall direct the employer to comply with the provisions of this article;
    43  and may order the employer to take such additional affirmative steps  as
    44  are  necessary  to  ensure  an end to unlawful discrimination, including
    45  reinstatement to the same or a comparable position for employees in  the
    46  unclassified  service or employees classified as management/confidential
    47  or labor; reinstatement with back pay; or reclassification  of  affected
    48  workers.
    49    (3)  In  any action in which an affected employee or employees prevail
    50  in their claims against employers, the court may,  in  addition  to  any
    51  judgement  awarded to the plaintiffs, allow a reasonable attorney's fee,
    52  reasonable expert witness fees, and other costs of the action to be paid
    53  by the employer.
    54    (c) An action to recover the damages or equitable relief prescribed in
    55  paragraph (b) of this subdivision may be maintained against any employer

        A. 1047--B                          3

     1  in any court of competent jurisdiction by any one or more  employees  or
     2  their representative for or on behalf of:
     3    (1) the employees; or
     4    (2) the employees and other employees similarly situated.
     5    4.  (a) It shall not be a violation of this section for an employer to
     6  pay different compensation to employees, where such  payments  are  made
     7  pursuant to:
     8    (1) a bona fide seniority or merit system;
     9    (2)  a  bona fide system that measures earnings by quantity or quality
    10  of production;
    11    (3) a bona fide system based on geographic differentials; or
    12    (4) any other bona fide factor other than status within  one  or  more
    13  protected  class or classes, such as education, training, or experience.
    14  Such factor: (A) shall not be based upon or derived from a  differential
    15  in  compensation  based  on status within one or more protected class or
    16  classes; and (B) shall be job-related with respect to  the  position  in
    17  question and shall be consistent with business necessity. Such exception
    18  under  this paragraph shall not apply when the employee demonstrates (i)
    19  that an employer uses a particular employment  practice  that  causes  a
    20  disparate  impact  on  the  basis of status within one or more protected
    21  class or classes, (ii) that an alternative  employment  practice  exists
    22  that would serve the same purpose and not produce such differential, and
    23  (iii) that the employer has refused to adopt such alternative practice.
    24    (b)  For  the  purpose of paragraph (a) of this subdivision, "business
    25  necessity" shall be defined as a factor that bears a manifest  relation-
    26  ship to the employment in question.
    27    (c)  Nothing  set  forth in this section shall be construed to impede,
    28  infringe or diminish the rights and benefits which accrue  to  employees
    29  through  collective  bargaining  agreements,  or  otherwise diminish the
    30  integrity of the existing collective bargaining relationship.
    31    § 2. This act shall take effect immediately.
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