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.
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.
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.