A06075 Summary:

COSPNSRHeastie, Rosenthal, Jaffee, Paulin, Galef, Simotas, Cook, Rozic, Lupardo, Clark, Gunther, Hevesi, Hooper, Lifton, Mayer, Nolan, Robinson, Russell, Schimel, Wright, Duprey, Walker, Seawright, Buchwald, Weinstein, Stirpe, Gottfried, O'Donnell, Colton, Perry, Braunstein, Ortiz, Hawley, Skoufis, Weprin, Zebrowski, Barron, Linares, Otis
MLTSPNSRBrabenec, Ceretto, Corwin, Curran, DiPietro, Finch, Giglio, Johns, Kolb, Lawrence, Lopez, Lupinacci, McKevitt, Murray, Palumbo, Saladino, Stec, Tedisco, Walter, Wozniak
Amd SS194 & 198, Lab L
Prohibits differential pay because of sex.
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A06075 Actions:

03/12/2015referred to labor
04/22/2015reported referred to codes
04/23/2015advanced to third reading cal.209
04/27/2015substituted by s1
 01/12/2015PASSED SENATE
 01/12/2015referred to labor
 04/27/2015substituted for a6075
 04/27/2015ordered to third reading cal.209
 04/27/2015passed assembly
 04/27/2015returned to senate
 10/21/2015SIGNED CHAP.362
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A06075 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  TITLE OF BILL: An act to amend the labor law, in relation to the prohibition of differential pay because of sex   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Amends Labor Law § 194, which prohibits a differential in rate of pay because of sex, to replace the current "any other factor other than sex" exception with an exception that requires that the differential in rate of pay he based on a bona fide factor other than sex such as education, training or experience. Such a factor could not be based on a sex-based differential, and must be job-related arid consistent with business necessity. This standard would mirror the current defense afforded to employers in disparate impact cases under Title VII of the Civil Rights Act. The exception would not apply if the employee demonstrated that an employer uses a "particular employment practice that causes a disparate impact on the basis of sex and that there was an alternative employment practice that would accomplish the same-business purpose and the employer has refused to adopt such a prac- tice". "Business necessity" would be defined as a factor that bears a manifest relationship to the employment in question, the definition enunciated by the Supreme Court in Griggs v. Duke Power. Co., 401 U S. 424 (1971) and subsequent cases. Additionally, § 194 would be amended to clarify that a differential in pay may not exist even if the two employees whose rate of pay is being compared work in different physical locations, provided that those locations were in the same geographic region. Section 194 would also be amended to forbid employers from prohibiting employees from sharing wage information This protection helps guarantee the individual state right of equal pay, without interfering with current federal provisions regarding collective protected activity aimed at "mutual aid and protection". Section 2. Amends Labor Law § 198 to increase liquidated damages from willful violations of § 194 to three hundred percent of wages due. Section 3. Requires the Department of Labor to make training available to assist in employers developing training to address discrimination and harassment. Section 4. Severability clause. Section 5. Enacting clause.   JUSTIFICATION: Wage disparities have a detrimental effect on society. Individuals are put at an economic disadvantage because of characteristics that bear no relationship to their job performance. Such disparities prevent maximum utilization of labor in the state economy. Additionally, policies adopted by employers that discourage or prohibit employees from sharing information about their earnings can contribute to unjust wage dispari- ties going undetected. Despite existing protections under the law, women in New York earn 84 percent of what men earn and jobs traditionally held by women pay significantly less than jobs predominately employing men. In New York, on average, a woman working full time is paid $42,113 per year, while a man working full time is paid $50,388 per year. This creates a wage gap of $8,275 between full-time working men and women in the state. This bill would amend existing law to ensure that women receive the wages they were always entitled to, as well as provide for increased liquidated damages. Individuals who were paid unequal wages would be entitled to liquidated damages of up to 300% of the amount of unpaid wages Existing exemptions in the law would be tightened so that pay differentials are excused where the employer can show that the differen- tial is truly caused by something other than sex and is related to job performance and consistent with business necessity. Employers would also be prohibited from forbidding employees from sharing wage informa- tion that would otherwise deny women workers the ability to discover whether their wages are unequal to their male counterparts.   FISCAL IMPLICATIONS: This bill has no budget implications for the State.   EFFECTIVE DATE: This bill would take effect 90 days after enactment.
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A06075 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                     March 12, 2015
          -- read once and referred to the Committee on Labor
        AN ACT to amend the labor law, in relation to the prohibition of differ-
          ential pay because of sex
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Subdivision 1 of section 194 of the labor law, as added by
     2  chapter 548 of the laws of 1966, is amended and three  new  subdivisions
     3  2, 3 and 4 are added to read as follows:
     4    1.  No  employee  shall be paid a wage at a rate less than the rate at
     5  which an employee of the opposite sex in the same establishment is  paid
     6  for  equal  work on a job the performance of which requires equal skill,
     7  effort and responsibility, and which is performed under similar  working
     8  conditions,  except  where  payment  is  made pursuant to a differential
     9  based on:
    10    a. a seniority system;
    11    b. a merit system;
    12    c. a  system  which  measures  earnings  by  quantity  or  quality  of
    13  production; or
    14    d.  [any  other  factor  other than sex] a bona fide factor other than
    15  sex, such as education, training, or experience.  Such factor: (i) shall
    16  not be based upon or derived from a sex-based  differential  in  compen-
    17  sation  and  (ii)  shall  be job-related with respect to the position in
    18  question and shall be consistent with business necessity. Such exception
    19  under this paragraph shall not apply when the employee demonstrates  (A)
    20  that  an  employer  uses  a particular employment practice that causes a
    21  disparate impact on the basis of sex, (B) that an alternative employment
    22  practice exists that would serve  the  same  business  purpose  and  not
    23  produce  such  differential,  and  (C)  that the employer has refused to
    24  adopt such alternative practice.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 6075                             2
     1    2. For the purpose of  subdivision  one  of  this  section,  "business
     2  necessity"  shall be defined as a factor that bears a manifest relation-
     3  ship to the employment in question.
     4    3.  For  the  purposes  of  subdivision one of this section, employees
     5  shall be deemed to work in the same establishment if the employees  work
     6  for  the  same  employer  at workplaces located in the same geographical
     7  region, no larger than a county, taking into account population distrib-
     8  ution, economic activity, and/or the presence of municipalities.
     9    4. (a) No employer shall prohibit an employee  from  inquiring  about,
    10  discussing,  or disclosing the wages of such employee or another employ-
    11  ee.
    12    (b) An employer may, in a written policy provided  to  all  employees,
    13  establish  reasonable  workplace  and  workday  limitations on the time,
    14  place and manner for inquires about, discussion of, or the disclosure of
    15  wages. Such limitations shall be consistent with  standards  promulgated
    16  by  the  commissioner  and  shall be consistent with all other state and
    17  federal laws. Such limitations may include prohibiting an employee  from
    18  discussing  or  disclosing  the  wages  of another employee without such
    19  employee's prior permission.
    20    (c) Nothing in this subdivision shall require an employee to  disclose
    21  his  or her wages.  The failure of an employee to adhere to such reason-
    22  able limitations in such written policy shall be an affirmative  defense
    23  to  any claims made against an employer under this subdivision, provided
    24  that any adverse employment action taken by the employer was for failure
    25  to adhere to such reasonable  limitations  and  not  for  mere  inquiry,
    26  discussion  or  disclosure  of  wages in accordance with such reasonable
    27  limitations in such written policy.
    28    (d) This prohibition shall not apply to instances in which an employee
    29  who has access to the wage information of other employees as a  part  of
    30  such  employee's  essential  job  functions  discloses the wages of such
    31  other employees to individuals who do not otherwise have access to  such
    32  information,  unless  such  disclosure  is in response to a complaint or
    33  charge, or in furtherance of an investigation, proceeding,  hearing,  or
    34  action  under  this chapter, including an investigation conducted by the
    35  employer.
    36    (e) Nothing in this section shall be construed to limit the rights  of
    37  an  employee  provided  under  any  other provision of law or collective
    38  bargaining agreement.
    39    § 2. Subdivision 1-a of section 198 of the labor law,  as  amended  by
    40  chapter 564 of the laws of 2010, is amended to read as follows:
    41    1-a.  On behalf of any employee paid less than the wage to which he or
    42  she is entitled under the provisions of this article,  the  commissioner
    43  may  bring  any legal action necessary, including administrative action,
    44  to collect such claim and as part of such legal action, in  addition  to
    45  any other remedies and penalties otherwise available under this article,
    46  the  commissioner  shall  assess against the employer the full amount of
    47  any such underpayment, and an additional amount as  liquidated  damages,
    48  unless  the  employer  proves  a good faith basis for believing that its
    49  underpayment of wages was in compliance with the law. Liquidated damages
    50  shall be calculated by the commissioner as  no  more  than  one  hundred
    51  percent of the total amount of wages found to be due, except such liqui-
    52  dated  damages may be up to three hundred percent of the total amount of
    53  the wages found to be due for a willful violation of section one hundred
    54  ninety-four of this article. In any action instituted in the courts upon
    55  a wage claim by an employee or the commissioner in  which  the  employee
    56  prevails, the court shall allow such employee to recover the full amount

        A. 6075                             3
     1  of  any underpayment, all reasonable attorney's fees, prejudgment inter-
     2  est as required under the civil practice law and rules, and, unless  the
     3  employer  proves  a good faith basis to believe that its underpayment of
     4  wages was in compliance with the law, an additional amount as liquidated
     5  damages  equal  to  one hundred percent of the total amount of the wages
     6  found to be due, except such liquidated  damages  may  be  up  to  three
     7  hundred  percent  of the total amount of the wages found to be due for a
     8  willful violation of section one hundred ninety-four of this article.
     9    § 3. The department of labor and the division of  human  rights  shall
    10  make  training  available  to  assist  employers in developing training,
    11  policies and procedures to address discrimination and harassment in  the
    12  workplace  including,  but  not limited to issues relating to pregnancy,
    13  familial status, pay equity and sexual harassment.  Such training  shall
    14  take  into  account the needs of employers of various sizes. The depart-
    15  ment and division shall make such training available through,  including
    16  but  not  limited to, online means.  In developing such training materi-
    17  als, the department and division shall afford the public an  opportunity
    18  to submit comments on such training.
    19    § 4. Severability clause. If any clause, sentence, paragraph, subdivi-
    20  sion, section or part of this act shall be adjudged by a court of compe-
    21  tent  jurisdiction to be invalid, such judgment shall not affect, impair
    22  or invalidate the remainder thereof, but shall be confined in its opera-
    23  tion to the clause, sentence, paragraph, subdivision,  section  or  part
    24  thereof  directly  involved  in  the  controversy in which such judgment
    25  shall have been rendered. It is hereby declared to be the intent of  the
    26  legislature  that  this act would have been enacted even if such invalid
    27  provisions had not been included herein.
    28    § 5. This act shall take effect on the ninetieth day  after  it  shall
    29  have  become  a  law;  provided, however, that the commissioner of labor
    30  shall take actions necessary to provide for the promulgation  of  stand-
    31  ards pursuant to subdivision 4 of section 194 of the labor law, as added
    32  by  section  one  of  this  act,  prior  to  this act taking effect; and
    33  provided further, however, that the department of labor and division  of
    34  human rights shall take actions necessary to establish training pursuant
    35  to section three of this act prior to this act taking effect.
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