S5674-2011 Actions

• Mar 12, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• Feb 21, 2012: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
• Jan 4, 2012: REFERRED TO LABOR
• Nov 21, 2011: PRINT NUMBER 5674A
• Nov 21, 2011: AMEND AND RECOMMIT TO LABOR
• Jun 9, 2011: REFERRED TO LABOR

S5674-2011 Memo

BILL NUMBER:S5674           REVISED 06/10/11

TITLE OF BILL:
An act
to amend the labor law, in relation to retaliatory personnel actions by
employers

SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill adds three new sections to the labor law.

� 742 makes it unlawful for employers to take retaliatory action
against employees who discuss their salary or inquire about the wages
of another employee.

� 743 provides for remedies and enforcement of violations of the
article.

� 744 authorizes the department of labor to prescribe regulations
necessary to carry out the provisions of this legislation.

Section two of the bill replaces the previous remedies and enforcement
section.

Section three clarifies that no portion of this legislation shall
supersede federal law.

Section four is a severability clause.

Section five sets the effective date at ninety days after it becomes
law.

JUSTIFICATION:
Present law does not adequately address the issue of pay equity, and
the need for state enforcement of a prohibition on such inequities.
This bill ensures that employees who discuss their wages or inquire
about the wages of other employees shall not be subjected to
retaliatory action.

This is an important step forward for the rights of women, people of
color, immigrants and others in the workplace who should not feel
afraid to simply raise the question of whether an inequality in pay
exists. The right to inquire about the possibility of pay inequity is
a small step forward in ensuring that all members of the workforce
are paid equally for equal work, regardless of gender, ethnicity,
immigrant status or any other personal characteristic.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
On the ninetieth day after it shall have become law.

S5674-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    5674

                         2011-2012 Regular Sessions

                              I N  SENATE

                                June 9, 2011
                                 ___________

  Introduced  by  Sen. KRUEGER -- 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  retaliatory  personnel
    actions by employers

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. The labor law is amended by adding three new sections  742,
  743 and 744 to read as follows:

    S 742. OTHER PROHIBITED ACTS. IT SHALL BE AN UNLAWFUL EMPLOYMENT PRAC-
  TICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOYER TO DISCHARGE OR IN ANY
  OTHER  MANNER  DISCRIMINATE  AGAINST,  COERCE,  INTIMIDATE, THREATEN, OR
  INTERFERE WITH ANY EMPLOYEE OR ANY OTHER  PERSON  BECAUSE  THE  EMPLOYEE
  INQUIRED  ABOUT, DISCLOSED, COMPARED, OR OTHERWISE DISCUSSED THE EMPLOY-
  EE'S WAGES OR THE WAGES OF ANY OTHER EMPLOYEE, OR BECAUSE  THE  EMPLOYEE
  EXERCISED, ENJOYED, AIDED, OR ENCOURAGED ANY OTHER PERSON TO EXERCISE OR
  ENJOY ANY RIGHT GRANTED OR PROTECTED BY THIS ARTICLE.
    S  743.  REMEDIES  AND  ENFORCEMENT.  (A) (1) IN ANY ACTION IN WHICH A
  COURT OR JURY FINDS THAT AN EMPLOYER HAS ENGAGED IN ACTS IN VIOLATION OF
  THIS ARTICLE, THE COURT OR JURY SHALL AWARD TO ANY AFFECTED EMPLOYEE  OR
  EMPLOYEES  MONETARY RELIEF, INCLUDING BACK PAY IN AN AMOUNT EQUAL TO THE
  DIFFERENCE BETWEEN THE EMPLOYEE'S ACTUAL EARNINGS AND WHAT THE  EMPLOYEE
  WOULD  HAVE  EARNED  BUT  FOR  THE EMPLOYER'S UNLAWFUL PRACTICES, AND AN
  ADDITIONAL AMOUNT IN COMPENSATORY AND PUNITIVE DAMAGES, AS APPROPRIATE.
    (2) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER  HAS
  ENGAGED IN ACTS IN VIOLATION OF THIS ARTICLE, THE COURT SHALL ENJOIN THE
  EMPLOYER  FROM CONTINUING TO DISCRIMINATE AGAINST AFFECTED EMPLOYEES AND
  SHALL DIRECT THE EMPLOYER TO COMPLY WITH THE PROVISIONS OF THIS ARTICLE;
  AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS  AS
  ARE  NECESSARY,  INCLUDING REINSTATEMENT OR RECLASSIFICATION OF AFFECTED
  WORKERS, TO ENSURE AN END TO UNLAWFUL DISCRIMINATION.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD13053-01-1

 S. 5674                             2

    (3) IN ANY ACTION IN WHICH AN AFFECTED EMPLOYEE OR  EMPLOYEES  PREVAIL
  IN  THEIR  CLAIMS AGAINST EMPLOYERS, THE COURT SHALL, IN ADDITION TO ANY
  JUDGMENT AWARDED TO THE PLAINTIFFS, ALLOW A REASONABLE  ATTORNEY'S  FEE,
  REASONABLE EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO BE PAID
  BY THE EMPLOYER.
    (B)  (1)  AN  ACTION  TO  RECOVER  THE  DAMAGES  OR  EQUITABLE  RELIEF
  PRESCRIBED IN SUBDIVISION (A) OF THIS SECTION MAY BE MAINTAINED  AGAINST
  ANY  EMPLOYER  IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
  EMPLOYEES OR THEIR REPRESENTATIVE FOR OR ON BEHALF OF:

    (A) THE EMPLOYEES; OR
    (B) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
    (2) (A) THE DEPARTMENT SHALL  RECEIVE,  INVESTIGATE,  AND  ATTEMPT  TO
  RESOLVE COMPLAINTS OF VIOLATIONS OF THIS ARTICLE.
    (B)  IN THE EVENT THE DEPARTMENT IS UNABLE TO REACH A VOLUNTARY RESOL-
  UTION OF A COMPLAINT FILED UNDER THIS ARTICLE, THE DEPARTMENT MAY  BRING
  AN  ACTION IN ANY COURT OF COMPETENT JURISDICTION TO RECOVER THE EQUITA-
  BLE AND MONETARY RELIEF DESCRIBED IN SUBDIVISION (A) OF THIS SECTION.
    (C) ANY SUMS RECOVERED BY THE DEPARTMENT PURSUANT  TO  THIS  PARAGRAPH
  SHALL  BE  PAID  DIRECTLY  TO  EACH  EMPLOYEE AFFECTED BY THE EMPLOYER'S
  UNLAWFUL ACTS.
    S 744. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
  ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE NOT LATER THAN
  ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
    S 2. Paragraph (d) of subdivision 4 and subdivision 5 of  section  740
  of  the labor law, paragraph (d) of subdivision 4 as added by chapter 24
  of the laws of 2002 and subdivision 5 as added by  chapter  660  of  the
  laws of 1984, are amended to read as follows:

    (d)  Notwithstanding  the provisions of paragraphs (a) and (c) of this
  subdivision, a health care employee who has been the subject of a retal-
  iatory action by a health care employer in violation  of  section  seven
  hundred  forty-one  of  this  article  may institute a civil action in a
  court of competent jurisdiction for relief as set forth in  [subdivision
  five  of  this] section SEVEN HUNDRED FORTY-THREE OF THIS ARTICLE within
  two years after the alleged retaliatory personnel action was  taken.  In
  addition  to the relief set forth in that subdivision, the court, in its
  discretion, based upon a finding that the employer acted in bad faith in
  the retaliatory action, may assess the employer a civil  penalty  of  an
  amount  not  to exceed ten thousand dollars, to be paid to the improving
  quality of patient care fund, established pursuant  to  section  ninety-
  seven-aaaa of the state finance law.
    [5. Relief. In any action brought pursuant to subdivision four of this
  section, the court may order relief as follows:
    (a) an injunction to restrain continued violation of this section;
    (b) the reinstatement of the employee to the same position held before
  the retaliatory personnel action, or to an equivalent position;
    (c) the reinstatement of full fringe benefits and seniority rights;
    (d)  the compensation for lost wages, benefits and other remuneration;
  and
    (e) the payment by the employer of  reasonable  costs,  disbursements,
  and attorney's fees.]
    S  3.  Nothing  in  this  act shall be interpreted or applied so as to
  create any power or duty in conflict with federal law.
    S 4. If any provision of this act or application thereof to any person
  or circumstance is judged invalid, the invalidity shall not affect other
  provisions or applications of the act, which can be given effect without

 S. 5674                             3

  the invalid provision, or application, and to this end the provisions of
  this act are declared severable.
    S  5.  This  act shall take effect on the ninetieth day after it shall
  have become a law; provided that the commissioner of labor shall promul-
  gate rules and regulations necessary to  effectuate  the  provisions  of
  this act prior to such effective date.