S T A T E   O F   N E W   Y O R K
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                                  4302

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2015
                               ___________

Introduced by M. of A. CERETTO, MALLIOTAKIS, RAIA, STEC, CURRAN, MILLER,
  DUPREY,  LUPINACCI,  McKEVITT, MONTESANO, FINCH, McLAUGHLIN, DiPIETRO,
  KOLB, CORWIN, SALADINO, BORELLI, GIGLIO, PALMESANO,  TEDISCO,  WALTER,
  RA,  GOODELL, PALUMBO -- Multi-Sponsored by -- M. of A. CROUCH, JOHNS,
  OAKS -- 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:

  Section  1. Subdivision 1 of section 194 of the labor law, as added by
chapter 548 of the laws of 1966, is amended and three  new  subdivisions
2, 3 and 4 are added to read as follows:
  1.  No  employee  shall be paid a wage at a rate less than the rate at
which an employee of the opposite sex in the same establishment is  paid
for  equal  work on a job the performance of which requires equal skill,
effort and responsibility, and which is performed under similar  working
conditions,  except  where  payment  is  made pursuant to a differential
based on:
  a. a seniority system;
  b. a merit system;
  c. a  system  which  measures  earnings  by  quantity  or  quality  of
production; or
  d.  [any  other  factor  other than sex] A BONA FIDE FACTOR OTHER THAN
SEX, SUCH AS EDUCATION, TRAINING, OR EXPERIENCE.  SUCH FACTOR: (I) SHALL
NOT BE BASED UPON OR DERIVED FROM A SEX-BASED  DIFFERENTIAL  IN  COMPEN-
SATION  AND  (II)  SHALL  BE JOB-RELATED WITH RESPECT TO THE POSITION IN
QUESTION AND SHALL BE CONSISTENT WITH BUSINESS NECESSITY. SUCH EXCEPTION
UNDER THIS PARAGRAPH SHALL NOT APPLY WHEN THE EMPLOYEE DEMONSTRATES  (A)
THAT  AN  EMPLOYER  USES  A PARTICULAR EMPLOYMENT PRACTICE THAT CAUSES A
DISPARATE IMPACT ON THE BASIS OF SEX, (B) THAT AN ALTERNATIVE EMPLOYMENT
PRACTICE EXISTS THAT WOULD SERVE  THE  SAME  BUSINESS  PURPOSE  AND  NOT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07161-01-5
              

A. 4302                             2

PRODUCE  SUCH  DIFFERENTIAL,  AND  (C)  THAT THE EMPLOYER HAS REFUSED TO
ADOPT SUCH ALTERNATIVE PRACTICE.
  2.  FOR  THE  PURPOSE  OF  SUBDIVISION  ONE OF THIS SECTION, "BUSINESS
NECESSITY" SHALL BE DEFINED AS A FACTOR THAT BEARS A MANIFEST  RELATION-
SHIP TO THE EMPLOYMENT IN QUESTION.
  3.  FOR  THE  PURPOSES  OF  SUBDIVISION ONE OF THIS SECTION, EMPLOYEES
SHALL BE DEEMED TO WORK IN THE SAME ESTABLISHMENT IF THE EMPLOYEES  WORK
FOR  THE  SAME  EMPLOYER  AT WORKPLACES LOCATED IN THE SAME GEOGRAPHICAL
REGION, NO LARGER THAN A COUNTY, TAKING INTO ACCOUNT POPULATION DISTRIB-
UTION, ECONOMIC ACTIVITY, AND/OR THE PRESENCE OF MUNICIPALITIES.
  4. (A) NO EMPLOYER SHALL PROHIBIT AN EMPLOYEE  FROM  INQUIRING  ABOUT,
DISCUSSING,  OR DISCLOSING THE WAGES OF SUCH EMPLOYEE OR ANOTHER EMPLOY-
EE.
  (B) AN EMPLOYER MAY, IN A WRITTEN POLICY PROVIDED  TO  ALL  EMPLOYEES,
ESTABLISH  REASONABLE  WORKPLACE  AND  WORKDAY  LIMITATIONS ON THE TIME,
PLACE AND MANNER FOR INQUIRIES ABOUT, DISCUSSION OF, OR  THE  DISCLOSURE
OF WAGES. SUCH LIMITATIONS SHALL BE CONSISTENT WITH STANDARDS PROMULGAT-
ED  BY THE COMMISSIONER AND SHALL BE CONSISTENT WITH ALL OTHER STATE AND
FEDERAL LAWS. SUCH LIMITATIONS MAY INCLUDE PROHIBITING AN EMPLOYEE  FROM
DISCUSSING  OR  DISCLOSING  THE  WAGES  OF ANOTHER EMPLOYEE WITHOUT SUCH
EMPLOYEE'S PRIOR PERMISSION.
  (C) NOTHING IN THIS SUBDIVISION SHALL REQUIRE AN EMPLOYEE TO  DISCLOSE
HIS  OR HER WAGES.  THE FAILURE OF AN EMPLOYEE TO ADHERE TO SUCH REASON-
ABLE LIMITATIONS IN SUCH WRITTEN POLICY SHALL BE AN AFFIRMATIVE  DEFENSE
TO  ANY CLAIMS MADE AGAINST AN EMPLOYER UNDER THIS SUBDIVISION, PROVIDED
THAT ANY ADVERSE EMPLOYMENT ACTION TAKEN BY THE EMPLOYER WAS FOR FAILURE
TO ADHERE TO SUCH REASONABLE  LIMITATIONS  AND  NOT  FOR  MERE  INQUIRY,
DISCUSSION  OR  DISCLOSURE  OF  WAGES IN ACCORDANCE WITH SUCH REASONABLE
LIMITATIONS IN SUCH WRITTEN POLICY.
  (D) THIS PROHIBITION SHALL NOT APPLY TO INSTANCES IN WHICH AN EMPLOYEE
WHO HAS ACCESS TO THE WAGE INFORMATION OF OTHER EMPLOYEES AS A  PART  OF
SUCH  EMPLOYEE'S  ESSENTIAL  JOB  FUNCTIONS  DISCLOSES THE WAGES OF SUCH
OTHER EMPLOYEES TO INDIVIDUALS WHO DO NOT OTHERWISE HAVE ACCESS TO  SUCH
INFORMATION,  UNLESS  SUCH  DISCLOSURE  IS IN RESPONSE TO A COMPLAINT OR
CHARGE, OR IN FURTHERANCE OF AN INVESTIGATION, PROCEEDING,  HEARING,  OR
ACTION  UNDER  THIS CHAPTER, INCLUDING AN INVESTIGATION CONDUCTED BY THE
EMPLOYER.
  (E) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE RIGHTS  OF
AN  EMPLOYEE  PROVIDED  UNDER  ANY  OTHER PROVISION OF LAW OR COLLECTIVE
BARGAINING AGREEMENT.
  S 2. Subdivision 1-a of section 198 of the labor law,  as  amended  by
chapter 564 of the laws of 2010, is amended to read as follows:
  1-a.  On behalf of any employee paid less than the wage to which he or
she is entitled under the provisions of this article,  the  commissioner
may  bring  any legal action necessary, including administrative action,
to collect such claim and as part of such legal action, in  addition  to
any other remedies and penalties otherwise available under this article,
the  commissioner  shall  assess against the employer the full amount of
any such underpayment, and an additional amount as  liquidated  damages,
unless  the  employer  proves  a good faith basis for believing that its
underpayment of wages was in compliance with the law. Liquidated damages
shall be calculated by the commissioner as  no  more  than  one  hundred
percent of the total amount of wages found to be due, EXCEPT SUCH LIQUI-
DATED  DAMAGES MAY BE UP TO THREE HUNDRED PERCENT OF THE TOTAL AMOUNT OF
THE WAGES FOUND TO BE DUE FOR A WILLFUL VIOLATION OF SECTION ONE HUNDRED
NINETY-FOUR OF THIS ARTICLE. In any action instituted in the courts upon

A. 4302                             3

a wage claim by an employee or the commissioner in  which  the  employee
prevails, the court shall allow such employee to recover the full amount
of  any underpayment, all reasonable attorney's fees, prejudgment inter-
est  as required under the civil practice law and rules, and, unless the
employer proves a good faith basis to believe that its  underpayment  of
wages was in compliance with the law, an additional amount as liquidated
damages  equal  to  one hundred percent of the total amount of the wages
found to be due, EXCEPT SUCH LIQUIDATED  DAMAGES  MAY  BE  UP  TO  THREE
HUNDRED  PERCENT  OF THE TOTAL AMOUNT OF THE WAGES FOUND TO BE DUE FOR A
WILLFUL VIOLATION OF SECTION ONE HUNDRED NINETY-FOUR OF THIS ARTICLE.
  S 3. The department of labor and the division of  human  rights  shall
make  training  available  to  assist  employers in developing training,
policies and procedures to address discrimination and harassment in  the
workplace  including,  but  not limited to issues relating to pregnancy,
familial status, pay equity and sexual harassment.  Such training  shall
take  into  account the needs of employers of various sizes. The depart-
ment and division shall make such training available through,  including
but  not  limited to, online means.  In developing such training materi-
als, the department and division shall afford the public an  opportunity
to submit comments on such training.
  S 4. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by a court of compe-
tent  jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof, but shall be confined in its opera-
tion to the clause, sentence, paragraph, subdivision,  section  or  part
thereof  directly  involved  in  the  controversy in which such judgment
shall have been rendered. It is hereby declared to be the intent of  the
legislature  that  this act would have been enacted even if such invalid
provisions had not been included herein.
  S 5. This act shall take effect on the sixtieth  day  after  it  shall
have  become  a  law;  provided, however, that the commissioner of labor
shall take actions necessary to provide for the promulgation  of  stand-
ards pursuant to subdivision 4 of section 194 of the labor law, as added
by  section  one  of  this  act,  prior  to  this act taking effect; and
provided further, however, that the department of labor and division  of
human rights shall take actions necessary to establish training pursuant
to section three of this act prior to this act taking effect.