S1490-2013 Actions

• Jan 9, 2013: REFERRED TO LABOR

S1490-2013 Memo

BILL NUMBER:S1490

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 specifies that
the legislation is to be known as the "Wage Transparency Act".

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

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

Section five is a severability clause.

Section six 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 ox any other personal characteristic.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

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

S1490-2013 Text

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

                                    1490

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by Sens. KRUEGER, ADDABBO, HOYLMAN, MONTGOMERY -- 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. This act shall be known and may be cited as the "Wage Tran-
  sparency Act."
    S 2. 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;

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01311-01-3

 S. 1490                             2

  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.
    (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  3.  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 4. Nothing in this act shall be interpreted  or  applied  so  as  to
  create any power or duty in conflict with federal law.

 S. 1490                             3

    S 5. 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
  the invalid provision, or application, and to this end the provisions of
  this act are declared severable.
    S  6.  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.