Relates to retaliatory personnel actions by employers.
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.
STATE OF NEW YORK ________________________________________________________________________ 1490 2013-2014 Regular Sessions IN 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.