Prohibits differential pay because of sex.
Ayes (63): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
BILL NUMBER:S5872 REVISED 6/26/13
TITLE OF BILL: An act to amend the labor law, in relation to the prohibition of differential pay because of sex
This bill would enact part of the New York Women's Agenda, which would break down barriers that perpetuate discrimination and inequality based on gender. New York State has a proud history and tradition of leading the nation in progressive ideals and reforms This is especially so with respect to women's rights in 1843, the women's suffrage movement was born at the first Women's Rights Convention in Seneca Falls, New York. From that moment in time and continuing through today, the state has been the home of female leaders and visionaries, from Elizabeth Cady Stanton who initiated the first organized women's rights and women's suffrage movements, to Audre Lorde, a leading African-American poet and essayist who gave voice to women's issues, and Gloria Steinem, the journalist, author and activist. These New Yorkers have served as role models for not only their generation but for every generation to come.
Over the years, New York has fallen behind in its role as a progressive leader on women's rights. Today, statistics clearly show that women in New York State are not treated equally to men. Study after study shows gender inequality in our communities where women are paid less than men for the same work, women face discrimination in the workplace based on familial status and pregnancy, and women face discrimination in housing because of their domestic violence victim status.
The New York Women's Agenda will break down barriers that perpetuate discrimination and inequality based on gender. New York has served as a model for equality and fairness on several issues including women's rights. The New York Women's Agenda will return the State to its rightful place as a leader on women's equality.
Summary of Bills:
1) Pay Equity
This bill would amend Labor L § 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 practice. "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".
This bill would also:
*amend Labor L § 198 to increase the liquidated damages allowed for willful violations of § 194 to up to 300% of the wages found to be due; and *require the Department of Labor and the Division of Human Rights to make training available to employers to assist them in preventing discrimination and harassment in the workplace.
This bill would impact existing protections that are available under the Labor Law.
Statement in Support:
* Achieving Pay Equity
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 disparities 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 differential 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 information that would otherwise deny women workers the ability to discover whether their wages are unequal to their male counterparts.
This bill has no budget implications for the State.
This bill would take effect 90 days after enactment.
STATE OF NEW YORK ________________________________________________________________________ 5872 2013-2014 Regular Sessions IN SENATE June 18, 2013 ___________Introduced by Sens. SAVINO, LITTLE, BALL, GOLDEN, ROBACH, HANNON -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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 PRODUCE SUCH DIFFERENTIAL, AND (C) THAT THE EMPLOYER HAS REFUSED TO ADOPT SUCH ALTERNATIVE PRACTICE.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12049-01-3 S. 5872 2
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 INQUIRES ABOUT, DISCUSSION OF, OR THE DISCLOSURE OF WAGES. SUCH LIMITATIONS SHALL BE CONSISTENT WITH STANDARDS PROMULGATED 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 wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amountS. 5872 3
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 ninetieth 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.