STATE OF NEW YORK ________________________________________________________________________ 1047 2019-2020 Regular Sessions IN ASSEMBLY January 14, 2019 ___________ Introduced by M. of A. SIMOTAS, COLTON, SEAWRIGHT, BLAKE, OTIS, ORTIZ, WALLACE -- read once and referred to the Committee on Governmental Employees AN ACT to amend the civil service law, in relation to a fair, non-biased compensation structure The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 115 of the civil service law, as added by chapter 2 790 of the laws of 1958, is amended to read as follows: 3 § 115. Policy of the state. 1. In order to attract unusual merit and 4 ability to the service of the state of New York and all its political 5 subdivisions, to stimulate higher efficiency among the personnel, to 6 provide skilled leadership in administrative departments, to reward 7 merit and to insure to the people and the taxpayers of the state of New 8 York the highest return in services for the necessary costs of govern- 9 ment, it is hereby declared to be the policy of the state [to provide 10 equal pay for equal work;] and all its political subdivisions thereof, 11 consistent with the federal Equal Pay Act of 1963 (29 U.S.C. § 206), the 12 federal Civil Rights Act (42 U.S.C. § 2000e-2), article fifteen of the 13 executive law, and section forty-c of the civil rights law, to ensure a 14 fair, non-biased compensation structure for all employees in which sex, 15 race, or national origin is not considered either directly or indirectly 16 in determining the proper compensation for a title or in determining the 17 pay for any individual or group of employees, and to provide regular 18 increases in pay in proper proportion to increase of ability, increase 19 of output and increase of quality of work demonstrated in service. 20 2. For the purpose of this section, the term "compensation" shall 21 include but not be limited to: all earnings of an employee for labor or 22 services rendered, regardless of whether the amount of earnings is paid 23 on an annual salary, hourly, biweekly or per diem basis; reimbursement EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01407-01-9

A. 1047 2 1 for expenses; health, welfare and retirement benefits; and vacation pay, 2 sick pay, separation or holiday pay, or any other form of remuneration. 3 3. (a) Where an employee believes he or she is being discriminated 4 against in terms of compensation in violation of this section, such 5 employee may bring an action in any court of competent jurisdiction to 6 recover the equitable and monetary relief described in paragraph (b) of 7 this subdivision. 8 (b) (1) In any action in which a court or jury finds that an employer 9 has engaged in acts in violation of this section, the court or jury 10 shall award to any affected employee or employees monetary relief, 11 including back pay in an amount equal to the difference between the 12 employee's actual earnings and what the employee would have earned but 13 for the employer's unlawful practices, including an appropriate increase 14 in retirement benefits, and an additional amount in compensatory and 15 punitive damages, as appropriate. 16 (2) In any action in which a court or jury finds that an employer has 17 engaged in acts in violation of this section, the court shall enjoin the 18 employer from continuing to discriminate against affected employees and 19 shall direct the employer to comply with the provisions of this article; 20 and may order the employer to take such additional affirmative steps as 21 are necessary to ensure an end to unlawful discrimination, including 22 reinstatement to the same or a comparable position for employees in the 23 unclassified service or employees classified as management/confidential 24 or labor; reinstatement with back pay; or reclassification of affected 25 workers. 26 (3) In any action in which an affected employee or employees prevail 27 in their claims against employers, the court may, in addition to any 28 judgement awarded to the plaintiffs, allow a reasonable attorney's fee, 29 reasonable expert witness fees, and other costs of the action to be paid 30 by the employer. 31 (c) An action to recover the damages or equitable relief prescribed in 32 paragraph (b) of this subdivision may be maintained against any employer 33 in any court of competent jurisdiction by any one or more employees or 34 their representative for or on behalf of: 35 (1) the employees; or 36 (2) the employees and other employees similarly situated. 37 4. (a) It shall not be a violation of this section for an employer to 38 pay different compensation to employees, where such payments are made 39 pursuant to: 40 (1) a bona fide seniority or merit system; 41 (2) a bona fide system that measures earnings by quantity or quality 42 of production; 43 (3) a bona fide system based on geographic differentials; or 44 (4) any other bona fide factor other than sex, race or national 45 origin, such as education, training, or experience. Such factor: (A) 46 shall not be based upon or derived from a sex, race, or national origin 47 based differential in compensation; and (B) shall be job-related with 48 respect to the position in question and shall be consistent with busi- 49 ness necessity. Such exception under this paragraph shall not apply when 50 the employee demonstrates (i) that an employer uses a particular employ- 51 ment practice that causes a disparate impact on the basis of sex, race, 52 or national origin, (ii) that an alternative employment practice exists 53 that would serve the same purpose and not produce such differential, and 54 (iii) that the employer has refused to adopt such alternative practice.

A. 1047 3 1 (b) For the purpose of paragraph (a) of this subdivision, "business 2 necessity" shall be defined as a factor that bears a manifest relation- 3 ship to the employment in question. 4 (c) Nothing set forth in this section shall be construed to impede, 5 infringe or diminish the rights and benefits which accrue to employees 6 through collective bargaining agreements, or otherwise diminish the 7 integrity of the existing collective bargaining relationship. 8 § 2. This act shall take effect immediately.