STATE OF NEW YORK ________________________________________________________________________

1047--A Cal. No. 176

2019-2020 Regular Sessions

IN ASSEMBLY

January 14, 2019 ___________

Introduced by M. of A. SIMOTAS, COLTON, SEAWRIGHT, BLAKE, OTIS, ORTIZ, WALLACE, BRONSON, PERRY, CRUZ -- read once and referred to the Commit- tee on Governmental Employees -- reported and referred to the Commit- tee on Codes -- reported from committee, advanced to a third reading, amended and ordered reprinted, retaining its place on the order of third reading

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 15 status within a protected class is not considered either directly or 16 indirectly in determining the proper compensation for a title or in 17 determining the pay for any individual or group of employees, and to 18 provide regular increases in pay in proper proportion to increase of 19 ability, increase of output and increase of quality of work demonstrated 20 in service. 21 2. For the purpose of this section, the term:

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01407-02-9

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1 (a) "protected class" shall mean any group of individuals that are 2 protected against an unlawful discriminatory practice by an employer 3 pursuant to section two hundred ninety-six of the executive law. 4 (b) "compensation" shall include but not be limited to: all earnings 5 of an employee for labor or services rendered, regardless of whether the 6 amount of earnings is paid on an annual salary, hourly, biweekly or per 7 diem basis; reimbursement for expenses; health, welfare and retirement 8 benefits; and vacation pay, sick pay, separation or holiday pay, or any 9 other form of remuneration. 10 3. (a) Where an employee believes he or she is being discriminated 11 against in terms of compensation in violation of this section, such 12 employee may bring an action in any court of competent jurisdiction to 13 recover the equitable and monetary relief described in paragraph (b) of 14 this subdivision. 15 (b) (1) In any action in which a court or jury finds that an employer 16 has engaged in acts in violation of this section, the court or jury 17 shall award to any affected employee or employees monetary relief, 18 including back pay in an amount equal to the difference between the 19 employee's actual earnings and what the employee would have earned but 20 for the employer's unlawful practices, including an appropriate increase 21 in retirement benefits, and an additional amount in compensatory and 22 punitive damages, as appropriate. 23 (2) In any action in which a court or jury finds that an employer has 24 engaged in acts in violation of this section, the court shall enjoin the 25 employer from continuing to discriminate against affected employees and 26 shall direct the employer to comply with the provisions of this article; 27 and may order the employer to take such additional affirmative steps as 28 are necessary to ensure an end to unlawful discrimination, including 29 reinstatement to the same or a comparable position for employees in the 30 unclassified service or employees classified as management/confidential 31 or labor; reinstatement with back pay; or reclassification of affected 32 workers. 33 (3) In any action in which an affected employee or employees prevail 34 in their claims against employers, the court may, in addition to any 35 judgement awarded to the plaintiffs, allow a reasonable attorney's fee, 36 reasonable expert witness fees, and other costs of the action to be paid 37 by the employer. 38 (c) An action to recover the damages or equitable relief prescribed in 39 paragraph (b) of this subdivision may be maintained against any employer 40 in any court of competent jurisdiction by any one or more employees or 41 their representative for or on behalf of: 42 (1) the employees; or 43 (2) the employees and other employees similarly situated. 44 4. (a) It shall not be a violation of this section for an employer to 45 pay different compensation to employees, where such payments are made 46 pursuant to: 47 (1) a bona fide seniority or merit system; 48 (2) a bona fide system that measures earnings by quantity or quality 49 of production; 50 (3) a bona fide system based on geographic differentials; or 51 (4) any other bona fide factor other than status within a protected 52 class, such as education, training, or experience. Such factor: (A) 53 shall not be based upon or derived from a differential in compensation 54 based on status within a protected class; and (B) shall be job-related 55 with respect to the position in question and shall be consistent with 56 business necessity. Such exception under this paragraph shall not apply

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1 when the employee demonstrates (i) that an employer uses a particular 2 employment practice that causes a disparate impact on the basis of 3 status within a protected class, (ii) that an alternative employment 4 practice exists that would serve the same purpose and not produce such 5 differential, and (iii) that the employer has refused to adopt such 6 alternative practice. 7 (b) For the purpose of paragraph (a) of this subdivision, "business 8 necessity" shall be defined as a factor that bears a manifest relation- 9 ship to the employment in question. 10 (c) Nothing set forth in this section shall be construed to impede, 11 infringe or diminish the rights and benefits which accrue to employees 12 through collective bargaining agreements, or otherwise diminish the 13 integrity of the existing collective bargaining relationship. 14 § 2. This act shall take effect immediately.