Enacts the "New York State fair pay act"; provides that it shall be an unlawful employment practice for an employer to discriminate between employees on the basis of sex, race and/or national origin by paying different wages.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2712
SPONSOR: John (MS)
TITLE OF BILL: An act to amend the labor law, in relation to enacting
the "New York state fair pay act"
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill adds a new article, Article 21 to the labor law.
Article 21 is comprised of §750: short title
§ 751 is legislative findings and statement of purpose
§ 752 is the definitions section
§ 753 is a prohibition against discrimination in wages
§ 754 contains other prohibited acts
§ 755 contains references to wage disclosure, record keeping and report-
§ 756 is the remedies and enforcement section
§ 757 calls for regulations to implement this act.
Section two of the bill is the effective date.
Present law does not adequately address the issue of pay equity, and the
need for state enforcement of a prohibition on such inequities.
The bill has been amended to reflect comments from a broad coalition of
labor and women's groups. The amendments are:
section 752: equivalent jobs has been broadened
section 753: a new paragraph concerning methodology for determining
section 753: refers to a single job comparison system which does not
undervalue traditionally female or minority jobs
Pay equity has not been universally achieved in our state. Legislative
hearings have consistently received testimony from women performing work
equal to male counterparts but paid less for their labor.
PRIOR LEGISLATIVE HISTORY:
A.6832 of 2000: referred to labor
A.6691 of 2001-02: Passed Assembly
A.6701 of 2003-04: Passed Assembly
A.3627 of 2005-06: Passed Assembly
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
On the ninetieth day after it shall have become law.
STATE OF NEW YORK
2007-2008 Regular Sessions
January 18, 2007
Introduced by M. of A. JOHN, COLTON, GIANARIS, CAHILL, PERALTA --
Multi-Sponsored by -- M. of A. BING, BRADLEY, CUSICK, DelMONTE, DESTI-
TO, GUNTHER, JACOBS, KOON, LAFAYETTE, LAVELLE, LIFTON, MAGNARELLI,
RAMOS, WEINSTEIN -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to enacting the "New York
state fair pay act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new article 21 to read
2 as follows:
3 ARTICLE 21
4 NEW YORK STATE FAIR PAY ACT
5 Section 750. Short title.
6 751. Findings and statement of purpose.
7 752. Definitions.
8 753. Prohibition against discrimination in wages.
9 754. Other prohibited acts.
10 755. Wage disclosure, recordkeeping, and reporting requirements.
11 756. Remedies and enforcement.
12 757. Regulations.
13 § 750. Short title. This act shall be known and may be cited as the
14 "New York state fair pay act".
15 § 751. Findings and statement of purpose. (a) The legislature finds
16 the following:
17 (1) Despite federal and state laws banning discrimination in employ-
18 ment and pay, in both the private and public sector, wage differentials
19 persist between women and men and between minorities and non-minorities
20 in the same jobs and in jobs that are dissimilar but that require equiv-
21 alent composites of skill, effort, responsibility and working condi-
23 (2) The existence of such wage differentials--
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
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1 (A) depresses wages and living standards for employees necessary for
2 their health and efficiency;
3 (B) reduces family incomes and contributes to the higher poverty rates
4 among female-headed and minority households;
5 (C) prevents the maximum utilization of the available labor resources;
6 (D) tends to cause labor disputes, thereby burdening, affecting, and
7 obstructing commerce;
8 (E) constitutes an unfair method of competition; and
9 (F) violates the state's public policy against discrimination;
10 (3) Discrimination in wage-setting practices has played a role in
11 depressing wages for women and minorities generally;
12 (4) Many individuals work in occupations that are dominated by indi-
13 viduals of their same sex, race, and/or national origin, and discrimi-
14 nation in hiring, job assignment and promotion has played a role in
15 establishing and maintaining segregated work forces;
16 (5) Eliminating discrimination in compensation based on sex, race and
17 national origin would have positive effects, including--
18 (A) providing a solution to problems in the economy created by discri-
19 minatory wage differentials;
20 (B) reducing the number of working women and people of color earning
21 low wages, thereby lowering their incidence of poverty during normal
22 working years and in retirement; and
23 (C) promoting stable families by raising family incomes.
24 (b) It is the purpose of this article to correct and as rapidly as
25 practicable to eliminate discriminatory wage practices based on sex,
26 race and/or national origin.
27 § 752. Definitions. (a) The term "employ" shall mean to suffer or
28 permit to work.
29 (b) The term "employee" shall mean any person employed by an employer
30 and includes all of an employer's permanent employees, whether working
31 full-time or part-time, and any temporary employee employed by an
32 employer for a period of at least three months. "Employee" shall not
33 include any individual employed by his or her parents, spouse or child.
34 (c) The term "employer" shall mean any person who employs three or
35 more persons and includes the state and all political subdivisions ther-
37 (d) The term "equivalent jobs" means jobs or occupations that are
38 equal within the meaning of the Equal Pay Act of 1963, 29 U.S.C.
39 206(d), or jobs or occupations that are dissimilar but whose require-
40 ments are equivalent, when viewed as a composite of skills, effort,
41 responsibility and working conditions. Equivalency of skill, effort,
42 responsibility and working conditions shall be determined by utilizing
43 job comparison methodologies that do not ignore or undervalue the worth
44 of jobs where women and minorities are disproportionately represented.
45 (e) The term "person" shall mean one or more individuals, partner-
46 ships, associations, corporations, limited liability companies, legal
47 representatives, trustees, trustees in bankruptcy, receivers and the
48 state and all political subdivisions and agencies thereof.
49 (f) The term "labor organization" shall mean any organization that
50 exists for the purpose, in whole or part, of collective bargaining or of
51 dealing with employers concerning grievances, terms of conditions of
52 employment, or of other mutual aid or protection in connection with
54 (g) The term "market rates" shall mean the rates that employers within
55 a prescribed geographic area actually pay, or are reported to pay for
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1 specific jobs, as determined by formal or informal surveys, wage
2 studies, or other means.
3 (h) The term "wages" and wage "rates" shall include all compensation
4 in any form than an employer provides to employees in payment for work
5 done or services rendered, including but not limited to base pay, bonus-
6 es, commissions, awards, tips, or various forms of non-monetary compen-
7 sation if provided in lieu of or in addition to monetary compensation
8 and that have economic value to an employee.
9 § 753. Prohibition against discrimination in wages. (a) It shall be an
10 unlawful employment practice in violation of this article for an employ-
11 er to discriminate between employees on the basis of sex, race and/or
12 national origin by:
13 (1) paying wages to employees at a rate less than the rate paid to
14 employees of the opposite sex or of a different race or national origin
15 for work in equivalent jobs; and/or
16 (2) paying wages to employees in a job that is dominated by employees
17 of a particular sex, race or national origin at a rate less than the
18 rate at which such employer pays to employees in another job that is
19 dominated by employees of the opposite sex or of a different race or
20 national origin, for work on equivalent jobs.
21 (b) Notwithstanding the provisions of subdivision (a) of this section,
22 it shall not be an unlawful employment practice for an employer to pay
23 different wage rates to employees, where such payments are made pursuant
25 (1) a bona fide seniority or merit system;
26 (2) a system that measures earnings by quantity or quality of
27 production, or
28 (3) any bona fide factor other than sex, race, or national origin,
29 provided, however, that wage differentials based on varying market rates
30 for equivalent jobs or the differing economic benefits to the employer
31 of equivalent jobs shall not be considered differentials based on bona
32 fide factors other than sex, race or national origin.
33 (c) An employer who is paying wages in violation of this section shall
34 not, in order to comply with the provisions of this section, reduce the
35 wage of any employee.
36 (d) No labor organization or its agents representing employees of an
37 employer having employees subject to any provision of this chapter shall
38 cause or attempt to cause such an employer to discriminate against an
39 employee in violation of subdivision (a) of this section.
40 (e) (1) The department shall promulgate regulations specifying the
41 criteria for determining whether a job is dominated by employees of a
42 particular sex, race, or national origin. Criteria shall include, but
43 not be limited to, factors such as whether the job has ever been formal-
44 ly classified as or traditionally considered to be a "male" or "female"
45 or "white" or "minority" job; whether there is a history of discrimi-
46 nation against women and/or people of color with regard to wages,
47 assignment or access to jobs, or other terms and conditions of employ-
48 ment; and the demographic composition of the work force in equivalent
49 jobs e.g., numbers or percentages of women, men, white persons and
50 people of color. The regulations shall not include a list of jobs.
51 (2) The department shall promulgate regulations specifying the method-
52 ology for determining equivalent skill, effort, responsibility and work-
53 ing conditions. Any methodology prescribed by the department shall
54 ensure that comparison systems do not ignore or undervalue the worth of
55 jobs where women and minorities are disproportionately represented.
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1 (3) The equivalence of jobs dominated by employees of a particular
2 sex, race or national origin relative to jobs dominated by employees of
3 the opposite sex or of a different race or origin will be established
4 through the application of a single job comparison system that does not
5 systematically ignore or undervalue the job content of traditionally
6 female and minority jobs.
7 § 754. Other prohibited acts. (a) It shall be an unlawful employment
8 practice in violation of this article for an employer:
9 (1) to take adverse actions or otherwise discriminate against any
10 individual because such individual has opposed any act or practice made
11 unlawful by this article, has sought to enforce rights protected under
12 this article, or has testified, assisted, or participated in any manner
13 in an investigation, hearing, or other proceeding to enforce this arti-
14 cle; or
15 (2) to discharge or in any other manner discriminate against, coerce,
16 intimidate, threaten, or interfere with any employee or any other person
17 because the employee inquired about, disclosed, compared, or otherwise
18 discussed the employee's wages or the wages of any other employee, or
19 because the employee exercised, enjoyed, aided, or encouraged any other
20 person to exercise or enjoy any right granted or protected by this arti-
22 § 755. Wage disclosure, recordkeeping, and reporting requirements. (a)
23 Upon commencement of an individual's employment and at least annually
24 thereafter, every employer subject to this article shall provide to each
25 employee a written statement sufficient to inform the employee of his or
26 her job title, wage rate, and how the wage is calculated. This notice
27 shall be supplemented whenever an employee is promoted or reassigned to
28 a different position with the employer, provided, however, that the
29 employer is not required to issue supplemental notifications for tempo-
30 rary reassignments that are no greater than three months in duration.
31 (b) Every employer subject to this article shall make and preserve
32 records that document the wages paid to employees and that document and
33 support the method, system, calculations, and other bases used to estab-
34 lish, adjust, and determine the wage rates paid to said employer's
35 employees. Every employer subject to this article shall preserve such
36 records for such periods of time and shall make such reports from the
37 records as shall be prescribed by regulation of the department.
38 (c) The regulations promulgated under this article, relating to the
39 form of reports required by subdivision (b) of this section, shall
40 provide for protection of the confidentiality of employees, and shall
41 expressly require that reports shall not include the names or other
42 identifying information from which readers could discern the identities
43 of employees. The regulations may also identify circumstances that
44 warrant a prohibition on disclosure of reports or information identify-
45 ing the employer.
46 (d) The department may use the information and data it collects pursu-
47 ant to subdivision (b) of this section for statistical and research
48 purposes, and may compile and publish such studies, analyses, reports,
49 and surveys based on the information and data, as it may consider appro-
51 § 756. Remedies and enforcement. (a) (1) In any action in which a
52 court or jury finds that an employer has engaged in acts in violation of
53 this article, the court or jury shall award to any affected employee or
54 employees monetary relief, including back pay in an amount equal to the
55 difference between the employee's actual earnings and what the employee
A. 2712 5
1 would have earned but for the employer's unlawful practices, and an
2 additional amount in compensatory and punitive damages, as appropriate.
3 (2) In any action in which a court or jury finds that an employer has
4 engaged in acts in violation of this article, the court shall enjoin the
5 employer from continuing to discriminate against affected employees and
6 shall direct the employer to comply with the provisions of this article;
7 and may order the employer to take such additional affirmative steps as
8 are necessary, including reinstatement or reclassification of affected
9 workers, to ensure an end to unlawful discrimination.
10 (3) In any action in which an affected employee or employees prevail
11 in their claims against employers, the court shall, in addition to any
12 judgment awarded to the plaintiffs, allow a reasonable attorney's fee,
13 reasonable expert witness fees, and other costs of the action to be paid
14 by the employer.
15 (b) (1) An action to recover the damages or equitable relief
16 prescribed in subdivision (a) of this section may be maintained against
17 any employer in any court of competent jurisdiction by any one or more
18 employees or their representative for or on behalf of:
19 (A) the employees; or
20 (B) the employees and other employees similarly situated.
21 (2) (A) The department shall receive, investigate, and attempt to
22 resolve complaints of violations of this article.
23 (B) In the event the department is unable to reach a voluntary resol-
24 ution of a complaint filed under this article, the department may bring
25 an action in any court of competent jurisdiction to recover the equita-
26 ble and monetary relief described in subdivision (a) of this section.
27 (C) Any sums recovered by the department pursuant to this paragraph
28 shall be paid directly to each employee affected by the employer's
29 unlawful acts.
30 § 757. Regulations. The department shall prescribe such regulations as
31 are necessary to carry out the provisions of this article not later than
32 one hundred twenty days after the effective date of this article.
33 § 2. This act shall take effect on the ninetieth day after it shall
34 have become a law; provided that the commissioner of labor shall promul-
35 gate rules and regulations necessary to effectuate the provisions of
36 this act prior to such effective date.