Bill Text: NY A00438 | 2009-2010 | General Assembly | Amended
Bill Title: Relates to the entitlement to unpaid leave of absence for victims of domestic violence; permits victims of domestic violence to take an unpaid leave of absence for ninety days from employment to address on-going domestic violence; defines "address on-going domestic violence"; contains provision to protect the individual's job position and benefits.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Engrossed - Dead) 2010-02-08 - enacting clause stricken [A00438 Detail]
Download: New_York-2009-A00438-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
438--B
Cal. No. 296
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. JOHN, COLTON, PAULIN, N. RIVERA -- Multi-Spon-
sored by -- M. of A. HEASTIE, PEOPLES, PHEFFER -- read once and
referred to the Committee on Labor -- reported and referred to the
Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- 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 labor law, in relation to the entitlement to unpaid
leave of absence from employment for victims of domestic violence
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 19-C to
2 read as follows:
3 ARTICLE 19-C
4 UNPAID LEAVE OF ABSENCE FOR
5 VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE
6 SECTION 695. DEFINITIONS.
7 695-A. ENTITLEMENT TO LEAVE.
8 695-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE.
9 695-C. NOTICE OF INTENTION TO TAKE LEAVE.
10 695-D. CERTIFICATION.
11 695-E. CONFIDENTIALITY.
12 695-F. RESTORATION TO POSITION.
13 695-G. PROHIBITED ACTS.
14 695-H. CIVIL ACTION.
15 695-I. SAVINGS CLAUSE.
16 S 695. DEFINITIONS. AS USED IN THIS ARTICLE:
17 1. "VICTIM OF DOMESTIC OR SEXUAL ABUSE" SHALL MEAN A VICTIM OF DOMES-
18 TIC VIOLENCE, A SEX OFFENSE, OR STALKING.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02630-03-9
A. 438--B 2
1 2. "VICTIM OF DOMESTIC VIOLENCE" SHALL MEAN AN INDIVIDUAL WHO IS A
2 VICTIM OF AN ACT WHICH WOULD CONSTITUTE A FAMILY OFFENSE PURSUANT TO
3 SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT.
4 3. "VICTIM OF A SEX OFFENSE" SHALL MEAN A VICTIM OF AN ACT OR ACTS
5 THAT WOULD CONSTITUTE A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE
6 PENAL LAW.
7 4. "VICTIM OF STALKING" SHALL MEAN A VICTIM OF AN ACT OR ACTS THAT
8 WOULD CONSTITUTE A VIOLATION OF SECTION 120.45, 120.50, 120.55 OR 120.60
9 OF THE PENAL LAW.
10 S 695-A. ENTITLEMENT TO LEAVE. ANY EMPLOYEE WHO IS A VICTIM OF DOMES-
11 TIC OR SEXUAL VIOLENCE SHALL BE ELIGIBLE FOR NINETY DAYS OF UNPAID LEAVE
12 FROM THEIR EMPLOYMENT DURING ANY TWELVE MONTH PERIOD IN ORDER TO ADDRESS
13 DOMESTIC OR SEXUAL VIOLENCE OR ONGOING EFFECTS OF SUCH DOMESTIC OR SEXU-
14 AL VIOLENCE, INCLUDING BUT NOT LIMITED TO:
15 1. SEEKING MEDICAL ATTENTION FOR, OR RECOVERING OR TAKING CARE OF THE
16 VICTIM'S CHILD WHILE THE CHILD RECOVERS FROM, ANY PHYSICAL OR PSYCHOLOG-
17 ICAL INJURIES CAUSED BY THE DOMESTIC OR SEXUAL VIOLENCE; OR
18 2. ATTENDING COUNSELING SESSIONS FOR THE VICTIM OF DOMESTIC OR SEXUAL
19 VIOLENCE OR FOR SUCH VICTIM'S CHILD IN ORDER TO DEAL WITH THE EFFECTS OF
20 THE DOMESTIC OR SEXUAL VIOLENCE; OR
21 3. SEEKING LEGAL ASSISTANCE INCLUDING ATTENDING COURT PROCEEDINGS OR
22 MEETING OR COMMUNICATING WITH AN ATTORNEY OR A MEMBER OF LAW ENFORCE-
23 MENT; OR
24 4. SEEKING SERVICES FOR THE VICTIM OF DOMESTIC OR SEXUAL VIOLENCE OR
25 FOR SUCH VICTIM'S CHILD FROM A RESIDENTIAL OR NON-RESIDENTIAL PROGRAM
26 FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE; OR
27 5. ENGAGING IN SAFETY PLANNING, INCLUDING ARRANGING TO RELOCATE AND
28 RELOCATING TO A TEMPORARY OR PERMANENT NEW RESIDENCE, IN ORDER TO
29 DECREASE THE RISK OF FUTURE DOMESTIC OR SEXUAL VIOLENCE.
30 S 695-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE. THE
31 LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE MAY
32 BE TAKEN ON A REDUCED LEAVE SCHEDULE OR INTERMITTENTLY IF THE EMPLOYEE
33 AND EMPLOYER AGREE ON THE SCHEDULE. TAKING LEAVE ON A REDUCED LEAVE OR
34 INTERMITTENT SCHEDULE SHALL NOT RESULT IN A REDUCTION IN THE AMOUNT OF
35 TOTAL LEAVE A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE IS ENTITLED TO IN
36 THE TWELVE MONTH PERIOD.
37 S 695-C. NOTICE OF INTENTION TO TAKE LEAVE. AN EMPLOYEE SHALL PROVIDE
38 AN EMPLOYER WITH REASONABLE NOTICE OF THE EMPLOYEE'S INTENTION TO TAKE
39 LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE
40 UNLESS PROVIDING SUCH NOTICE IS NOT PRACTICABLE. WHEN AN UNSCHEDULED
41 ABSENCE OCCURS, THE EMPLOYER MAY NOT TAKE ANY ACTION AGAINST THE EMPLOY-
42 EE IF THE EMPLOYEE, WITHIN A REASONABLE PERIOD OF TIME AFTER THE
43 ABSENCE, PROVIDES CERTIFICATION AS SET FORTH IN SECTION SIX HUNDRED
44 NINETY-FIVE-D OF THIS ARTICLE.
45 S 695-D. CERTIFICATION. IN ORDER TO DETERMINE WHETHER THE EMPLOYEE IS
46 A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE, THE EMPLOYER MAY REQUIRE THAT
47 THE REQUEST FOR LEAVE BE SUPPORTED BY ONE OF THE FOLLOWING:
48 1. A SWORN STATEMENT SUBMITTED BY THE VICTIM OF DOMESTIC OR SEXUAL
49 VIOLENCE DESCRIBING SUCH VICTIM'S NEED FOR LEAVE TO ADDRESS THE ONGOING
50 EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE; OR
51 2. ANY DOCUMENTATION OF THE DOMESTIC OR SEXUAL VIOLENCE, INCLUDING
52 POLICE REPORTS, COURT RECORDS, STATEMENTS FROM A SHELTER WORKER, LAW
53 ENFORCEMENT OFFICER, MEDICAL WORKER, COUNSELOR, CLERGY MEMBER, ATTORNEY
54 OR ANY OTHER PROFESSIONAL FROM WHOM THE EMPLOYEE HAS SOUGHT ASSISTANCE
55 TO ADDRESS THE DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS; OR
A. 438--B 3
1 3. ANY OTHER CORROBORATING EVIDENCE INCLUDING PHYSICAL EVIDENCE,
2 PHOTOGRAPHS, OR STATEMENTS FROM OTHER INDIVIDUALS WHO ARE AWARE OF THE
3 DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS.
4 S 695-E. CONFIDENTIALITY. ANY INFORMATION PROVIDED TO THE EMPLOYER,
5 INCLUDING BUT NOT LIMITED TO INFORMATION UNDER SECTION SIX HUNDRED NINE-
6 TY-FIVE-D OF THIS ARTICLE, DESCRIBING THE DOMESTIC OR SEXUAL VIOLENCE IN
7 THE EMPLOYEE'S LIFE AND THE REQUEST TO TAKE A LEAVE TO ADDRESS THE
8 EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE, SHALL BE KEPT CONFIDENTIAL BY
9 THE EMPLOYER. DISCLOSURE SHALL ONLY BE ALLOWED IF THE EMPLOYEE, IN
10 WRITING, CONSENTS TO OR REQUESTS DISCLOSURE.
11 S 695-F. RESTORATION TO POSITION. 1. ANY EMPLOYEE WHO TAKES LEAVE
12 UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE, SHALL BE ENTI-
13 TLED TO RETURN FROM SUCH LEAVE AND BE RESTORED TO THE SAME POSITION HELD
14 BY SUCH EMPLOYEE WHEN THE LEAVE BEGAN OR BE RESTORED TO AN EQUIVALENT
15 POSITION WITH EQUIVALENT BENEFITS, PAY AND OTHER TERMS AND CONDITIONS OF
16 EMPLOYMENT.
17 2. THE TAKING OF LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS
18 ARTICLE SHALL NOT RESULT IN THE LOSS OF ANY EMPLOYMENT BENEFITS ACCRUED
19 PRIOR TO THE DATE ON WHICH THE LEAVE BEGAN.
20 3. (A) EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, ANY
21 EMPLOYEE WHO TAKES LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS
22 ARTICLE SHALL BE ENTITLED TO CONTINUED COVERAGE UNDER ANY HEALTH CARE
23 BENEFITS PLAN PROVIDED BY SUCH PERSON'S EMPLOYER FOR THE DURATION OF THE
24 LEAVE.
25 (B) THE EMPLOYER MAY RECOVER THE PREMIUM THAT THE EMPLOYER PAID FOR
26 MAINTAINING COVERAGE UNDER A HEALTH BENEFITS PLAN FOR THE EMPLOYEE ENTI-
27 TLED TO LEAVE UNDER SECTION SIX HUNDRED NINETY-FIVE-A OF THIS ARTICLE,
28 IF:
29 (I) THE EMPLOYEE FAILS TO RETURN TO SUCH PERSON'S EMPLOYMENT ONCE THE
30 LEAVE HAS EXPIRED; AND
31 (II) THE EMPLOYEE FAILS TO RETURN TO WORK FOR A REASON OTHER THAN:
32 (A) THE CONTINUATION, RECURRENCE, OR ONSET OF DOMESTIC OR SEXUAL
33 VIOLENCE THAT ENTITLES THE EMPLOYEE TO LEAVE PURSUANT TO THIS SECTION;
34 OR
35 (B) OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE.
36 S 695-G. PROHIBITED ACTS. 1. INTERFERENCE WITH RIGHTS.
37 (A) EXERCISE OF RIGHTS. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO
38 INTERFERE WITH, RESTRAIN, OR DENY THE EXERCISE OF OR THE ATTEMPT TO
39 EXERCISE ANY RIGHT PROVIDED UNDER THIS ARTICLE.
40 (B) EMPLOYER DISCRIMINATION. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO
41 DISCHARGE OR HARASS ANY INDIVIDUAL, OR OTHERWISE DISCRIMINATE AGAINST
42 ANY INDIVIDUAL WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIV-
43 ILEGES OF EMPLOYMENT OF THE INDIVIDUAL (INCLUDING RETALIATION IN ANY
44 FORM OR MANNER) BECAUSE THE INDIVIDUAL EXERCISED ANY RIGHT PROVIDED
45 UNDER THIS ARTICLE OR OPPOSED ANY PRACTICE MADE UNLAWFUL BY THIS ARTI-
46 CLE.
47 2. INTERFERENCE WITH PROCEEDINGS OR INQUIRIES. IT SHALL BE UNLAWFUL
48 FOR ANY PERSON TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE (AS
49 DESCRIBED IN PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION) AGAINST
50 ANY INDIVIDUAL BECAUSE SUCH INDIVIDUAL:
51 (A) HAS FILED ANY CHARGE, OR HAS INSTITUTED OR CAUSED TO BE INSTITUTED
52 ANY PROCEEDING, UNDER OR RELATED TO THIS ARTICLE;
53 (B) HAS GIVEN, OR IS ABOUT TO GIVE, ANY INFORMATION IN CONNECTION WITH
54 ANY INQUIRY OR PROCEEDING RELATING TO ANY RIGHT PROVIDED UNDER THIS
55 ARTICLE; OR
A. 438--B 4
1 (C) HAS TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY INQUIRY OR PROCEED-
2 ING RELATING TO ANY RIGHT PROVIDED UNDER THIS ARTICLE.
3 S 695-H. CIVIL ACTION. 1. BY EMPLOYEE. ANY PERSON DENIED LEAVE OR
4 BENEFITS DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL
5 BY THIS ARTICLE SHALL HAVE A CAUSE OF ACTION IN ANY COURT OF APPROPRIATE
6 JURISDICTION FOR DAMAGES, INCLUDING ANY WAGES, SALARY, EMPLOYMENT BENE-
7 FITS OR OTHER COMPENSATION DENIED OR LOST TO SUCH INDIVIDUAL BY REASONS
8 OF THE VIOLATION AND/OR ANY ACTUAL MONETARY LOSSES SUSTAINED BY THE
9 INDIVIDUAL AS A DIRECT RESULT OF THE VIOLATION, AS WELL AS INTEREST ON
10 SUCH AMOUNT CALCULATED AT THE PREVAILING RATE, AND SUCH EQUITABLE RELIEF
11 AS MAY BE APPROPRIATE, INCLUDING EMPLOYMENT, REINSTATEMENT, AND
12 PROMOTION, TOGETHER WITH COSTS AND SUCH REASONABLE ATTORNEYS' FEES AS
13 MAY BE ALLOWED BY THE COURT, AND IF THE VIOLATION WAS WILLFUL, AN ADDI-
14 TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
15 TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
16 2. BY COMMISSIONER. ON BEHALF OF ANY EMPLOYEE DENIED LEAVE OR BENEFITS
17 DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL BY THIS
18 ARTICLE, THE INDUSTRIAL COMMISSIONER MAY BRING A LEGAL ACTION NECESSARY
19 TO COLLECT DAMAGES DUE TO THE VIOLATION, AND THE EMPLOYER SHALL BE
20 REQUIRED TO PAY SUCH DAMAGES AND IF SUCH VIOLATION WAS WILLFUL, AN ADDI-
21 TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE
22 TOTAL OF SUCH DAMAGES FOUND TO BE DUE.
23 3. LIMITATION OF TIME. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN
24 ACTION TO RECOVER UPON LIABILITY IMPOSED BY THIS ARTICLE MUST BE
25 COMMENCED WITHIN TWO YEARS.
26 S 695-I. SAVINGS CLAUSE. IF ANY PROVISION OF THIS ARTICLE OR THE
27 APPLICATION THEREOF TO ANY PERSON, EMPLOYER, OCCUPATION OR CIRCUMSTANCE
28 IS HELD INVALID, THE REMAINDER OF THE ARTICLE AND THE APPLICATION OF
29 SUCH PROVISION TO OTHER PERSONS, EMPLOYEES, OCCUPATIONS, OR CIRCUM-
30 STANCES SHALL NOT BE AFFECTED THEREBY.
31 S 2. This act shall take effect on the ninetieth day after it shall
32 have become a law.
