Bill Text: NY A08348 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to retaliatory personnel actions by employers.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2012-01-04 - referred to labor [A08348 Detail]
Download: New_York-2011-A08348-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8348
2011-2012 Regular Sessions
I N A S S E M B L Y
June 14, 2011
___________
Introduced by M. of A. MENG -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to retaliatory personnel
actions by employers
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 three new sections 742,
2 743 and 744 to read as follows:
3 S 742. OTHER PROHIBITED ACTS. IT SHALL BE AN UNLAWFUL EMPLOYMENT PRAC-
4 TICE IN VIOLATION OF THIS ARTICLE FOR AN EMPLOYER TO DISCHARGE OR IN ANY
5 OTHER MANNER DISCRIMINATE AGAINST, COERCE, INTIMIDATE, THREATEN, OR
6 INTERFERE WITH ANY EMPLOYEE OR ANY OTHER PERSON BECAUSE THE EMPLOYEE
7 INQUIRED ABOUT, DISCLOSED, COMPARED, OR OTHERWISE DISCUSSED THE EMPLOY-
8 EE'S WAGES OR THE WAGES OF ANY OTHER EMPLOYEE, OR BECAUSE THE EMPLOYEE
9 EXERCISED, ENJOYED, AIDED, OR ENCOURAGED ANY OTHER PERSON TO EXERCISE OR
10 ENJOY ANY RIGHT GRANTED OR PROTECTED BY THIS ARTICLE.
11 S 743. REMEDIES AND ENFORCEMENT. (A) (1) IN ANY ACTION IN WHICH A
12 COURT OR JURY FINDS THAT AN EMPLOYER HAS ENGAGED IN ACTS IN VIOLATION OF
13 THIS ARTICLE, THE COURT OR JURY SHALL AWARD TO ANY AFFECTED EMPLOYEE OR
14 EMPLOYEES MONETARY RELIEF, INCLUDING BACK PAY IN AN AMOUNT EQUAL TO THE
15 DIFFERENCE BETWEEN THE EMPLOYEE'S ACTUAL EARNINGS AND WHAT THE EMPLOYEE
16 WOULD HAVE EARNED BUT FOR THE EMPLOYER'S UNLAWFUL PRACTICES, AND AN
17 ADDITIONAL AMOUNT IN COMPENSATORY AND PUNITIVE DAMAGES, AS APPROPRIATE.
18 (2) IN ANY ACTION IN WHICH A COURT OR JURY FINDS THAT AN EMPLOYER HAS
19 ENGAGED IN ACTS IN VIOLATION OF THIS ARTICLE, THE COURT SHALL ENJOIN THE
20 EMPLOYER FROM CONTINUING TO DISCRIMINATE AGAINST AFFECTED EMPLOYEES AND
21 SHALL DIRECT THE EMPLOYER TO COMPLY WITH THE PROVISIONS OF THIS ARTICLE;
22 AND MAY ORDER THE EMPLOYER TO TAKE SUCH ADDITIONAL AFFIRMATIVE STEPS AS
23 ARE NECESSARY, INCLUDING REINSTATEMENT OR RECLASSIFICATION OF AFFECTED
24 WORKERS, TO ENSURE AN END TO UNLAWFUL DISCRIMINATION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13053-01-1
A. 8348 2
1 (3) IN ANY ACTION IN WHICH AN AFFECTED EMPLOYEE OR EMPLOYEES PREVAIL
2 IN THEIR CLAIMS AGAINST EMPLOYERS, THE COURT SHALL, IN ADDITION TO ANY
3 JUDGMENT AWARDED TO THE PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE,
4 REASONABLE EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO BE PAID
5 BY THE EMPLOYER.
6 (B) (1) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF
7 PRESCRIBED IN SUBDIVISION (A) OF THIS SECTION MAY BE MAINTAINED AGAINST
8 ANY EMPLOYER IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
9 EMPLOYEES OR THEIR REPRESENTATIVE FOR OR ON BEHALF OF:
10 (A) THE EMPLOYEES; OR
11 (B) THE EMPLOYEES AND OTHER EMPLOYEES SIMILARLY SITUATED.
12 (2) (A) THE DEPARTMENT SHALL RECEIVE, INVESTIGATE, AND ATTEMPT TO
13 RESOLVE COMPLAINTS OF VIOLATIONS OF THIS ARTICLE.
14 (B) IN THE EVENT THE DEPARTMENT IS UNABLE TO REACH A VOLUNTARY RESOL-
15 UTION OF A COMPLAINT FILED UNDER THIS ARTICLE, THE DEPARTMENT MAY BRING
16 AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO RECOVER THE EQUITA-
17 BLE AND MONETARY RELIEF DESCRIBED IN SUBDIVISION (A) OF THIS SECTION.
18 (C) ANY SUMS RECOVERED BY THE DEPARTMENT PURSUANT TO THIS PARAGRAPH
19 SHALL BE PAID DIRECTLY TO EACH EMPLOYEE AFFECTED BY THE EMPLOYER'S
20 UNLAWFUL ACTS.
21 S 744. REGULATIONS. THE DEPARTMENT SHALL PRESCRIBE SUCH REGULATIONS AS
22 ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE NOT LATER THAN
23 ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
24 S 2. Paragraph (d) of subdivision 4 and subdivision 5 of section 740
25 of the labor law, paragraph (d) of subdivision 4 as added by chapter 24
26 of the laws of 2002 and subdivision 5 as added by chapter 660 of the
27 laws of 1984, are amended to read as follows:
28 (d) Notwithstanding the provisions of paragraphs (a) and (c) of this
29 subdivision, a health care employee who has been the subject of a retal-
30 iatory action by a health care employer in violation of section seven
31 hundred forty-one of this article may institute a civil action in a
32 court of competent jurisdiction for relief as set forth in [subdivision
33 five of this] section SEVEN HUNDRED FORTY-THREE OF THIS ARTICLE within
34 two years after the alleged retaliatory personnel action was taken. In
35 addition to the relief set forth in that subdivision, the court, in its
36 discretion, based upon a finding that the employer acted in bad faith in
37 the retaliatory action, may assess the employer a civil penalty of an
38 amount not to exceed ten thousand dollars, to be paid to the improving
39 quality of patient care fund, established pursuant to section ninety-
40 seven-aaaa of the state finance law.
41 [5. Relief. In any action brought pursuant to subdivision four of this
42 section, the court may order relief as follows:
43 (a) an injunction to restrain continued violation of this section;
44 (b) the reinstatement of the employee to the same position held before
45 the retaliatory personnel action, or to an equivalent position;
46 (c) the reinstatement of full fringe benefits and seniority rights;
47 (d) the compensation for lost wages, benefits and other remuneration;
48 and
49 (e) the payment by the employer of reasonable costs, disbursements,
50 and attorney's fees.]
51 S 3. Nothing in this act shall be interpreted or applied so as to
52 create any power or duty in conflict with federal law.
53 S 4. If any provision of this act or application thereof to any person
54 or circumstance is judged invalid, the invalidity shall not affect other
55 provisions or applications of the act, which can be given effect without
A. 8348 3
1 the invalid provision, or application, and to this end the provisions of
2 this act are declared severable.
3 S 5. This act shall take effect on the ninetieth day after it shall
4 have become a law; provided that the commissioner of labor shall promul-
5 gate rules and regulations necessary to effectuate the provisions of
6 this act prior to such effective date.
