Bill Text: NY S01027 | 2023-2024 | General Assembly | Amended
Bill Title: Provides that an employee shall not be required to request reinstatement in order to file a discrimination claim regarding paid family medical leave benefits; permits a private right of action for certain violations as an alternative to a workers' compensation claim; provides for attorneys' fees and costs.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Engrossed) 2024-03-12 - referred to labor [S01027 Detail]
Download: New_York-2023-S01027-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1027--B 2023-2024 Regular Sessions IN SENATE January 9, 2023 ___________ Introduced by Sens. GOUNARDES, BROUK, FERNANDEZ, HOYLMAN-SIGAL, MYRIE, PARKER, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the workers' compensation law, in relation to paid fami- ly medical leave The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 120 of the workers' compensation law, as amended by 2 chapter 61 of the laws of 1989, the section heading as amended by 3 section 31 of part SS of chapter 54 of the laws of 2016, the opening 4 paragraph as amended by chapter 105 of the laws of 2019, is amended to 5 read as follows: 6 § 120. Discrimination against employees. 1. It shall be unlawful for 7 any employer or [his or her] their duly authorized agent to discharge or 8 fail to reinstate pursuant to section two hundred three-b of this chap- 9 ter, or in any other manner discriminate against an employee as to [his10or her] their employment because such employee has claimed or attempted 11 to claim compensation from such employer, requested a claim form for 12 injuries received in the course of employment, or claimed or attempted 13 to claim any benefits provided under this chapter or because [he or she] 14 such employee has testified or is about to testify in a proceeding under 15 this chapter and no other valid reason is shown to exist for such action 16 by the employer. 17 2. Any complaint alleging such an unlawful discriminatory practice 18 must be filed within two years of the commission of such practice. Upon 19 finding that an employer has violated this section, the board shall make 20 an order that any employee so discriminated against shall be restored to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03171-06-4S. 1027--B 2 1 employment or otherwise restored to the position or privileges [he or2she] they would have had but for the discrimination, if such rein- 3 statement is requested by such employee, and shall be compensated by 4 [his or her] their employer for any loss of compensation arising out of 5 such discrimination together with such fees or allowances for services 6 rendered by an attorney or licensed representative as fixed by the 7 board. Any employer who violates this section shall be liable to a 8 penalty of not less than one hundred dollars or more than five hundred 9 dollars, as may be determined by the board. All such penalties shall be 10 paid into the state treasury. All penalties, compensation and fees or 11 allowances shall be paid solely by the employer. The employer alone and 12 not [his or her] their carrier shall be liable for such penalties and 13 payments. Any provision in an insurance policy undertaking to relieve 14 the employer from liability for such penalties and payments shall be 15 void. 16 3. An employer found to be in violation of this section and the 17 aggrieved employee must report to the board as to the manner of the 18 employer's compliance within thirty days of receipt of a final determi- 19 nation. In case of failure to report on compliance, or failure to comply 20 with an order or penalty of the board within thirty days after the order 21 or notice of penalty is served, except where timely application to the 22 board for a modification, rescission, or review of such order or penalty 23 has been filed under section twenty-three of this chapter, the chair in 24 any such case or, on the chair's consent, any party may enforce the 25 order or penalty in a like manner as an award of compensation. 26 4. Pursuant with the provisions of section two hundred three-b of this 27 chapter, an employee shall not be required to request reinstatement to 28 such employee's former position of employment before filing a complaint 29 of unlawful discriminatory practice as described in this section. 30 5. As an alternative to filing a complaint with the board as herein 31 provided, an employee may bring an action against any covered employer, 32 as described in section two hundred two of this chapter, who violates 33 the provisions of this section or section two hundred three-b of this 34 chapter, by or on behalf of an employee, as that term is defined in 35 subdivision five of section two hundred one of this chapter, who has 36 claimed or attempted to claim paid family leave benefits. A plaintiff 37 who prevails on a claim alleging a violation of this section or of 38 section two hundred three-b of this chapter with regards to paid family 39 leave shall be entitled to compensatory, actual, and punitive damages, 40 injunctive relief, reasonable attorneys' fees and costs, and other such 41 remedies as a court may deem appropriate. 42 6. An employee with a pending claim before the board where a finding 43 has not yet been issued as of the effective date of this subdivision 44 shall be permitted to withdraw such claim and file the action described 45 in subdivision five of this section against a covered employer. 46 § 2. Section 203-b of the workers' compensation law, as added by 47 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 48 read as follows: 49 § 203-b. Reinstatement following family leave. Any eligible employee 50 of a covered employer who takes leave under this article shall be enti- 51 tled, on return from such leave, to be restored by the employer to the 52 position of employment held by the employee when the leave commenced, or 53 to be restored to a comparable position with comparable employment bene- 54 fits, pay and other terms and conditions of employment, provided, howev- 55 er, that such eligible employee shall not be required to request rein- 56 statement to any such position. The taking of family leave shall notS. 1027--B 3 1 result in the loss of any employment benefit accrued prior to the date 2 on which the leave commenced. Nothing in this section shall be construed 3 to entitle any restored employee to the accrual of any seniority or 4 employment benefits during any period of leave, or any right, benefit or 5 position to which the employee would have been entitled had the employee 6 not taken the leave. Furthermore, nothing in this section shall be 7 construed to require an employee to request reinstatement to their 8 former position of employment, or to a comparable position with compara- 9 ble employment benefits, pay, and other terms and conditions of employ- 10 ment, before initiating a complaint against a covered employer pursuant 11 to the provisions of section one hundred twenty of this chapter. 12 § 3. This act shall take effect immediately and shall apply to all 13 complaints and actions filed on or after such effective date; provided, 14 however, that the provisions of subdivision 6 of section 120 of the 15 workers' compensation law added by section one of this act shall apply 16 to claims pending before the workers' compensation board where a finding 17 has not yet been issued as of the effective date of this act.