Relates to employment discrimination relating to family leave

• Democratic6

◆ The sponsor's argument

Why Andrew Gounardes says this is needed

New York's landmark paid family leave (PFL) law, first enacted in the FY2017 budget (Ch. 54 of 2016, Part SS) pays 67% of an employee's Aver- age Weekly Wage (AWW), which is the average wage of the last eight weeks prior to taking leave, for up to 12 weeks. Employees can take PFL so long as they have worked at least 26 weeks or 175 days, depending on if they are full- or part-time, and have a "qualifying event," defined as the birth or adoption of a child, the placement of a child in foster care, needing to care for a child because of a physical or mental disa- bility, needing to care for a close relative because of a serious health condition, or assisting a loved one when a family member is deployed on active military service. The vast majority of private sector employees in New York State are automatically provided PFL. New York's paid family leave also provides important safeguards against retaliation for employees wishing to use it. Under Workers Compensation Law § 120, an employer is not allowed to discriminate against an employ- ee who has requested or used PFL. Under Workers Compensation Law § 203-b, employers are required to reinstate employees coming off of PFL to their former position or a comparable position with similar pay and benefits. Employees experiencing mistreatment under these provisions of Workers Compensation Law can file a request for reinstatement on "Form PFL-DC-119," and wait 30 days for a response. If the employee receives no response or is dissatisfied with the response, they can then file a second form "Form PFL-DC-120" alleging discrimination/retaliation and wait 45 days for a hearing before a Workers Compensation Law Judge. The employee may be entitled to reinstatement, back wages, and attorneys' fees if they prevail. The employer can be liable for up to $500 in penalties (see: https://paidfamilyleave.ny.gov/protections). The lack of any formal remedy for violations of WCL § 120 and § 203-b outside of the backlogged workers' compensation system means that many attorneys can't or won't handle claims of PFL-related retaliation, deny- ing aggrieved workers the recourse they enjoy for any other type of disparate treatment claim such as workplace discrimination based on protected class characteristics under the New York State Human Rights Law. Additionally, the illogical administrative requirement, laid out in 12 CRR-NY 380-8.2, that an employee must request their job back before filing a complaint of discrimination, belies the reality that many employees are unable or unwilling to return to their former jobs by the time they resort to filing a complaint. Furthermore, many real-life forms of PFL-related discrimination, such as insults and jokes at the jobsite, harsher feedback, requests to attend meetings in person that can easily be done virtually, removal from high-level projects on which the employee was previously working, or sabotaging of breastmilk pumping at the worksite, can all occur while someone is still actively employed - and so the requirement to request reinstatement before filing a complaint is a paradox, as the employee has not left their job and so there is nothing to be reinstated to. Furthermore, WCL § 120 prohibits discrimination for requests to merely use PFL, which would also occur while someone is still at the job site. The legislature very clearly intended to bar PFL discrimination in all of its forms when it first drafted these provisions in 2016 - yet in practice they provide justice only for those who have both actually left their jobs (where in all likelihood the retaliation they faced was a major factor in the employ- ee's decision to leave) and then are somehow willing and able to ask for it back. This bill rectifies both of the above problems by creating a private right of action, separate and apart from the Workers Compensation Board (WCB), for violations of WCL § 120 and § 203-b. It also clarifies that an employee should not be required to request reinstatement before

This is the sponsor's own case for the bill, quoted from their memorandum. It is not Agora's description of what the bill does.