BILL NUMBER: S2499
SPONSOR: GOUNARDES
 
TITLE OF BILL:
An act to amend the workers' compensation law, in relation to paid fami-
ly medical leave
 
PURPOSE OR GENERAL IDEA OF BILL:
To provide justice for employees discriminated against for utilizing or
requesting to utilize New York's paid family leave program and eliminate
the requirement that an employee request reinstatement before filing a
complaint of discrimination.
 
SUMMARY OF PROVISIONS:
Section one amends section 120 of the Workers Compensation Law (WCL) to
provide that an employee shall not be required to request reinstatement
to their job before filing a complaint of unlawful discrimination. This
section of Workers Compensation Law bars discriminatory conduct towards
an employee by an employer for claiming or attempting to claim paid
family leave.
Section one also provides that, as an alternative to filing a complaint
with the Workers Compensation Board (WCB), an aggrieved employee unlaw-
fully discriminated against for requesting or using paid family leave
may bring a private right of action against an employer and be eligible
for compensatory, actual, and punitive damages, attorneys fees, injunc-
tive relief, and other remedies a court may deem appropriate. Employees
with pending WCB complaints at the time of the bill's passage may with-
draw such complaints and file in civil court instead.
Section two amends section 203-b of Workers Compensation Law to reiter-
ate again that an employee shall not be required to request rein-
statement to their former position before initiating a complaint of
illegal discrimination under WCL § 120.
Section four sets the effective date.
 
JUSTIFICATION:
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
pursuing corrective action through WCB or a civil court.
This bill provides two commonsense reforms to PFL. A worker treated
unfairly for using or attempting to use paid family leave should be
afforded the opportunity to pursue their claim without the need to
request reinstatement to a position they may no longer have any desire
to return to or may never have left in the first place.
Secondly, the worker should be granted full access to our state's civil
court system, able to pursue claims of retaliation in the context of PFL
the same as they can for many other types of illegal discrimination in
our state's labor laws.
 
PRIOR LEGISLATIVE HISTORY:
2024: S1027B - Passed Senate, died in Assembly
2023: S1027A - Passed Senate, died in Assembly
 
FISCAL IMPLICATIONS:
None
 
EFFECTIVE DATE:
This act shall take effect immediately and apply to all complaints and
actions filed on or after the effective date.