State Sen. George Borrello, R-Sunset Bay, debates a change to the state’s paid family leave program that will affect businesses but not those employed by the state.

State Sen. George Borrello was glad to vote last June in favor of legislation that bars racial discrimination in administration of the state’s paid family leave laws.

His vote changed this week.

Borrello’s views on discrimination haven’t changed – the proposal from state Sen. Andrew Gounardes, D-Brooklyn, changed.

“We voted on this bill previously and it passed unanimously,” Borrello said. “However this particular version changes very fundamentally adding a private right of action. That to me is a game-changer in this piece of legislation. I believe employees should have the right to address this. It’s really difficult now to add this because it’s going to add costs. It’s going to add to the cost of doing business here in New York which is already a costly place to do business.”

S.1027B amends Section 120 of the state Workers Compensation Law to eliminate a requirement that an employee has to request reinstatement to their job before filing a complaint of unlawful discrimination and bars discriminatory conduct towards an employee by an employer for claiming or attempting to claim paid family leave. It also allows workers to sue private businesses if they violate the law.

“But I also want to point out that this rule does not apply to public employees,” Borrello said. “We do this a lot in this chamber. We say, ‘Here’s what you should do if you’re an employer. Here’s how you should treat your employees.’ But we always exempt the government from that, which I think is problematic and we’re doing that again here. This bill will not apply to public employees. But it will provide a private right of action to private sector employees. For that reason I will be voting no.”

No one else spoke on the Senate floor in defense of the bill. Gounardes wrote in his legislative justification that the section of the Paid Family Leave Act that deals with discrimination is too weak. Under Workers Compensation

Law Section 120, an employer is not allowed to discriminate against an employee who has requested or used paid family leave. Under Workers Compensation Law Section 203-b, employers are required to reinstate employees coming off of paid family leave to their former position or a comparable one with similar pay and benefits. If an employee feels they have been wronged as they come back from paid family leave they can file a request for reinstatement on “Form PFL-DC-119,” and wait 30 days for a response. Gounardes wrote that if an 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.

Many attorneys, Gounardes wrote, won’t handle family leave related retaliation claims because there isn’t a formal remedy outside of the worker’s compensation system. He also said requiring workers to come back to work before they can file a discrimination complaint means many workers are subject to insults, jokes at the job site, harsher feedback, removal from projects that the employee was working on before taking leave and other acts Gounardes termed discrimination or retaliation.

“The legislature very clearly intended to bar paid family leave 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 their decision to leave) and then are somehow willing and able to ask for it back,” Gounardes wrote. “This bill rectifies both of the above problems by creating a private right of action, separate and apart from the Workers Compensation Board 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.”