senate Bill S4438A

Prohibits state contracts with vendors that forbid employees from litigating discrimination or harassment claims

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 01 / Apr / 2013
    • REFERRED TO FINANCE
  • 08 / Jan / 2014
    • REFERRED TO FINANCE
  • 13 / May / 2014
    • 1ST REPORT CAL.727
  • 14 / May / 2014
    • 2ND REPORT CAL.
  • 19 / May / 2014
    • ADVANCED TO THIRD READING
  • 16 / Jun / 2014
    • AMENDED ON THIRD READING (T) 4438A
  • 20 / Jun / 2014
    • COMMITTED TO RULES

Summary

Prohibits state contracts with vendors that forbid employees from litigating discrimination or harassment claims except in the case of an emergency arising from certain unforeseen causes.

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Bill Details

See Assembly Version of this Bill:
A4791A
Versions:
S4438
S4438A
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
Law Section:
State Finance Law
Laws Affected:
Amd ยง165, St Fin L
Versions Introduced in 2011-2012 Legislative Cycle:
A7001A, S5802, A7001A

Sponsor Memo

BILL NUMBER:S4438A

TITLE OF BILL: An act to amend the state finance law, in relation to
arbitration provisions in state contracts

PURPOSE: To withhold contracts from vendors which prohibit their
employees from bringing discrimination or harassment claims through
the court system.

SUMMARY OF PROVISIONS: Amends the State Finance Law by adding a new
subdivision 9 to section 165 which prohibits agencies from entering
into a contract with any vendor which mandates that an employee or
independent contractor performing work under the contract or
subcontract resolve through private arbitration any claim under title
VII of the Civil Rights Act of 1964 or the NYS Human Rights Act. The
subdivision also allows an agency to waive this requirement but the
reasons for the waiver are public documents.

JUSTIFICATION: Currently, most large employers have binding
arbitration clauses that an employee must sign to get or even keep
their job. These clauses require they bring any claim to arbitration,
with the arbitrator's decision being binding. The decision to
participate in this is made before an issue arise, employees are
waiving their rights before they even know what their rights are.

These clauses are written by the employer to favor them in disputes
with their own employees. Now, over twenty percent of all employees
are subject to employer imposed forced arbitration. Most of these are
written by the Company lawyers with no negotiation on the terms and
employees have no choice but to sign them or compromise their job.

A cornerstone of enforcement of employment and labor laws is the an
employee right to the have their claim heard in a court of law. These
rights include requiring employers to pay overtime to employees
working more than 40 hours in a week; protecting against
discrimination and harassment on the basis of race, color, national
origin, sex, religion, age, and disability; and guaranteeing jobs
after military or reserve service or family and medical leave. The
system of due process created by our courts consist of an impartial
judge, provided by the government, who vows to follow the law and give
reasoned opinions; a jury of one's peers; uniform, established
procedures governing the case; open, public proceedings; recorded
decisions that have precedential value; and the availability of
appeals from adverse rulings.

LEGISLATIVE HISTORY: 2011-12:S. 5802 Finance/A. 7001-A Passed
Assembly

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately and shall apply
to all contracts signed and executed on or after such effective date.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4438--A
    Cal. No. 727

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 1, 2013
                               ___________

Introduced  by  Sen.  MARCELLINO  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Finance --  recommit-
  ted to the Committee on Finance in accordance with Senate Rule 6, sec.
  8  --  reported  favorably  from  said committee, ordered to first and
  second report,  ordered  to  a  third  reading,  amended  and  ordered
  reprinted, retaining its place in the order of third reading

AN  ACT  to  amend  the  state  finance  law, in relation to arbitration
  provisions in state contracts

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 165 of the state finance law is amended by adding a
new subdivision 9 to read as follows:
  9.  ARBITRATION  PROVISION.  A.  FOR  THE PURPOSES OF THIS SUBDIVISION
"ARBITRATION PROVISIONS" SHALL MEAN ANY REQUIREMENT THAT AN EMPLOYEE  OR
INDEPENDENT  CONTRACTOR  PERFORMING WORK UNDER SUCH VENDOR'S CONTRACT OR
SUBCONTRACT TO SUBMIT CLAIMS ARISING UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 OR ARTICLE FIFTEEN OF THE EXECUTIVE  LAW  TO  PRIVATE  ARBI-
TRATION  FOR  RESOLUTION;  THIS  SHALL  NOT  INCLUDE ARBITRATION THAT IS
MANDATED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN  SUCH  VENDOR  AND
EMPLOYEE AND/OR INDEPENDENT CONTRACTOR.
  B.  (I)  WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS (II) AND
(III) OF THIS PARAGRAPH, AND  IN  ACCORDANCE  WITH  SUCH  SUBPARAGRAPHS,
STATE  AGENCIES  AS  DEFINED  IN THIS ARTICLE SHALL NOT CONTRACT FOR THE
SUPPLY OF COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY  CONTRACTOR  WHO
DOES  NOT  AGREE  TO  STIPULATE  TO  THE  FOLLOWING, IF THERE IS ANOTHER
CONTRACTOR  WHO  WILL  CONTRACT  TO  SUPPLY  COMMODITIES,  SERVICES   OR
CONSTRUCTION  OF  COMPARABLE  QUALITY AT A COMPARABLE PRICE OR COST: THE
CONTRACTOR SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR  EMPLOY-
EES THAT WORK ON SUCH CONTRACT.
  (II)  IN  THE CASE OF CONTRACTS LET BY A COMPETITIVE PROCESS, WHENEVER
THE RESPONSIVE AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE  OR  BEST

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03998-02-4

S. 4438--A                          2

VALUE  OFFER  HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN
THIS SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO  HAS
AGREED  TO  STIPULATE  TO  SUCH CONDITIONS HAS SUBMITTED AN OFFER WITHIN
FIVE  PERCENT  OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A CONTRACT TO
SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY,  THE
CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER-
AL  SERVICES,  WHO  MAY DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW AND
RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE
AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER.
  (III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN
THE DISCRETIONARY BUYING THRESHOLD AS SPECIFIED IN SECTION  ONE  HUNDRED
SIXTY-THREE  OF  THIS  ARTICLE,  OR FOR CONSTRUCTION INVOLVING AN AMOUNT
GREATER THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL  NOT
AWARD  TO  A  PROPOSED CONTRACTOR WHO HAS NOT AGREED TO STIPULATE TO THE
CONDITIONS SET FORTH IN THIS SUBDIVISION UNLESS THE  ENTITY  SEEKING  TO
USE  THE  COMMODITIES,  SERVICES  OR  CONSTRUCTION  DETERMINES  THAT THE
COMMODITIES, SERVICES OR CONSTRUCTION ARE NECESSARY FOR  THE  ENTITY  TO
PERFORM  ITS  FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE CONTRACTOR WHO
WILL SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE  QUALITY
AT  A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING AND
SHALL BE PUBLIC DOCUMENTS.
  C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
ULATION REQUIRED BY  THIS  SUBDIVISION  IS  IN  VIOLATION  THEREOF,  THE
CONTRACTING  ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE CONTRAC-
TOR AN OPPORTUNITY TO RESPOND. IF THE CONTRACTING ENTITY  FINDS  THAT  A
VIOLATION  HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE
AND PROVIDED FOR BY LAW, RULE OR CONTRACT, INCLUDING,  BUT  NOT  LIMITED
TO,  IMPOSING  SANCTIONS,  SEEKING  COMPLIANCE,  RECOVERING  DAMAGES  OR
DECLARING THE CONTRACTOR IN DEFAULT.
  D. AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT  INCLUDE
CONTRACTS  WITH  GOVERNMENTAL  AND  NON-PROFIT  ORGANIZATIONS, CONTRACTS
AWARDED PURSUANT  TO  EMERGENCY  PROCUREMENT  PROCEDURES  OR  CONTRACTS,
RESOLUTIONS,  INDENTURES,  DECLARATIONS  OF  TRUST  OR OTHER INSTRUMENTS
AUTHORIZING OR RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD,  SALE  OR
PURCHASE  OF  BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR OTHER FISCAL
OBLIGATIONS, PROVIDED THAT THE POLICIES OF  THIS  SUBDIVISION  SHALL  BE
CONSIDERED  WHEN  SELECTING  A  CONTRACTOR TO PROVIDE FINANCIAL OR LEGAL
ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
ACTIVITIES.
  S 2. This act shall take effect immediately and  shall  apply  to  all
contracts signed and executed on or after such effective date.

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