senate Bill S4438A

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
Jun 16, 2014 amended on third reading (t) 4438a
May 19, 2014 advanced to third reading
May 14, 2014 2nd report cal.
May 13, 2014 1st report cal.727
Jan 08, 2014 referred to finance
Apr 01, 2013 referred to finance

Bill Amendments

Original
A (Active)
Original
A (Active)

S4438 - Bill Details

See Assembly Version of this Bill:
A4791A
Current Committee:
Law Section:
State Finance Law
Laws Affected:
Amd §165, St Fin L
Versions Introduced in 2011-2012 Legislative Session:
A7001A, S5802

S4438 - Bill Texts

view 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.

view sponsor memo
BILL NUMBER:S4438

TITLE OF BILL: An act to amend the state finance law, in relation to
prohibiting state contracts with vendors that forbid employees from
litigating discrimination or harassment claims

PURPOSE:

To withhold contracts from vendors which prohibit their employees from
bringing discrimination or harassment claims to court.

SUMMARY OF PROVISIONS:

Amends the State Finance Law by adding a new subdivision 12-a to
section 163 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 any tort related to or arising out of
discrimination, sexual assault or harassment, including assault and
battery, intentional infliction of emotional distress, false
imprisonment, or negligent hiring, supervision, or retention. The
subdivision also allows an agency to waive this requirement for an
emergency but then must enter the reasons for the waiver into the
procurement record.

JUSTIFICATION:

In 2005, Jamie Lee Jones, an independent contractor working for
Halliburton in Baghdad made national headlines. Ms. Jones was brutally
raped by her coworkers and her employment contract stipulated that
claims of sexual assault could only be heard in private arbitration.
Congress responded by passing legislation similar to this on the
federal level. While we recognize the benefits of arbitration, that
benefit must be weighed against the victim's rights to their day in
court and the rights of the public to know when claims of such a
nature are made against companies that are supported by tax payer
dollars.

LEGISLATIVE HISTORY:

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

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately; provided, however, that the
amendments to section 163 of the state finance law made by section one
of this act shall not affect the repeal of such section and shall be
deemed repealed therewith.

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

                                  4438

                       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

AN ACT to amend the state finance law, in relation to prohibiting  state
  contracts with vendors that forbid employees from litigating discrimi-
  nation or harassment claims

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

  Section 1. Section 163 of the state finance law is amended by adding a
new subdivision 12-a to read as follows:
  12-A. CERTAIN CONTRACT PROVISIONS PROHIBITED.  A. NO  AGENCY,  DEPART-
MENT,  DIVISION,  BOARD,  BUREAU, OR COMMISSION OF THE STATE SHALL ENTER
INTO CONTRACTS WITH ANY VENDOR THAT REQUIRES 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 ANY TORT RELATED TO OR ARISING FROM DISCRIMINATION, SEXUAL ASSAULT OR
HARASSMENT,  INCLUDING:  ASSAULT,  BATTERY,  INTENTIONAL  INFLICTION  OF
EMOTIONAL  DISTRESS, FALSE IMPRISONMENT OR NEGLIGENT HIRING, SUPERVISION
OR RETENTION TO PRIVATE ARBITRATION FOR RESOLUTION;  PROVIDED,  HOWEVER,
THAT THIS PARAGRAPH SHALL NOT APPLY TO ARBITRATION THAT IS MANDATED BY A
COLLECTIVE  BARGAINING AGREEMENT BETWEEN SUCH VENDOR AND EMPLOYEE AND/OR
INDEPENDENT CONTRACTOR.
  B. AN AGENCY, DEPARTMENT, DIVISION, BOARD, BUREAU,  OR  COMMISSION  OF
THE  STATE CAN WAIVE THE REQUIREMENTS OF PARAGRAPH A OF THIS SUBDIVISION
WHEN NECESSARY TO RESPOND TO AN EMERGENCY ARISING FROM UNFORESEEN CAUSES
PURSUANT TO PARAGRAPH B OF SUBDIVISION TEN OF THIS SECTION. THE TERM  OF
THE CONTRACT SHALL NOT BE FOR LONGER THAN NECESSARY TO RESPOND ADEQUATE-
LY TO THE EMERGENCY. THE AGENCY, DEPARTMENT, DIVISION, BOARD, BUREAU, OR
COMMISSION  OF  THE  STATE THAT WAIVES THE APPLICATION OF PARAGRAPH A OF
THIS SUBDIVISION SHALL ENTER INTO THE PROCUREMENT  RECORDS  THE  REASONS
THE  WAIVER WAS NECESSARY. FOR THE PURPOSES OF THIS PARAGRAPH, "EMERGEN-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03998-01-3

S. 4438                             2

CY" SHALL HAVE THE SAME MEANING AS  IS  PRESCRIBED  IN  PARAGRAPH  B  OF
SUBDIVISION ONE OF THIS SECTION.
  S  2.  This act shall take effect immediately; provided, however, that
the amendments to section 163 of the state finance law made  by  section
one of this act shall not affect the repeal of such section and shall be
deemed repealed therewith.

S4438A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A4791A
Current Committee:
Law Section:
State Finance Law
Laws Affected:
Amd §165, St Fin L
Versions Introduced in 2011-2012 Legislative Session:
A7001A, S5802

S4438A (ACTIVE) - Bill Texts

view 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.

view 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.

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                    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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