S T A T E O F N E W Y O R K
________________________________________________________________________
3265
2017-2018 Regular Sessions
I N A S S E M B L Y
January 27, 2017
___________
Introduced by M. of A. GLICK, PEOPLES-STOKES, BLAKE, SIMOTAS, TITONE,
CAHILL, BICHOTTE, ROSENTHAL, LUPARDO -- Multi-Sponsored by -- M. of A.
CUSICK, ENGLEBRIGHT, GOTTFRIED, SIMON -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to equal pay disclosure
with respect to state contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The executive law is amended by adding a new article 15-D
to read as follows:
ARTICLE 15-D
EQUAL PAY DISCLOSURE WITH RESPECT TO STATE CONTRACTS
SECTION 328-B. DEFINITIONS.
328-C. EQUAL PAY DISCLOSURE; REPORTING.
328-D. PROHIBITIONS IN CONTRACTS; VIOLATIONS.
§ 328-B. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
1. "EQUAL PAY REPORT" SHALL MEAN A SUMMARY OF DATA, IN A FORM CONSIST-
ENT WITH REGULATIONS PROMULGATED BY THE COMPTROLLER PURSUANT TO SECTION
THREE HUNDRED TWENTY-EIGHT-C OF THIS ARTICLE, ON EMPLOYEE COMPENSATION
BY GENDER, RACE, ETHNICITY, SPECIFIED JOB CATEGORIES, AND OTHER RELEVANT
DATA.
2. "CONTRACTING AGENCY" SHALL MEAN A STATE AGENCY WHICH IS A PARTY OR
A PROPOSED PARTY TO A STATE CONTRACT.
3. "CONTRACTOR" SHALL MEAN AN INDIVIDUAL, A BUSINESS ENTERPRISE,
INCLUDING A SOLE PROPRIETORSHIP, A PARTNERSHIP, A CORPORATION, A LIMITED
LIABILITY COMPANY, A NOT-FOR-PROFIT CORPORATION, OR ANY OTHER PARTY TO A
STATE CONTRACT, AS DEFINED IN SUBDIVISION EIGHT OF THIS SECTION OR A
BIDDER IN CONJUNCTION WITH THE AWARD OF A STATE CONTRACT OR A PROPOSED
PARTY TO A STATE CONTRACT. FOR THE PURPOSES OF THIS ARTICLE, "CONTRAC-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03120-01-7
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TOR" SHALL NOT INCLUDE A SMALL BUSINESS, AS DEFINED IN SUBDIVISION NINE
OF THIS SECTION.
4. "LARGE COUNTY" SHALL MEAN A COUNTY HAVING A POPULATION IN EXCESS OF
TWO HUNDRED EIGHTY-FIVE THOUSAND ACCORDING TO THE MOST RECENT FEDERAL
DECENNIAL CENSUS, PROVIDED HOWEVER, THAT A COUNTY HAVING A POPULATION IN
EXCESS OF TWO HUNDRED EIGHTY-FIVE THOUSAND ACCORDING TO THE TWO THOUSAND
TEN FEDERAL DECENNIAL CENSUS SHALL CONTINUE TO BE A LARGE COUNTY THERE-
AFTER NOTWITHSTANDING A LATER CENSUS SHOWING A POPULATION OF LESS THAN
TWO HUNDRED EIGHTY-FIVE THOUSAND FOR SUCH COUNTY.
5. "METROPOLITAN AREA" SHALL MEAN A CITY WITH A POPULATION OF ONE
MILLION OR MORE AND A COUNTY HAVING A POPULATION IN EXCESS OF ONE
MILLION AND IMMEDIATELY CONTIGUOUS TO SUCH CITY.
6. "STATE AGENCY" SHALL MEAN:
(A)(I) ANY STATE DEPARTMENT, OR (II) ANY DIVISION, BOARD, COMMISSION
OR BUREAU OF ANY STATE DEPARTMENT, OR (III) THE STATE UNIVERSITY OF NEW
YORK AND THE CITY UNIVERSITY OF NEW YORK, INCLUDING ALL THEIR CONSTITU-
ENT UNITS EXCEPT COMMUNITY COLLEGES AND THE INDEPENDENT INSTITUTIONS
OPERATING STATUTORY OR CONTRACT COLLEGES ON BEHALF OF THE STATE, OR (IV)
A BOARD, A MAJORITY OF WHOSE MEMBERS ARE APPOINTED BY THE GOVERNOR OR
WHO SERVE BY VIRTUE OF BEING STATE OFFICERS OR EMPLOYEES AS DEFINED IN
SUBPARAGRAPH (I), (II), OR (III) OF THIS PARAGRAPH OR PARAGRAPH (I) OF
SUBDIVISION ONE OF SECTION SEVENTY-THREE OF THE PUBLIC OFFICERS LAW;
(B) A "STATE AUTHORITY," AS DEFINED IN SUBDIVISION ONE OF SECTION
SEVENTY-THREE OF THE PUBLIC OFFICERS LAW, AND THE FOLLOWING:
ALBANY COUNTY AIRPORT AUTHORITY;
ALBANY PORT DISTRICT COMMISSION;
ALFRED, ALMOND, HORNELLSVILLE SEWER AUTHORITY;
BATTERY PARK CITY AUTHORITY;
CAYUGA COUNTY WATER AND SEWER AUTHORITY;
(NELSON A. ROCKEFELLER) EMPIRE STATE PLAZA PERFORMING ARTS;
CENTER CORPORATION;
INDUSTRIAL EXHIBIT AUTHORITY;
LIVINGSTON COUNTY WATER AND SEWER AUTHORITY;
LONG ISLAND POWER AUTHORITY;
LONG ISLAND RAIL ROAD;
LONG ISLAND MARKET AUTHORITY;
MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY;
METRO-NORTH COMMUTER RAILROAD;
METROPOLITAN SUBURBAN BUS AUTHORITY;
METROPOLITAN TRANSPORTATION AUTHORITY;
NATURAL HERITAGE TRUST;
NEW YORK CITY TRANSIT AUTHORITY;
NEW YORK CONVENTION CENTER OPERATING CORPORATION;
NEW YORK STATE BRIDGE AUTHORITY;
NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY;
NEW YORK STATE THRUWAY AUTHORITY;
NIAGARA FALLS PUBLIC WATER AUTHORITY;
NIAGARA FALLS WATER BOARD;
PORT OF OSWEGO AUTHORITY;
POWER AUTHORITY OF THE STATE OF NEW YORK;
ROOSEVELT ISLAND OPERATING CORPORATION;
SCHENECTADY METROPLEX DEVELOPMENT AUTHORITY;
STATE INSURANCE FUND;
STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY;
STATE UNIVERSITY CONSTRUCTION FUND;
SYRACUSE REGIONAL AIRPORT AUTHORITY;
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TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY;
UPPER MOHAWK VALLEY REGIONAL WATER BOARD;
UPPER MOHAWK VALLEY REGIONAL WATER FINANCE AUTHORITY;
UPPER MOHAWK VALLEY MEMORIAL AUDITORIUM AUTHORITY;
URBAN DEVELOPMENT CORPORATION AND ITS SUBSIDIARY CORPORATIONS; AND
(C) THE FOLLOWING ENTITIES, ONLY TO THE EXTENT OF STATE CONTRACTS
ENTERED INTO FOR ITS OWN ACCOUNT OR FOR THE BENEFIT OF A STATE AGENCY AS
DEFINED IN PARAGRAPH (A) OR (B) OF THIS SUBDIVISION: DORMITORY AUTHORITY
OF THE STATE OF NEW YORK; FACILITIES DEVELOPMENT CORPORATION; NEW YORK
STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; NEW YORK STATE SCIENCE
AND TECHNOLOGY FOUNDATION.
7. "STATE ASSISTED HOUSING PROJECT" SHALL MEAN, FOR SUCH PROJECTS
WHICH RECEIVE FROM THE NEW YORK STATE HOUSING FINANCE AGENCY, THE
AFFORDABLE HOUSING CORPORATION, THE HOUSING TRUST FUND CORPORATION OR
THE DIVISION OF HOUSING AND COMMUNITY RENEWAL A GRANT OR LOAN FOR ALL OR
PART OF THE TOTAL PROJECT COST:
(A) A "PERMANENT HOUSING PROJECT FOR HOMELESS FAMILIES" OR "PROJECT"
AS DEFINED IN SUBDIVISION FIVE OF SECTION SIXTY-FOUR OF THE PRIVATE
HOUSING FINANCE LAW;
(B) A "PROJECT" AS DEFINED IN SUBDIVISION TWELVE OF SECTION ONE THOU-
SAND ONE HUNDRED ONE OF THE PRIVATE HOUSING FINANCE LAW PROVIDED SAID
PROJECT IS LOCATED IN A LARGE COUNTY AND CONSISTS OF MORE THAN TWELVE
RESIDENTIAL UNITS AT A SINGLE SITE;
(C) "AFFORDABLE HOME OWNERSHIP DEVELOPMENT PROGRAMS" OR "PROJECT" AS
DEFINED IN SUBDIVISION EIGHT OF SECTION ONE THOUSAND ONE HUNDRED ELEVEN
OF THE PRIVATE HOUSING FINANCE LAW PROVIDED SAID PROJECT IS LOCATED IN A
METROPOLITAN AREA AS DEFINED IN SUBDIVISION FIVE OF THIS SECTION AND
CONSISTS OF MORE THAN TWELVE RESIDENTIAL UNITS AT A SINGLE SITE;
(D) A "TURNKEY/ENHANCED RENTAL PROJECT" OR "PROJECT" AS DEFINED IN
SUBDIVISION TWO OF SECTION ONE THOUSAND ONE HUNDRED SIX-A OF THE PRIVATE
HOUSING FINANCE LAW;
(E) "INFRASTRUCTURE IMPROVEMENTS" AS DEFINED IN SUBDIVISION TWO OF
SECTION ONE THOUSAND ONE HUNDRED THIRTY-ONE OF THE PRIVATE HOUSING
FINANCE LAW, TO THE EXTENT THAT SUCH "INFRASTRUCTURE IMPROVEMENTS" ARE
APPLIED FOR IN CONNECTION WITH A STATE ASSISTED HOUSING PROJECT AS
DEFINED IN PARAGRAPHS (A) THROUGH (D) OF THIS SUBDIVISION AND PROVIDED
FURTHER THAN THE APPLICANT FOR SUCH INFRASTRUCTURE IMPROVEMENTS AND FOR
SUCH STATE ASSISTED HOUSING PROJECT ARE IDENTICAL.
8. "STATE CONTRACT" SHALL MEAN:
(A) A WRITTEN AGREEMENT OR PURCHASE ORDER INSTRUMENT, PROVIDING FOR A
TOTAL EXPENDITURE IN EXCESS OF FIFTY THOUSAND DOLLARS, WHICH IS SUBJECT
TO APPROVAL BY THE COMPTROLLER PURSUANT TO SECTION ONE HUNDRED TWELVE OF
THE STATE FINANCE LAW, WHEREBY: (I) A CONTRACTING AGENCY, EXCEPT THE
OFFICE OF GENERAL SERVICES IS COMMITTED TO EXPEND OR DOES EXPEND FUNDS
IN RETURN FOR LABOR, SERVICES INCLUDING, BUT NOT LIMITED TO, LEGAL,
FINANCIAL AND OTHER PROFESSIONAL SERVICES, SUPPLIES, EQUIPMENT, MATERI-
ALS OR ANY COMBINATION OF THE FOREGOING, TO BE PERFORMED FOR, OR
RENDERED OR FURNISHED TO THE CONTRACTING AGENCY; (II) A CONTRACTING
AGENCY, EXCEPT THE OFFICE OF GENERAL SERVICES IS COMMITTED TO EXPEND OR
DOES EXPEND FUNDS FOR THE ACQUISITION, CONSTRUCTION, DEMOLITION,
REPLACEMENT, MAJOR REPAIR OR RENOVATION OF REAL PROPERTY AND IMPROVE-
MENTS THEREON; OR (III) THE OWNER OF A STATE ASSISTED HOUSING PROJECT IS
COMMITTED TO EXPEND OR DOES EXPEND FUNDS FOR THE ACQUISITION,
CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR OR RENOVATION OF
REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
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(B) A WRITTEN AGREEMENT OR PURCHASE ORDER INSTRUMENT, PROVIDING FOR A
TOTAL EXPENDITURE IN EXCESS OF EIGHTY-FIVE THOUSAND DOLLARS, WHICH IS
SUBJECT TO APPROVAL BY THE COMPTROLLER PURSUANT TO SECTION ONE HUNDRED
TWELVE OF THE STATE FINANCE LAW, WHEREBY THE OFFICE OF GENERAL SERVICES
IS COMMITTED TO OR DOES EXPEND FUNDS IN RETURN FOR LABOR, SERVICES
INCLUDING, BUT NOT LIMITED TO, LEGAL, FINANCIAL AND OTHER PROFESSIONAL
SERVICES, SUPPLIES, EQUIPMENT, MATERIALS OR ANY COMBINATION OF THE FORE-
GOING, TO BE PERFORMED FOR, OR RENDERED OR FURNISHED TO THE OFFICE OF
GENERAL SERVICES.
9. "SMALL BUSINESS" AS USED IN THIS SECTION, SHALL MEAN A BUSINESS
INDEPENDENTLY OWNED AND OPERATED, NOT DOMINANT IN ITS FIELD, AND EMPLOY-
ING NOT MORE THAN ONE HUNDRED INDIVIDUALS.
§ 328-C. EQUAL PAY DISCLOSURE; REPORTING. 1. ALL CONTRACTORS, AS A
CONDITION UPON ENTERING INTO A CONTRACT WITH THE STATE, SHALL BE
REQUIRED TO SUBMIT EQUAL PAY REPORTS, IN SUCH FORM AS THE COMPTROLLER
MAY PRESCRIBE BY REGULATION PURSUANT TO SUBDIVISION THREE OF THIS
SECTION. SUCH REPORTS SHALL INCLUDE, BUT NOT BE LIMITED TO, A SUMMARY OF
THE CONTRACTOR'S WORKFORCE PAY AVERAGES, CALCULATED BY JOB CATEGORY,
GENDER, RACE, AND ETHNICITY, AND THE DIFFERENCE BETWEEN PAY AVERAGES IN
EACH CATEGORY, EXPRESSED AS AN ABSOLUTE PERCENTAGE.
2. THE STATE COMPTROLLER SHALL SUBMIT A REPORT TO THE GOVERNOR, THE
ATTORNEY GENERAL, THE COMMISSIONER OF THE OFFICE OF GENERAL SERVICES,
THE COMMISSIONER OF THE DEPARTMENT OF LABOR, THE COMMISSIONER OF THE
DIVISION OF HUMAN RIGHTS, THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY
PRESIDENT OF THE SENATE AND THE LEGISLATIVE FISCAL COMMITTEES SUMMARIZ-
ING DATA RELATED TO THE EQUAL PAY REPORTS SUBMITTED BY CONTRACTORS. SUCH
REPORT SHALL BE MADE ANNUALLY, ON A FISCAL YEAR BASIS BY THE FIRST OF
JULY OF THE NEXT SUCCEEDING YEAR FOLLOWING ENACTMENT OF THIS SECTION.
(A) THE INFORMATION REQUIRED BY THIS SUBDIVISION SHALL BE PROVIDED IN
ELECTRONIC FORMAT IN SUCH FORM AS PRESCRIBED BY THE STATE COMPTROLLER
SUCH THAT THE DATA CAN BE SEARCHED AND SORTED.
(B) ALL REPORTS REQUIRED UNDER THIS SUBDIVISION SHALL BE AVAILABLE FOR
PUBLIC INSPECTION AND COPYING PURSUANT TO SECTION EIGHTY-SEVEN OF THE
PUBLIC OFFICERS LAW PROVIDED THAT IN DISCLOSING SUCH REPORTS PURSUANT TO
THE PUBLIC OFFICERS LAW, THE STATE COMPTROLLER SHALL REDACT THE NAME AND
SOCIAL SECURITY NUMBER OF ANY INDIVIDUAL EMPLOYEE THAT IS INCLUDED IN
SUCH DOCUMENT.
3. THE STATE COMPTROLLER, IN CONSULTATION WITH THE COMMISSIONER OF THE
OFFICE OF GENERAL SERVICES, SHALL PROMULGATE REGULATIONS:
(A) REGARDING THE CONTENT AND THE TIMELY AND PROPER FILING OF EQUAL
PAY REPORTS BY CONTRACTORS; AND
(B) SETTING FORTH MEASURES AND PROCEDURES TO REQUIRE ALL CONTRACTING
AGENCIES, WHERE PRACTICABLE, FEASIBLE AND APPROPRIATE, TO ASSESS THE
EQUAL PAY PRACTICES OF CONTRACTORS SUBMITTING BIDS OR PROPOSALS IN
CONNECTION WITH THE AWARD OF A STATE CONTRACT. SUCH RULES AND REGU-
LATIONS SHALL TAKE INTO ACCOUNT: THE NATURE OF THE LABOR, SERVICES,
SUPPLIES, EQUIPMENT OR MATERIALS BEING PROCURED BY THE STATE AGENCY; THE
METHOD OF PROCUREMENT REQUIRED TO BE USED BY A STATE AGENCY TO AWARD THE
CONTRACT; THE EQUAL PAY REPORTS REQUIRED TO BE SUBMITTED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION; AND SUCH OTHER FACTORS AS THE COMP-
TROLLER DEEMS APPROPRIATE OR NECESSARY TO PROMOTE THE AWARD OF STATE
CONTRACTS TO CONTRACTORS HAVING SOUND EQUAL PAY PRACTICES. SUCH ASSESS-
MENT SHALL NOT PERMIT THE AUTOMATIC REJECTION OF A BID OR PROCUREMENT
PROPOSAL BASED ON THE LACK OF ADHERENCE TO EQUAL PAY PRACTICES. EACH BID
OR PROPOSAL SHALL BE ANALYZED ON AN INDIVIDUAL PER BID OR PER PROPOSAL
BASIS WITH THE CONTRACTOR'S EQUAL PAY PRACTICES CONSIDERED AS ONLY A
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PART OF A WIDER CONSIDERATION OF SEVERAL FACTORS WHEN DECIDING TO AWARD
OR DECLINE TO AWARD A BID OR PROPOSAL.
§ 328-D. PROHIBITIONS IN CONTRACTS; VIOLATIONS. EVERY CONTRACTING
AGENCY SHALL INCLUDE A PROVISION IN ITS STATE CONTRACTS EXPRESSLY
PROVIDING THAT ANY CONTRACTOR WHO WILLFULLY AND INTENTIONALLY FAILS TO
COMPLY WITH THE REQUIREMENTS OF THIS ARTICLE AS SET FORTH IN SUCH STATE
CONTRACT SHALL BE LIABLE TO THE CONTRACTING AGENCY FOR LIQUIDATED OR
OTHER APPROPRIATE DAMAGES AND SHALL PROVIDE FOR OTHER APPROPRIATE REME-
DIES ON ACCOUNT OF SUCH BREACH.
§ 2. This act shall take effect on the first of January next succeed-
ing the date upon which it shall have become a law and shall apply to
all contracts with the state entered into on or after such effective
date.