BILL NUMBER: S3294

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the labor law, in relation to contract
provisions waiving certain substantive and procedural rights

 
PURPOSE:

This bill would prevent the enforcement of certain employee contract
provisions that conceal certain details or waive procedural rights or
remedies.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new section 211-b to the labor law.

Subdivision 1 of section 211-b provides that contract provisions which
waive a procedural right or remedy related to a claim of discrimination,
nonpayment of wages or benefits, retaliation, harassment or violation of
public policy in employment shall be deemed unconscionable, void and
unenforceable.
              

Subdivision 2 of section 211-b provides that contract provisions which
have the purpose or effect of concealing details relating to a claim of
discrimination, non-payment of wages or benefits, retaliation, harass-
ment or violation of public policy in employment, including claims that
are submitted to arbitration, shall be deemed unconscionable, void and
unenforceable. An exception to this subdivision is made for the terms
and conditions of an award issued by an arbitrator pursuant to section
75 of the civil practice law and rules, or the amount of any monetary
consideration provided in a settlement.

Subdivision 3 of section 211-b states that anyone enforcing or attempt-
ing to enforce a waiver prohibited under this new section shall be
liable for attorney's fees.

Subdivision 4 of section 211-b prohibits any person or employer from
taking any retaliatory action - including failure to hire - against a
person because the person does not enter into an agreement or contract
that contains a waiver prohibited by this section.

Subdivision 5 of section 211-b creates a private right of action allow-
ing a person aggrieved by a violation of this new section of law to file
a civil action within three years of the violation, in addition to any
other rights and remedies available under other applicable laws.

Section 2 of the bill is a severability clause. Section 3 of the bill
sets the effective date.

 
JUSTIFICATION:

New York State has a tradition of enacting strong labor and antidiscrim-
ination laws to protect employee rights. Attempts by employers to compel
employees to waive those protections as a condition of employment,
particularly pertaining to sexual harassment and discrimination
protections, are unconscionable and should be explicitly prohibited in
New York as a matter of public policy.


Recent high-profile reports of sexual misconduct by powerful executives
have highlighted the role nondisclosure agreements play in protecting
abusive workplace cultures. These agreements are typically reached as
part of confidential settlements and include a provision that neither
party discuss the details of the case. The secrecy of these agreements
perpetuates cultures of sexual harassment and abuse by ensuring that
victims stay silent and the public stays uninformed.

The National Labor Relations Board has ruled that "a confidentiality
rule prohibiting employees from discussing their sexual harassment
complaints among themselves" constitutes an unfair labor practice in
violation of the Wagner Act. However, nothing prevents an employer from
using a nondisclosure agreement to bar an employee from seeking legal
action if he or she is a victim of workplace harassment, discrimination,
retaliation, or nonpayment of wages. This bargaining arrangement gives
undue power and control to an employer who can continue to engage in
misconduct while an employee is left without legal recourse. Further,
the agreement conceals a public hazard and allows potentially illegal
conduct to continue with future employees in a vicious cycle of power
imbalances, victimization, and suppression of legal remedies.

This bill addresses contracts that contain confidentiality clauses,
rendering those clauses unconscionable, void, and unenforceable in cases
of discrimination, retaliation, or harassment. The bill would also make
an employer liable if he or she attempts to enforce the confidentiality
clause or if he or she retaliates against an employee for not agreeing
to the clause. This liability would include payment of legal fees and
costs. Additionally, the bill would give a victim up to three years
after a violation to file a claim for a torts remedy, injunction, and
fees and costs. Under the bill's provisions, abusive employers would no
longer be able to use nondisclosure agreements to conceal illegal behav-
ior or purchase the silence of their victims. It is an essential measure
to ensure fair labor standards, prevent workplace hazards and miscon-
duct, and protect employee rights.

 
LEGISLATIVE HISTORY:

S.6382-A of 2017-2018 (Hoylman): Died in Labor
A.8765 of 2017-2018 (Rozic): Died in Labor
S.4388-A of 2015-2016 (similar bill): Died on 3rd Reading Calendar

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all contracts
entered into, renewed, modified or amended on or after such date.