NY State Senate Bill S724

Current Bill Status - In Senate Committee Labor Committee

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

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2021	referred to labor

Co-Sponsors

S724 (ACTIVE) - Details

See Assembly Version of this Bill:: A398
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §211-b, Lab L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4388
2017-2018: S6382, A8765
2019-2020: S3294, A626

S724 (ACTIVE) - Summary

Relates to prohibiting contract provisions that waive certain substantive and procedural rights.

S724 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S724

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the labor law, in relation to contract provisions waiv-
ing 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.  Subdi-
vision 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.3294 of 2019-2020 (Hoylman): Died in Labor

A.0626 of 2019-2020 (Rozic): Died in Labor

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.

S724 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    724
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens.  HOYLMAN, KRUEGER, SALAZAR, STAVISKY -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Labor
 
 AN ACT to amend the labor law, in relation to contract provisions  waiv-
   ing certain substantive and procedural rights

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The labor law is amended by adding a new section  211-b  to
 read as follows:
   §  211-B.  CONTRACTS; CERTAIN PROVISIONS PROHIBITED. 1. A PROVISION IN
 ANY CONTRACT WAIVING ANY  SUBSTANTIVE  OR  PROCEDURAL  RIGHT  OR  REMEDY
 RELATING TO A CLAIM OF DISCRIMINATION, NON-PAYMENT OF WAGES OR BENEFITS,
 RETALIATION,  HARASSMENT  OR  VIOLATION  OF  PUBLIC POLICY IN EMPLOYMENT
 SHALL BE DEEMED UNCONSCIONABLE, VOID AND UNENFORCEABLE, WITH RESPECT  TO
 ANY  SUCH  CLAIM  ARISING  AFTER  THE WAIVER IS MADE. NO RIGHT OR REMEDY
 ARISING  UNDER  THIS  SECTION,  THIS  CHAPTER,  COMMON  LAW,  ANY  OTHER
 PROVISION OF LAW OR RULE OF PROCEDURE OR THE CONSTITUTION SHALL BE PROS-
 PECTIVELY  WAIVED.  THIS  SECTION SHALL NOT RENDER VOID OR UNENFORCEABLE
 THE REMAINDER OF THE CONTRACT OR AGREEMENT.    THE  PROVISIONS  OF  THIS
 SUBDIVISION  SHALL  NOT  APPLY TO THE TERMS OF ANY COLLECTIVE BARGAINING
 AGREEMENT BETWEEN AN EMPLOYER AND THE BONA  FIDE  COLLECTIVE  BARGAINING
 REPRESENTATIVE OF THAT EMPLOYER'S EMPLOYEES.
   2.   A PROVISION IN ANY CONTRACT OR AGREEMENT WHICH HAS THE PURPOSE OR
 EFFECT OF CONCEALING THE DETAILS RELATING TO A CLAIM OF  DISCRIMINATION,
 NON-PAYMENT  OF  WAGES OR BENEFITS, RETALIATION, HARASSMENT OR VIOLATION
 OF PUBLIC POLICY IN EMPLOYMENT, INCLUDING CLAIMS THAT ARE  SUBMITTED  TO
 ARBITRATION, SHALL BE DEEMED UNCONSCIONABLE, VOID AND UNENFORCEABLE. THE
 PROVISIONS  OF  THIS SUBDIVISION SHALL NOT APPLY TO THE TERMS AND CONDI-
 TIONS OF AN AWARD ISSUED BY AN ARBITRATOR PURSUANT TO  ARTICLE  SEVENTY-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02691-01-1

 S. 724                              2
 
 FIVE  OF  THE CIVIL PRACTICE LAW AND RULES OR THE AMOUNT OF ANY MONETARY
 CONSIDERATION PROVIDED IN A SETTLEMENT.
   3. WHOEVER ENFORCES OR ATTEMPTS TO ENFORCE A WAIVER DEEMED UNCONSCION-
 ABLE,  VOID  OR  UNENFORCEABLE  UNDER  THIS  SECTION SHALL BE LIABLE FOR
 REASONABLE ATTORNEY'S FEES AND COSTS.
   4. NO PERSON OR EMPLOYER SHALL TAKE ANY RETALIATORY ACTION, INCLUDING,
 BUT NOT LIMITED TO, FAILURE TO HIRE,  DISCHARGE,  SUSPENSION,  DEMOTION,
 DISCRIMINATION  IN THE TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT, OR
 OTHER ADVERSE ACTION, AGAINST A PERSON,  BECAUSE  THE  PERSON  DOES  NOT
 ENTER INTO AN AGREEMENT OR CONTRACT THAT CONTAINS A WAIVER DEEMED UNCON-
 SCIONABLE, VOID OR UNENFORCEABLE UNDER THIS SECTION.
   5. A PERSON AGGRIEVED OF A VIOLATION OF THIS SECTION MAY, WITHIN THREE
 YEARS  AFTER THE VIOLATION, INSTITUTE AND PROSECUTE IN SUCH PERSON'S OWN
 NAME AND ON SUCH PERSON'S OWN BEHALF A CIVIL ACTION FOR TORTS  REMEDIES,
 INJUNCTIVE RELIEF, AND THE COSTS OF LITIGATION AND REASONABLE ATTORNEY'S
 FEES.  THE  RIGHTS  AND  REMEDIES CONTAINED IN THIS SECTION SHALL NOT BE
 EXCLUSIVE AND SHALL NOT PREEMPT OTHER PROCEDURES AND REMEDIES  AVAILABLE
 UNDER OTHER APPLICABLE LAWS.
   §  2. Severability clause.  If any clause, sentence, paragraph, subdi-
 vision, section or part of this act shall be adjudged by  any  court  of
 competent  jurisdiction  to  be invalid, such judgment shall not affect,
 impair, or invalidate the remainder thereof, but shall  be  confined  in
 its  operation  to the clause, sentence, paragraph, subdivision, section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the legislature that this act would  have  been  enacted  even  if  such
 invalid provisions had not been included herein.
   §  3.  This  act  shall take effect immediately and shall apply to all
 contracts entered into, renewed, modified or amended on  or  after  such
 date.

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The New York State Senate

senate Bill S724

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

Your Voice

Actions

Co-Sponsors

S724 (ACTIVE) - Details

S724 (ACTIVE) - Summary

S724 (ACTIVE) - Sponsor Memo

S724 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S724

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Sponsored By

Brad Hoylman

Current Bill Status - In Senate Committee Labor Committee

Your Voice

Actions

Co-Sponsors

Liz Krueger

Julia Salazar

Toby Ann Stavisky

S724 (ACTIVE) - Details

S724 (ACTIVE) - Summary

S724 (ACTIVE) - Sponsor Memo

S724 (ACTIVE) - Bill Text download pdf

Comments