3. A. "JUST CAUSE" MEANS ANY REASONABLE, JOB-RELATED GROUNDS FOR AN
EMPLOYEE'S DISMISSAL BASED ON:
(I) THE EMPLOYEE'S FAILURE TO SATISFACTORILY PERFORM JOB DUTIES;
(II) THE EMPLOYEE'S WILLFUL DISRUPTION OF THE EMPLOYER'S OPERATION
THROUGH ACT OR OMISSION;
(III) THE EMPLOYEE'S MATERIAL OR REPEATED VIOLATION OF AN EXPRESS
PROVISION OF THE EMPLOYER'S WRITTEN POLICIES; OR
(IV) OTHER LEGITIMATE BUSINESS REASONS DETERMINED BY THE EMPLOYER
WHILE EXERCISING REASONABLE BUSINESS JUDGMENT.
B. THE LEGAL USE OF A CONSUMABLE PRODUCT BY AN EMPLOYEE OFF THE
EMPLOYER'S PREMISES DURING NONWORKING HOURS SHALL NOT BE A LEGITIMATE
BUSINESS REASON; PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT APPLY
TO:
(I) THE USE OF A CONSUMABLE PRODUCT THAT AFFECTS IN ANY MANNER AN
EMPLOYEE'S ABILITY TO PERFORM JOB-RELATED EMPLOYMENT RESPONSIBILITIES OR
THE SAFETY OF OTHER EMPLOYEES;
(II) AN EMPLOYEE WHO, ON A PERSONAL BASIS, HAS A PROFESSIONAL SERVICE
CONTRACT WITH AN EMPLOYER AND THE UNIQUE NATURE OF THE SERVICES PROVIDED
AUTHORIZES THE EMPLOYER, AS PART OF THE SERVICE CONTRACT, TO LIMIT THE
USE OF CERTAIN PRODUCTS;
(III) AN EMPLOYER THAT IS A NONPROFIT ORGANIZATION THAT, AS ONE OF ITS
PRIMARY PURPOSES OR OBJECTIVES, DISCOURAGES THE USE OF ONE OR MORE
LAWFUL PRODUCTS BY THE GENERAL PUBLIC; OR
(IV) AN EMPLOYER THAT TAKES ACTION BASED ON THE BELIEF THAT THE
EMPLOYER'S ACTIONS ARE PERMISSIBLE UNDER AN ESTABLISHED SUBSTANCE ABUSE
OR ALCOHOL PROGRAM OR POLICY, PROFESSIONAL CONTRACT OR COLLECTIVE
BARGAINING AGREEMENT.
4. "PROBATION PERIOD" MEANS A DEFINED PERIOD OF TIME, NOT TO EXCEED
THIRTY DAYS FROM THE FIRST DATE OF WORK OF AN EMPLOYEE, WITHIN WHICH
EMPLOYERS AND EMPLOYEES ARE NOT SUBJECT TO THE PROHIBITION ON WRONGFUL
DISCHARGE SET FORTH IN SECTION ONE THOUSAND SIXTY-ONE OF THIS ARTICLE.
5. "PROGRESSIVE DISCIPLINE" MEANS A DISCIPLINARY SYSTEM THAT PROVIDES
FOR A GRADUATED RANGE OF REASONABLE RESPONSES TO AN EMPLOYEE'S FAILURE
TO SATISFACTORILY PERFORM SUCH EMPLOYEE'S JOB DUTIES, WITH THE DISCIPLI-
NARY MEASURES RANGING FROM MILD TO SEVERE, DEPENDING ON THE FREQUENCY
AND DEGREE OF THE FAILURE.
6. "REDUCTION IN HOURS" MEANS A REDUCTION IN AN EMPLOYEE'S HOURS OF
WORK TOTALING AT LEAST FIFTEEN PERCENT OF THE EMPLOYEE'S REGULAR SCHED-
ULE OR FIFTEEN PERCENT OF ANY WEEKLY WORK SCHEDULE.
7. "SENIORITY" MEANS A RANKING OF EMPLOYEES BASED ON LENGTH OF
SERVICE, COMPUTED FROM THE FIRST DATE OF WORK, INCLUDING ANY PROBATION-
ARY PERIOD, UNLESS SUCH SERVICE HAS BEEN INTERRUPTED BY MORE THAN SIX
MONTHS, IN WHICH CASE LENGTH OF SERVICE SHALL BE COMPUTED FROM THE DATE
THAT SERVICE RESUMED. AN ABSENCE SHALL NOT BE DEEMED AN INTERRUPTION OF
SERVICE IF SUCH ABSENCE WAS THE RESULT OF MILITARY SERVICE, ILLNESS,
EDUCATIONAL LEAVE, LEAVE PROTECTED OR AFFORDED BY LAW, OR ANY DISCHARGE
BASED ON A BONA FIDE ECONOMIC REASON OR THAT IS IN VIOLATION OF ANY
LOCAL, STATE OR FEDERAL LAW, INCLUDING THIS ARTICLE.
8. "SHORT-TERM POSITION" MEANS EMPLOYMENT PURSUANT TO A WRITTEN
CONTRACT THAT SPECIFIES THAT THE POSITION IS TO END AFTER A SPECIFIED
PERIOD OF TIME, NOT TO EXCEED SIX MONTHS, WHERE THE EMPLOYER CAN SHOW
THAT THE WORK OR NEED IN QUESTION IS EXPECTED TO END.
9. "SHORT-TERM EDUCATIONAL POSITION" MEANS EMPLOYMENT WITH A SPECIFIC
EDUCATIONAL PURPOSE PURSUANT TO WRITTEN CONTRACT THAT SPECIFIES THAT THE
POSITION IS TO END AFTER A SPECIFIED PERIOD OF TIME, NOT TO EXCEED THREE
A. 8931 3
YEARS, WHERE THE EMPLOYER CAN SHOW THAT THE POSITION IN QUESTION IS
EXPECTED TO END.
10. "LEAVE OF ABSENCE" MEANS AN EMPLOYEE'S ABSENCE FROM WORK FOR A
PERIOD OF MORE THAN FIVE CONSECUTIVE WORKING DAYS FOR ANY REASON OTHER
THAN HOLIDAYS AND VACATIONS.
11. "LOST WAGES" MEANS THE GROSS AMOUNT OF WAGES THAT WOULD HAVE BEEN
REPORTED TO THE INTERNAL REVENUE SERVICE AS GROSS INCOME ON FORM W-2 AND
INCLUDES OVERTIME PAYMENTS, BONUSES, AND ANY ADDITIONAL COMPENSATION
DEFERRED AT THE OPTION OF THE EMPLOYEE.
12. "BONA FIDE ECONOMIC REASON" MEANS THE FULL OR PARTIAL CLOSING OF
OPERATIONS OR A TECHNOLOGICAL OR ORGANIZATIONAL CHANGE TO THE BUSINESS
IN RESPONSE TO A REDUCTION IN VOLUME OF PRODUCTION OR SALES OF FIFTEEN
PERCENT OR MORE OVER A PERIOD OF TWO QUARTERS EITHER AT THE ESTABLISH-
MENT WHERE THE DISCHARGE IS TO OCCUR OR ACROSS ALL ESTABLISHMENTS OWNED
BY THE EMPLOYER WITHIN THE STATE, BUT SHALL NOT INCLUDE ELIMINATION OF
STAFF REDUNDANCY CREATED BY A MERGER OR ACQUISITION. PROVIDED, HOWEVER,
THAT IN THE CONSTRUCTION INDUSTRY, WHERE WORK ON A PROJECT IS INTER-
RUPTED, SUCH INTERRUPTION SHALL CONSTITUTE A BONA FIDE ECONOMIC REASON
FOR SUSPENDING THE EMPLOYMENT OF EMPLOYEES ON THE PROJECT.
13. "BONA FIDE LABOR ORGANIZATION" MEANS A LABOR UNION A. IN WHICH
OFFICERS HAVE BEEN ELECTED BY SECRET BALLOT OR OTHERWISE IN A MANNER
CONSISTENT WITH FEDERAL LAW; AND B. THAT IS FREE OF DOMINATION OR INTER-
FERENCE BY ANY EMPLOYER AND HAS RECEIVED NO IMPROPER ASSISTANCE OR
SUPPORT FROM ANY EMPLOYER.
14. "BIOMETRIC DATA" MEANS A PHYSIOLOGICAL, BIOLOGICAL OR BEHAVIORAL
CHARACTERISTIC, INCLUDING BUT NOT LIMITED TO AN IRIS SCAN, FINGERPRINT,
A HAND SCAN, VOICEPRINT AND THERMAL OR FACIAL CHARACTERISTICS THAT CAN
BE USED ALONE OR IN COMBINATION WITH EACH OTHER, OR WITH OTHER INFORMA-
TION, TO ESTABLISH AN INDIVIDUAL'S IDENTITY.
15. "BIOMETRIC TECHNOLOGY" MEANS: A. A PROCESS OR SYSTEM THAT CAPTURES
BIOMETRIC DATA OF AN INDIVIDUAL OR INDIVIDUALS; AND B. A PROCESS OR
SYSTEM THAT CAN ASSIST IN VERIFYING OR IDENTIFYING AN INDIVIDUAL OR
INDIVIDUALS BASED ON BIOMETRIC DATA.
16. "EMPLOYEE WORK SPEED DATA" MEANS INFORMATION AN EMPLOYER COLLECTS,
STORES, ANALYZES OR INTERPRETS RELATING TO AN INDIVIDUAL EMPLOYEE OR
GROUP OF EMPLOYEES' PACE OF WORK, INCLUDING, BUT NOT LIMITED TO, QUANTI-
TIES OF TASKS PERFORMED, QUANTITIES OF ITEMS OR MATERIALS HANDLED OR
PRODUCED, RATES OR SPEEDS OF TASKS PERFORMED, MEASUREMENTS OR METRICS OF
EMPLOYEE PERFORMANCE IN RELATION TO A QUOTA, AND TIME CATEGORIZED AS
PERFORMING TASKS OR NOT PERFORMING TASKS. EMPLOYEE WORK SPEED DATA SHALL
NOT INCLUDE QUALITATIVE PERFORMANCE ASSESSMENTS, PERSONNEL RECORDS OR
ITEMIZED WAGE STATEMENTS, EXCEPT FOR ANY CONTENT OF THOSE RECORDS THAT
INCLUDES RELEVANT QUANTITATIVE EMPLOYEE WORK SPEED DATA.
17. "GEOFENCING TECHNOLOGIES" MEANS THE USE OF GLOBAL POSITIONING
SYSTEM OR RADIO FREQUENCY IDENTIFICATION TECHNOLOGY TO CREATE A VIRTUAL
GEOGRAPHIC BOUNDARY, ENABLING SOFTWARE TO TRIGGER A RESPONSE WHEN A
DEVICE ENTERS OR LEAVES A PARTICULAR AREA.
§ 1061. PROHIBITION ON WRONGFUL DISCHARGE. 1. AN EMPLOYER SHALL NOT
DISCHARGE AN EMPLOYEE WHO HAS COMPLETED SUCH EMPLOYER'S PROBATION PERIOD
EXCEPT FOR JUST CAUSE OR A BONA FIDE ECONOMIC REASON.
2. IN DETERMINING WHETHER AN EMPLOYEE HAS BEEN DISCHARGED FOR JUST
CAUSE, THE FACT FINDER SHALL CONSIDER, IN ADDITION TO ANY OTHER RELEVANT
FACTORS, WHETHER:
A. THE EMPLOYEE KNEW OR SHOULD HAVE KNOWN OF THE EMPLOYER'S POLICY,
RULE, PRACTICE OR PERFORMANCE STANDARD THAT IS THE BASIS FOR PROGRESSIVE
DISCIPLINE OR DISCHARGE;
A. 8931 4
B. THE EMPLOYER PROVIDED RELEVANT AND ADEQUATE TRAINING TO THE EMPLOY-
EE;
C. THE EMPLOYER'S POLICY, RULE, PRACTICE OR PERFORMANCE STANDARD,
INCLUDING THE UTILIZATION OF PROGRESSIVE DISCIPLINE, WAS REASONABLE AND
APPLIED CONSISTENTLY;
D. THE EMPLOYER IMPERMISSIBLY RELIED ON ELECTRONIC MONITORING, PURSU-
ANT TO SECTION ONE THOUSAND SIXTY-TWO OF THIS ARTICLE;
E. THE EMPLOYER DISCIPLINED OR DISCHARGED THE EMPLOYEE BASED ON THAT
EMPLOYEE'S INDIVIDUAL PERFORMANCE, IRRESPECTIVE OF THE PERFORMANCE OF
OTHER EMPLOYEES;
F. THE EMPLOYER UNDERTOOK A FAIR AND OBJECTIVE INVESTIGATION INTO THE
JOB PERFORMANCE OR MISCONDUCT; OR
G. THE EMPLOYEE VIOLATED THE POLICY, RULE OR PRACTICE, FAILED TO MEET
THE PERFORMANCE STANDARD OR COMMITTED THE MISCONDUCT THAT IS THE BASIS
FOR PROGRESSIVE DISCIPLINE OR DISCHARGE.
3. EXCEPT WHERE TERMINATION IS FOR AN EGREGIOUS FAILURE BY THE EMPLOY-
EE TO PERFORM THEIR DUTIES, OR FOR EGREGIOUS MISCONDUCT, A TERMINATION
SHALL NOT BE CONSIDERED BASED ON JUST CAUSE UNLESS:
A. THE EMPLOYER HAS UTILIZED PROGRESSIVE DISCIPLINE; PROVIDED, HOWEV-
ER, THAT EMPLOYER MAY NOT RELY ON DISCIPLINE ISSUED MORE THAN ONE YEAR
BEFORE THE PURPORTED JUST CAUSE TERMINATION; AND
B. THE EMPLOYER HAD A WRITTEN POLICY ON PROGRESSIVE DISCIPLINE IN
EFFECT AT THE WORKPLACE OR JOB SITE WHICH WAS PROVIDED TO THE EMPLOYEE.
4. A. EXCEPT WHERE TERMINATION IS FOR AN EGREGIOUS FAILURE BY THE
EMPLOYEE TO PERFORM THEIR DUTIES, OR FOR EGREGIOUS MISCONDUCT, AN
EMPLOYER SHALL PROVIDE FOURTEEN DAYS' NOTICE OF ANY DISCHARGE FOR JUST
CAUSE OR BONA FIDE ECONOMIC REASON.
B. WITHIN FIVE DAYS OF NOTICE OF TERMINATION, THE EMPLOYER SHALL
PROVIDE A WRITTEN EXPLANATION TO THE EMPLOYEE OF THE PRECISE REASONS FOR
SUCH EMPLOYEE'S DISCHARGE INCLUDING A COPY OF ANY MATERIALS, PERSONNEL
RECORDS, DATA OR ASSESSMENTS THAT THE EMPLOYER USED TO MAKE THE
DISCHARGE DECISION. IF THE EMPLOYER IS RELYING ON DATA COLLECTED THROUGH
ELECTRONIC MONITORING TO MAKE THE DISCHARGE DECISION, THE EMPLOYER SHALL
ALSO PROVIDE ANY AGGREGATED DATA COLLECTED ON EMPLOYEES PERFORMING THE
SAME OR SIMILAR FUNCTIONS AT THE SAME ESTABLISHMENT FOR THE SIX MONTHS
PRIOR TO THE DISCHARGE IN QUESTION.
C. IN DETERMINING WHETHER AN EMPLOYER HAD JUST CAUSE FOR DISCHARGE, A
FACT FINDER MAY NOT CONSIDER ANY REASONS PROFFERED BY THE EMPLOYER BUT
NOT INCLUDED IN THE WRITTEN EXPLANATION PROVIDED TO THE EMPLOYEE, AS
REQUIRED BY PARAGRAPH B OF THIS SUBDIVISION.
D. WHERE AN EMPLOYER FAILS TO TIMELY PROVIDE A WRITTEN EXPLANATION TO
AN EMPLOYEE, THE DISCHARGE SHALL BE DEEMED TO NOT BE BASED ON JUST
CAUSE.
5. THE EMPLOYER SHALL BEAR THE BURDEN OF PROVING JUST CAUSE OR A BONA
FIDE ECONOMIC REASON BY A PREPONDERANCE OF THE EVIDENCE IN ANY PROCEED-
ING BROUGHT PURSUANT TO THIS ARTICLE, SUBJECT TO THE RULES OF EVIDENCE
AS SET FORTH IN THE CIVIL PRACTICE LAW AND RULES OR THE COMMON LAW,
WHERE APPLICABLE.
6. IN ANY ACTION OR PROCEEDING BROUGHT PURSUANT TO ARTICLE THREE OF
THIS CHAPTER, IF AN EMPLOYER IS FOUND TO HAVE UNLAWFULLY DISCHARGED AN
EMPLOYEE IN VIOLATION OF THIS ARTICLE, RELIEF SHALL INCLUDE AN ORDER TO
REINSTATE OR RESTORE THE HOURS OF THE EMPLOYEE, UNLESS WAIVED BY THE
EMPLOYEE, AND, IN ANY SUCH PROCEEDING BROUGHT PURSUANT TO ARTICLE THREE
OF THIS CHAPTER WHERE AN EMPLOYER IS FOUND TO HAVE UNLAWFULLY DISCHARGED
AN EMPLOYEE IN VIOLATION OF THIS ARTICLE, THE EMPLOYER SHALL BE ORDERED
TO PAY THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE EMPLOYEE.
A. 8931 5
7. A DISCHARGE SHALL NOT BE CONSIDERED BASED ON A BONA FIDE ECONOMIC
REASON UNLESS SUPPORTED BY AN EMPLOYER'S BUSINESS RECORDS SHOWING THAT
THE CLOSING OR TECHNOLOGICAL OR REORGANIZATIONAL CHANGES ARE IN RESPONSE
TO A REDUCTION IN VOLUME OF PRODUCTION OR SALES.
8. DISCHARGES OF EMPLOYEES BASED ON A BONA FIDE ECONOMIC REASON SHALL
BE DONE IN REVERSE ORDER OF SENIORITY, WHERE PRACTICABLE, SO THAT
EMPLOYEES WITH THE GREATEST SENIORITY SHALL BE RETAINED THE LONGEST AND
REINSTATED OR RESTORED HOURS FIRST. AN EMPLOYER SHALL MAKE REASONABLE
EFFORTS TO OFFER REINSTATEMENT OR RESTORATION OF HOURS, AS APPLICABLE,
TO ANY EMPLOYEE DISCHARGED BASED ON A BONA FIDE ECONOMIC REASON WITHIN
THE PREVIOUS TWELVE MONTHS, IF ANY, BEFORE THE EMPLOYER MAY OFFER OR
DISTRIBUTE SHIFTS TO OTHER EMPLOYEES OR HIRE ANY NEW EMPLOYEES.
§ 1062. ELECTRONIC MONITORING. 1. A. EMPLOYERS SHALL NOT RELY ON DATA
COLLECTED THROUGH ELECTRONIC MONITORING IN DISCHARGING OR DISCIPLINING
AN EMPLOYEE UNLESS THE EMPLOYER CAN ESTABLISH BEFORE EACH USE THAT (I)
THERE IS NO OTHER PRACTICAL MEANS OF TRACKING OR ASSESSING EMPLOYEE
PERFORMANCE; (II) THE EMPLOYER IS USING THE LEAST INVASIVE FORM OF ELEC-
TRONIC MONITORING AVAILABLE; AND (III) THE EMPLOYER PREVIOUSLY PROVIDED
NOTICE TO THE EMPLOYEE OF THAT MONITORING AS REQUIRED BY THIS SECTION.
B. EMPLOYERS SHALL NOT ESTABLISH THE PRACTICAL NECESSITY FOR ELECTRON-
IC MONITORING WITHOUT PREVIOUSLY FILING WITH THE DEPARTMENT AN IMPARTIAL
EVALUATION FROM AN INDEPENDENT AUDITOR THAT SAID ELECTRONIC MONITORING
IS EFFECTIVE IN UNDERTAKING ITS DESIGNATED TASK.
C. EMPLOYERS WHO HAVE ESTABLISHED PRACTICAL NECESSITY FOR USING DATA
FROM ELECTRONIC MONITORING FOR TRACKING AND ASSESSING EMPLOYEE PERFORM-
ANCE PURSUANT TO THIS SUBDIVISION MAY NOT RELY SOLELY ON SUCH DATA BUT
SHALL ALSO USE OTHER MEANS OF ASSESSMENT SUCH AS MANAGER OBSERVATION OR
INTERVIEWING CLIENTS, CUSTOMERS OR OTHER EMPLOYEES TO SOLICIT FEEDBACK.
2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, EMPLOYERS MAY USE
DATA GATHERED THROUGH ELECTRONIC MONITORING:
A. TO RECORD THE BEGINNING OR END OF A WORK SHIFT, MEAL BREAK, OR REST
BREAK;
B. FOR NON-EMPLOYMENT-RELATED PURPOSES;
C. TO DISCHARGE OR DISCIPLINE AN EMPLOYEE IN CASES OF EGREGIOUS
MISCONDUCT OR INVOLVING THREATS TO THE HEALTH OR SAFETY OF OTHER
PERSONS; OR
D. WHERE REQUIRED BY STATE OR FEDERAL LAW.
3. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, EMPLOYERS MAY NOT
USE DATA FOR DISCIPLINE OR DISCHARGE IF SUCH DATA IS GATHERED USING
BIOMETRIC TECHNOLOGIES, VIDEO OR AUDIO RECORDINGS WITHIN THE PRIVATE
HOME OF AN EMPLOYEE, APPS OR SOFTWARE INSTALLED ON PERSONAL DEVICES OR
GEOFENCING TECHNOLOGIES.
4. A. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, WHEN DISCHARG-
ING OR DISCIPLINING EMPLOYEES, EMPLOYERS MAY RELY ON ELECTRONIC EMPLOYEE
WORK SPEED DATA TO DETERMINE WHETHER AN EMPLOYEE HAS MET A QUOTA, SO
LONG AS IT MEASURES TOTAL OUTPUT OVER AN INCREMENT OF TIME THAT IS NO
SHORTER THAN ONE DAY.
B. EMPLOYERS MAY NOT DISCIPLINE OR DISCHARGE AN EMPLOYEE BASED ON
FAILURE TO MEET A DAILY QUOTA IF THE EMPLOYEE DID NOT COMPLETE THEIR
ENTIRE SHIFT.
5. A. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, EMPLOYERS USING
ELECTRONIC MONITORING TO MEASURE INCREMENTS OF TIME WITHIN A DAY DURING
WHICH AN EMPLOYEE IS OR IS NOT MEETING PERFORMANCE STANDARDS MAY NOT
RECORD OR RELY ON SUCH DATA IN DISCHARGING OR DISCIPLINING AN EMPLOYEE
UNLESS IT IS GATHERED DURING A PERIODIC PERFORMANCE REVIEW AND SO LONG
A. 8931 6
AS THE EMPLOYEE SUBJECT TO THE PERFORMANCE REVIEW HAS BEEN GIVEN AT
LEAST SEVEN DAYS' ADVANCE NOTICE OF THE EXACT TIMING OF SUCH REVIEW.
B. SUCH REVIEWS CAN OCCUR NOT MORE THAN ONCE A QUARTER AND CAN OCCUR
FOR A DURATION OF TIME NOT LONGER THAN THREE HOURS.
6. AN EMPLOYER OR AGENT THEREOF THAT IS PLANNING TO ELECTRONICALLY
MONITOR AN EMPLOYEE FOR THE PURPOSES OF DISCIPLINE OR DISCHARGE SHALL
PROVIDE THE EMPLOYEE WITH NOTICE THAT ELECTRONIC MONITORING SHALL OCCUR
PRIOR TO CONDUCTING EACH SPECIFIC FORM OF ELECTRONIC MONITORING, PURSU-
ANT TO SECTION FIFTY-TWO-C OF THE CIVIL RIGHTS LAW. NOTICE SHALL
INCLUDE, AT A MINIMUM, THE FOLLOWING ELEMENTS:
A. WHETHER THE DATA GATHERED THROUGH ELECTRONIC MONITORING SHALL BE
USED TO MAKE OR INFORM DISCIPLINARY OR DISCHARGE DECISIONS, AND IF SO,
THE NATURE OF THAT DECISION, INCLUDING ANY ASSOCIATED BENCHMARKS OR
PERFORMANCE STANDARDS;
B. WHETHER THE DATA GATHERED THROUGH ELECTRONIC MONITORING SHALL BE
USED TO ASSESS EMPLOYEES PRODUCTIVITY PERFORMANCE OR TO SET PRODUCTIVITY
STANDARDS, AND IF SO, HOW;
C. THE NAMES OF ANY VENDORS CONDUCTING ELECTRONIC MONITORING ON THE
EMPLOYER'S BEHALF;
D. A DESCRIPTION OF THE DATES, TIMES, AND FREQUENCY THAT ELECTRONIC
MONITORING SHALL OCCUR;
E. AN EXPLANATION FOR WHY THERE IS NO OTHER PRACTICAL MEANS OF TRACK-
ING OR ASSESSING EMPLOYEE PERFORMANCE AND HOW THE SPECIFIC MONITORING
PRACTICE IS THE LEAST INVASIVE MEANS AVAILABLE;
F. NOTICE OF THE EMPLOYEE'S RIGHT TO ACCESS OR CORRECT THE DATA; AND
G. NOTICE OF THE ADMINISTRATIVE AND JUDICIAL MECHANISMS AVAILABLE TO
CHALLENGE THE USE OF ELECTRONIC MONITORING.
7. A. NOTICE OF THE SPECIFIC FORM OF ELECTRONIC MONITORING SHALL BE
CLEAR AND CONSPICUOUS. A NOTICE THAT STATES ELECTRONIC MONITORING "MAY"
TAKE PLACE OR THAT THE EMPLOYER "RESERVES THE RIGHT" TO MONITOR SHALL
NOT BE CONSIDERED CLEAR AND CONSPICUOUS.
B. AN EMPLOYER WHO ENGAGES IN PERIODIC ELECTRONIC MONITORING OF
EMPLOYEES FOR THE PURPOSES OF DISCIPLINE OR DISCHARGE SHALL INFORM THE
AFFECTED EMPLOYEES OF THE SPECIFIC EVENTS WHICH ARE BEING MONITORED AT
THE TIME THE MONITORING TAKES PLACE.
C. NOTICE OF PERIODIC ELECTRONIC MONITORING MAY BE GIVEN AFTER ELEC-
TRONIC MONITORING HAS OCCURRED ONLY IF NECESSARY TO PRESERVE THE INTEG-
RITY OF AN INVESTIGATION OF ILLEGAL ACTIVITY OR PROTECT THE IMMEDIATE
SAFETY OF EMPLOYEES, CUSTOMERS OR THE PUBLIC.
D. AN EMPLOYER SHALL PROVIDE ADDITIONAL NOTICE TO EMPLOYEES WHEN AN
UPDATE OR CHANGE IS MADE TO THE ELECTRONIC MONITORING OR IN HOW THE
EMPLOYER IS USING SUCH ELECTRONIC MONITORING.
8. EMPLOYERS SHALL PROVIDE A COPY OF THE DISCLOSURES REQUIRED BY THIS
SECTION TO THE DEPARTMENT AT THE TIME THEY ARE REQUIRED TO BE DISSEM-
INATED TO EMPLOYEES.
§ 1063. DATA ACCESS AND ACCURACY. 1. AN EMPLOYER SHALL ENSURE THAT ANY
DATA COLLECTED THROUGH ELECTRONIC MONITORING PURSUANT TO SECTION ONE
THOUSAND SIXTY-TWO OF THIS ARTICLE THAT MAY BE USED FOR THE PURPOSES OF
DISCIPLINE OR DISCHARGE IS ACCURATE AND KEPT UP TO DATE, WHERE RELEVANT.
2. A CURRENT EMPLOYEE SHALL HAVE THE RIGHT TO REQUEST A COPY OF
EMPLOYEE WORK SPEED DATA THAT COULD BE USED FOR THE PURPOSES OF DISCI-
PLINE AND TERMINATION AT LEAST ONCE EVERY SEVEN DAYS.
3. A. EMPLOYERS USING ELECTRONIC MONITORING TO COLLECT EMPLOYEE WORK
SPEED DATA FOR THE PURPOSES OF DISCIPLINE OR DISCHARGE SHALL PROVIDE
EMPLOYEES THE OPPORTUNITY TO SUPPLEMENT SUCH DATA TO RECORD ANY INCRE-
MENTS OF TIME DURING WHICH THEY ARE NOT PERFORMING WORK-RELATED TASKS
A. 8931 7
AND TO RECORD THE REASON THAT THEY ARE NOT PERFORMING WORK-RELATED TASKS
DURING THAT TIME. SUCH OPPORTUNITY SHALL BE MADE AVAILABLE TO EMPLOYEES
BOTH AT THE TIME OF DATA COLLECTION AND AFTER.
B. EMPLOYERS SHALL GIVE EMPLOYEES THE OPTION TO RECORD REASONS FOR NOT
PERFORMING TASKS THAT INCLUDE, BUT ARE NOT LIMITED TO USING THE REST-
ROOM, TAKING MEAL BREAKS, INJURY, ILLNESS, FEAR OF INJURY, DISABILITY
ACCOMMODATIONS, RESPONDING TO AN EMERGENCY, COMPLYING WITH LOCAL, STATE
OR FEDERAL LAWS OR EXERCISING WORKPLACE RIGHTS UNDER LOCAL, STATE OR
FEDERAL LAWS.
C. AN EMPLOYER THAT RECEIVES AN EMPLOYEE REQUEST TO CORRECT INACCURATE
DATA THAT WAS COLLECTED THROUGH ELECTRONIC MONITORING SHALL INVESTIGATE
AND DETERMINE WHETHER SUCH DATA IS INACCURATE.
D. IF AN EMPLOYER, UPON INVESTIGATION, DETERMINES THAT SUCH DATA IS
INACCURATE, THE EMPLOYER SHALL:
(I) PROMPTLY CORRECT THE INACCURATE DATA AND INFORM THE EMPLOYEE OF
THE EMPLOYER'S DECISION AND ACTION.
(II) REVIEW AND ADJUST, AS APPROPRIATE, ANY DISCIPLINARY OR DISCHARGE
DECISIONS THAT WERE PARTIALLY OR SOLELY BASED ON THE INACCURATE DATA AND
INFORM THE EMPLOYEE OF THE ADJUSTMENT.
(III) INFORM ANY THIRD PARTIES WITH WHICH THE EMPLOYER SHARED THE
INACCURATE DATA, OR FROM WHICH THE EMPLOYER RECEIVED THE INACCURATE
DATA, AND DIRECT SUCH THIRD PARTY TO CORRECT THE DATA, IF APPLICABLE,
AND PROVIDE THE EMPLOYEE WITH NOTICE OF SUCH ACTION.
E. IF AN EMPLOYER, UPON INVESTIGATION, DETERMINES THAT THE DATA IS
ACCURATE, THE EMPLOYER SHALL INFORM THE EMPLOYEE OF THE FOLLOWING:
(I) THE DECISION NOT TO AMEND THE DATA.
(II) THE STEPS TAKEN TO VERIFY THE ACCURACY OF THE DATA AND THE
EVIDENCE SUPPORTING THE DECISION NOT TO AMEND THE DATA.
§ 1064. ARBITRATION. 1. ON OR AFTER JANUARY FIRST, TWO THOUSAND TWEN-
TY-SIX, ANY PERSON OR ORGANIZATION REPRESENTING PERSONS ALLEGING A
VIOLATION OF THIS ARTICLE BY AN EMPLOYER MAY BRING AN ARBITRATION
PROCEEDING. IN ADDITION, THE DEPARTMENT MAY, TO THE EXTENT PERMITTED BY
ANY APPLICABLE LAW INCLUDING THE CIVIL PRACTICE LAW AND RULES, PROVIDE
BY RULE FOR PERSONS BRINGING SUCH A PROCEEDING TO SERVE AS A REPRESEN-
TATIVE PARTY ON BEHALF OF ALL MEMBERS OF A CLASS. SUCH A PROCEEDING
SHALL BE BROUGHT WITHIN TWO YEARS OF THE DATE OF THE ALLEGED VIOLATION.
IF THE ARBITRATOR FINDS THAT THE EMPLOYER VIOLATED THE PROVISIONS OF
THIS ARTICLE, SUCH ARBITRATOR SHALL:
A. REQUIRE THE EMPLOYER TO PAY THE REASONABLE ATTORNEYS' FEES AND
COSTS OF THE EMPLOYEE;
B. REQUIRE THE EMPLOYER TO REINSTATE OR RESTORE THE HOURS OF THE
EMPLOYEE, UNLESS SUCH EMPLOYEE WAIVES REINSTATEMENT;
C. REQUIRE THE EMPLOYER TO PAY THE STATE FOR THE COSTS OF THE ARBI-
TRATION PROCEEDING; AND
D. AWARD ALL OTHER APPROPRIATE EQUITABLE RELIEF, WHICH MAY INCLUDE
BACK PAY AND RESCISSION OF DISCIPLINE, IN ADDITION TO OTHER RELIEF, AND
SUCH OTHER COMPENSATORY DAMAGES OR INJUNCTIVE RELIEF AS MAY BE APPROPRI-
ATE.
2. A PERSON OR ORGANIZATION BRINGING AN ARBITRATION PROCEEDING UNDER
SUBDIVISION ONE OF THIS SECTION SHALL SERVE THE ARBITRATION DEMAND, AND
ANY AMENDMENTS THERETO, ON THE EMPLOYER EITHER IN PERSON OR VIA CERTI-
FIED MAIL AT THE CURRENT OR MOST RECENT WORKPLACE OR JOB SITE WHERE EACH
EMPLOYEE NAMED IN THE ARBITRATION DEMAND IS OR WAS EMPLOYED, OR PURSUANT
TO THE RULES FOR SERVICE SPECIFIED IN ARTICLE THREE OF THE CIVIL PRAC-
TICE LAW AND RULES. SUCH ARBITRATION DEMAND SHALL INCLUDE A GENERAL
A. 8931 8
DESCRIPTION OF EACH ALLEGED VIOLATION BUT NEED NOT REFERENCE THE PRECISE
SECTION OF LAW ALLEGED TO HAVE BEEN VIOLATED.
3. THE PARTIES TO AN ARBITRATION PROCEEDING SHALL JOINTLY SELECT THE
ARBITRATOR FROM A PANEL OF ARBITRATORS. THE NUMBER OF ARBITRATORS ON THE
PANEL SHALL BE DETERMINED BY THE DEPARTMENT. THE ARBITRATORS ON THE
PANEL SHALL BE CHOSEN BY A COMMITTEE OF EIGHT PARTICIPANTS ESTABLISHED
BY THE DEPARTMENT AND COMPRISED OF:
A. FOUR EMPLOYEE-SIDE REPRESENTATIVES, INCLUDING EMPLOYEES OR ADVO-
CATES; AND
B. FOUR EMPLOYER-SIDE REPRESENTATIVES, INCLUDING EMPLOYERS OR ADVO-
CATES.
4. IF AN INSUFFICIENT NUMBER OF EMPLOYEE-SIDE AND EMPLOYER-SIDE REPRE-
SENTATIVES AGREE TO PARTICIPATE IN THE COMMITTEE PURSUANT TO SUBDIVISION
THREE OF THIS SECTION, THE DEPARTMENT SHALL CONSULT WITH THOSE THAT HAVE
AGREED TO PARTICIPATE AND SELECT INDIVIDUALS TO FILL THE REQUISITE
NUMBER OF OPENINGS ON THE COMMITTEE.
5. IF THE COMMITTEE ESTABLISHED PURSUANT TO SUBDIVISION THREE OF THIS
SECTION IS UNABLE TO SELECT A SUFFICIENT NUMBER OF ARBITRATORS FOR THE
PANEL, THE DEPARTMENT SHALL SELECT THE REMAINING ARBITRATORS.
6. IF THE PARTIES ARE UNABLE TO AGREE ON AN ARBITRATOR, THE DEPARTMENT
SHALL SELECT AN ARBITRATOR FOR THE PANEL.
7. THE DEPARTMENT SHALL PROVIDE INTERPRETATION SERVICES TO ANY PARTY
REQUIRING SUCH SERVICES FOR THE ARBITRATION HEARING.
8. THE ARBITRATION HEARING SHALL BE HELD AT A LOCATION DESIGNATED BY
THE DEPARTMENT OR A LOCATION AGREED UPON BY THE PARTIES AND THE ARBITRA-
TOR. EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, SUCH ARBITRATION
SHALL BE SUBJECT TO THE LABOR ARBITRATION RULES ESTABLISHED BY THE AMER-
ICAN ARBITRATION ASSOCIATION AND THE RULES PROMULGATED BY THE DEPARTMENT
TO IMPLEMENT THIS ARTICLE. IN CASE OF A CONFLICT BETWEEN THE RULES OF
THE AMERICAN ARBITRATION ASSOCIATION AND THE RULES OF THE DEPARTMENT,
THE RULES OF THE DEPARTMENT SHALL GOVERN. ANY RULES PROMULGATED BY THE
DEPARTMENT IMPLEMENTING THIS SECTION SHALL BE CONSISTENT WITH THE
REQUIREMENT THAT IN ANY ARBITRATION CONDUCTED PURSUANT TO THIS SECTION,
THE ARBITRATOR SHALL HAVE APPROPRIATE QUALIFICATIONS AND MAINTAIN
PERSONAL OBJECTIVITY, AND EACH PARTY SHALL HAVE THE RIGHT TO PRESENT ITS
CASE, WHICH SHALL INCLUDE THE RIGHT TO BE IN ATTENDANCE DURING ANY PRES-
ENTATION MADE BY THE OTHER PARTY AND THE OPPORTUNITY TO REBUT OR REFUTE
SUCH PRESENTATION.
9. IF AN EMPLOYEE BRINGS AN ARBITRATION PROCEEDING, ARBITRATION SHALL
BE THE EXCLUSIVE REMEDY FOR THE WRONGFUL DISCHARGE DISPUTE AND THERE
SHALL BE NO RIGHT TO BRING OR CONTINUE A PRIVATE CAUSE OF ACTION OR
ADMINISTRATIVE COMPLAINT UNDER THIS ARTICLE, UNLESS SUCH ARBITRATION
PROCEEDING HAS BEEN WITHDRAWN OR DISMISSED WITHOUT PREJUDICE.
10. EACH PARTY SHALL HAVE THE RIGHT TO APPLY TO A COURT OF COMPETENT
JURISDICTION FOR THE CONFIRMATION, MODIFICATION OR VACATUR OF AN AWARD
PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES, AS
SUCH ARTICLE APPLIES, TO REVIEW OF LEGALLY MANDATED ARBITRATION
PROCEEDINGS IN ACCORDANCE WITH STANDARDS OF DUE PROCESS.
§ 1065. EXCEPTIONS. THIS ARTICLE SHALL NOT: 1. APPLY TO ANY EMPLOYEE
WHO IS:
A. CURRENTLY EMPLOYED WITHIN A PROBATION PERIOD;
B. EMPLOYED IN A SHORT-TERM POSITION AND DISCHARGED AT THE END OF THE
CONTRACT OF EMPLOYMENT, PROVIDED THAT THE EMPLOYER DOES NOT HIRE ANOTHER
EMPLOYEE TO PERFORM SUBSTANTIALLY SIMILAR WORK FOR ONE HUNDRED EIGHTY
DAYS AFTER THE END OF THE SHORT-TERM CONTRACT;
A. 8931 9
C. IN A SHORT-TERM EDUCATIONAL POSITION AT THE END OF THE CONTRACT OF
EMPLOYMENT; OR
D. COVERED BY A VALID COLLECTIVE BARGAINING AGREEMENT; OR
2. LIMIT OR OTHERWISE AFFECT THE APPLICABILITY OF ANY RIGHT OR BENEFIT
CONFERRED UPON OR AFFORDED TO AN EMPLOYEE BY THE PROVISIONS OF ANY OTHER
LAW, REGULATION, RULE, REQUIREMENT, POLICY OR STANDARD INCLUDING BUT NOT
LIMITED TO ANY FEDERAL, STATE OR LOCAL LAW PROVIDING FOR PROTECTIONS
AGAINST RETALIATION OR DISCRIMINATION.
§ 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, 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 on the ninetieth day after it shall
have become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such effective date.