•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A10461 Summary:

BILL NOA10461
 
SAME ASSAME AS S08607
 
SPONSORWright
 
COSPNSRPeoples-Stokes, Barron, Bichotte, Cook, Crespo, De La Rosa, Galef, O'Donnell, Rozic, Seawright, Sepulveda, Simon, Taylor, Rosenthal L, Hunter, Glick, Arroyo, Ortiz, Niou, Gottfried, Simotas, Weprin, Bronson, Otis, Wallace, Espinal
 
MLTSPNSREpstein
 
Amd 139-l, St Fin L; amd 7515 & 5003-b, CPLR; amd 17-a & 18-a, Pub Off L; amd 5-336, Gen Ob L; amd 201-g, Lab L; amd part KK subpart E 2, Chap 57 of 2018; amd 296-d, 292 & 63, Exec L
 
Relates to the prevention of discrimination; replaces the term "sexual harassment" with "discrimination".
Go to top    

A10461 Actions:

BILL NOA10461
 
04/23/2018referred to governmental operations
05/08/2018reported referred to codes
05/14/2018reported referred to ways and means
05/22/2018reported
05/24/2018advanced to third reading cal.966
06/04/2018passed assembly
06/04/2018delivered to senate
06/04/2018REFERRED TO RULES
Go to top

A10461 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A10461
 
SPONSOR: Wright
  TITLE OF BILL: An act to amend the state finance law, the civil prac- tice law and rules, the public officers law, the general obligations law and the labor law, in relation to discrimination; and to amend subpart E of part KK of chapter 57 of the laws of 2018, amending the labor law, relating to the establishment of a model policy regarding the prevention of sexual harassment and a model training program to prevent sexual harassment in the workplace, in relation to the effectiveness thereof   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to establish a model policy regarding the prevention of discrimination and a model training program to prevent discrimination in the workplace.   SUMMARY OF PROVISIONS: Section one establishes the statement on discrimination in bids. Section two prohibits mandatory arbitration clauses related to discrimi- nation. Section three provides details for the reimbursement of funds paid by state agencies and state entities for the payment of awards adjudicated in discrimination claims. Section four provides details for the reimbursement of funds paid by a public entity for the payment of awards adjudicated in discrimination claims. Section five relates to nondisclosure agreements relating to an employ- er, its officers, or employees within the context of discrimination. Section six relates to nondisclosure agreements for any claims of cause or action related to discrimination. Section seven establishes the model policy and training program for the prevention of discrimination in the workplace. Section eight provides the effective date of the model policy and the model training program. Section nine provides details relating to discrimination of non-employ- ees. Section ten identifies the term "employer" to include employers within the state. Section eleven details civil actions or proceedings effective for the enforcement of this law and identifies types of discrimination. Section twelve provides for the severability clause of this legislation. Section thirteen provides the effective date as proposed in legislative bill numbers S. 7507-C and A. 9507-C.   JUSTIFICATION: Many workers in the United States do not realize that they are entitled to rights, as both employers and employees of their workplace. Discrimi- nation laws serve as a measure to protect individuals from being discriminated against by employees, and, or employers based on a variety of different reasons. This bill would help to further eliminate discrim- ination in the workplace by establishing prevention and a training poli- cy.   PRIOR LEGISLATIVE HISTORY: This is new legislation.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately.
Go to top

A10461 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10461
 
                   IN ASSEMBLY
 
                                     April 23, 2018
                                       ___________
 
        Introduced  by  M. of A. WRIGHT, PEOPLES-STOKES, BARRON, BICHOTTE, COOK,
          CRESPO, DE LA ROSA, GALEF,  O'DONNELL,  ROZIC,  SEAWRIGHT,  SEPULVEDA,
          SIMON, TAYLOR, L. ROSENTHAL -- read once and referred to the Committee
          on Governmental Operations
 
        AN ACT to amend the state finance law, the civil practice law and rules,
          the  public  officers  law,  the general obligations law and the labor
          law, in relation to discrimination; and to amend subpart E of part  KK
          of chapter 57 of the laws of 2018, amending the labor law, relating to
          the establishment of a model policy regarding the prevention of sexual
          harassment  and  a model training program to prevent sexual harassment
          in the workplace, in relation to the effectiveness thereof
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The section heading and paragraph (a) of subdivision 1 of
     2  section 139-l of the state finance law, as added by section 1 of subpart
     3  A of part KK of chapter 57 of the laws of 2018, are amended to  read  as
     4  follows:
     5    Statement on [sexual harassment] discrimination, in bids.
     6    (a)  Every bid hereafter made to the state or any public department or
     7  agency thereof, where competitive bidding is required by  statute,  rule
     8  or  regulation,  for  work  or  services performed or to be performed or
     9  goods sold  or  to  be  sold,  shall  contain  the  following  statement
    10  subscribed  by  the bidder and affirmed by such bidder as true under the
    11  penalty of perjury:
    12    "By submission of this bid, each bidder and  each  person  signing  on
    13  behalf  of  any  bidder  certifies,  and in the case of a joint bid each
    14  party thereto certifies as to its own  organization,  under  penalty  of
    15  perjury,  that  the  bidder  has  and  has  implemented a written policy
    16  addressing [sexual harassment] discrimination prevention  in  the  work-
    17  place  and provides annual [sexual harassment] discrimination prevention
    18  training to all of its employees. Such policy shall, at a minimum,  meet
    19  the requirements of section two hundred one-g of the labor law."
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15412-02-8

        A. 10461                            2
 
     1    §  2.  Subdivisions  2 and 3 of section 7515 of the civil practice law
     2  and rules, as added by section 1 of subpart B of part KK of  chapter  57
     3  of the laws of 2018, are amended to read as follows:
     4    2.  The term "prohibited clause" shall mean any clause or provision in
     5  any contract which requires as a condition of  the  enforcement  of  the
     6  contract  or  obtaining  remedies  under  the  contract that the parties
     7  submit to mandatory arbitration to resolve any allegation  or  claim  of
     8  [an  unlawful  discriminatory  practice  of sexual harassment] discrimi-
     9  nation, in violation of laws prohibiting discrimination,  including  but
    10  not limited to, article fifteen of the executive law.
    11    3.  The  term  "mandatory  arbitration  clause"  shall  mean a term or
    12  provision contained in a written contract which requires the parties  to
    13  such  contract  to  submit  any  matter  thereafter  arising  under such
    14  contract to arbitration prior to the commencement of any legal action to
    15  enforce the provisions of such contract and which also further  provides
    16  language to the effect that the facts found or determination made by the
    17  arbitrator  or panel of arbitrators in its application to a party alleg-
    18  ing [an unlawful discriminatory practice  based  on  sexual  harassment]
    19  discrimination, in violation of laws prohibiting discrimination, includ-
    20  ing  but  not  limited to, article fifteen of the executive law shall be
    21  final and not subject to independent court review.
    22    § 3. The section heading and subdivision 2  of  section  17-a  of  the
    23  public  officers  law,  as added by section 1 of subpart C of part KK of
    24  chapter 57 of the laws of 2018, are amended to read as follows:
    25    Reimbursement of funds paid by state agencies and state  entities  for
    26  the  payment of awards adjudicated in [sexual harassment] discrimination
    27  claims.
    28    2. Notwithstanding any law to the contrary, any employee who has  been
    29  subject to a final judgment of personal liability for intentional wrong-
    30  doing  related  to  a  claim  of  [sexual harassment] discrimination, in
    31  violation of laws prohibiting discrimination, including but not  limited
    32  to,  article  fifteen  of  the  executive law, shall reimburse any state
    33  agency or entity that makes a payment to a plaintiff for an  adjudicated
    34  award  based  on  a  claim  of  [sexual  harassment]  discrimination, in
    35  violation of laws prohibiting discrimination, including but not  limited
    36  to,  article  fifteen  of the executive law resulting in a judgment, for
    37  his or her proportionate share of such  judgment.  Such  employee  shall
    38  personally  reimburse  such state agency or entity within ninety days of
    39  the state agency or entity's payment of such award.
    40    § 4. The section heading and subdivision 2  of  section  18-a  of  the
    41  public  officers  law,  as added by section 2 of subpart C of part KK of
    42  chapter 57 of the laws of 2018, are amended to read as follows:
    43    Reimbursement of funds paid by a public  entity  for  the  payment  of
    44  awards adjudicated in [sexual harassment] discrimination claims.
    45    2.  Notwithstanding any law to the contrary, any employee who has been
    46  subject to a final judgment of personal liability for intentional wrong-
    47  doing related to a  claim  of  [sexual  harassment]  discrimination,  in
    48  violation  of laws prohibiting discrimination, including but not limited
    49  to, article fifteen of the executive law,  shall  reimburse  any  public
    50  entity  that  makes  a  payment  to a plaintiff for an adjudicated award
    51  based on a claim of [sexual harassment] discrimination, in violation  of
    52  laws  prohibiting  discrimination, including but not limited to, article
    53  fifteen of the executive law resulting in a judgment,  for  his  or  her
    54  proportionate  share  of  such  judgment. Such employee shall personally
    55  reimburse such public entity within ninety days of the  public  entity's
    56  payment of such award.

        A. 10461                            3
 
     1    § 5. Section 5-336 of the general obligations law, as added by section
     2  1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
     3  to read as follows:
     4    §  5-336.  Nondisclosure  agreements. Notwithstanding any other law to
     5  the contrary, no employer, its officers  or  employees  shall  have  the
     6  authority to include or agree to include in any settlement, agreement or
     7  other resolution of any claim, the factual foundation for which involves
     8  [sexual  harassment]  discrimination,  in  violation of laws prohibiting
     9  discrimination, including but not limited to,  article  fifteen  of  the
    10  executive  law,  any term or condition that would prevent the disclosure
    11  of the underlying facts and circumstances to the claim or action  unless
    12  the  condition  of  confidentiality is the complainant's preference. Any
    13  such term or  condition  must  be  provided  to  all  parties,  and  the
    14  complainant  shall  have twenty-one days to consider such term or condi-
    15  tion.  If  after  twenty-one  days  such  term  or  condition   is   the
    16  complainant's  preference,  such  preference shall be memorialized in an
    17  agreement signed by all parties. For a period of  at  least  seven  days
    18  following  the  execution  of such agreement, the complainant may revoke
    19  the agreement, and the  agreement  shall  not  become  effective  or  be
    20  enforceable until such revocation period has expired.
    21    §  6.  Section 5003-b of the civil practice law and rules, as added by
    22  section 2 of subpart D of part KK of chapter 57 of the laws of 2018,  is
    23  amended to read as follows:
    24    §  5003-b.  Nondisclosure agreements. Notwithstanding any other law to
    25  the contrary, for any claim or cause of action,  whether  arising  under
    26  common  law, equity, or any provision of law, the factual foundation for
    27  which involves [sexual harassment] discrimination, in violation of  laws
    28  prohibiting  discrimination,  including  but  not  limited  to,  article
    29  fifteen of the executive law, in resolving, by agreed  judgment,  stipu-
    30  lation,  decree,  agreement  to  settle,  assurance of discontinuance or
    31  otherwise, no employer, its officer or employee shall have the authority
    32  to include or agree to include in such resolution any term or  condition
    33  that  would  prevent  the disclosure of the underlying facts and circum-
    34  stances to the claim or action unless the condition  of  confidentiality
    35  is  the  plaintiff's  preference.  Any  such  term  or condition must be
    36  provided to all parties, and the plaintiff shall have twenty-one days to
    37  consider such term or condition. If after twenty-one days such  term  or
    38  condition  is the plaintiff's preference, such preference shall be memo-
    39  rialized in an agreement signed by all parties. For a period of at least
    40  seven days following the execution of such agreement, the plaintiff  may
    41  revoke the agreement, and the agreement shall not become effective or be
    42  enforceable until such revocation period has expired.
    43    §  7. Section 201-g of the labor law, as added by section 1 of subpart
    44  E of part KK of chapter 57 of the laws of 2018, is amended  to  read  as
    45  follows:
    46    §  201-g.  Prevention  of  [sexual  harassment] discrimination. 1. The
    47  department shall consult with the division of human rights to create and
    48  publish a model [sexual harassment] discrimination  prevention  guidance
    49  document  and  [sexual  harassment prevention] discrimination prevention
    50  policy that employers may utilize in their adoption of [a sexual harass-
    51  ment prevention] the policy required by this section.  For  purposes  of
    52  this  section, "discrimination" shall mean unlawful discriminatory prac-
    53  tice, as defined in section two hundred ninety-six of the executive  law
    54  and/or  discrimination or harassment based on race, color, sex, national
    55  origin, creed, sexual orientation,  age,  disability,  military  status,

        A. 10461                            4
 
     1  familial  status,  marital status, predisposing genetic characteristics,
     2  or domestic violence victim status.
     3    a. Such model [sexual harassment prevention] discrimination prevention
     4  policy shall: (i) prohibit [sexual harassment] discrimination consistent
     5  with guidance issued by the department in consultation with the division
     6  of  human  rights  and provide examples of prohibited conduct that would
     7  constitute unlawful [sexual harassment] discrimination; (ii) include but
     8  not be limited to information concerning the federal and state statutory
     9  provisions concerning [sexual harassment]  discrimination  and  remedies
    10  available  to victims of [sexual harassment] discrimination and a state-
    11  ment that there may be applicable local laws; (iii) include  a  standard
    12  complaint form; (iv) include a procedure for the timely and confidential
    13  investigation  of complaints and ensure due process for all parties; (v)
    14  inform employees of their rights of redress and all available forums for
    15  adjudicating [sexual harassment] discrimination  complaints  administra-
    16  tively  and  judicially;  (vi)  clearly  state  that [sexual harassment]
    17  discrimination is considered a form  of  employee  misconduct  and  that
    18  sanctions  will  be  enforced  against  individuals  engaging in [sexual
    19  harassment]  discrimination  and  against  supervisory  and   managerial
    20  personnel  who  knowingly  allow  such  behavior  to continue; and (vii)
    21  clearly state that  retaliation  against  individuals  who  complain  of
    22  [sexual  harassment]  discrimination  or  who  testify  or assist in any
    23  proceeding under the law is unlawful.
    24    b. Every employer shall adopt the model [sexual harassment]  discrimi-
    25  nation  prevention  policy  promulgated  pursuant to this subdivision or
    26  establish a [sexual  harassment]  discrimination  prevention  policy  to
    27  prevent  [sexual  harassment]  discrimination that equals or exceeds the
    28  minimum standards provided by such model [sexual harassment  prevention]
    29  policy.  Such [sexual harassment prevention] policy shall be provided to
    30  all employees in writing.  Such  model  [sexual  harassment  prevention]
    31  policy  shall  be  publicly available and posted on the websites of both
    32  the department and the division of human rights.
    33    2. The department shall consult with the division of human rights  and
    34  produce  a  model [sexual harassment] discrimination prevention training
    35  program to prevent [sexual harassment] discrimination in the workplace.
    36    a. Such model [sexual harassment prevention] training program shall be
    37  interactive and include:   (i) an  explanation  of  [sexual  harassment]
    38  discrimination  consistent  with  guidance  issued  by the department in
    39  consultation with the division of human rights; (ii) examples of conduct
    40  that would constitute unlawful [sexual harassment] discrimination; (iii)
    41  information  concerning  the  federal  and  state  statutory  provisions
    42  concerning  [sexual harassment] discrimination and remedies available to
    43  victims of [sexual  harassment]  discrimination;  and  (iv)  information
    44  concerning  employees'  rights  of  redress and all available forums for
    45  adjudicating complaints.
    46    b. The department shall include  information  in  such  model  [sexual
    47  harassment  prevention]  training program addressing conduct by supervi-
    48  sors and any additional responsibilities for such supervisors.
    49    c. Every employer shall utilize [the] such  model  [sexual  harassment
    50  prevention] training program pursuant to this subdivision or establish a
    51  training  program for employees to prevent [sexual harassment] discrimi-
    52  nation that equals or exceeds the minimum  standards  provided  by  such
    53  model  training.  Such  [sexual  harassment prevention] training program
    54  shall be provided to all employees on an annual basis.

        A. 10461                            5
 
     1    3. The commissioner may promulgate regulations  as  he  or  she  deems
     2  necessary  for  the  purposes  of  carrying  out  the provisions of this
     3  section.
     4    §  8.  Section  2 of subpart E of part KK of chapter 57 of the laws of
     5  2018, is amended to read as follows:
     6    § 2. This act shall take effect on the one hundred eightieth day after
     7  it shall have become a law.   Effective immediately, the  department  of
     8  labor,  in consultation with the division of human rights, is authorized
     9  to create the model [sexual harassment prevention] policy and the  model
    10  [sexual  harassment  prevention] training program required to be created
    11  and published pursuant to section 201-g of the labor  law  as  added  by
    12  section one of this act.
    13    §  9.  Section  296-d  of  the executive law, as added by section 1 of
    14  subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
    15  read as follows:
    16    § 296-d. [Sexual harassment] Discrimination relating to non-employees.
    17  It  shall  be  an  unlawful  discriminatory  practice for an employer to
    18  permit [sexual harassment] discrimination or harassment based  on  race,
    19  color, sex, national origin, creed, sexual orientation, age, disability,
    20  military  status,  familial status, marital status, predisposing genetic
    21  characteristics, or domestic violence victim status of non-employees  in
    22  its  workplace.  An employer may be held liable to a non-employee who is
    23  a contractor, subcontractor, vendor, consultant or other person  provid-
    24  ing  services  pursuant  to  a  contract  in  the workplace or who is an
    25  employee of such contractor, subcontractor, vendor, consultant or  other
    26  person  providing services pursuant to a contract in the workplace, with
    27  respect to [sexual harassment] discrimination  or  harassment  based  on
    28  race, color, sex, national origin, creed, sexual orientation, age, disa-
    29  bility,  military  status, familial status, marital status, predisposing
    30  genetic characteristics, or domestic violence victim  status,  when  the
    31  employer,  its agents or supervisors knew or should have known that such
    32  non-employee was subjected  to  [sexual  harassment]  discrimination  or
    33  harassment  based  on  race,  color, sex, national origin, creed, sexual
    34  orientation, age, disability, military status, familial status,  marital
    35  status,  predisposing  genetic  characteristics,  or  domestic  violence
    36  victim status in the employer's workplace, and the  employer  failed  to
    37  take  immediate  and  appropriate  corrective  action. In reviewing such
    38  cases involving non-employees, the extent of the employer's control  and
    39  any  other legal responsibility which the employer may have with respect
    40  to the conduct of the harasser shall be considered.
    41    § 10. Subdivision 5 of section 292 of the executive law, as amended by
    42  chapter 363 of the laws of 2015, is amended to read as follows:
    43    5. The term "employer" [does not include any employer with fewer  than
    44  four  persons  in  his  or her employ except as set forth in section two
    45  hundred ninety-six-b of this article, provided,  however,  that  in  the
    46  case  of  an action for discrimination based on sex pursuant to subdivi-
    47  sion one of section two hundred ninety-six of this article, with respect
    48  to sexual harassment  only,  the  term  "employer"]  shall  include  all
    49  employers within the state.
    50    § 11. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
    51  vision  9  as amended by chapter 359 of the laws of 1969, are amended to
    52  read as follows:
    53    9. Bring and prosecute or defend  upon  request  of  the  [industrial]
    54  commissioner  of  labor or the state division of human rights, any civil
    55  action or proceeding, the institution or defense of which in  his  judg-
    56  ment  is  necessary  for effective enforcement of the laws of this state

        A. 10461                            6
 
     1  against discrimination by reason of age, race, sex, creed,  color  [or],
     2  national   origin,  sexual  orientation,  military  status,  disability,
     3  predisposing genetic characteristics, familial status,  marital  status,
     4  or  domestic  violence victim status, or for enforcement of any order or
     5  determination of such commissioner or division  made  pursuant  to  such
     6  laws.
     7    10.  Prosecute  every person charged with the commission of a criminal
     8  offense in violation of any of the laws of this state against  discrimi-
     9  nation  because  of  age, race, sex, creed, color, [or] national origin,
    10  sexual orientation, military status,  disability,  predisposing  genetic
    11  characteristics,  familial  status, marital status, or domestic violence
    12  victim status, in any case where in his judgment, because of the  extent
    13  of the offense, such prosecution cannot be effectively carried on by the
    14  district attorney of the county wherein the offense or a portion thereof
    15  is alleged to have been committed, or where in his judgment the district
    16  attorney  has  erroneously  failed  or refused to prosecute. In all such
    17  proceedings, the attorney-general may appear in person or by his  deputy
    18  or  assistant  before  any  court or any grand jury and exercise all the
    19  powers and perform  all  the  duties  in  respect  of  such  actions  or
    20  proceedings which the district attorney would otherwise be authorized or
    21  required to exercise or perform.
    22    §  12. Severability clause. If any clause, sentence, paragraph, subdi-
    23  vision, section or subpart of this act shall be adjudged by any court of
    24  competent jurisdiction to be invalid, such judgment  shall  not  affect,
    25  impair,  or  invalidate  the remainder thereof, but shall be confined in
    26  its operation to the clause, sentence, paragraph,  subdivision,  section
    27  or  subject  thereof  directly involved in the controversy in which such
    28  judgment shall have been rendered. It  is  hereby  declared  to  be  the
    29  intent  of the legislature that this act would have been enacted even if
    30  such invalid provisions had not been included herein.
    31    § 13. This act shall take effect immediately; provided, however, that:
    32    a. Section one of this act shall take effect on the same date  and  in
    33  the  same  manner  as  subpart A of part KK of chapter 57 of the laws of
    34  2018, takes effect;
    35    b. Section two of this act shall take effect on the same date  and  in
    36  the  same  manner  as  subpart B of part KK of chapter 57 of the laws of
    37  2018, takes effect;
    38    c. Sections five and six of this act shall take  effect  on  the  same
    39  date and in the same manner as subpart D of part KK of chapter 57 of the
    40  laws of 2018, takes effect; and
    41    d.  Sections seven and eight of this act shall take effect on the same
    42  date and in the same manner as subpart E of part KK of chapter 57 of the
    43  laws of 2018, takes effect.
Go to top