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A01890 Summary:

BILL NOA01890
 
SAME ASNo Same As
 
SPONSORWright
 
COSPNSRPeoples-Stokes, Barron, Bichotte, Cook, Crespo, De La Rosa, Galef, O'Donnell, Rozic, Seawright, Simon, Taylor, Rosenthal L, Hunter, Glick, Arroyo, Ortiz, Niou, Gottfried, Simotas, Wallace, Otis, Bronson, Weprin, Fall
 
MLTSPNSR
 
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".
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A01890 Actions:

BILL NOA01890
 
01/17/2019referred to governmental operations
02/05/2019reported referred to codes
02/11/2019reported referred to ways and means
02/11/2019reported
02/21/2019advanced to third reading cal.56
03/06/2019recommitted to ways and means
03/06/2019enacting clause stricken
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A01890 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 1915                                                  A. 1890
 
                               2019-2020 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                    January 17, 2019
                                       ___________
 
        IN  SENATE -- Introduced by Sen. PARKER -- read twice and ordered print-
          ed, and when printed to be committed to the Committee on Finance
 
        IN ASSEMBLY -- Introduced by M. of A.  WRIGHT,  PEOPLES-STOKES,  BARRON,
          BICHOTTE,   COOK,   CRESPO,   DE LA ROSA,   GALEF,  O'DONNELL,  ROZIC,
          SEAWRIGHT, SIMON, TAYLOR, L. ROSENTHAL, HUNTER, GLICK, ARROYO,  ORTIZ,
          NIOU,  GOTTFRIED,  SIMOTAS,  WALLACE,  OTIS,  BRONSON -- 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,  the  labor  law
          and  the  executive  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 effec-
          tiveness 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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00625-02-9

        S. 1915                             2                            A. 1890
 
     1  party thereto certifies as to its own  organization,  under  penalty  of
     2  perjury,  that  the  bidder  has  and  has  implemented a written policy
     3  addressing [sexual harassment] discrimination prevention  in  the  work-
     4  place  and provides annual [sexual harassment] discrimination prevention
     5  training to all of its employees. Such policy shall, at a minimum,  meet
     6  the requirements of section two hundred one-g of the labor law."
     7    § 2. Paragraphs 2 and 3 of subsection (a) of section 7515 of the civil
     8  practice law and rules, as added by section 1 of subpart B of part KK of
     9  chapter 57 of the laws of 2018, are amended to read as follows:
    10    2.  The term "prohibited clause" shall mean any clause or provision in
    11  any contract which requires as a condition of  the  enforcement  of  the
    12  contract  or  obtaining  remedies  under  the  contract that the parties
    13  submit to mandatory arbitration to resolve any allegation  or  claim  of
    14  [an  unlawful  discriminatory  practice  of sexual harassment] discrimi-
    15  nation, in violation of laws prohibiting discrimination,  including  but
    16  not limited to, article fifteen of the executive law.
    17    3.  The  term  "mandatory  arbitration  clause"  shall  mean a term or
    18  provision contained in a written contract which requires the parties  to
    19  such  contract  to  submit  any  matter  thereafter  arising  under such
    20  contract to arbitration prior to the commencement of any legal action to
    21  enforce the provisions of such contract and which also further  provides
    22  language to the effect that the facts found or determination made by the
    23  arbitrator  or panel of arbitrators in its application to a party alleg-
    24  ing [an unlawful discriminatory practice  based  on  sexual  harassment]
    25  discrimination, in violation of laws prohibiting discrimination, includ-
    26  ing  but  not  limited to, article fifteen of the executive law shall be
    27  final and not subject to independent court review.
    28    § 3. The section heading and subdivision 2  of  section  17-a  of  the
    29  public  officers  law,  as added by section 1 of subpart C of part KK of
    30  chapter 57 of the laws of 2018, are amended to read as follows:
    31    Reimbursement of funds paid by state agencies and state  entities  for
    32  the  payment of awards adjudicated in [sexual harassment] discrimination
    33  claims.
    34    2. Notwithstanding any law to the contrary, any employee who has  been
    35  subject to a final judgment of personal liability for intentional wrong-
    36  doing  related  to  a  claim  of  [sexual harassment] discrimination, in
    37  violation of laws prohibiting discrimination, including but not  limited
    38  to,  article  fifteen  of  the  executive law, shall reimburse any state
    39  agency or entity that makes a payment to a plaintiff for an  adjudicated
    40  award  based  on  a  claim  of  [sexual  harassment]  discrimination, in
    41  violation of laws prohibiting discrimination, including but not  limited
    42  to,  article  fifteen  of the executive law resulting in a judgment, for
    43  his or her proportionate share of such  judgment.  Such  employee  shall
    44  personally  reimburse  such state agency or entity within ninety days of
    45  the state agency or entity's payment of such award.
    46    § 4. The section heading and subdivision 2  of  section  18-a  of  the
    47  public  officers  law,  as added by section 2 of subpart C of part KK of
    48  chapter 57 of the laws of 2018, are amended to read as follows:
    49    Reimbursement of funds paid by a public  entity  for  the  payment  of
    50  awards adjudicated in [sexual harassment] discrimination claims.
    51    2.  Notwithstanding any law to the contrary, any employee who has been
    52  subject to a final judgment of personal liability for intentional wrong-
    53  doing related to a  claim  of  [sexual  harassment]  discrimination,  in
    54  violation  of laws prohibiting discrimination, including but not limited
    55  to, article fifteen of the executive law,  shall  reimburse  any  public
    56  entity  that  makes  a  payment  to a plaintiff for an adjudicated award

        S. 1915                             3                            A. 1890
 
     1  based on a claim of [sexual harassment] discrimination, in violation  of
     2  laws  prohibiting  discrimination, including but not limited to, article
     3  fifteen of the executive law resulting in a judgment,  for  his  or  her
     4  proportionate  share  of  such  judgment. Such employee shall personally
     5  reimburse such public entity within ninety days of the  public  entity's
     6  payment of such award.
     7    § 5. Section 5-336 of the general obligations law, as added by section
     8  1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
     9  to read as follows:
    10    § 5-336. Nondisclosure agreements. Notwithstanding any  other  law  to
    11  the  contrary,  no  employer,  its  officers or employees shall have the
    12  authority to include or agree to include in any settlement, agreement or
    13  other resolution of any claim, the factual foundation for which involves
    14  [sexual harassment] discrimination, in  violation  of  laws  prohibiting
    15  discrimination,  including  but  not  limited to, article fifteen of the
    16  executive law, any term or condition that would prevent  the  disclosure
    17  of  the underlying facts and circumstances to the claim or action unless
    18  the condition of confidentiality is the  complainant's  preference.  Any
    19  such  term  or  condition  must  be  provided  to  all  parties, and the
    20  complainant shall have twenty-one days to consider such term  or  condi-
    21  tion.   If   after  twenty-one  days  such  term  or  condition  is  the
    22  complainant's preference, such preference shall be  memorialized  in  an
    23  agreement  signed  by  all  parties. For a period of at least seven days
    24  following the execution of such agreement, the  complainant  may  revoke
    25  the  agreement,  and  the  agreement  shall  not  become effective or be
    26  enforceable until such revocation period has expired.
    27    § 6. Section 5003-b of the civil practice law and rules, as  added  by
    28  section  2 of subpart D of part KK of chapter 57 of the laws of 2018, is
    29  amended to read as follows:
    30    § 5003-b. Nondisclosure agreements. Notwithstanding any other  law  to
    31  the  contrary,  for  any claim or cause of action, whether arising under
    32  common law, equity, or any provision of law, the factual foundation  for
    33  which  involves [sexual harassment] discrimination, in violation of laws
    34  prohibiting  discrimination,  including  but  not  limited  to,  article
    35  fifteen  of  the executive law, in resolving, by agreed judgment, stipu-
    36  lation, decree, agreement to  settle,  assurance  of  discontinuance  or
    37  otherwise, no employer, its officer or employee shall have the authority
    38  to  include or agree to include in such resolution any term or condition
    39  that would prevent the disclosure of the underlying  facts  and  circum-
    40  stances  to  the claim or action unless the condition of confidentiality
    41  is the plaintiff's preference.  Any  such  term  or  condition  must  be
    42  provided to all parties, and the plaintiff shall have twenty-one days to
    43  consider  such  term or condition. If after twenty-one days such term or
    44  condition is the plaintiff's preference, such preference shall be  memo-
    45  rialized in an agreement signed by all parties. For a period of at least
    46  seven  days following the execution of such agreement, the plaintiff may
    47  revoke the agreement, and the agreement shall not become effective or be
    48  enforceable until such revocation period has expired.
    49    § 7. Section 201-g of the labor law, as added by section 1 of  subpart
    50  E  of  part  KK of chapter 57 of the laws of 2018, is amended to read as
    51  follows:
    52    § 201-g. Prevention of  [sexual  harassment]  discrimination.  1.  The
    53  department shall consult with the division of human rights to create and
    54  publish  a  model [sexual harassment] discrimination prevention guidance
    55  document and [sexual harassment  prevention]  discrimination  prevention
    56  policy that employers may utilize in their adoption of [a sexual harass-

        S. 1915                             4                            A. 1890

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

        S. 1915                             5                            A. 1890
 
     1  nation  that  equals  or  exceeds the minimum standards provided by such
     2  model training. Such [sexual  harassment  prevention]  training  program
     3  shall be provided to all employees on an annual basis.
     4    3.  The  commissioner  may  promulgate  regulations as he or she deems
     5  necessary for the purposes  of  carrying  out  the  provisions  of  this
     6  section.
     7    §  8.  Section  2 of subpart E of part KK of chapter 57 of the laws of
     8  2018, amending the labor law, relating to the establishment of  a  model
     9  policy  regarding the prevention of sexual harassment and a model train-
    10  ing program to prevent sexual harassment in the workplace, is amended to
    11  read as follows:
    12    § 2. This act shall take effect on the one hundred eightieth day after
    13  it shall have become a law.   Effective immediately, the  department  of
    14  labor,  in consultation with the division of human rights, is authorized
    15  to create the model [sexual harassment prevention] policy and the  model
    16  [sexual  harassment  prevention] training program required to be created
    17  and published pursuant to section 201-g of the labor  law  as  added  by
    18  section one of this act.
    19    §  9.  Section  296-d  of  the executive law, as added by section 1 of
    20  subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
    21  read as follows:
    22    § 296-d. [Sexual harassment] Discrimination relating to non-employees.
    23  It  shall  be  an  unlawful  discriminatory  practice for an employer to
    24  permit [sexual harassment] discrimination or harassment based  on  race,
    25  color, sex, national origin, creed, sexual orientation, age, disability,
    26  military  status,  familial status, marital status, predisposing genetic
    27  characteristics, or domestic violence victim status of non-employees  in
    28  its  workplace.  An employer may be held liable to a non-employee who is
    29  a contractor, subcontractor, vendor, consultant or other person  provid-
    30  ing  services  pursuant  to  a  contract  in  the workplace or who is an
    31  employee of such contractor, subcontractor, vendor, consultant or  other
    32  person  providing services pursuant to a contract in the workplace, with
    33  respect to [sexual harassment] discrimination  or  harassment  based  on
    34  race, color, sex, national origin, creed, sexual orientation, age, disa-
    35  bility,  military  status, familial status, marital status, predisposing
    36  genetic characteristics, or domestic violence victim  status,  when  the
    37  employer,  its agents or supervisors knew or should have known that such
    38  non-employee was subjected  to  [sexual  harassment]  discrimination  or
    39  harassment  based  on  race,  color, sex, national origin, creed, sexual
    40  orientation, age, disability, military status, familial status,  marital
    41  status,  predisposing  genetic  characteristics,  or  domestic  violence
    42  victim status in the employer's workplace, and the  employer  failed  to
    43  take  immediate  and  appropriate  corrective  action. In reviewing such
    44  cases involving non-employees, the extent of the employer's control  and
    45  any  other legal responsibility which the employer may have with respect
    46  to the conduct of the harasser shall be considered.
    47    § 10. Subdivision 5 of section 292 of the executive law, as amended by
    48  chapter 363 of the laws of 2015, is amended to read as follows:
    49    5. The term "employer" [does not include any employer with fewer  than
    50  four  persons  in  his  or her employ except as set forth in section two
    51  hundred ninety-six-b of this article, provided,  however,  that  in  the
    52  case  of  an action for discrimination based on sex pursuant to subdivi-
    53  sion one of section two hundred ninety-six of this article, with respect
    54  to sexual harassment  only,  the  term  "employer"]  shall  include  all
    55  employers within the state.

        S. 1915                             6                            A. 1890
 
     1    § 11. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
     2  vision  9  as amended by chapter 359 of the laws of 1969, are amended to
     3  read as follows:
     4    9.  Bring  and  prosecute  or  defend upon request of the [industrial]
     5  commissioner of labor or the state division of human rights,  any  civil
     6  action  or  proceeding, the institution or defense of which in his judg-
     7  ment is necessary for effective enforcement of the laws  of  this  state
     8  against  discrimination  by reason of age, race, sex, creed, color [or],
     9  national  origin,  sexual  orientation,  military  status,   disability,
    10  predisposing  genetic  characteristics, familial status, marital status,
    11  or domestic violence victim status, or for enforcement of any  order  or
    12  determination  of  such  commissioner  or division made pursuant to such
    13  laws.
    14    10. Prosecute every person charged with the commission of  a  criminal
    15  offense  in violation of any of the laws of this state against discrimi-
    16  nation because of age, race, sex, creed, color,  [or]  national  origin,
    17  sexual  orientation,  military  status, disability, predisposing genetic
    18  characteristics, familial status, marital status, or  domestic  violence
    19  victim  status, in any case where in his judgment, because of the extent
    20  of the offense, such prosecution cannot be effectively carried on by the
    21  district attorney of the county wherein the offense or a portion thereof
    22  is alleged to have been committed, or where in his judgment the district
    23  attorney has erroneously failed or refused to  prosecute.  In  all  such
    24  proceedings,  the attorney-general may appear in person or by his deputy
    25  or assistant before any court or any grand jury  and  exercise  all  the
    26  powers  and  perform  all  the  duties  in  respect  of  such actions or
    27  proceedings which the district attorney would otherwise be authorized or
    28  required to exercise or perform.
    29    § 12. Severability clause. If any clause, sentence, paragraph,  subdi-
    30  vision, section or subpart of this act shall be adjudged by any court of
    31  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    32  impair, or invalidate the remainder thereof, but shall  be  confined  in
    33  its  operation  to the clause, sentence, paragraph, subdivision, section
    34  or subject thereof directly involved in the controversy  in  which  such
    35  judgment  shall  have  been  rendered.  It  is hereby declared to be the
    36  intent of the legislature that this act would have been enacted even  if
    37  such invalid provisions had not been included herein.
    38    § 13. This act shall take effect immediately.
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