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S02239 Summary:

BILL NOS02239
 
SAME ASSAME AS A05773
 
SPONSORHOYLMAN
 
COSPNSRADDABBO, BIAGGI, BROOKS, COMRIE, JACKSON, KAMINSKY, KRUEGER, RIVERA, SEPULVEDA
 
MLTSPNSR
 
Add Art 15-D 328-b - 328-d, Exec L
 
Relates to equal pay disclosure with respect to state contracts.
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S02239 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2239
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    January 20, 2021
                                       ___________
 
        Introduced  by  Sens. HOYLMAN, ADDABBO, BIAGGI, BROOKS, COMRIE, JACKSON,
          KAMINSKY, KRUEGER, RIVERA, SEPULVEDA -- read twice and ordered  print-
          ed, and when printed to be committed to the Committee on Finance
 
        AN  ACT  to amend the executive law, in relation to equal pay disclosure
          with respect to state contracts

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The executive law is amended by adding a new article 15-D
     2  to read as follows:
     3                                ARTICLE 15-D
     4            EQUAL PAY DISCLOSURE WITH RESPECT TO STATE CONTRACTS
     5  Section 328-b. Definitions.
     6          328-c. Equal pay disclosure; reporting.
     7          328-d. Prohibitions in contracts; violations.
     8    § 328-b. Definitions. As used in this  article,  the  following  terms
     9  shall have the following meanings:
    10    1. "Equal pay report" shall mean a summary of data, in a form consist-
    11  ent  with regulations promulgated by the comptroller pursuant to section
    12  three hundred twenty-eight-c of this article, on  employee  compensation
    13  by gender, race, ethnicity, specified job categories, and other relevant
    14  data.
    15    2.  "Contracting agency" shall mean a state agency which is a party or
    16  a proposed party to a state contract.
    17    3. "Contractor" shall  mean  an  individual,  a  business  enterprise,
    18  including a sole proprietorship, a partnership, a corporation, a limited
    19  liability company, a not-for-profit corporation, or any other party to a
    20  state  contract,  as  defined  in subdivision eight of this section or a
    21  bidder in conjunction with the award of a state contract or  a  proposed
    22  party  to  a state contract. For the purposes of this article, "contrac-
    23  tor" shall not include a small business, as defined in subdivision  nine
    24  of this section.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03131-01-1

        S. 2239                             2
 
     1    4. "Large county" shall mean a county having a population in excess of
     2  two  hundred  eighty-five  thousand according to the most recent federal
     3  decennial census, provided however, that a county having a population in
     4  excess of two hundred eighty-five thousand according to the two thousand
     5  ten  federal decennial census shall continue to be a large county there-
     6  after notwithstanding a later census showing a population of  less  than
     7  two hundred eighty-five thousand for such county.
     8    5.  "Metropolitan  area"  shall  mean  a city with a population of one
     9  million or more and a county  having  a  population  in  excess  of  one
    10  million and immediately contiguous to such city.
    11    6. "State agency" shall mean:
    12    (a)(i)  any  state department, or (ii) any division, board, commission
    13  or bureau of any state department, or (iii) the state university of  New
    14  York  and the city university of New York, including all their constitu-
    15  ent units except community colleges  and  the  independent  institutions
    16  operating statutory or contract colleges on behalf of the state, or (iv)
    17  a  board,  a  majority of whose members are appointed by the governor or
    18  who serve by virtue of being state officers or employees as  defined  in
    19  subparagraph  (i),  (ii), or (iii) of this paragraph or paragraph (i) of
    20  subdivision one of section seventy-three of the public officers law;
    21    (b) a "state authority," as defined in subdivision one of section  two
    22  of the public authorities law, and the following:
    23      Albany County Airport Authority;
    24      Albany Port District Commission;
    25      Alfred, Almond, Hornellsville Sewer Authority;
    26      Battery Park City Authority;
    27      Cayuga County Water and Sewer Authority;
    28      (Nelson A. Rockefeller) Empire State Plaza Performing Arts;
    29      Center Corporation;
    30      Industrial Exhibit Authority;
    31      Livingston County Water and Sewer Authority;
    32      Long Island Power Authority;
    33      Long Island Rail Road;
    34      Long Island Market Authority;
    35      Manhattan and Bronx Surface Transit Operating Authority;
    36      Metro-North Commuter Railroad;
    37      Metropolitan Suburban Bus Authority;
    38      Metropolitan Transportation Authority;
    39      Natural Heritage Trust;
    40      New York City Transit Authority;
    41      New York Convention Center Operating Corporation;
    42      New York State Bridge Authority;
    43      New York State Olympic Regional Development Authority;
    44      New York State Thruway Authority;
    45      Niagara Falls Public Water Authority;
    46      Niagara Falls Water Board;
    47      Port of Oswego Authority;
    48      Power Authority of the State of New York;
    49      Roosevelt Island Operating Corporation;
    50      Schenectady Metroplex Development Authority;
    51      State Insurance Fund;
    52      Staten Island Rapid Transit Operating Authority;
    53      State University Construction Fund;
    54      Syracuse Regional Airport Authority;
    55      Triborough Bridge and Tunnel Authority;
    56      Upper Mohawk Valley Regional Water Board;

        S. 2239                             3
 
     1      Upper Mohawk Valley Regional Water Finance Authority;
     2      Upper Mohawk Valley Memorial Auditorium Authority;
     3      Urban Development Corporation and its subsidiary corporations; and
     4    (c)  the  following  entities,  only  to the extent of state contracts
     5  entered into for its own account or for the benefit of a state agency as
     6  defined in paragraph (a) or (b) of this subdivision: Dormitory Authority
     7  of the State of New York; Facilities Development Corporation;  New  York
     8  State  Energy Research and Development Authority; New York State Science
     9  and Technology Foundation.
    10    7. "State assisted housing project"  shall  mean,  for  such  projects
    11  which  receive  from  the  New  York  state  housing finance agency, the
    12  affordable housing corporation, the housing trust  fund  corporation  or
    13  the division of housing and community renewal a grant or loan for all or
    14  part of the total project cost:
    15    (a)  a  "permanent housing project for homeless families" or "project"
    16  as defined in subdivision five of  section  sixty-four  of  the  private
    17  housing finance law;
    18    (b)  a "project" as defined in subdivision twelve of section one thou-
    19  sand one hundred one of the private housing finance  law  provided  said
    20  project  is  located  in a large county and consists of more than twelve
    21  residential units at a single site;
    22    (c) "affordable home ownership development programs" or  "project"  as
    23  defined  in subdivision eight of section one thousand one hundred eleven
    24  of the private housing finance law provided said project is located in a
    25  metropolitan area as defined in subdivision five  of  this  section  and
    26  consists of more than twelve residential units at a single site;
    27    (d)  a  "turnkey/enhanced  rental  project" or "project" as defined in
    28  subdivision two of section one thousand one hundred six-a of the private
    29  housing finance law;
    30    (e) "infrastructure improvements" as defined  in  subdivision  two  of
    31  section  one  thousand  one  hundred  thirty-one  of the private housing
    32  finance law, to the extent that such "infrastructure  improvements"  are
    33  applied  for  in  connection  with  a  state assisted housing project as
    34  defined in paragraphs (a) through (d) of this subdivision  and  provided
    35  further  than the applicant for such infrastructure improvements and for
    36  such state assisted housing project are identical.
    37    8. "State contract" shall mean:
    38    (a) a written agreement or purchase order instrument, providing for  a
    39  total  expenditure in excess of fifty thousand dollars, which is subject
    40  to approval by the comptroller pursuant to section one hundred twelve of
    41  the state finance law, whereby: (i) a  contracting  agency,  except  the
    42  office  of  general services is committed to expend or does expend funds
    43  in return for labor, services including,  but  not  limited  to,  legal,
    44  financial  and other professional services, supplies, equipment, materi-
    45  als or any combination  of  the  foregoing,  to  be  performed  for,  or
    46  rendered  or  furnished  to  the  contracting agency; (ii) a contracting
    47  agency, except the office of general services is committed to expend  or
    48  does   expend  funds  for  the  acquisition,  construction,  demolition,
    49  replacement, major repair or renovation of real  property  and  improve-
    50  ments thereon; or (iii) the owner of a state assisted housing project is
    51  committed   to   expend  or  does  expend  funds  for  the  acquisition,
    52  construction, demolition, replacement, major  repair  or  renovation  of
    53  real property and improvements thereon for such project.
    54    (b)  a written agreement or purchase order instrument, providing for a
    55  total expenditure in excess of eighty-five thousand  dollars,  which  is
    56  subject  to  approval by the comptroller pursuant to section one hundred

        S. 2239                             4
 
     1  twelve of the state finance law, whereby the office of general  services
     2  is  committed  to  or  does  expend  funds in return for labor, services
     3  including, but not limited to, legal, financial and  other  professional
     4  services, supplies, equipment, materials or any combination of the fore-
     5  going,  to  be  performed for, or rendered or furnished to the office of
     6  general services.
     7    9. "Small business" as used in this section,  shall  mean  a  business
     8  independently owned and operated, not dominant in its field, and employ-
     9  ing not more than one hundred individuals.
    10    §  328-c.  Equal  pay  disclosure; reporting. 1. All contractors, as a
    11  condition upon entering  into  a  contract  with  the  state,  shall  be
    12  required  to  submit  equal pay reports, in such form as the comptroller
    13  may prescribe by  regulation  pursuant  to  subdivision  three  of  this
    14  section. Such reports shall include, but not be limited to, a summary of
    15  the  contractor's  workforce  pay  averages, calculated by job category,
    16  gender, race, and ethnicity, and the difference between pay averages  in
    17  each category, expressed as an absolute percentage.
    18    2.  The  state  comptroller shall submit a report to the governor, the
    19  attorney general, the commissioner of the office  of  general  services,
    20  the  commissioner  of  the  department of labor, the commissioner of the
    21  division of human rights, the speaker of  the  assembly,  the  temporary
    22  president  of the senate and the legislative fiscal committees summariz-
    23  ing data related to the equal pay reports submitted by contractors. Such
    24  report shall be made annually, on a fiscal year basis by  the  first  of
    25  July of the next succeeding year following enactment of this section.
    26    (a)  The information required by this subdivision shall be provided in
    27  electronic format in such form as prescribed by  the  state  comptroller
    28  such that the data can be searched and sorted.
    29    (b) All reports required under this subdivision shall be available for
    30  public  inspection  and  copying pursuant to section eighty-seven of the
    31  public officers law provided that in disclosing such reports pursuant to
    32  the public officers law, the state comptroller shall redact the name and
    33  social security number of any individual employee that  is  included  in
    34  such document.
    35    3. The state comptroller, in consultation with the commissioner of the
    36  office of general services, shall promulgate regulations:
    37    (a)  regarding  the  content and the timely and proper filing of equal
    38  pay reports by contractors; and
    39    (b) setting forth measures and procedures to require  all  contracting
    40  agencies,  where  practicable,  feasible  and appropriate, to assess the
    41  equal pay practices of  contractors  submitting  bids  or  proposals  in
    42  connection  with  the  award  of  a state contract. Such rules and regu-
    43  lations shall take into account: the  nature  of  the  labor,  services,
    44  supplies, equipment or materials being procured by the state agency; the
    45  method of procurement required to be used by a state agency to award the
    46  contract;  the  equal  pay  reports required to be submitted pursuant to
    47  subdivision one of this section; and such other  factors  as  the  comp-
    48  troller  deems  appropriate  or  necessary to promote the award of state
    49  contracts to contractors having sound equal pay practices. Such  assess-
    50  ment  shall  not  permit the automatic rejection of a bid or procurement
    51  proposal based on the lack of adherence to equal pay practices. Each bid
    52  or proposal shall be analyzed on an individual per bid or  per  proposal
    53  basis  with  the  contractor's  equal pay practices considered as only a
    54  part of a wider consideration of several factors when deciding to  award
    55  or decline to award a bid or proposal.

        S. 2239                             5
 
     1    §  328-d.  Prohibitions  in  contracts;  violations. Every contracting
     2  agency shall include  a  provision  in  its  state  contracts  expressly
     3  providing  that  any contractor who willfully and intentionally fails to
     4  comply with the requirements of this article as set forth in such  state
     5  contract  shall  be  liable  to the contracting agency for liquidated or
     6  other appropriate damages and shall provide for other appropriate  reme-
     7  dies on account of such breach.
     8    §  2. This act shall take effect on the first of January next succeed-
     9  ing the date upon which it shall have become a law and  shall  apply  to
    10  all  contracts  with  the  state entered into on or after such effective
    11  date.
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