S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8419

                          I N  A S S E M B L Y

                            January 15, 2014
                               ___________

Introduced  by M. of A. STECK -- read once and referred to the Committee
  on Governmental Operations

AN ACT to amend the executive law, in relation to  the  state  employees
  equal employment opportunity act

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new  article  14-A
to read as follows:
                               ARTICLE 14-A
            STATE EMPLOYEES EQUAL EMPLOYMENT OPPORTUNITY ACT
SECTION 280. PURPOSES OF ARTICLE.
        280-A. DEFINITIONS.
        280-B. POLICIES.
        280-C. AGENCY PROGRAM.
        280-D. AGENCY PROCESSING.
        280-E. PRE-COMPLAINT PROCESSING.
        280-F. INDIVIDUAL COMPLAINTS.
        280-G. DISMISSALS OF COMPLAINTS.
        280-H. INVESTIGATION OF COMPLAINTS.
        280-I. HEARINGS.
        280-J. CLASS COMPLAINTS.
        280-K. RELATIONSHIP TO NEGOTIATED GRIEVANCE PROCEDURE.
        280-L. APPEALS TO THE COMMISSION.
        280-M. DECISIONS ON APPEALS.
        280-N. REMEDIES AND RELIEF.
        280-O. COMPLIANCE WITH FINAL DECISIONS.
        280-P. ENFORCEMENT OF FINAL DECISIONS.
        280-Q. INTERIM RELIEF.
        280-R. JOINT PROCESSING AND CONSOLIDATION OF COMPLAINTS.
        280-S. APPEALS OF DECISIONS OF THE COMMISSION.
        280-T. EEO GROUP STATISTICS.
  S  280. PURPOSES OF ARTICLE. IT IS THE POLICY OF THE STATE OF NEW YORK
TO PROVIDE EQUAL OPPORTUNITY IN EMPLOYMENT  FOR  ALL  EMPLOYEES  OF  THE
STATE  WITH  THE  SAME  PROTECTIONS PROVIDED TO EMPLOYEES IN THE PRIVATE

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

A                                                          LBD13342-02-3

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SECTOR AS SET FORTH IN ARTICLE FIFTEEN OF THIS CHAPTER, CONSTITUTING THE
HUMAN RIGHTS LAW. THIS ACT SHALL BE KNOWN AS THE "STATE EMPLOYEES  EQUAL
EMPLOYMENT OPPORTUNITY ACT."
  S  280-A.  DEFINITIONS.  1.  FOR  PURPOSES  OF  THIS ARTICLE, THE TERM
"DISCRIMINATION" SHALL INCLUDE SEXUAL HARASSMENT AND PREGNANCY DISCRIMI-
NATION AS FORMS OF PROHIBITED DISCRIMINATION.
  2. THE TERM "EEO" SHALL MEAN EQUAL EMPLOYMENT OPPORTUNITY.
  S 280-B. POLICIES. 1. NO STATE EMPLOYEE OR PERSON ACTING IN SUPPORT OF
SUCH EMPLOYEE, WHETHER PRE-INVESTIGATION OR DURING THE PROCESSING  OF  A
COMPLAINT,  SHALL  BE  SUBJECT  TO RETALIATION FOR OPPOSING ANY PRACTICE
MADE UNLAWFUL BY VIRTUE OF THE NEW YORK STATE HUMAN RIGHTS LAW.
  2. EVERY STATE EMPLOYEE ACCUSED OF DISCRIMINATION COVERED UNDER  ARTI-
CLE  FIFTEEN  OF THIS CHAPTER MAY USE THE PROCEDURES SET FORTH HEREIN TO
CHALLENGE THE VALIDITY OF SUCH ACCUSATIONS AND  ANY  ADVERSE  EMPLOYMENT
ACTION  IMPOSED AS A RESULT OF SUCH ACCUSATIONS. PROVIDED, HOWEVER, THAT
ANY RELIEF GRANTED HEREIN FOR AN EMPLOYEE WRONGFULLY ACCUSED OF DISCRIM-
INATION SHALL BE LIMITED TO THE AFFECTED EMPLOYEE, AS NO EMPLOYEE MAKING
AN ACCUSATION OF DISCRIMINATION SHALL BE RETALIATED AGAINST IN ANY WAY.
  3. (A) THIS ARTICLE APPLIES TO THE STATE, ALL AGENCIES,  BRANCHES,  OR
DEPARTMENTS OR DIVISIONS THEREOF, THE EXECUTIVE AND LEGISLATIVE BRANCHES
AT  ALL LEVELS OF GOVERNMENT, A COUNTY, CITY, TOWN, VILLAGE OR ANY OTHER
MUNICIPAL CORPORATION, A SCHOOL  DISTRICT  OR  ANY  GOVERNMENTAL  ENTITY
OPERATING  A  PUBLIC SCHOOL, COLLEGE OR UNIVERSITY, A PUBLIC IMPROVEMENT
OR SPECIAL DISTRICT, A PUBLIC AUTHORITY, COMMISSION, OR  PUBLIC  BENEFIT
CORPORATION,  OR ANY OTHER PUBLIC CORPORATION, AGENCY OR INSTRUMENTALITY
OR UNIT OF GOVERNMENT WHICH EXERCISES GOVERNMENTAL POWERS UNDER THE LAWS
OF THE STATE. THE WORD "AGENCY" AS USED IN THIS  ARTICLE  SHALL  EMBRACE
ALL OF THE AFOREMENTIONED GOVERNMENTAL ENTITIES.
  (B)  THIS  ARTICLE  APPLIES  TO ALL CLASS AND INDIVIDUAL COMPLAINTS OF
DISCRIMINATION COGNIZABLE UNDER ARTICLE FIFTEEN  OF  THIS  CHAPTER,  THE
EQUAL  PAY  ACT  SET  FORTH IN ARTICLE SIX OF THE LABOR LAW, AND ARTICLE
TWENTY-THREE-A OF THE CORRECTION LAW.
  4. ALL NOTICES REQUIRED IN THIS CHAPTER TO BE GIVEN TO  AN  INDIVIDUAL
EMPLOYEE  SHALL  BE  IN  WRITING AND SHALL BE SIGNED BY THE AGGRIEVED OR
AFFECTED INDIVIDUAL.
  S 280-C. AGENCY PROGRAM. 1. EVERY AGENCY SHALL MAINTAIN  A  CONTINUING
AFFIRMATIVE  ACTION PROGRAM TO PROMOTE EQUAL OPPORTUNITY AND TO IDENTIFY
AND ELIMINATE DISCRIMINATORY PRACTICES AND POLICIES. IN SUPPORT OF  SUCH
PROGRAM,  WHICH  SHALL  BE SUBMITTED TO THE NEW YORK STATE COMMISSION ON
HUMAN RIGHTS FOR REVIEW AND APPROVAL, THE AGENCY SHALL:
  (A) PROVIDE SUFFICIENT RESOURCES TO ITS EQUAL  EMPLOYMENT  OPPORTUNITY
PROGRAM TO ENSURE EFFICIENT AND SUCCESSFUL OPERATION;
  (B)   PROVIDE  FOR  THE  PROMPT,  FAIR  AND  IMPARTIAL  PROCESSING  OF
COMPLAINTS IN ACCORDANCE WITH THIS ARTICLE;
  (C) CONDUCT A CONTINUING CAMPAIGN TO ERADICATE EVERY FORM OF PREJUDICE
OR DISCRIMINATION FROM THE AGENCY'S PERSONNEL  POLICIES,  PRACTICES  AND
WORKING CONDITIONS;
  (D)  COMMUNICATE  THE AGENCY'S EQUAL EMPLOYMENT OPPORTUNITY POLICY AND
PROGRAM AND ITS EMPLOYMENT NEEDS TO ALL SOURCES OF JOB CANDIDATES  WITH-
OUT  REGARD  TO  ANY  PROHIBITED  CHARACTERISTIC  SET FORTH IN THE HUMAN
RIGHTS LAW, THE  EQUAL  PAY  ACT,  AND  ARTICLE  TWENTY-THREE-A  OF  THE
CORRECTION LAW AND PROVIDE RECRUITMENT ASSISTANCE ON A CONTINUING BASIS;
  (E)  REVIEW, EVALUATE, AND CONTROL MANAGERIAL AND SUPERVISORY PERFORM-
ANCE IN SUCH A MANNER AS TO ENSURE  CONTINUING  AFFIRMATIVE  APPLICATION
AND VIGOROUS ENFORCEMENT OF THE POLICY OF EQUAL OPPORTUNITY AS SET FORTH
IN  THIS ARTICLE, AND PROVIDE ORIENTATION, TRAINING AND ADVICE TO MANAG-

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ERS AND SUPERVISORS TO ASSURE THEIR UNDERSTANDING AND IMPLEMENTATION  OF
THE EQUAL EMPLOYMENT OPPORTUNITY POLICY AND PROGRAM;
  (F)  TAKE APPROPRIATE DISCIPLINARY ACTION AGAINST EMPLOYEES WHO ENGAGE
IN DISCRIMINATORY PRACTICES;
  (G) MAKE REASONABLE ACCOMMODATION TO THE RELIGIOUS NEEDS OF APPLICANTS
AND EMPLOYEES WHEN THOSE ACCOMMODATIONS CAN BE MADE WITHOUT UNDUE  HARD-
SHIP ON THE BUSINESS OF THE AGENCY;
  (H)  MAKE  REASONABLE  ACCOMMODATION  TO  THE KNOWN PHYSICAL OR MENTAL
LIMITATIONS OF QUALIFIED  APPLICANTS  AND  EMPLOYEES  WITH  DISABILITIES
UNLESS THE ACCOMMODATION WOULD IMPOSE AN UNDUE HARDSHIP ON THE OPERATION
OF  THE  AGENCY'S PROGRAM. IN THIS REGARD, AN UNPAID LEAVE OF ABSENCE TO
ENABLE AN EMPLOYEE TO RECOVER FROM AN EPISODIC MANIFESTATION OF A  DISA-
BILITY SHALL CONSTITUTE REASONABLE ACCOMMODATION;
  (I)  PROVIDE RECOGNITION TO EMPLOYEES, SUPERVISORS, MANAGERS AND UNITS
DEMONSTRATING SUPERIOR ACCOMPLISHMENT IN EQUAL EMPLOYMENT OPPORTUNITY;
  (J) ESTABLISH A SYSTEM FOR PERIODICALLY EVALUATING  THE  EFFECTIVENESS
OF THE AGENCY'S OVERALL EQUAL EMPLOYMENT OPPORTUNITY EFFORT;
  (K)  PROVIDE  THE MAXIMUM FEASIBLE OPPORTUNITY TO EMPLOYEES TO ENHANCE
THEIR SKILLS THROUGH ON-THE-JOB TRAINING, WORK-STUDY PROGRAMS, AND OTHER
TRAINING MEASURES SO THAT THEY MAY PERFORM AT  THEIR  HIGHEST  POTENTIAL
AND ADVANCE IN ACCORDANCE WITH THEIR ABILITIES;
  (L)  INFORM  ITS  EMPLOYEES  AND RECOGNIZED LABOR ORGANIZATIONS OF THE
AFFIRMATIVE EQUAL EMPLOYMENT OPPORTUNITY POLICY AND PROGRAM  AND  ENLIST
THEIR COOPERATION; AND
  (M)  PARTICIPATE  AT  THE  COMMUNITY  LEVEL WITH OTHER EMPLOYERS, WITH
SCHOOLS AND UNIVERSITIES, AND WITH OTHER PUBLIC AND  PRIVATE  GROUPS  IN
COOPERATIVE  ACTION  TO  IMPROVE  EMPLOYMENT OPPORTUNITIES AND COMMUNITY
CONDITIONS THAT AFFECT EMPLOYABILITY.
  2. IN ORDER TO IMPLEMENT ITS PROGRAM, EACH AGENCY  SHALL,  SUBJECT  TO
REVIEW AND APPROVAL BY THE NEW YORK STATE COMMISSION ON HUMAN RIGHTS:
  (A)  DEVELOP  THE PLANS, PROCEDURES AND REGULATIONS NECESSARY TO CARRY
OUT ITS PROGRAM;
  (B) ESTABLISH OR MAKE  AVAILABLE  AN  ALTERNATIVE  DISPUTE  RESOLUTION
PROGRAM. SUCH PROGRAM MUST BE AVAILABLE FOR BOTH THE PRE-COMPLAINT PROC-
ESS AND THE FORMAL COMPLAINT PROCESS;
  (C)  APPRAISE  ITS PERSONNEL OPERATIONS AT REGULAR INTERVALS TO ASSURE
THEIR CONFORMITY WITH ITS PROGRAM AND THIS STATUTE;
  (D) DESIGNATE: A DIRECTOR  OF  EEO;  EEO  OFFICER  OR  OFFICERS;  SUCH
SPECIAL EMPHASIS PROGRAM MANAGERS, INCLUDING, BUT NOT LIMITED TO, PEOPLE
WITH DISABILITIES PROGRAM, WOMEN'S PROGRAM, MINORITY EMPLOYMENT PROGRAM;
AND CLERICAL AND ADMINISTRATIVE SUPPORT AS MAY BE NECESSARY TO CARRY OUT
THE  FUNCTIONS  DESCRIBED IN THIS CHAPTER IN ALL ORGANIZATIONAL UNITS OF
THE AGENCY AND AT ALL AGENCY INSTALLATIONS.  THE EEO DIRECTOR  SHALL  BE
UNDER  THE  IMMEDIATE SUPERVISION OF THE AGENCY HEAD, PROVIDED, HOWEVER,
THAT NO AGENCY SHALL BE REQUIRED TO HIRE ADDITIONAL PERSONNEL TO  EFFEC-
TUATE  THIS  MANDATE  UNLESS THIS MANDATE CANNOT BE COMPLIED WITH UNLESS
ADDITIONAL PERSONNEL ARE HIRED. THE FUNCTIONS IN THIS PARAGRAPH  MAY  BE
CONSOLIDATED IN ONE EXISTING EMPLOYEE FOR APPROPRIATE SIZED AGENCIES;
  (E)  MAKE  WRITTEN MATERIALS AVAILABLE TO ALL EMPLOYEES AND APPLICANTS
INFORMING THEM OF THE VARIETY OF EQUAL EMPLOYMENT  OPPORTUNITY  PROGRAMS
AND  ADMINISTRATIVE  AND  JUDICIAL REMEDIAL PROCEDURES AVAILABLE TO THEM
AND PROMINENTLY POST SUCH WRITTEN MATERIALS IN  ALL  PERSONNEL  AND  EEO
OFFICES AND THROUGHOUT THE WORKPLACE;
  (F)  ENSURE  THAT FULL COOPERATION IS PROVIDED BY ALL AGENCY EMPLOYEES
TO EEO COUNSELORS, AGENCY EEO PERSONNEL, AND EEO  INVESTIGATORS  IN  THE
PROCESSING  AND  RESOLUTION  OF  PRE-COMPLAINT  MATTERS  AND  COMPLAINTS

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INVOLVING THE AGENCY AND  THAT  FULL  COOPERATION  IS  PROVIDED  TO  THE
COMMISSION  IN  THE  COURSE OF APPEALS, INCLUDING GRANTING INVESTIGATORS
AND THE COMMISSION ROUTINE ACCESS TO PERSONNEL, EMAIL, AND OTHER RECORDS
OF THE AGENCY WHEN REQUIRED IN CONNECTION WITH AN INVESTIGATION; AND
  (G)  PUBLICIZE TO ALL EMPLOYEES AND POST AT ALL TIMES THE NAMES, BUSI-
NESS TELEPHONE NUMBERS AND BUSINESS  ADDRESSES  OF  THE  EEO  COUNSELORS
(UNLESS  THE  COUNSELING FUNCTION IS CENTRALIZED, IN WHICH CASE ONLY ONE
TELEPHONE NUMBER AND ADDRESS NEED BE PUBLICIZED AND POSTED), A NOTICE OF
THE TIME LIMITS AND THE  NECESSITY  OF  CONTACTING  A  COUNSELOR  BEFORE
FILING  A  COMPLAINT, AND THE TELEPHONE NUMBERS AND ADDRESSES OF THE EEO
DIRECTOR, EEO OFFICER OR OFFICERS AND SPECIAL EMPHASIS PROGRAM MANAGERS,
OR OTHER PERSON RESPONSIBLE FOR EEO MATTERS.
  3. UNDER EACH AGENCY PROGRAM, THE EEO DIRECTOR  SHALL  BE  RESPONSIBLE
FOR:
  (A) ADVISING THE HEAD OF THE AGENCY WITH RESPECT TO THE PREPARATION OF
EQUAL EMPLOYMENT OPPORTUNITY PLANS, PROCEDURES, REGULATIONS, REPORTS AND
OTHER  MATTERS PERTAINING TO THE POLICY SET FORTH IN SECTION TWO HUNDRED
EIGHTY OF THIS ARTICLE AND THE AGENCY PROGRAM;
  (B) EVALUATING FROM TIME TO TIME THE SUFFICIENCY OF THE  TOTAL  AGENCY
PROGRAM FOR EEO AND REPORTING TO THE HEAD OF THE AGENCY WITH RECOMMENDA-
TIONS  AS TO ANY IMPROVEMENT OR CORRECTION NEEDED, INCLUDING REMEDIAL OR
DISCIPLINARY ACTION WITH RESPECT TO  MANAGERIAL,  SUPERVISORY  OR  OTHER
EMPLOYEES WHO HAVE FAILED IN THEIR RESPONSIBILITIES;
  (C)  WHEN  AUTHORIZED  BY  THE  HEAD  OF THE AGENCY, MAKING CHANGES IN
PROGRAMS AND PROCEDURES DESIGNED TO ELIMINATE  DISCRIMINATORY  PRACTICES
AND TO IMPROVE THE AGENCY'S PROGRAM FOR EQUAL EMPLOYMENT OPPORTUNITY;
  (D)  PROVIDING  FOR  COUNSELING  OF  AGGRIEVED INDIVIDUALS AND FOR THE
RECEIPT AND PROCESSING OF INDIVIDUAL AND CLASS COMPLAINTS  OF  DISCRIMI-
NATION; AND
  (E)  ASSURING  THAT  INDIVIDUAL  COMPLAINTS  ARE FAIRLY AND THOROUGHLY
INVESTIGATED AND THAT THE AGENCY COOPERATES WITH THE INVESTIGATION IN  A
TIMELY MANNER IN ACCORDANCE WITH THIS ARTICLE.
  4.  THE  COMMISSION  SHALL PROVIDE DIRECTIVES, INSTRUCTIONS, FORMS AND
OTHER MATERIALS AS NEEDED TO CARRY OUT THE COMMANDS  AND  OBJECTIVES  OF
THIS ARTICLE.
  S  280-D. AGENCY PROCESSING. 1. EACH AGENCY SHALL ADOPT PROCEDURES FOR
PROCESSING INDIVIDUAL AND CLASS COMPLAINTS OF  DISCRIMINATION  THAT  ARE
CONSISTENT   WITH   THE  REQUIREMENTS  OF  THIS  ARTICLE  AND  WITH  THE
INSTRUCTIONS FOR COMPLAINT PROCESSING AS SET FORTH IN DIRECTIVES OF  THE
NEW YORK STATE COMMISSION ON HUMAN RIGHTS.
  2.  THE  COMMISSION  SHALL  PERIODICALLY  REVIEW  AGENCY RESOURCES AND
PROCEDURES TO ENSURE COMPLIANCE WITH THIS ARTICLE.
  S 280-E. PRE-COMPLAINT PROCESSING. 1. AGGRIEVED  PERSONS  WHO  BELIEVE
THEY  HAVE  SUFFERED DISCRIMINATION OR RETALIATION PROHIBITED IN THE NEW
YORK STATE HUMAN RIGHTS LAW MUST  CONSULT  AN  EEO  COUNSELOR  PRIOR  TO
FILING A COMPLAINT IN ORDER TO TRY TO INFORMALLY RESOLVE THE MATTER.
  2.  EACH  AGENCY SHALL MAKE SUCH A COUNSELOR AVAILABLE TO SUCH PERSON,
PROVIDED, HOWEVER, THAT SUCH EEO COUNSELOR MUST NOTIFY SUCH PERSON IN  A
WRITING  SIGNED BY THAT PERSON OR HIS OR HER REPRESENTATIVE THE RIGHT TO
UTILIZE AS AN ALTERNATIVE AN EEO COUNSELOR  PROVIDED  BY  THE  NEW  YORK
STATE COMMISSION ON HUMAN RIGHTS.
  3.  AN  AGGRIEVED PERSON MUST INITIATE CONTACT WITH A COUNSELOR WITHIN
NINETY DAYS OF THE DATE OF THE MATTER ALLEGED TO BE DISCRIMINATORY.  THE
NINETY DAYS SHALL RUN FROM THE TIME WHEN THE AGGRIEVED  PERSON  KNEW  OR
SHOULD  HAVE  KNOWN  THROUGH INFORMATION READILY AVAILABLE TO HIM OR HER
THAT THE DISCRIMINATORY ACT OR CHALLENGED PERSONNEL ACTION HAD OCCURRED.

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  4. THE AGENCY OR THE COMMISSION SHALL EXTEND THE NINETY DAY TIME LIMIT
IN SUBDIVISION THREE OF THIS SECTION WHEN THE INDIVIDUAL SHOWS  THAT  HE
OR  SHE  WAS NOT NOTIFIED OF THE TIME LIMITS, THAT DESPITE DUE DILIGENCE
HE OR SHE WAS PREVENTED BY CIRCUMSTANCES BEYOND HIS OR HER CONTROL  FROM
CONTACTING  THE  COUNSELOR  WITHIN THE TIME LIMITS, OR FOR OTHER REASONS
CONSIDERED SUFFICIENT BY THE AGENCY OR THE COMMISSION.
  5. AT THE INITIAL COUNSELING SESSION, COUNSELORS MUST ADVISE  INDIVID-
UALS  IN  WRITING  OF  THEIR  RIGHTS AND RESPONSIBILITIES, INCLUDING THE
RIGHT TO REQUEST AN INVESTIGATION, THE RIGHT TO REQUEST A  HEARING,  THE
DUTY TO MITIGATE DAMAGES, ADMINISTRATIVE AND COURT TIME FRAMES, AND THAT
ONLY  THE CLAIMS RAISED IN PRE-COMPLAINT COUNSELING, OR ISSUES OR CLAIMS
LIKE, OR RELATED TO, ISSUES OR  CLAIMS  RAISED  IN  PRE-COMPLAINT  COUN-
SELING,  MAY BE ALLEGED IN A SUBSEQUENT COMPLAINT FILED WITH THE AGENCY,
EXCEPT AS PROVIDED HEREIN. COUNSELORS MUST ADVISE INDIVIDUALS  OF  THEIR
DUTY TO KEEP THE AGENCY AND COMMISSION INFORMED OF THEIR CURRENT ADDRESS
AND, WHERE APPLICABLE, TO SERVE COPIES OF RELEVANT PAPERS ON THE AGENCY.
THE  NOTICE  SHALL  INCLUDE  A  NOTICE  OF  THE  RIGHT  TO  FILE A CLASS
COMPLAINT. IF THE AGGRIEVED PERSON INFORMS THE COUNSELOR THAT HE OR  SHE
WISHES  TO FILE A CLASS COMPLAINT, THE COUNSELOR SHALL EXPLAIN THE CLASS
COMPLAINT PROCEDURES AND THE RESPONSIBILITIES OF A CLASS AGENT.
  6. COUNSELORS SHALL ADVISE AGGRIEVED PERSONS THAT,  WHERE  THE  AGENCY
AGREES  TO  OFFER ALTERNATIVE DISPUTE RESOLUTION IN THE PARTICULAR CASE,
THEY MAY CHOOSE BETWEEN PARTICIPATION IN THE ALTERNATIVE DISPUTE  RESOL-
UTION PROGRAM AND THE COUNSELING ACTIVITIES PROVIDED FOR HEREIN.
  7.  COUNSELORS  SHALL CONDUCT COUNSELING ACTIVITIES IN ACCORDANCE WITH
THE DIRECTIVES OF THE COMMISSION.
  8. WHEN ADVISED THAT A  COMPLAINT  HAS  BEEN  FILED  BY  AN  AGGRIEVED
PERSON,  THE COUNSELOR SHALL SUBMIT A WRITTEN REPORT WITHIN FIFTEEN DAYS
TO THE AGENCY OFFICE THAT HAS BEEN DESIGNATED TO ACCEPT  COMPLAINTS  AND
THE  AGGRIEVED  PERSON CONCERNING THE ISSUES DISCUSSED AND ACTIONS TAKEN
DURING COUNSELING.  THE AGGRIEVED PERSON MAY RESPOND WITH ANY OBJECTIONS
THAT THE COUNSELOR'S REPORT DOES NOT FAIRLY EXPRESS THE ISSUES DISCUSSED
AND THE ACTIONS TAKEN DURING COUNSELING.
  9. UNLESS THE AGGRIEVED PERSON AGREES IN WRITING  TO  A  LONGER  COUN-
SELING  PERIOD,  OR  THE AGGRIEVED PERSON CHOOSES AN ALTERNATIVE DISPUTE
RESOLUTION PROCEDURE PROVIDED BY THE AGENCY, THE COUNSELOR SHALL CONDUCT
THE FINAL INTERVIEW WITH THE AGGRIEVED PERSON WITHIN THIRTY DAYS OF  THE
DATE  THE  AGGRIEVED  PERSON  CONTACTED  THE EEO OFFICE TO REQUEST COUN-
SELING. IF THE MATTER HAS NOT BEEN RESOLVED, THE AGGRIEVED PERSON  SHALL
BE  INFORMED  IN  WRITING BY THE COUNSELOR, NOT LATER THAN THE THIRTIETH
DAY AFTER CONTACTING THE COUNSELOR, OF THE RIGHT  TO  FILE  A  DISCRIMI-
NATION  COMPLAINT.  THE NOTICE SHALL INFORM THE COMPLAINANT OF THE RIGHT
TO FILE A DISCRIMINATION COMPLAINT WITHIN THIRTY DAYS OF RECEIPT OF  THE
NOTICE,  OF  THE APPROPRIATE OFFICIAL WITH WHOM TO FILE A COMPLAINT, AND
OF THE COMPLAINANT'S DUTY TO ASSURE THAT THE AGENCY  IS  INFORMED  IMME-
DIATELY IF THE COMPLAINANT RETAINS COUNSEL OR A REPRESENTATIVE.
  10.  PRIOR  TO  THE  END  OF  THE  THIRTY  DAY  COUNSELING PERIOD, THE
AGGRIEVED PERSON MAY AGREE IN WRITING WITH THE AGENCY  TO  POSTPONE  THE
FINAL INTERVIEW AND EXTEND THE COUNSELING PERIOD FOR AN ADDITIONAL PERI-
OD  OF  NO  MORE  THAN  SIXTY  DAYS, WHICH SHALL EXTEND THE TIME BY LIKE
AMOUNT FOR ANY OTHER NOTICES CALLED FOR IN THIS SECTION.
  11. WHERE THE AGGRIEVED PERSON CHOOSES TO PARTICIPATE IN  AN  ALTERNA-
TIVE  DISPUTE  RESOLUTION PROCEDURE IN ACCORDANCE WITH THIS SECTION, THE
PRE-COMPLAINT PROCESSING PERIOD SHALL BE NINETY DAYS. IF THE  CLAIM  HAS
NOT  BEEN RESOLVED BEFORE THE NINETIETH DAY, THE NOTICE OF RIGHT TO FILE
A COMPLAINT SHALL BE ISSUED.

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  12. THE COUNSELOR SHALL  NOT  ATTEMPT  IN  ANY  WAY  TO  RESTRAIN  THE
AGGRIEVED PERSON FROM FILING A COMPLAINT. THE COUNSELOR SHALL NOT REVEAL
THE  IDENTITY OF AN AGGRIEVED PERSON WHO CONSULTED THE COUNSELOR, EXCEPT
WHEN AUTHORIZED TO DO SO BY THE AGGRIEVED PERSON, OR  UNTIL  THE  AGENCY
HAS  RECEIVED  A  DISCRIMINATION  COMPLAINT UNDER THIS SECTION FROM THAT
PERSON INVOLVING THAT SAME MATTER.
  S 280-F. INDIVIDUAL COMPLAINTS. 1. A COMPLAINT MUST BE FILED WITH  THE
AGENCY THAT ALLEGEDLY DISCRIMINATED AGAINST THE COMPLAINANT. SUCH AGENCY
SHALL  FILE  A  COPY OF THE COMPLAINT WITH THE COMMISSION WITH NOTICE TO
THE COMPLAINANT.  SHOULD THE AGENCY FAIL TO FILE A COPY OF THE COMPLAINT
TO THE COMMISSION, ALL DEADLINES SET  FORTH  HEREIN  SHALL  BE  EXTENDED
UNTIL  THE TIME OF SUCH TRANSMISSION. AN INDIVIDUAL COMPLAINANT MAY ALSO
FILE A COPY OF THE COMPLAINT WITH THE COMMISSION.
  2. A COMPLAINT MUST BE FILED WITHIN THIRTY  DAYS  OF  RECEIPT  OF  THE
NOTICE  REQUIRED  BY SUBDIVISION NINE OF SECTION TWO HUNDRED EIGHTY-E OF
THIS ARTICLE.
  3. A COMPLAINT MUST CONTAIN A SIGNED STATEMENT FROM THE PERSON  CLAIM-
ING TO BE AGGRIEVED OR OF AN ATTORNEY REPRESENTING THAT HE OR SHE IS THE
ATTORNEY  FOR  THE AGGRIEVED PERSON. THIS STATEMENT MUST BE SUFFICIENTLY
PRECISE TO IDENTIFY THE AGGRIEVED  INDIVIDUAL  AND  THE  AGENCY  AND  TO
DESCRIBE  GENERALLY  THE ACTION OR ACTIONS OR PRACTICE OR PRACTICES THAT
FORM THE BASIS OF THE COMPLAINT. THE COMPLAINT MUST ALSO CONTAIN A TELE-
PHONE NUMBER AND ADDRESS WHERE THE COMPLAINANT OR THE REPRESENTATIVE CAN
BE CONTACTED. THE COMPLAINT SHOULD ALSO INCLUDE A LIST OF  WITNESSES  TO
BE  CONTACTED  DURING  THE  INVESTIGATION AND A BRIEF DESCRIPTION OF THE
RELEVANT INFORMATION KNOWN TO EACH.
  4. A COMPLAINANT MAY AMEND A  COMPLAINT  AT  ANY  TIME  PRIOR  TO  THE
CONCLUSION  OF  THE  INVESTIGATION  TO  INCLUDE ISSUES OR CLAIMS LIKE OR
RELATED TO THOSE RAISED IN THE COMPLAINT. AFTER REQUESTING A HEARING,  A
COMPLAINANT  MAY  FILE A MOTION WITH THE ADMINISTRATIVE JUDGE TO AMEND A
COMPLAINT TO INCLUDE ISSUES OR CLAIMS LIKE OR RELATED TO THOSE RAISED IN
THE COMPLAINT.
  5. THE AGENCY SHALL ACKNOWLEDGE RECEIPT OF A COMPLAINT OR AN AMENDMENT
TO A COMPLAINT IN WRITING AND INFORM THE  COMPLAINANT  OF  THE  DATE  ON
WHICH  THE COMPLAINT OR AMENDMENT WAS FILED. THE AGENCY SHALL ADVISE THE
COMPLAINANT IN THE ACKNOWLEDGMENT OF HIS OR HER RIGHT TO A  HEARING  AND
THE  COMMISSION'S  ADDRESS  WHERE A REQUEST FOR A HEARING SHALL BE SENT.
SUCH ACKNOWLEDGMENT SHALL ALSO ADVISE THE COMPLAINANT THAT:
  (A) THE COMPLAINANT HAS THE RIGHT TO APPEAL THE  FINAL  ACTION  ON  OR
DISMISSAL OF A COMPLAINT TO THE COMMISSION; AND
  (B)  THE  AGENCY  IS REQUIRED TO INITIATE AN IMPARTIAL AND APPROPRIATE
INVESTIGATION OF THE COMPLAINT WITHIN ONE HUNDRED  EIGHTY  DAYS  OF  THE
FILING  OF  THE  COMPLAINT UNLESS THE PARTIES AGREE IN WRITING TO EXTEND
THE TIME PERIOD. WHEN A COMPLAINT HAS  BEEN  AMENDED,  THE  INVESTIGATOR
SHALL  COMPLETE  HIS OR HER INVESTIGATION WITHIN ONE HUNDRED EIGHTY DAYS
AFTER THE LAST AMENDMENT TO THE COMPLAINT OR THREE  HUNDRED  SIXTY  DAYS
AFTER THE FILING OF THE ORIGINAL COMPLAINT, WHICHEVER IS EARLIER, EXCEPT
THAT  THE COMPLAINANT MAY REQUEST A HEARING FROM AN ADMINISTRATIVE JUDGE
ON THE CONSOLIDATED COMPLAINTS ANY TIME AFTER ONE  HUNDRED  EIGHTY  DAYS
FROM THE DATE OF THE FIRST FILED COMPLAINT.
  S 280-G. DISMISSALS OF COMPLAINTS. 1. PRIOR TO A REQUEST FOR A HEARING
IN A CASE, THE AGENCY SHALL DISMISS AN ENTIRE COMPLAINT THAT:
  (A)  FAILS TO ALLEGE FACTS ASSERTING A CLAIM OF DISCRIMINATION THAT IS
COGNIZABLE UNDER THE HUMAN RIGHTS LAW, THE EQUAL  PAY  ACT,  OR  ARTICLE
TWENTY-THREE-A  OF  THE CORRECTION LAW, OR STATES THE SAME CLAIM THAT IS
PENDING BEFORE OR HAS ALREADY BEEN DECIDED BY THE AGENCY OR COMMISSION;

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  (B) FAILS TO COMPLY WITH APPLICABLE TIME LIMITS, AS EXTENDED, OR  THAT
RAISES  A MATTER THAT HAS NOT BEEN BROUGHT TO THE ATTENTION OF A COUNSE-
LOR AND IS NOT LIKE OR RELATED TO A MATTER THAT HAS BEEN BROUGHT TO  THE
ATTENTION OF A COUNSELOR;
  (C)  IS  THE  BASIS  OF  A  PENDING CIVIL ACTION IN THE NEW YORK STATE
SUPREME COURT IN WHICH THE COMPLAINANT IS A PARTY, OR THAT WAS THE BASIS
OF A PRIOR CIVIL ACTION DECIDED BY THE NEW YORK STATE SUPREME  COURT  IN
WHICH  THE COMPLAINANT WAS A PARTY. AN AGGRIEVED INDIVIDUAL SHALL RETAIN
THE RIGHT TO BRING A CIVIL  ACTION  IN  NEW  YORK  STATE  SUPREME  COURT
CONCERNING  THE  SUBJECT MATTER OF THE COMPLAINT IF THE INVESTIGATION OF
THE COMPLAINT IS NOT COMPLETED WITHIN ONE HUNDRED  EIGHTY  DAYS  OF  THE
COMPLAINT,  IF  THE  COMPLAINT  IS  NOT AMENDED, OR, IF THE COMPLAINT IS
AMENDED, WITHIN THE EARLIER OF ONE HUNDRED EIGHTY DAYS  AFTER  THE  LAST
AMENDMENT  TO THE COMPLAINT OR THREE HUNDRED SIXTY DAYS AFTER THE FILING
OF THE ORIGINAL COMPLAINT, OR A HEARING HAS NOT  BEEN  COMMENCED  WITHIN
ONE HUNDRED EIGHTY DAYS OF THE REQUEST FOR SAME;
  (D) RAISES THE MATTER IN A NEGOTIATED GRIEVANCE PROCEDURE THAT PERMITS
ALLEGATIONS OF DISCRIMINATION AS DESCRIBED IN THIS ARTICLE;
  (E) IS MOOT ON THE GROUND THAT THE REMEDY REQUESTED BY THE COMPLAINANT
HAS ALREADY BEEN ADOPTED BY THE AGENCY;
  (F)  CANNOT  BE  PURSUED  BECAUSE  THE  COMPLAINANT CANNOT BE LOCATED,
PROVIDED THAT REASONABLE EFFORTS HAVE BEEN MADE TO LOCATE THE  COMPLAIN-
ANT AND THE COMPLAINANT HAS NOT RESPONDED WITHIN THIRTY DAYS TO A NOTICE
OF PROPOSED DISMISSAL SENT TO HIS OR HER LAST KNOWN ADDRESS;
  (G)  THE AGENCY HAS PROVIDED THE COMPLAINANT WITH A WRITTEN REQUEST TO
PROVIDE RELEVANT INFORMATION OR OTHERWISE PROCEED  WITH  THE  COMPLAINT,
AND  THE  COMPLAINANT  HAS  FAILED  TO RESPOND WITHIN THIRTY DAYS OF ITS
RECEIPT. A COMPLAINT MAY BE DISMISSED FOR FAILURE TO COOPERATE, BUT MUST
BE ADJUDICATED IF SUFFICIENT INFORMATION FOR  THAT  PURPOSE  IS  ALREADY
AVAILABLE  NOTWITHSTANDING  THE  COMPLAINANT'S  FAILURE  TO  RESPOND  TO
FURTHER REQUESTS FOR INFORMATION; OR
  (H) ALLEGES DISSATISFACTION WITH THE PROCESSING OF A PREVIOUSLY  FILED
COMPLAINT TO WHICH THE PROCEDURES OF THIS ARTICLE ARE APPLICABLE.
  2.  WHERE THE AGENCY BELIEVES THAT SOME BUT NOT ALL OF THE CLAIMS IN A
COMPLAINT SHOULD BE DISMISSED FOR THE REASONS CONTAINED IN PARAGRAPH (A)
OF SUBDIVISION  ONE  OF  THIS  SECTION,  THE  AGENCY  SHALL  NOTIFY  THE
COMPLAINANT  IN  WRITING  OF  ITS  DETERMINATION, THE RATIONALE FOR THAT
DETERMINATION, AND THAT THOSE CLAIMS WILL NOT BE INVESTIGATED, AND SHALL
PLACE A COPY OF THE NOTICE IN THE INVESTIGATIVE FILE.
  3. AN AGGRIEVED PERSON MAY REQUEST REVIEW  OF  A  DETERMINATION  UNDER
SUBDIVISION  TWO  OF  THIS  SECTION  BY  AN  ADMINISTRATIVE JUDGE IF THE
COMPLAINT IS DISMISSED IN ITS ENTIRETY. IF A PORTION OF A  COMPLAINT  IS
DISMISSED, THE REMAINDER SHALL PROCEED TO INVESTIGATION AND THE DISMISS-
AL  OF  A PORTION OF THE COMPLAINT SHALL BE REVIEWABLE BY AN ADMINISTRA-
TIVE JUDGE WHEN A HEARING IS REQUESTED ON THE REMAINDER OF THE COMPLAINT
AFTER THE INVESTIGATION IS COMPLETE.
  S  280-H.  INVESTIGATION  OF  COMPLAINTS.  1.  THE  INVESTIGATION   OF
COMPLAINTS SHALL BE CONDUCTED BY AN INVESTIGATOR APPROVED BY THE COMMIS-
SION.    SUCH  INVESTIGATOR  MAY  BE AN EMPLOYEE OF THE AGENCY BUT IN NO
EVENT MAY THE AGENCY APPOINT AN INVESTIGATOR NOT APPROVED BY THE COMMIS-
SION.
  2. THE COMMISSION SHALL PROMULGATE  REGULATIONS  TO  ASSURE  THAT  THE
INVESTIGATION  IS  CONDUCTED  IN  AN  INDEPENDENT  MANNER NOT SUBJECT TO
INFLUENCE BY THE AGENCY. IN ACCORDANCE WITH SUCH REGULATIONS, THE INVES-
TIGATOR SHALL DEVELOP AN IMPARTIAL AND APPROPRIATE FACTUAL  RECORD  UPON
WHICH TO MAKE FINDINGS ON THE CLAIMS RAISED BY THE WRITTEN COMPLAINT. AN

A. 8419                             8

APPROPRIATE  FACTUAL  RECORD IS ONE THAT ALLOWS A REASONABLE FACT FINDER
TO DRAW CONCLUSIONS AS TO WHETHER  DISCRIMINATION  OCCURRED.    INVESTI-
GATORS MAY USE INTERVIEWS, AN EXCHANGE OF LETTERS OR MEMORANDA, INTERRO-
GATORIES,  FACT-FINDING  CONFERENCES  OR  ANY OTHER FACT-FINDING METHODS
THAT EFFICIENTLY AND THOROUGHLY ADDRESS THE MATTERS AT ISSUE.
  3. INVESTIGATORS MAY NOT RELY ON  STATEMENTS  FROM  WITNESSES  WITHOUT
OBTAINING  THE  WITNESS'S  SIGNATURE  ON THE STATEMENT UNDER OATH FROM A
NOTARY PUBLIC.  ANY SUCH STATEMENT MUST INCLUDE  AN  ACKNOWLEDGEMENT  BY
THE  WITNESS  THAT  THE  STATEMENT  IS THE WITNESS'S OWN WORDS, THAT THE
WITNESS HAS NOT BEEN THREATENED OR COERCED INTO  MAKING  THE  STATEMENT,
AND  THAT  THE WITNESS HAS BEEN ADVISED THAT A WITNESS CANNOT BE RETALI-
ATED AGAINST FOR PARTICIPATING IN AN EEO INVESTIGATION.
  4. WHEN THE COMPLAINANT, OR THE AGENCY AGAINST WHICH  A  COMPLAINT  IS
FILED,  OR  ITS EMPLOYEES FAIL WITHOUT GOOD CAUSE SHOWN TO RESPOND FULLY
AND IN TIMELY FASHION TO REQUESTS BY  THE  INVESTIGATOR  FOR  DOCUMENTS,
RECORDS,  COMPARATIVE DATA, STATISTICS, AFFIDAVITS, OR THE ATTENDANCE OF
WITNESS OR WITNESSES, THE INVESTIGATOR MUST NOTE THAT FACT.
  5. THE INVESTIGATOR, THE ADMINISTRATIVE JUDGE, OR THE COMMISSION SHALL
ON APPEAL, IN APPROPRIATE CIRCUMSTANCES:
  (A) DRAW AN ADVERSE INFERENCE THAT THE REQUESTED INFORMATION,  OR  THE
TESTIMONY  OF THE REQUESTED WITNESS, WOULD HAVE REFLECTED UNFAVORABLY ON
THE PARTY REFUSING TO PROVIDE THE REQUESTED INFORMATION;
  (B) CONSIDER THE MATTERS TO WHICH THE REQUESTED INFORMATION OR  TESTI-
MONY PERTAINS TO BE ESTABLISHED IN FAVOR OF THE OPPOSING PARTY;
  (C) EXCLUDE OTHER EVIDENCE OFFERED BY THE PARTY FAILING TO PRODUCE THE
REQUESTED INFORMATION OR WITNESS;
  (D)  ISSUE  A  DECISION  FULLY  OR  PARTIALLY IN FAVOR OF THE OPPOSING
PARTY, OR;
  (E) TAKE SUCH OTHER ACTIONS AS IT DEEMS APPROPRIATE.
  6. NO PERSON SHALL INVESTIGATE ANY CLAIM UNLESS SUCH PERSON HAS APPRO-
PRIATE QUALIFICATIONS MEETING CRITERIA ESTABLISHED BY THE COMMISSION AND
IS ON A LIST OF APPROVED INVESTIGATORS ESTABLISHED BY THE COMMISSION.
  7. THE INVESTIGATOR SHALL COMPLETE HIS OR HER INVESTIGATION WITHIN ONE
HUNDRED EIGHTY DAYS OF THE DATE OF FILING OF AN INDIVIDUAL COMPLAINT. BY
WRITTEN AGREEMENT WITHIN SUCH  TIME  PERIOD,  THE  COMPLAINANT  AND  THE
RESPONDENT  AGENCY  MAY  VOLUNTARILY EXTEND THE TIME PERIOD FOR NOT MORE
THAN AN ADDITIONAL NINETY DAYS.
  8. WITHIN ONE HUNDRED EIGHTY DAYS FROM THE FILING OF THE COMPLAINT, OR
WHERE A COMPLAINT WAS AMENDED, WITHIN THE EARLIER OF ONE HUNDRED  EIGHTY
DAYS  AFTER  THE  LAST AMENDMENT TO THE COMPLAINT OR THREE HUNDRED SIXTY
DAYS AFTER THE FILING OF THE ORIGINAL COMPLAINT, THE INVESTIGATOR  SHALL
PROVIDE  THE  COMPLAINANT AND THE AGENCY WITH A COPY OF HIS OR HER DECI-
SION AND A COMPLETE UNSANITIZED COPY  OF  THE  INVESTIGATIVE  FILE,  AND
SHALL  NOTIFY THE COMPLAINANT THAT, WITHIN THIRTY DAYS OF RECEIPT OF THE
INVESTIGATIVE FILE, THE COMPLAINANT HAS THE RIGHT TO REQUEST  A  HEARING
AND  DECISION  FROM  AN ADMINISTRATIVE JUDGE OF THE COMMISSION WHO SHALL
CONSIDER THE MATTER DE NOVO ON THE RECORD COMPILED BY  THE  INVESTIGATOR
TOGETHER WITH ALL EVIDENCE OFFERED BY THE PARTIES AT THE HEARING.
  9. THE INVESTIGATOR SHALL STATE WHETHER OR NOT THERE IS PROBABLE CAUSE
TO BELIEVE DISCRIMINATION OR RETALIATION OCCURRED.
  10. EITHER THE AGENCY OR THE COMPLAINANT MAY REQUEST AN ADMINISTRATIVE
HEARING  CONCERNING  THE  MATTER.  IF  THERE IS A FINDING OF NO PROBABLE
CAUSE, AND  THE  COMPLAINANT  DOES  NOT  REQUEST  A  HEARING,  THEN  THE
COMPLAINT  SHALL  BE DISMISSED, AND SUCH DISMISSAL SHALL NOT BE APPEALA-
BLE. IF THERE IS A FINDING OF PROBABLE CAUSE, AND THE AGENCY CHOOSES  TO
ADOPT  THAT FINDING AS FINAL AGENCY ACTION, THEN THE AGENCY MUST PROVIDE

A. 8419                             9

A REMEDY TO THE COMPLAINANT. IF THE COMPLAINANT IS DISSATISFIED WITH THE
REMEDY, THE COMPLAINANT MAY REQUEST A HEARING AT WHICH ONLY  THE  REMEDY
WILL BE AT ISSUE.
  11. WHERE THE COMPLAINANT HAS RECEIVED THE NOTICE REQUIRED IN SUBDIVI-
SION  EIGHT OF THIS SECTION OR AT ANY TIME AFTER ONE HUNDRED EIGHTY DAYS
HAVE ELAPSED FROM THE  FILING  OF  THE  COMPLAINT,  OR,  IF  AN  AMENDED
COMPLAINT  HAS BEEN FILED, WITHIN THE EARLIER OF ONE HUNDRED EIGHTY DAYS
AFTER THE LAST AMENDMENT TO THE COMPLAINT OR THREE  HUNDRED  SIXTY  DAYS
AFTER  THE FILING OF THE ORIGINAL COMPLAINT, THE COMPLAINANT MAY REQUEST
A HEARING BY SUBMITTING A WRITTEN REQUEST FOR A HEARING DIRECTLY TO  THE
COMMISSION'S  OFFICE  INDICATED  IN  THE  INVESTIGATOR'S DECISION.   THE
COMMISSION SHALL NOTIFY THE AGENCY THAT A HEARING  HAS  BEEN  REQUESTED.
WITHIN  FIFTEEN  DAYS OF RECEIPT OF A COPY OF THE REQUEST FOR A HEARING,
THE AGENCY SHALL PROVIDE A COPY OF THE COMPLAINT FILE TO THE COMMISSION.
  S 280-I. HEARINGS. 1. WHEN A COMPLAINANT  OR  THE  AGENCY  REQUESTS  A
HEARING, THE COMMISSION SHALL APPOINT AN ADMINISTRATIVE JUDGE TO CONDUCT
A  HEARING IN ACCORDANCE WITH THIS SECTION. UPON APPOINTMENT, THE ADMIN-
ISTRATIVE JUDGE SHALL ASSUME FULL RESPONSIBILITY FOR THE ADJUDICATION OF
THE COMPLAINT, INCLUDING OVERSEEING THE DEVELOPMENT OF THE  RECORD.  THE
ADMINISTRATIVE JUDGE SHALL DECIDE THE MATTERS RAISED IN THE COMPLAINT DE
NOVO  WITHOUT  REGARD  TO  ANY  FINDINGS  OF THE INVESTIGATOR, PROVIDED,
HOWEVER, THAT ALL MATERIALS IN THE INVESTIGATIVE FILE SHALL  BE  CONSID-
ERED TO DETERMINE WHETHER SUCH MATERIALS CONSTITUTE ADMISSIBLE EVIDENCE.
  2.  WHEN  A  PARTY  IS  REPRESENTED BY COUNSEL, THE AGENCY MAY MAKE AN
OFFER OF RESOLUTION TO A COMPLAINANT AND  SUCH  OFFER  MAY  BE  ACCEPTED
WITHOUT  INVOLVEMENT  OF  THE  ADMINISTRATIVE JUDGE. WHEN A PARTY IS NOT
REPRESENTED BY COUNSEL, THE AGENCY MAY MAKE AN OFFER OF RESOLUTION TO  A
COMPLAINANT,  BUT  THE  ADMINISTRATIVE JUDGE MUST REVIEW AND APPROVE THE
OFFER FOR FAIRNESS UNDER ALL THE CIRCUMSTANCES INCLUDING  THE  ESTIMATED
LIKELIHOOD  THAT THE COMPLAINANT OR THE AGENCY MAY OR MAY NOT PREVAIL AT
A HEARING. ANY RESULTANT SETTLEMENT MAY BE CONFIDENTIAL IF THE COMPLAIN-
ANT AND THE AGENCY AGREE AND THE ADMINISTRATIVE JUDGE, ON APPLICATION BY
THE PARTIES, FINDS THAT CONFIDENTIALITY IS IN THE REASONABLE INTEREST OF
THE COMPLAINANT.
  3. THE ADMINISTRATIVE JUDGE SHALL NOTIFY THE PARTIES OF THE  RIGHT  TO
SEEK  DISCOVERY PRIOR TO THE HEARING AND MAY ISSUE SUCH DISCOVERY ORDERS
AS ARE APPROPRIATE. UNLESS THE PARTIES AGREE IN WRITING  CONCERNING  THE
METHODS  AND  SCOPE  OF  DISCOVERY,  THE  PARTY  SEEKING DISCOVERY SHALL
REQUEST AUTHORIZATION FROM THE ADMINISTRATIVE JUDGE PRIOR TO  COMMENCING
DISCOVERY  ON  THE  GROUND THAT THE REQUESTED INFORMATION WAS NOT SUFFI-
CIENTLY DEVELOPED IN THE INVESTIGATIVE FILE OR  TO  CONFIRM  FACTS  THAT
WERE  CONTESTED IN THE INVESTIGATION. THE ADMINISTRATIVE JUDGE MAY LIMIT
DISCOVERY TO MATTERS NOT SUFFICIENTLY  DEVELOPED  IN  THE  INVESTIGATIVE
FILE  OR  TO  FACTS  THAT  REMAIN CONTESTED FOLLOWING THE INVESTIGATION.
EVIDENCE MAY BE  DEVELOPED  THROUGH  INTERROGATORIES,  DEPOSITIONS,  AND
REQUESTS  FOR  ADMISSIONS,  STIPULATIONS, OR PRODUCTION OF DOCUMENTS. IT
SHALL BE GROUNDS FOR OBJECTION TO PRODUCING EVIDENCE THAT  THE  INFORMA-
TION  SOUGHT  BY  EITHER PARTY IS IRRELEVANT, UNDULY BURDENSOME, REPETI-
TIOUS, OR PRIVILEGED. AGENCIES MAY NOT  ASSERT  AS  PRIVILEGED  INTERNAL
DECISION-MAKING  PROCESSES,  EXCEPT  THAT CONSULTATIONS WITH COUNSEL ARE
PRIVILEGED.
  4. AGENCIES SHALL PROVIDE FOR THE  ATTENDANCE  AT  A  HEARING  OF  ALL
EMPLOYEES  APPROVED  AS WITNESSES BY AN ADMINISTRATIVE JUDGE. ATTENDANCE
AT HEARINGS WILL BE LIMITED TO PERSONS DETERMINED BY THE  ADMINISTRATIVE
JUDGE  TO HAVE DIRECT, PERSONAL KNOWLEDGE RELATING TO THE COMPLAINT. THE
ADMINISTRATIVE JUDGE SHALL HAVE THE POWER TO REGULATE THE CONDUCT  OF  A

A. 8419                            10

HEARING,  LIMIT THE NUMBER OF WITNESSES WHERE TESTIMONY WOULD BE REPETI-
TIOUS, AND EXCLUDE ANY PERSON FROM THE HEARING FOR CONTUMACIOUS  CONDUCT
OR  MISBEHAVIOR  THAT  OBSTRUCTS  THE  HEARING. THE ADMINISTRATIVE JUDGE
SHALL  RECEIVE  INTO  EVIDENCE  INFORMATION OR DOCUMENTS RELEVANT TO THE
COMPLAINT. RULES OF EVIDENCE SHALL NOT BE APPLIED STRICTLY, AND  HEARSAY
SHALL  BE  PERMITTED  AS TO BACKGROUND AND INCIDENTAL MATTERS BUT NOT TO
AVOID THE TESTIMONY OF WITNESSES HAVING A CENTRAL OR IMPORTANT  ROLE  IN
THE  MATTER.  AN  AGENCY WITNESS SHALL NOT BE PERMITTED TO TESTIFY AS TO
COMPLAINTS ABOUT AN EMPLOYEE UNLESS SUCH COMPLAINTS WERE PUT IN  WRITING
CONTEMPORANEOUSLY  WITH THE ALLEGED COMPLAINT.  THE ADMINISTRATIVE JUDGE
SHALL EXCLUDE IRRELEVANT OR REPETITIOUS EVIDENCE.
  5. THE COMPLAINANT, AN AGENCY, AND ANY EMPLOYEE  OF  AN  AGENCY  SHALL
PRODUCE  SUCH DOCUMENTARY AND TESTIMONIAL EVIDENCE AS THE ADMINISTRATIVE
JUDGE DEEMS NECESSARY. THE ADMINISTRATIVE JUDGE SHALL SERVE  ALL  ORDERS
TO PRODUCE EVIDENCE ON BOTH PARTIES.
  6. ADMINISTRATIVE JUDGES ARE AUTHORIZED TO ADMINISTER OATHS. TESTIMONY
OF  WITNESSES SHALL BE MADE UNDER OATH OR AFFIRMATION OR, ALTERNATIVELY,
BY WRITTEN STATEMENT UNDER PENALTY OF PERJURY IF THE  PARTIES  AGREE  TO
ACCEPT  SUCH WITNESS'S TESTIMONY IN THAT MANNER OR IF THE ADMINISTRATIVE
JUDGE DETERMINES THAT THE WITNESS IS UNAVAILABLE AND HIS OR HER TESTIMO-
NY COULD NOT BE TAKEN BY DEPOSITION.
  7. IF A PARTY BELIEVES THAT SOME OR ALL  MATERIAL  FACTS  ARE  NOT  IN
GENUINE  DISPUTE  AND  THERE  IS NO GENUINE ISSUE AS TO CREDIBILITY, THE
PARTY MAY, AT LEAST FIFTEEN DAYS PRIOR TO THE DATE OF THE HEARING OR  AT
SUCH EARLIER TIME AS REQUIRED BY THE ADMINISTRATIVE JUDGE, FILE A STATE-
MENT  WITH  THE  ADMINISTRATIVE JUDGE PRIOR TO THE HEARING SETTING FORTH
THE FACT OR FACTS AND REFERRING TO THE PARTS OF THE RECORD RELIED ON  TO
SUPPORT  THE  STATEMENT. THE STATEMENT MUST DEMONSTRATE THAT THERE IS NO
GENUINE ISSUE AS TO ANY SUCH MATERIAL FACT. THE PARTY  SHALL  SERVE  THE
STATEMENT ON THE OPPOSING PARTY.
  8.  THE  OPPOSING  PARTY MAY FILE AN OPPOSITION WITHIN FIFTEEN DAYS OF
RECEIPT OF THE STATEMENT IN SUBDIVISION SEVEN OF THIS SECTION. THE OPPO-
SITION MAY REFER TO THE RECORD IN THE CASE TO REBUT THE STATEMENT THAT A
FACT IS NOT IN DISPUTE OR MAY FILE AN AFFIDAVIT STATING THAT  THE  PARTY
CANNOT,  FOR  REASONS STATED, PRESENT FACTS TO OPPOSE THE REQUEST. AFTER
CONSIDERING THE SUBMISSIONS, THE ADMINISTRATIVE  JUDGE  MAY  ORDER  THAT
DISCOVERY  BE PERMITTED ON THE FACT OR FACTS INVOLVED, LIMIT THE HEARING
TO THE ISSUES REMAINING IN DISPUTE, ISSUE A DECISION WITHOUT A  HEARING,
OR MAKE SUCH OTHER RULING AS IS APPROPRIATE.
  9.  THE HEARING SHALL BE RECORDED AND THE AGENCY SHALL ARRANGE AND PAY
FOR VERBATIM TRANSCRIPTS. ALL DOCUMENTS SUBMITTED TO, AND  ACCEPTED  BY,
THE ADMINISTRATIVE JUDGE AT THE HEARING SHALL BE MADE PART OF THE RECORD
OF THE HEARING.  THE ADMINISTRATIVE JUDGE SHALL PROVIDE THE PARTIES WITH
A  LIST  OF  ALL  DOCUMENTS  HE OR SHE HAS ADMITTED INTO EVIDENCE AT THE
HEARING AND A LIST OF ALL DOCUMENTS THAT WERE PROPOSED FOR ADMISSION BUT
NOT ACCEPTED INTO EVIDENCE. SUCH LISTS SHALL FORM PART OF THE RECORD  OF
THE  CASE.  EITHER  PARTY MAY REQUEST REPRODUCTION OF A DOCUMENT IT DOES
NOT HAVE IN ITS POSSESSION.
  10. UNLESS THE ADMINISTRATIVE JUDGE MAKES A WRITTEN DETERMINATION THAT
NECESSARY CAUSE EXISTS FOR EXTENDING THE TIME FOR ISSUING A DECISION, AN
ADMINISTRATIVE JUDGE SHALL ISSUE A DECISION ON THE COMPLAINT, AND  SHALL
ORDER  APPROPRIATE  REMEDIES  AND  RELIEF WHERE DISCRIMINATION IS FOUND,
WITHIN NINETY DAYS OF RECEIPT BY THE ADMINISTRATIVE JUDGE OF THE  RECORD
OF  THE HEARING. THE ADMINISTRATIVE JUDGE SHALL SEND COPIES OF THE HEAR-
ING RECORD, INCLUDING THE TRANSCRIPT, AND ULTIMATELY  THE  DECISION,  TO
THE  PARTIES.  THE  PARTIES  SHALL  BE PERMITTED TO SUBMIT BRIEFS ON THE

A. 8419                            11

MATTER WITHIN THIRTY DAYS OF RECEIPT BY THE ADMINISTRATIVE JUDGE OF  THE
RECORD OF THE HEARING.
  11.  ANY  PARTY ADVANCING A PROPOSITION SHALL BEAR THE BURDEN OF PROOF
BY A PREPONDERANCE OF THE EVIDENCE. IF THE DISCIPLINE OR DISCHARGE OF AN
EMPLOYEE IS AT ISSUE, AND THE EMPLOYEE HAS  PROVEN  THAT  DISCRIMINATION
WAS  A  SUBSTANTIAL  FACTOR  IN THE ADVERSE EMPLOYMENT ACTION, THEN SUCH
DISCIPLINE OR DISCHARGE SHALL BE  SET  ASIDE  AND  APPROPRIATE  REMEDIES
PROVIDED AS SET FORTH IN THIS ARTICLE.
  12.  ANY DECISION MUST CONTAIN NOTICE OF BOTH PARTIES' RIGHT TO APPEAL
TO THE COMMISSION.
  S 280-J. CLASS COMPLAINTS. 1. A COMPLAINANT MAY FILE WITH THE AGENCY A
CLASS COMPLAINT AT ANY REASONABLE POINT IN THE PROCESS WHEN  IT  BECOMES
APPARENT  THAT  THERE  ARE  CLASS IMPLICATIONS TO THE CLAIM RAISED IN AN
INDIVIDUAL COMPLAINT.
  2. WITHIN THIRTY DAYS OF AN AGENCY'S RECEIPT OF A CLASS COMPLAINT, THE
AGENCY SHALL FORWARD THE COMPLAINT, ALONG WITH A COPY OF THE COUNSELOR'S
REPORT AND ANY OTHER INFORMATION PERTAINING TO TIMELINESS OR OTHER RELE-
VANT CIRCUMSTANCES RELATED TO THE  COMPLAINT,  TO  THE  COMMISSION.  THE
COMPLAINANT SHALL BE SENT NOTIFICATION OF FILING WITH THE COMMISSION.
  3.  WITHIN  FORTY-FIVE DAYS AFTER FILING SUCH COMPLAINT, A COMPLAINANT
SHALL MOVE BEFORE THE COMMISSION FOR CLASS  CERTIFICATION,  WHICH  SHALL
APPOINT  AN  ADMINISTRATIVE JUDGE TO HEAR THE MOTION, UNLESS AN ADMINIS-
TRATIVE JUDGE HAD ALREADY BEEN APPOINTED.
  4. IF A COMPLAINANT MOVES FOR CLASS CERTIFICATION AFTER COMPLETING THE
COUNSELING PROCESS CONTAINED IN SECTION TWO  HUNDRED  EIGHTY-E  OF  THIS
ARTICLE, NO ADDITIONAL COUNSELING IS REQUIRED.
  5.  THE  ADMINISTRATIVE  JUDGE SHALL DENY CLASS CERTIFICATION WHEN THE
COMPLAINANT DOES NOT MEET THE CRITERIA ESTABLISHED IN LAW FOR ACTING  AS
AN  AGENT  FOR THE CLASS OR THE COMPLAINANT HAS UNDULY DELAYED IN MOVING
FOR CERTIFICATION, SUCH AS WHEN THE CLASS IMPLICATIONS TO THE CLAIM WERE
REASONABLY APPARENT BUT NO ACTION WAS TAKEN BY  THE  COMPLAINANT  DURING
COUNSELING OR INVESTIGATION OF THE MATTER. IF, HOWEVER, THE CLASS IMPLI-
CATIONS  BECOME  APPARENT  ONLY  DURING OR AFTER RECEIPT OF THE INVESTI-
GATIVE FILE, THE CLASS COMPLAINT SHOULD BE REFERRED BACK TO THE INVESTI-
GATOR FOR FURTHER INVESTIGATION ONLY AS TO THE CLASS-RELATED ISSUE AND A
DETERMINATION AS TO PROBABLE CAUSE OR NO PROBABLE CAUSE  CONCERNING  THE
ISSUE INVOLVING THE CLASS.
  6. FILING AND PRESENTATION OF A CLASS COMPLAINT:
  (A)  A  CLASS  COMPLAINT MUST BE SIGNED BY THE AGENT OR REPRESENTATIVE
AND MUST IDENTIFY THE POLICY OR PRACTICE ADVERSELY AFFECTING  THE  CLASS
AS  WELL  AS THE SPECIFIC ACTION OR MATTER AFFECTING THE CLASS AGENT AND
WHY THE AGENT QUALIFIES UNDER LAW TO REPRESENT THE CLASS  AS  AGENT  FOR
THE CLASS.
  (B) THE COMPLAINT SHALL BE INVESTIGATED IN THE SAME MANNER AS PROVIDED
WITH RESPECT TO INDIVIDUAL COMPLAINTS, EXCEPT AS PROVIDED IN SUBDIVISION
FIVE OF THIS SECTION.
  (C)  THE  ADMINISTRATIVE  JUDGE  MAY  DISMISS  THE  COMPLAINT,  OR ANY
PORTION, FOR ANY OF THE REASONS LISTED IN SECTION TWO  HUNDRED  EIGHTY-G
OF THIS ARTICLE OR BECAUSE IT DOES NOT MEET THE PREREQUISITES OF A CLASS
COMPLAINT AS DESCRIBED HEREIN.
  7.  WHEN APPROPRIATE, THE ADMINISTRATIVE JUDGE MAY DECIDE THAT A CLASS
BE DIVIDED INTO SUBCLASSES AND THAT EACH SUBCLASS BE TREATED AS A CLASS,
AND THE PROVISIONS OF THIS SECTION THEN SHALL BE CONSTRUED  AND  APPLIED
ACCORDINGLY.
  8.  THE  ADMINISTRATIVE  JUDGE  SHALL  TRANSMIT HIS OR HER DECISION TO
ACCEPT OR DISMISS A CLASS COMPLAINT TO THE AGENCY  AND  THE  AGENT.  THE

A. 8419                            12

DECISION SHALL INFORM THE AGENCY OR THE AGENT OF THE RIGHT TO APPEAL THE
DECISION TO THE COMMISSION IN THE SAME MANNER AS ANY OTHER APPEAL. PROC-
ESSING  OF  THE  INDIVIDUAL COMPLAINT SHALL CONTINUE WHILE THE APPEAL IS
PENDING.  SHOULD  THE  COMMISSION  REVERSE  A  DECISION NOT TO CERTIFY A
CLASS, A HEARING ON CLASS-RELATED ISSUES MAY BE HELD SEPARATELY.
  9. WITHIN FIFTEEN DAYS OF RECEIVING  NOTICE  THAT  THE  ADMINISTRATIVE
JUDGE  HAS  ACCEPTED A CLASS COMPLAINT OR A REASONABLE TIME FRAME SPECI-
FIED BY THE ADMINISTRATIVE JUDGE, THE AGENCY SHALL USE REASONABLE MEANS,
SUCH AS MAILING TO LAST KNOWN ADDRESS OR  DISTRIBUTION,  TO  NOTIFY  ALL
CLASS  MEMBERS  OF  THE  ACCEPTANCE OF THE CLASS COMPLAINT. SUCH NOTICES
SHALL CONTAIN:
  (A) THE NAME OF THE AGENCY OR ORGANIZATIONAL  SEGMENT,  ITS  LOCATION,
AND THE DATE OF CERTIFICATION OF THE CLASS COMPLAINT;
  (B)  A  DESCRIPTION  OF  THE  ISSUES  ACCEPTED  AS  PART  OF THE CLASS
COMPLAINT;
  (C) AN EXPLANATION OF THE BINDING NATURE  OF  THE  FINAL  DECISION  OR
RESOLUTION OF THE COMPLAINT ON CLASS MEMBERS; AND
  (D)  THE  NAME,  ADDRESS  AND TELEPHONE NUMBER OF THE ATTORNEY FOR THE
CLASS REPRESENTATIVE, IF ANY, AND OF THE CLASS REPRESENTATIVE.
  10. THE ADMINISTRATIVE JUDGE SHALL NOTIFY THE  AGENT  AND  THE  AGENCY
REPRESENTATIVE  OF  THE TIME PERIOD THAT WILL BE ALLOWED BOTH PARTIES TO
PREPARE THEIR CASES AS TO THE CLASS-RELATED ISSUES BUT IN NO  CASE  LESS
THAN NINETY DAYS. REASONABLE EXTENSIONS OF TIME SHOULD BE GRANTED.
  11. BOTH PARTIES ARE ENTITLED TO REASONABLE DEVELOPMENT OF EVIDENCE ON
MATTERS  RELEVANT  TO THE ISSUES RAISED IN THE COMPLAINT. THE SAME RULES
RELATING TO DISCOVERY AND TO EVIDENCE  IN  INDIVIDUAL  COMPLAINTS  SHALL
APPLY.  PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE JUDGE SHALL TAKE INTO
ACCOUNT  THE  CLASS  NATURE  OF  THE COMPLAINT IN GRANTING A REQUEST FOR
ADDITIONAL DISCOVERY.
  12. THE PROCESS FOR VOLUNTARY RESOLUTION OF A CLASS COMPLAINT SHALL BE
THE SAME AS FOR AN INDIVIDUAL COMPLAINT. PROVIDED, HOWEVER, THAT  NOTICE
OF  A  RESOLUTION AGREED UPON BY THE PARTIES SHALL BE GIVEN TO ALL CLASS
MEMBERS IN THE SAME MANNER AS NOTIFICATION  OF  THE  ACCEPTANCE  OF  THE
CLASS  COMPLAINT  AND  TO  THE  ADMINISTRATIVE JUDGE. IT SHALL STATE THE
RELIEF, IF ANY, TO BE GRANTED BY THE AGENCY AND THE NAME AND ADDRESS  OF
THE ADMINISTRATIVE JUDGE ASSIGNED TO THE CASE. IT SHALL STATE THAT WITH-
IN  THIRTY  DAYS  OF THE DATE OF THE NOTICE OF RESOLUTION, ANY MEMBER OF
THE CLASS MAY PETITION THE ADMINISTRATIVE JUDGE TO VACATE THE RESOLUTION
BECAUSE IT BENEFITS ONLY THE CLASS AGENT,  OR  IS  OTHERWISE  NOT  FAIR,
ADEQUATE  AND  REASONABLE  TO  THE  CLASS AS A WHOLE. THE ADMINISTRATIVE
JUDGE SHALL REVIEW THE NOTICE OF RESOLUTION AND CONSIDER  ANY  PETITIONS
TO  VACATE  FILED.  IF  THE ADMINISTRATIVE JUDGE FINDS THAT THE PROPOSED
RESOLUTION IS NOT FAIR, ADEQUATE AND REASONABLE TO THE CLASS AS A WHOLE,
THE ADMINISTRATIVE JUDGE SHALL ISSUE A DECISION VACATING  THE  AGREEMENT
AND MAY, BUT IS NOT REQUIRED TO, REPLACE THE ORIGINAL CLASS AGENT WITH A
DIFFERENT  PETITIONER  OR  SOME OTHER CLASS MEMBER WHO IS ELIGIBLE TO BE
THE CLASS AGENT DURING FURTHER PROCESSING OF THE  CLASS  COMPLAINT.  THE
DECISION  SHALL  INFORM THE AGENCY, THE CLASS AGENT, FORMER CLASS AGENT,
OR THE PETITIONER OF THE RIGHT TO APPEAL THE DECISION TO THE COMMISSION.
IF THE ADMINISTRATIVE JUDGE FINDS THAT THE RESOLUTION IS FAIR,  ADEQUATE
AND  REASONABLE  TO THE CLASS AS A WHOLE, THE ADMINISTRATIVE JUDGE SHALL
SO ORDER AND THE RESOLUTION SHALL BIND ALL MEMBERS OF THE CLASS.
  13. ON EXPIRATION OF THE PERIOD ALLOWED FOR PREPARATION OF  THE  CASE,
THE  ADMINISTRATIVE  JUDGE SHALL SET A DATE FOR HEARING. THE HEARING MAY
BE SET FOR THE SAME DATE AS ON THE INDIVIDUAL COMPLAINT OR ON A  DIFFER-

A. 8419                            13

ENT  DATE  AS  APPROPRIATE.  THE  HEARING SHALL BE CONDUCTED IN THE SAME
MANNER AS A HEARING ON AN INDIVIDUAL COMPLAINT.
  14.  (A) THE ADMINISTRATIVE JUDGE SHALL DECIDE WHETHER SYSTEMIC RELIEF
FOR THE CLASS IS APPROPRIATE WITH REGARD  TO  THE  PERSONNEL  ACTION  OR
MATTER  THAT GAVE RISE TO THE COMPLAINT, AND THE RELEVANT TIME PERIOD IN
WHICH SUCH PERSONNEL ACTION OR MATTER ADVERSELY AFFECTED THE CLASS.
  (B) IF THE ADMINISTRATIVE JUDGE FINDS NO CLASS RELIEF APPROPRIATE,  HE
OR  SHE  SHALL  DETERMINE  IF  A FINDING OF INDIVIDUAL DISCRIMINATION IS
WARRANTED AND, IF SO, SHALL DETERMINE APPROPRIATE RELIEF.
  (C) THE ADMINISTRATIVE JUDGE SHALL NOTIFY THE AGENCY AND THE COMPLAIN-
ANT AND/OR AGENT OF THE DECISION AND OF  THE  RIGHT  TO  APPEAL  TO  THE
COMMISSION.
  (D) THE AGENCY SHALL, WITHIN THIRTY DAYS OF THE DECISION, NOTIFY CLASS
MEMBERS  OF  THE  FINAL DECISION AND RELIEF AWARDED, IF ANY, THROUGH THE
SAME MEDIA EMPLOYED TO  GIVE  NOTICE  OF  THE  EXISTENCE  OF  THE  CLASS
COMPLAINT.  THE  NOTICE,  WHERE  APPROPRIATE,  SHALL INCLUDE INFORMATION
CONCERNING THE RIGHTS OF CLASS MEMBERS TO SEEK INDIVIDUAL RELIEF, AND OF
THE PROCEDURES TO BE FOLLOWED, AND OF THE RIGHT TO APPEAL TO THE COMMIS-
SION.
  (E) WHEN DISCRIMINATION IS FOUND, AN AGENCY MUST ELIMINATE  OR  MODIFY
THE  EMPLOYMENT  POLICY OR PRACTICE OUT OF WHICH THE COMPLAINT AROSE AND
PROVIDE INDIVIDUAL RELIEF FOR  CLASS  MEMBERS,  INCLUDING  AN  AWARD  OF
ATTORNEY'S FEES AND COSTS, TO THE AGENT.
  (F)  WHEN CLASS-WIDE DISCRIMINATION IS NOT FOUND, BUT IT IS FOUND THAT
THE CLASS AGENT IS A VICTIM OF DISCRIMINATION AGAINST HIM OR HER  AS  AN
INDIVIDUAL,  THE ADMINISTRATIVE JUDGE SHALL AWARD ALL APPROPRIATE RELIEF
TO THE INDIVIDUAL COMPLAINANT.
  (G) WHEN CLASS DISCRIMINATION IS FOUND IN THE  FINAL  DECISION  AND  A
CLASS  MEMBER  BELIEVES THAT HE OR SHE IS ENTITLED TO INDIVIDUAL RELIEF,
THE CLASS MEMBER MAY FILE A WRITTEN CLAIM WITH THE HEAD OF THE AGENCY OR
ITS EEO DIRECTOR WITHIN THIRTY DAYS OF RECEIPT OF  NOTIFICATION  BY  THE
AGENCY OF ITS FINAL DECISION.  ADMINISTRATIVE JUDGES SHALL RETAIN JURIS-
DICTION  OVER THE COMPLAINT IN ORDER TO RESOLVE ANY DISPUTED CLAIMS MADE
BY CLASS MEMBERS THAT THEY ARE ENTITLED  TO  INDIVIDUAL  RELIEF.  TO  BE
ENTITLED  TO  INDIVIDUAL  RELIEF,  THE  CLAIM  MUST  INCLUDE A SPECIFIC,
DETAILED SHOWING THAT THE CLAIMANT IS A CLASS MEMBER WHO WAS AFFECTED BY
THE DISCRIMINATORY POLICY OR  PRACTICE,  AND  THAT  THIS  DISCRIMINATORY
ACTION TOOK PLACE WITHIN THE PERIOD OF TIME FOR WHICH THE ADMINISTRATIVE
JUDGE  FOUND  CLASS-WIDE  DISCRIMINATION  IN  HIS OR HER FINAL DECISION.
WHERE A FINDING OF DISCRIMINATION AGAINST A CLASS HAS BEEN  MADE,  THERE
SHALL BE A PRESUMPTION OF DISCRIMINATION AS TO EACH MEMBER OF THE CLASS.
THE  AGENCY  MUST  SHOW  BY CLEAR AND CONVINCING EVIDENCE THAT ANY CLASS
MEMBER IS NOT ENTITLED TO RELIEF. THE ADMINISTRATIVE JUDGE  MAY  HOLD  A
HEARING  OR  OTHERWISE SUPPLEMENT THE RECORD ON A CLAIM FILED BY A CLASS
MEMBER. ANY DECISION BY THE ADMINISTRATIVE  JUDGE  SHALL  BE  APPEALABLE
UNDER THE SAME PROCEDURES APPLICABLE TO ANY INDIVIDUAL COMPLAINT.
  S  280-K.  RELATIONSHIP  TO  NEGOTIATED GRIEVANCE PROCEDURE. 1. WHEN A
PERSON IS EMPLOYED BY AN AGENCY AND IS A MEMBER  OF  A  BARGAINING  UNIT
COVERED BY A COLLECTIVE BARGAINING AGREEMENT THAT PERMITS ALLEGATIONS OF
DISCRIMINATION  TO  BE  RAISED  IN  A  NEGOTIATED GRIEVANCE PROCEDURE, A
PERSON WISHING TO FILE A COMPLAINT OR A GRIEVANCE ON A MATTER OF ALLEGED
EMPLOYMENT DISCRIMINATION MUST ELECT TO  RAISE  THE  MATTER  UNDER  THIS
CHAPTER  OR  IN  THE  NEGOTIATED  GRIEVANCE PROCEDURE, BUT NOT BOTH.  AN
ELECTION TO PROCEED UNDER THIS PART IS INDICATED ONLY BY THE FILING OF A
WRITTEN COMPLAINT; USE OF THE  PRE-COMPLAINT  PROCESS  AS  DESCRIBED  IN
SECTION  TWO  HUNDRED  EIGHTY-E  OF  THIS ARTICLE DOES NOT CONSTITUTE AN

A. 8419                            14

ELECTION FOR PURPOSES OF THIS SECTION. AN AGGRIEVED EMPLOYEE WHO FILES A
COMPLAINT UNDER THIS PART MAY NOT THEREAFTER FILE  A  GRIEVANCE  ON  THE
SAME  MATTER. AN ELECTION TO PROCEED UNDER A NEGOTIATED GRIEVANCE PROCE-
DURE  IS  INDICATED  BY  THE  FILING  OF A TIMELY WRITTEN GRIEVANCE, THE
DENIAL OF SUCH GRIEVANCE BY THE AGENCY, AND THE PURSUIT OF  SUCH  GRIEV-
ANCE  TO  THE NEXT STAGE OF THE GRIEVANCE PROCESS. AN AGGRIEVED EMPLOYEE
WHO FILES A GRIEVANCE WITH AN AGENCY WHOSE NEGOTIATED AGREEMENT  PERMITS
THE  ACCEPTANCE OF GRIEVANCES WHICH ALLEGE DISCRIMINATION MAY NOT THERE-
AFTER FILE A COMPLAINT ON THE SAME MATTER UNDER THIS  CHAPTER  IRRESPEC-
TIVE  OF  WHETHER  THE AGENCY HAS INFORMED THE INDIVIDUAL OF THE NEED TO
ELECT. ANY SUCH COMPLAINT FILED AFTER A GRIEVANCE HAS BEEN FILED ON  THE
SAME  MATTER  SHALL  BE DISMISSED WITHOUT PREJUDICE TO THE COMPLAINANT'S
RIGHT TO PROCEED THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE.  UPON  SUCH
DISMISSAL,  WHICH  SHALL  INCLUDE  NOTICE OF THE RIGHT TO SEEK A HEARING
BEFORE AN ADMINISTRATIVE JUDGE, THE COMPLAINANT MAY SEEK  A  HEARING  ON
THE  DISMISSAL  BEFORE AN ADMINISTRATIVE LAW JUDGE IN THE SAME MANNER AS
IN ANY INDIVIDUAL COMPLAINT, INCLUDING THE ULTIMATE RIGHT TO  APPEAL  TO
THE COMMISSION.
  2.  WHEN  A PERSON IS NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT
THAT PERMITS ALLEGATIONS OF DISCRIMINATION TO BE RAISED IN A  NEGOTIATED
GRIEVANCE PROCEDURE, ALLEGATIONS OF DISCRIMINATION SHALL BE PROCESSED AS
COMPLAINTS UNDER THIS CHAPTER. THE ERRONEOUS FILING OF A GRIEVANCE UNDER
A  COLLECTIVE  BARGAINING  AGREEMENT THAT DOES NOT PERMIT ALLEGATIONS OF
DISCRIMINATION TO BE RAISED IN THE COURSE OF  THE  NEGOTIATED  GRIEVANCE
PROCEDURE  SHALL  NOT  PREJUDICE  A PERSON FROM FILING A COMPLAINT UNDER
THIS CHAPTER.
  3. IF AN ADMINISTRATIVE JUDGE DETERMINES THAT THE FILING OF  A  GRIEV-
ANCE  RESULTED  IN  NONCOMPLIANCE WITH THE TIME LIMITS SET FORTH IN THIS
ARTICLE, THAT THE AGENCY HAD NOTICE OF THE ALLEGATIONS OF DISCRIMINATION
THROUGH THE GRIEVANCE PROCESS, AND THAT THE COMPLAINANT HAS  SOME  BASIS
FOR  FAILING TO TIMELY FILE UNDER THIS ARTICLE, INCLUDING THAT THE INDI-
VIDUAL WAS OPERATING UNDER ERRONEOUS ADVICE  PROVIDED  BY  SOMEONE  WITH
MANAGEMENT AUTHORITY AT THE AGENCY, OR AN EEO COUNSELOR, OR DID NOT HAVE
THE BENEFIT OF COUNSEL, THEN THE ADMINISTRATIVE JUDGE SHALL GRANT RELIEF
FROM THE TIME LIMITS SET FORTH IN THIS ARTICLE.
  S  280-L.  APPEALS TO THE COMMISSION. 1. ALL APPEALS TO THE COMMISSION
REFERRED TO IN THIS ARTICLE MUST BE FILED WITHIN THIRTY DAYS OF  RECEIPT
OF  THE  DISMISSAL,  FINAL  ACTION,  OR  DECISION. AN APPEAL IS TAKEN BY
FILING A NOTICE OF APPEAL WITH THE COMMISSION.
  2. THE APPELLANT SHALL FURNISH A COPY OF THE NOTICE OF APPEAL  TO  THE
OPPOSING  PARTY  AT THE SAME TIME IT IS FILED WITH THE COMMISSION. IN OR
ATTACHED TO THE APPEAL TO THE COMMISSION, THE APPELLANT MUST CERTIFY THE
DATE AND METHOD BY WHICH SERVICE WAS MADE ON THE OPPOSING PARTY.
  3. IF AN APPELLANT DOES NOT FILE AN APPEAL WITHIN THE TIME  LIMITS  OF
THIS SUBPART, THE APPEAL SHALL BE DISMISSED BY THE COMMISSION AS UNTIME-
LY,  THOUGH  THE  COMMISSION,  UPON APPLICATION, MAY EXTEND THE TIME FOR
GOOD CAUSE SHOWN.
  4. THE COMMISSION SHALL SET A SCHEDULE FOR THE BRIEFING OF AN APPEAL.
  5. THE PARTIES SHALL NOT BE RESPONSIBLE FOR PREPARATION OF THE  RECORD
ON  APPEAL,  THOUGH  THE  COMMISSION  MAY  REQUIRE A PARTY TO PROVIDE AN
APPENDIX CONTAINING THE MOST PERTINENT PORTIONS OF THE RECORD.
  6. THE RECORD SHALL CONSIST OF THE  FILE  OF  THE  ADMINISTRATIVE  LAW
JUDGE,  ANY  MATTERS  ADMITTED  INTO  EVIDENCE,  OR OFFERED AS EVIDENCE,
BEFORE THE ADMINISTRATIVE JUDGE, AND THE TRANSCRIPT OF THE HEARING.  ANY
PARTY  MAY  EXAMINE  THE  RECORD  AT  HIS OR HER REQUEST FOR PURPOSES OF
PREPARING A BRIEF ON THE APPEAL.

A. 8419                            15

  7. THE COMMISSION SHALL HEAR ARGUMENTS ON AN APPEAL IN THE SAME MANNER
AS AN APPELLATE COURT.
  8.  THE  COMMISSION  MAY  HEAR  APPEALS IN A PANEL CONSISTING OF THREE
COMMISSIONERS DESIGNATED IN RANDOM FASHION.
  S 280-M. DECISIONS ON APPEALS. 1. THE DECISION SHALL BE BASED  ON  THE
PREPONDERANCE  OF THE EVIDENCE. THE DECISION ON AN APPEAL FROM THE DECI-
SION OF THE ADMINISTRATIVE JUDGE SHALL BE DE NOVO, EXCEPT THAT THE FIND-
INGS OF THE ADMINISTRATIVE JUDGE AS  TO  THE  CREDIBILITY  OF  WITNESSES
SHALL BE BASED ON A SUBSTANTIAL EVIDENCE STANDARD OF REVIEW.
  2.  THE  DECISION SHALL ADVISE THE PARTIES OF THEIR RIGHT TO APPEAL TO
THE APPELLATE DIVISION.
  3. A PARTY MAY REQUEST RECONSIDERATION WITHIN THIRTY DAYS  OF  RECEIPT
OF  A DECISION OF THE COMMISSION, WHICH THE COMMISSION IN ITS DISCRETION
MAY GRANT, IF THE PARTY DEMONSTRATES THAT:
  (A) THE APPELLATE DECISION INVOLVED A CLEARLY ERRONEOUS INTERPRETATION
OF MATERIAL FACT OR LAW; OR
  (B) THE DECISION WILL HAVE A SUBSTANTIAL IMPACT ON THE POLICIES, PRAC-
TICES OR OPERATIONS OF THE AGENCY IN WHICH  CASE  THE  COMMISSION  SHALL
CONSIDER  ONLY  THE  QUESTION OF HOW TO MITIGATE THE IMPACT ON THE POLI-
CIES, PROCEDURES OR OPERATIONS OF THE AGENCY.
  S 280-N. REMEDIES AND RELIEF. 1. WHEN AN ADMINISTRATIVE JUDGE, OR  THE
COMMISSION,  IN  AN  INDIVIDUAL  CASE  OF  DISCRIMINATION, FINDS THAT AN
APPLICANT OR AN EMPLOYEE HAS BEEN DISCRIMINATED AGAINST, THE ADMINISTRA-
TIVE JUDGE SHALL PROVIDE FULL RELIEF WHICH SHALL INCLUDE  THE  FOLLOWING
ELEMENTS IN APPROPRIATE CIRCUMSTANCES:
  (A) NOTIFICATION TO ALL EMPLOYEES OF THE AGENCY IN THE AFFECTED FACIL-
ITY  OF  THEIR RIGHT TO BE FREE OF UNLAWFUL DISCRIMINATION AND ASSURANCE
THAT THE PARTICULAR TYPES OF DISCRIMINATION FOUND WILL NOT RECUR;
  (B) COMMITMENT THAT CORRECTIVE, CURATIVE, OR PREVENTIVE ACTION WILL BE
TAKEN, OR MEASURES ADOPTED, TO ENSURE THAT VIOLATIONS OF THE LAW SIMILAR
TO THOSE FOUND WILL NOT RECUR;
  (C) AN UNCONDITIONAL OFFER TO EACH IDENTIFIED VICTIM OF DISCRIMINATION
OF PLACEMENT IN THE POSITION THE PERSON WOULD HAVE OCCUPIED BUT FOR  THE
DISCRIMINATION  SUFFERED  BY  THAT PERSON, OR A SUBSTANTIALLY EQUIVALENT
POSITION;
  (D) PAYMENT TO EACH IDENTIFIED VICTIM  OF  DISCRIMINATION  ON  A  MAKE
WHOLE  BASIS  FOR ANY LOSS OF EARNINGS THE PERSON MAY HAVE SUFFERED AS A
RESULT OF THE DISCRIMINATION TOGETHER WITH INTEREST ON SUCH  LOST  EARN-
INGS; AND
  (E)  COMMITMENT  THAT  THE  AGENCY  SHALL  CEASE  FROM ENGAGING IN THE
SPECIFIC UNLAWFUL EMPLOYMENT PRACTICE FOUND IN THE CASE.
  2. (A) WHEN AN AGENCY, OR THE COMMISSION, FINDS THAT AN APPLICANT  FOR
EMPLOYMENT  HAS  BEEN  DISCRIMINATED AGAINST, THE AGENCY SHALL OFFER THE
APPLICANT THE POSITION THAT THE APPLICANT  WOULD  HAVE  OCCUPIED  ABSENT
DISCRIMINATION  OR,  IF  JUSTIFIED BY THE CIRCUMSTANCES, A SUBSTANTIALLY
EQUIVALENT POSITION.  THE OFFER SHALL BE MADE IN WRITING. THE INDIVIDUAL
SHALL HAVE THIRTY DAYS FROM RECEIPT OF THE OFFER WITHIN WHICH TO  ACCEPT
OR  DECLINE THE OFFER. FAILURE TO ACCEPT THE OFFER WITHIN THE THIRTY DAY
PERIOD WILL BE CONSIDERED A DECLINATION OF THE OFFER, UNLESS  THE  INDI-
VIDUAL CAN SHOW THAT CIRCUMSTANCES BEYOND HIS OR HER CONTROL PREVENTED A
RESPONSE WITHIN THE TIME LIMIT.
  (B)  IF THE OFFER IS ACCEPTED, APPOINTMENT SHALL BE RETROACTIVE TO THE
DATE THE APPLICANT WOULD HAVE BEEN HIRED. BACK PAY WITH  INTEREST  SHALL
BE AWARDED FROM THE DATE THE INDIVIDUAL WOULD HAVE ENTERED ON DUTY UNTIL
THE DATE THE INDIVIDUAL ACTUALLY ENTERS ON DUTY. THE INDIVIDUAL SHALL BE
DEEMED  TO  HAVE PERFORMED SERVICE FOR THE AGENCY DURING THIS PERIOD FOR

A. 8419                            16

ALL PURPOSES EXCEPT FOR MEETING SERVICE REQUIREMENTS FOR COMPLETION OF A
REQUIRED PROBATIONARY OR TRIAL PERIOD.
  (C) IF THE OFFER OF EMPLOYMENT IS DECLINED, THE AGENCY SHALL AWARD THE
INDIVIDUAL  A  SUM  EQUAL  TO THE BACK PAY HE OR SHE WOULD HAVE RECEIVED
FROM THE DATE HE OR SHE WOULD HAVE BEEN HIRED UNTIL THE DATE  THE  OFFER
WAS  DECLINED.    INTEREST ON BACK PAY SHALL BE INCLUDED IN THE BACK PAY
COMPUTATION. THE AGENCY SHALL INFORM THE  APPLICANT,  IN  ITS  OFFER  OF
EMPLOYMENT,  OF  THE  RIGHT  TO  THIS  AWARD  IN  THE EVENT THE OFFER IS
DECLINED.
  3. WHEN AN ADMINISTRATIVE JUDGE, OR  THE  COMMISSION,  FINDS  THAT  AN
EMPLOYEE  OF  THE  AGENCY  WAS  DISCRIMINATED  AGAINST, THE AGENCY SHALL
PROVIDE RELIEF, WHICH SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, ONE  OR
MORE OF THE FOLLOWING ACTIONS:
  (A) NONDISCRIMINATORY PLACEMENT, WITH BACK PAY AND INTEREST;
  (B) CANCELLATION OF AN UNWARRANTED PERSONNEL ACTION AND RESTORATION OF
THE EMPLOYEE TO HIS OR HER FORMER POSITION OR A SUBSTANTIALLY EQUIVALENT
POSITION;
  (C)  EXPUNCTION  FROM  THE  AGENCY'S  RECORDS OF ANY ADVERSE MATERIALS
RELATING TO THE DISCRIMINATORY EMPLOYMENT PRACTICE; AND
  (D) FULL OPPORTUNITY TO PARTICIPATE IN THE  EMPLOYEE  BENEFIT  DENIED,
INCLUDING,  BUT NOT LIMITED TO, TRAINING, PREFERENTIAL WORK ASSIGNMENTS,
AND OVERTIME SCHEDULING.
  4. THE AGENCY HAS THE BURDEN OF PROVING  BY  A  PREPONDERANCE  OF  THE
EVIDENCE THAT THE COMPLAINANT HAS FAILED TO MITIGATE HIS OR HER DAMAGES.
FAILURE TO MITIGATE MUST BE RAISED AT THE HEARING BEFORE THE ADMINISTRA-
TIVE JUDGE OR IS WAIVED.
  5.  (A)  NOTWITHSTANDING  ANY  PROVISION  OF  LAW TO THE CONTRARY, THE
PROVISIONS OF THIS SUBDIVISION RELATING TO THE AWARD OF ATTORNEY'S  FEES
OR  COSTS SHALL APPLY TO ALL ALLEGATIONS OF DISCRIMINATION COVERED UNDER
THIS ARTICLE AND TO  ALL  ALLEGATIONS  OF  DISCRIMINATION  COVERED  WITH
RESPECT  TO  PRIVATE  EMPLOYEES  UNDER  ARTICLE FIFTEEN OF THIS CHAPTER,
CONSTITUTING THE HUMAN RIGHTS LAW. IN A DECISION  OF  AN  ADMINISTRATIVE
JUDGE,  OR  THE  COMMISSION, OR OF A COURT IN A CASE INVOLVING A PRIVATE
EMPLOYEE COVERED UNDER THE  HUMAN  RIGHTS  LAW,  OR  A  PUBLIC  EMPLOYEE
COVERED UNDER THIS CHAPTER, THE ADMINISTRATIVE JUDGE, THE COMMISSION, OR
THE  COURT, AS APPLICABLE, SHALL AWARD THE APPLICANT OR EMPLOYEE REASON-
ABLE ATTORNEY'S FEES (INCLUDING EXPERT WITNESS AND PARALEGAL  FEES)  AND
OTHER COSTS AND DISBURSEMENTS INCURRED IN THE INVESTIGATION AND PROCESS-
ING  OF THE COMPLAINT, FROM THE FIRST INVOLVEMENT OF COUNSEL THROUGH ALL
APPEALS. ANY AWARD OF ATTORNEY'S FEES OR COSTS  SHALL  BE  PAID  BY  THE
AGENCY.
  (B)  WHEN  THE  ADMINISTRATIVE  JUDGE,  THE COMMISSION, OR A COURT, AS
APPROPRIATE, DETERMINES AN ENTITLEMENT TO ATTORNEY'S FEES OR COSTS,  THE
COMPLAINANT'S  ATTORNEY  SHALL SUBMIT A VERIFIED STATEMENT OF ATTORNEY'S
FEES, INCLUDING BUT NOT LIMITED TO, EXPERT WITNESS  FEES  AND  PARALEGAL
FEES, AND OTHER COSTS AND DISBURSEMENTS, AS APPROPRIATE, TO THE ADMINIS-
TRATIVE  JUDGE,  THE  COMMISSION,  OR  THE  COURT  WITHIN THIRTY DAYS OF
RECEIPT OF THE DECISION AND SHALL SUBMIT A COPY OF THE STATEMENT TO  THE
AGENCY. A STATEMENT OF ATTORNEY'S FEES AND COSTS SHALL BE ACCOMPANIED BY
AN AFFIDAVIT EXECUTED BY THE ATTORNEY OF RECORD ITEMIZING THE ATTORNEY'S
CHARGES  FOR  LEGAL SERVICES USING THE ATTORNEY'S ORDINARY AND CUSTOMARY
RECORDKEEPING PROCESS FOR ACCOUNTING FOR HIS OR HER TIME. THE AGENCY MAY
OBJECT IN WHOLE OR IN PART TO A STATEMENT OF ATTORNEY'S FEES  AND  COSTS
WITHIN THIRTY DAYS OF ITS RECEIPT.
  (C) THE ADMINISTRATIVE JUDGE, THE COMMISSION, OR THE COURT SHALL ISSUE
A DECISION DETERMINING THE AMOUNT OF ATTORNEY'S FEES OR COSTS DUE WITHIN

A. 8419                            17

SIXTY DAYS OF RECEIPT OF THE STATEMENT AND AFFIDAVIT. THE DECISION SHALL
INCLUDE THE SPECIFIC REASONS FOR DETERMINING THE AMOUNT OF THE AWARD.
  (D)  THE  AMOUNT  OF  ATTORNEY'S  FEES  SHALL  BE CALCULATED USING THE
FOLLOWING STANDARDS: THE STARTING POINT SHALL BE  THE  NUMBER  OF  HOURS
REASONABLY  EXPENDED MULTIPLIED BY A REASONABLE HOURLY RATE. THE REASON-
ABLE HOURLY RATE SHALL BE THE SAME AS THE LODESTAR RATE THEN  PREVAILING
IN FEDERAL COURT FOR ATTORNEYS OF LIKE EXPERIENCE IN THE PARTICULAR PART
OF  THE  STATE WHERE THE CASE AROSE.  THERE IS A STRONG PRESUMPTION THAT
THIS AMOUNT REPRESENTS THE REASONABLE FEE.
  S 280-O. COMPLIANCE WITH FINAL DECISIONS. 1.    RELIEF  ORDERED  IN  A
FINAL  DECISION  OF  AN ADMINISTRATIVE JUDGE, IF NOT APPEALED, OR OF THE
COMMISSION, IS MANDATORY AND BINDING ON THE AGENCY EXCEPT  AS  OTHERWISE
PROVIDED  IN THIS SECTION.  FAILURE TO IMPLEMENT ORDERED RELIEF SHALL BE
SUBJECT TO JUDICIAL ENFORCEMENT AS SET FORTH IN THIS CHAPTER.
  2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION,  WHEN  THE  AGENCY
REQUESTS RECONSIDERATION OR APPEALS AND THE CASE INVOLVES REMOVAL, SEPA-
RATION,  OR  SUSPENSION  CONTINUING  BEYOND  THE DATE OF THE REQUEST FOR
RECONSIDERATION, AND WHEN THE DECISION ORDERS  RETROACTIVE  RESTORATION,
THE AGENCY SHALL COMPLY WITH THE DECISION TO THE EXTENT OF THE TEMPORARY
OR  CONDITIONAL  RESTORATION OF THE EMPLOYEE TO DUTY STATUS IN THE POSI-
TION SPECIFIED BY THE ADMINISTRATIVE JUDGE OF  THE  COMMISSION,  PENDING
THE OUTCOME OF THE AGENCY REQUEST FOR RECONSIDERATION.
  3.  SERVICE  UNDER THE TEMPORARY OR CONDITIONAL RESTORATION PROVISIONS
OF SUBDIVISION  TWO  OF  THIS  SECTION  SHALL  BE  CREDITED  TOWARD  THE
COMPLETION  OF  A  PROBATIONARY  OR  TRIAL  PERIOD,  OR  SHALL COUNT FOR
PROMOTION AS APPROPRIATE.
  4. WHEN THE AGENCY REQUESTS RECONSIDERATION, OR APPEALS IT  MAY  DELAY
THE  PAYMENT  OF ANY AMOUNTS ORDERED TO BE PAID TO THE COMPLAINANT UNTIL
AFTER THE REQUEST FOR RECONSIDERATION OR THE APPEAL IS RESOLVED. IF  THE
AGENCY  DELAYS  PAYMENT OF ANY AMOUNT PENDING THE OUTCOME OF THE REQUEST
TO RECONSIDER OR THE APPEAL, AND THE RESOLUTION OF THE REQUEST OR APPEAL
REQUIRES THE AGENCY TO MAKE THE  PAYMENT,  THEN  THE  AGENCY  SHALL  PAY
INTEREST FROM THE DATE OF THE ORIGINAL DECISION IT HAD APPEALED OR ASKED
TO  BE  RECONSIDERED  UNTIL  PAYMENT  IS  MADE,  AS WELL AS ALL INTEREST
REQUIRED PRIOR TO THE REQUEST FOR RECONSIDERATION OR APPEAL.
  5. THE AGENCY SHALL NOTIFY THE ADMINISTRATIVE JUDGE OR THE COMMISSION,
AS APPROPRIATE, AND THE EMPLOYEE IN WRITING AT THE SAME TIME IT REQUESTS
RECONSIDERATION OR APPEALS THAT THE RELIEF IT PROVIDES IS  TEMPORARY  OR
CONDITIONAL  AND,  IF  APPLICABLE, THAT IT WILL DELAY THE PAYMENT OF ANY
AMOUNTS OWED BUT WILL PAY INTEREST AS SET FORTH ABOVE IN THE  EVENT  ITS
APPLICATION OR APPEAL IS UNSUCCESSFUL.  FAILURE OF THE AGENCY TO PROVIDE
NOTIFICATION  WILL  RESULT  IN  THE DISMISSAL OF THE AGENCY'S REQUEST OR
APPEAL.
  6. WHEN NO APPEAL IS TAKEN, OR NO REQUEST FOR RECONSIDERATION IS FILED
OR WHEN A REQUEST  FOR  RECONSIDERATION  IS  DENIED,  THE  AGENCY  SHALL
PROVIDE THE RELIEF ORDERED AND THERE IS NO FURTHER RIGHT TO DELAY IMPLE-
MENTATION  OF  THE ORDERED RELIEF.  THE RELIEF SHALL BE PROVIDED IN FULL
NOT LATER THAN SIXTY DAYS AFTER RECEIPT OF  THE  FINAL  DECISION  UNLESS
OTHERWISE ORDERED IN THE DECISION.
  S  280-P.  ENFORCEMENT  OF FINAL DECISIONS. A COMPLAINANT MAY PETITION
THE SUPREME COURT OF THE STATE OF NEW YORK PURSUANT TO ARTICLE  SEVENTY-
EIGHT  OF THE CIVIL PRACTICE LAW AND RULES FOR ENFORCEMENT OF A DECISION
ISSUED BY AN ADMINISTRATIVE JUDGE THAT IS NOT APPEALED  TO  THE  COMMIS-
SION,  THAT  IS ISSUED UNDER THE COMMISSION'S APPELLATE JURISDICTION, OR
OF ANY SETTLEMENT AGREEMENT EXECUTED IN THE COURSE OF THE ADMINISTRATIVE
PROCESS. A SETTLEMENT AGREEMENT IS BINDING EVEN IF NOT EXECUTED  BY  ALL

A. 8419                            18

PARTIES  IF  THE ESSENTIAL TERMS WERE CLEARLY ENTERED INTO THE RECORD OR
IF THE EXCHANGE OF CORRESPONDENCE CLEARLY  INDICATES  AGREEMENT  ON  THE
ESSENTIAL TERMS. THE COURT MAY SUPPLY ANY ADDITIONAL NON-ESSENTIAL TERMS
BASED ON THE SUBMISSIONS OF THE PARTIES.
  S  280-Q.  INTERIM  RELIEF.  1.  WHEN  THE AGENCY APPEALS AND THE CASE
INVOLVES REMOVAL, SEPARATION, OR SUSPENSION CONTINUING BEYOND  THE  DATE
OF  THE  APPEAL,  AND  WHEN  THE  ADMINISTRATIVE JUDGE'S DECISION ORDERS
RETROACTIVE RESTORATION, THE AGENCY SHALL COMPLY WITH  THE  DECISION  TO
THE  EXTENT  OF THE TEMPORARY OR CONDITIONAL RESTORATION OF THE EMPLOYEE
TO DUTY STATUS IN THE POSITION SPECIFIED IN THE  DECISION,  PENDING  THE
OUTCOME OF THE AGENCY APPEAL.
  2.  SERVICE  UNDER THE TEMPORARY OR CONDITIONAL RESTORATION PROVISIONS
OF SUBDIVISION  ONE  OF  THIS  SECTION  SHALL  BE  CREDITED  TOWARD  THE
COMPLETION  OF  A  PROBATIONARY  OR  TRIAL  PERIOD,  OR  ELIGIBILITY FOR
PROMOTION, IF THE  COMMISSION  UPHOLDS  THE  DECISION  ON  APPEAL.  SUCH
SERVICE  SHALL  NOT  BE CREDITED TOWARD THE COMPLETION OF ANY APPLICABLE
PROBATIONARY OR TRIAL PERIOD  OR  TOWARD  PROMOTION  IF  THE  COMMISSION
REVERSES THE DECISION ON APPEAL.
  3.  WHEN  THE  AGENCY APPEALS, IT MAY DELAY THE PAYMENT OF ANY AMOUNT,
OTHER THAN PAY AND BENEFITS  ACCRUING  UNDER  TEMPORARY  OR  CONDITIONAL
RESTORATION,  WHICH HAD BEEN ORDERED TO BE PAID TO THE COMPLAINANT UNTIL
AFTER THE APPEAL IS  RESOLVED.  SUCH  DELAY  SHALL  BE  ADMINISTERED  IN
ACCORDANCE WITH SECTION TWO HUNDRED EIGHTY-O OF THIS ARTICLE.
  S 280-R. JOINT PROCESSING AND CONSOLIDATION OF COMPLAINTS.  COMPLAINTS
OF  DISCRIMINATION  FILED  BY  TWO  OR  MORE  COMPLAINANTS CONSISTING OF
SUBSTANTIALLY SIMILAR ALLEGATIONS OF DISCRIMINATION OR RELATING  TO  THE
SAME MATTER MAY BE CONSOLIDATED BY THE AGENCY, THE ADMINISTRATIVE JUDGE,
OR THE COMMISSION FOR JOINT PROCESSING AFTER APPROPRIATE NOTIFICATION TO
THE  PARTIES. TWO OR MORE COMPLAINTS OF DISCRIMINATION FILED BY THE SAME
COMPLAINANT SHALL BE CONSOLIDATED BY THE AGENCY, BY  THE  ADMINISTRATIVE
JUDGE,  OR  BY  THE  COMMISSION  FOR  JOINT PROCESSING AFTER APPROPRIATE
NOTIFICATION TO THE COMPLAINANT. WHEN A COMPLAINT HAS BEEN  CONSOLIDATED
WITH ONE OR MORE EARLIER FILED COMPLAINTS, THE AGENCY SHALL COMPLETE ITS
INVESTIGATION  WITHIN  ONE  HUNDRED  EIGHTY DAYS AFTER THE FILING OF THE
LAST COMPLAINT OR THREE HUNDRED SIXTY  DAYS  AFTER  THE  FILING  OF  THE
ORIGINAL  COMPLAINT,  EXCEPT  THAT THE COMPLAINANT MAY REQUEST A HEARING
FROM AN ADMINISTRATIVE JUDGE ON THE  CONSOLIDATED  COMPLAINTS  ANY  TIME
AFTER  ONE  HUNDRED  EIGHTY  DAYS  FROM  THE  DATE  OF  THE  FIRST FILED
COMPLAINT. AN AGGRIEVED INDIVIDUAL SHALL RETAIN THE  RIGHT  TO  BRING  A
CIVIL  ACTION  IN  NEW  YORK  STATE SUPREME COURT CONCERNING THE SUBJECT
MATTER OF THE  CONSOLIDATED  COMPLAINTS  IF  THE  INVESTIGATION  OF  THE
CONSOLIDATED  COMPLAINTS IS NOT COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS
OF CONSOLIDATION OR THREE HUNDRED SIXTY DAYS AFTER  THE  FILING  OF  THE
FIRST  COMPLAINT,  WHICHEVER  IS  EARLIER,  OR  A  HEARING  HAS NOT BEEN
COMMENCED WITHIN ONE HUNDRED EIGHTY DAYS OF THE REQUEST FOR SAME.
  S 280-S. APPEALS OF DECISIONS OF  THE  COMMISSION.  DECISIONS  OF  THE
COMMISSION  SHALL BE APPEALABLE TO THE APPELLATE DIVISION OF THE SUPREME
COURT IN THE PARTICULAR DEPARTMENT WHERE THE EMPLOYEE ACTING IN  HIS  OR
HER  INDIVIDUAL  CAPACITY OR ACTING AS THE AGENT OF A CLASS WAS EMPLOYED
AT THE TIME HE OR SHE FILED THE COMPLAINT. DECISIONS OF  THE  COMMISSION
SHALL  NOTIFY  THE  COMPLAINANT  OR  CLASS AGENT AND THE AGENCY OF THEIR
RIGHT TO APPEAL TO THE APPELLATE DIVISION. NOTICE  OF  APPEAL  SHALL  BE
FILED  WITH  THE  COMMISSION,  WHICH  SHALL  THEN NOTIFY THE APPROPRIATE
APPELLATE DIVISION OF THE PENDENCY OF AN APPEAL.  THE  TIME  TO  FILE  A
NOTICE  OF APPEAL SHALL BE THIRTY DAYS FROM THE DATE OF THE COMMISSION'S

A. 8419                            19

ISSUANCE OF ITS DECISION AND MAILING OF THAT DECISION BY THE  COMMISSION
TO BOTH PARTIES.
  S  280-T.  EEO GROUP STATISTICS. 1. EACH AGENCY, SUBJECT TO REVIEW AND
APPROVAL BY THE COMMISSION, UNDER A  TIMELINE  SET  BY  THE  COMMISSION,
SHALL ESTABLISH:
  (A)  A  SYSTEM TO COLLECT AND MAINTAIN ACCURATE EMPLOYMENT INFORMATION
ON THE RACE, NATIONAL ORIGIN, SEX AND DISABILITIES OF ITS EMPLOYEES; AND
  (B) A SYSTEM FOR REPORTING THE NUMBER OF EEO  COMPLAINTS  FILED  UNDER
THIS ARTICLE, AND THE DISPOSITION OF SUCH COMPLAINTS.
  2. THE DATA GATHERED SHALL BE REPORTED IN PDF FORMAT ON AN EEO SECTION
OF  SUCH  AGENCY'S WEBSITE AND SHALL BE COLLECTED STATEWIDE AND REPORTED
IN PDF FORMAT ON THE COMMISSION'S WEBSITE.
  3. DATA ON RACE, NATIONAL ORIGIN, AND SEX SHALL BE COLLECTED BY VOLUN-
TARY SELF-IDENTIFICATION. IF AN EMPLOYEE DOES  NOT  VOLUNTARILY  PROVIDE
THE  REQUESTED  INFORMATION, THE AGENCY SHALL ADVISE THE EMPLOYEE OF THE
IMPORTANCE OF THE DATA AND OF THE AGENCY'S OBLIGATION TO REPORT  IT.  IF
THE  EMPLOYEE  STILL REFUSES TO PROVIDE THE INFORMATION, THE AGENCY MUST
MAKE VISUAL IDENTIFICATION AND INFORM THE EMPLOYEE OF THE DATA  IT  WILL
BE  REPORTING.  IF  AN  AGENCY  BELIEVES THAT INFORMATION PROVIDED BY AN
EMPLOYEE IS INACCURATE, THE AGENCY SHALL ADVISE THE EMPLOYEE  ABOUT  THE
SOLELY  STATISTICAL  PURPOSE  FOR WHICH THE DATA IS BEING COLLECTED, THE
NEED FOR ACCURACY, THE AGENCY'S RECOGNITION OF THE  SENSITIVITY  OF  THE
INFORMATION, AND THE EXISTENCE OF PROCEDURES TO PREVENT ITS UNAUTHORIZED
DISCLOSURE.  IF,  THEREAFTER, THE EMPLOYEE DECLINES TO CHANGE THE APPAR-
ENTLY INACCURATE SELF-IDENTIFICATION, THE AGENCY MUST ACCEPT IT.
  4. THE INFORMATION COLLECTED UNDER SUBDIVISION  TWO  OF  THIS  SECTION
SHALL BE DISCLOSED ONLY IN THE FORM OF GROSS STATISTICS. AN AGENCY SHALL
NOT  COLLECT OR MAINTAIN ANY INFORMATION ON THE RACE, NATIONAL ORIGIN OR
SEX OF INDIVIDUAL EMPLOYEES EXCEPT WHEN  AN  AUTOMATED  DATA  PROCESSING
SYSTEM  IS USED IN ACCORDANCE WITH STANDARDS AND REQUIREMENTS PRESCRIBED
BY THE COMMISSION TO INSURE INDIVIDUAL PRIVACY  AND  THE  SEPARATION  OF
THAT INFORMATION FROM THE EMPLOYEE'S PERSONNEL RECORD.
  5. EACH SYSTEM IS SUBJECT TO THE FOLLOWING CONTROLS:
  (A)  ONLY  THOSE  CATEGORIES OF RACE AND NATIONAL ORIGIN PRESCRIBED BY
THE  COMMISSION,  OR  CATEGORIES  CONCERNING  THE  PROCESSING   OF   EEO
COMPLAINTS, MAY BE USED;
  (B) ONLY THE SPECIFIC PROCEDURES FOR THE COLLECTION AND MAINTENANCE OF
DATA THAT ARE PRESCRIBED OR APPROVED BY THE COMMISSION MAY BE USED;
  (C)  THE COMMISSION SHALL REVIEW THE OPERATION OF THE AGENCY SYSTEM TO
INSURE ADHERENCE TO COMMISSION PROCEDURES AND  REQUIREMENTS.  AN  AGENCY
MAY MAKE AN EXCEPTION TO THE PRESCRIBED PROCEDURES AND REQUIREMENTS ONLY
WITH THE ADVANCE WRITTEN APPROVAL OF THE COMMISSION;
  (D)  THE  AGENCY  MAY  USE THE DATA ONLY IN STUDIES AND ANALYSES WHICH
CONTRIBUTE AFFIRMATIVELY  TO  ACHIEVING  THE  OBJECTIVES  OF  THE  EQUAL
EMPLOYMENT  OPPORTUNITY  PROGRAM.  AN AGENCY SHALL NOT ESTABLISH A QUOTA
FOR THE EMPLOYMENT OF PERSONS ON THE BASIS  OF  RACE,  COLOR,  RELIGION,
SEX, OR NATIONAL ORIGIN;
  (E)  DATA ON DISABILITIES SHALL ALSO BE COLLECTED BY VOLUNTARY SELF-I-
DENTIFICATION. IF AN EMPLOYEE DOES NOT VOLUNTARILY PROVIDE THE REQUESTED
INFORMATION, THE AGENCY SHALL ADVISE THE EMPLOYEE OF THE  IMPORTANCE  OF
THE DATA AND OF THE AGENCY'S OBLIGATION TO REPORT IT. IF AN EMPLOYEE WHO
HAS  BEEN APPOINTED PURSUANT TO SPECIAL APPOINTMENT AUTHORITY FOR HIRING
INDIVIDUALS WITH DISABILITIES, OR WHO HAS REQUESTED REASONABLE  ACCOMMO-
DATION FOR A DISABILITY, STILL REFUSES TO PROVIDE THE REQUESTED INFORMA-
TION,  THE AGENCY MUST IDENTIFY THE EMPLOYEE'S DISABILITY BASED UPON THE
RECORDS SUPPORTING THE APPOINTMENT OR THE REQUEST FOR REASONABLE  ACCOM-

A. 8419                            20

MODATION.  IF  ANY OTHER EMPLOYEE STILL REFUSES TO PROVIDE THE REQUESTED
INFORMATION OR PROVIDES INFORMATION THAT THE AGENCY BELIEVES TO BE INAC-
CURATE, THE AGENCY SHOULD REPORT THE  EMPLOYEE'S  DISABILITY  STATUS  AS
UNKNOWN;
  (F)  AN  AGENCY  SHALL REPORT TO THE COMMISSION ON EMPLOYMENT BY RACE,
NATIONAL ORIGIN, SEX AND DISABILITY IN THE FORM AND AT SUCH TIMES AS THE
COMMISSION MAY REQUIRE.
  S 2. Section 293 of the executive law, as amended by  chapter  958  of
the  laws of 1968, subdivisions 1 and 2 as amended by chapter 166 of the
laws of 2000, is amended to read as follows:
  S 293. [Division of] NEW YORK STATE COMMISSION ON human  rights.    1.
There  is hereby created in the executive department a [division of] NEW
YORK STATE COMMISSION ON human rights hereinafter in this article called
the [division] COMMISSION.  THE COMMISSION SHALL CONSIST OF FIVE MEMBERS
WITH FOUR YEAR TERMS. THE  GOVERNOR  SHALL  APPOINT  EACH  OF  THE  FIVE
MEMBERS.  THE  INITIAL TERM OF EACH MEMBER SHALL BE ONE YEAR, TWO YEARS,
THREE YEARS, FOUR YEARS, AND FIVE YEARS, SO THAT THE TERMS ARE STAGGERED
TO GUARANTEE THE INDEPENDENCE OF THE COMMISSION. The head of such [divi-
sion] COMMISSION shall be [a commissioner hereinafter  in  this  article
called the commissioner] AN EXECUTIVE DIRECTOR, who shall be [appointed]
ELECTED  by  the  [governor,  by  and with the advice and consent of the
senate and shall hold office at the pleasure of the governor] MEMBERS OF
THE COMMISSION.   The commissioner shall  be  entitled  to  his  or  her
expenses actually and necessarily incurred by him or her in the perform-
ance of his or her duties.
  2.  The commissioner may establish, consolidate, reorganize or abolish
such bureaus and other organizational units within the division as he or
she determines to be necessary for efficient operation.
  S 3. (a) Wherever the term "state division of human rights" appears in
the consolidated or unconsolidated laws of  this  state,  such  term  is
hereby changed to the "New York state commission on human rights".
  (b)  Wherever  the term "commissioner of the division of human rights"
appears in the consolidated or unconsolidated laws of this  state,  such
term  is hereby changed to the "executive director of the New York state
commission on human rights".
  (c) The legislative bill drafting commission  is  hereby  directed  to
effectuate  this  provision,  and  shall  be  guided  by a memorandum of
instruction setting forth the specific provisions of law to be  amended.
Such  memorandum  shall  be transmitted to the legislative bill drafting
commission within sixty days of enactment of this provision. Such  memo-
randum  shall be issued jointly by the governor, the temporary president
of the senate and the speaker of the assembly, or  by  the  delegate  of
each.
  S 4. This act shall take effect on January 1, 2015.