Prohibits state contracts with vendors that forbid employees from litigating discrimination or harassment claims except in the case of an emergency arising from certain unforeseen causes.
TITLE OF BILL: An act to amend the state finance law, in relation to arbitration provisions in state contracts
PURPOSE: To withhold contracts from vendors which prohibit their employees from bringing discrimination or harassment claims through the court system.
SUMMARY OF PROVISIONS: Amends the State Finance Law by adding a new subdivision 9 to section 165 which prohibits agencies from entering into a contract with any vendor which mandates that an employee or independent contractor performing work under the contract or subcontract resolve through private arbitration any claim under title VII of the Civil Rights Act of 1964 or the NYS Human Rights Act. The subdivision also allows an agency to waive this requirement but the reasons for the waiver are public documents.
JUSTIFICATION: Currently, most large employers have binding arbitration clauses that an employee must sign to get or even keep their job. These clauses require they bring any claim to arbitration, with the arbitrator's decision being binding. The decision to participate in this is made before an issue arise, employees are waiving their rights before they even know what their rights are.
These clauses are written by the employer to favor them in disputes with their own employees. Now, over twenty percent of all employees are subject to employer imposed forced arbitration. Most of these are written by the Company lawyers with no negotiation on the terms and employees have no choice but to sign them or compromise their job.
A cornerstone of enforcement of employment and labor laws is the an employee right to the have their claim heard in a court of law. These rights include requiring employers to pay overtime to employees working more than 40 hours in a week; protecting against discrimination and harassment on the basis of race, color, national origin, sex, religion, age, and disability; and guaranteeing jobs after military or reserve service or family and medical leave. The system of due process created by our courts consist of an impartial judge, provided by the government, who vows to follow the law and give reasoned opinions; a jury of one's peers; uniform, established procedures governing the case; open, public proceedings; recorded decisions that have precedential value; and the availability of appeals from adverse rulings.
LEGISLATIVE HISTORY: 2011-12:S. 5802 Finance/A. 7001-A Passed Assembly
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately and shall apply to all contracts signed and executed on or after such effective date.
STATE OF NEW YORK ________________________________________________________________________ 4438--A Cal. No. 727 2013-2014 Regular Sessions IN SENATE April 1, 2013 ___________Introduced by Sen. MARCELLINO -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- recommit- ted to the Committee on Finance in accordance with Senate Rule 6, sec. 8 -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the state finance law, in relation to arbitration provisions in state contracts THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 165 of the state finance law is amended by adding a new subdivision 9 to read as follows: 9. ARBITRATION PROVISION. A. FOR THE PURPOSES OF THIS SUBDIVISION "ARBITRATION PROVISIONS" SHALL MEAN ANY REQUIREMENT THAT AN EMPLOYEE OR INDEPENDENT CONTRACTOR PERFORMING WORK UNDER SUCH VENDOR'S CONTRACT OR SUBCONTRACT TO SUBMIT CLAIMS ARISING UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 OR ARTICLE FIFTEEN OF THE EXECUTIVE LAW TO PRIVATE ARBI- TRATION FOR RESOLUTION; THIS SHALL NOT INCLUDE ARBITRATION THAT IS MANDATED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN SUCH VENDOR AND EMPLOYEE AND/OR INDEPENDENT CONTRACTOR. B. (I) WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS (II) AND (III) OF THIS PARAGRAPH, AND IN ACCORDANCE WITH SUCH SUBPARAGRAPHS, STATE AGENCIES AS DEFINED IN THIS ARTICLE SHALL NOT CONTRACT FOR THE SUPPLY OF COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY CONTRACTOR WHO DOES NOT AGREE TO STIPULATE TO THE FOLLOWING, IF THERE IS ANOTHER CONTRACTOR WHO WILL CONTRACT TO SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY AT A COMPARABLE PRICE OR COST: THE CONTRACTOR SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR EMPLOY- EES THAT WORK ON SUCH CONTRACT. (II) IN THE CASE OF CONTRACTS LET BY A COMPETITIVE PROCESS, WHENEVER THE RESPONSIVE AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE OR BESTEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03998-02-4 S. 4438--A 2
VALUE OFFER HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN THIS SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO HAS AGREED TO STIPULATE TO SUCH CONDITIONS HAS SUBMITTED AN OFFER WITHIN FIVE PERCENT OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A CONTRACT TO SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY, THE CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER- AL SERVICES, WHO MAY DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW AND RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER. (III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN THE DISCRETIONARY BUYING THRESHOLD AS SPECIFIED IN SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE, OR FOR CONSTRUCTION INVOLVING AN AMOUNT GREATER THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL NOT AWARD TO A PROPOSED CONTRACTOR WHO HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN THIS SUBDIVISION UNLESS THE ENTITY SEEKING TO USE THE COMMODITIES, SERVICES OR CONSTRUCTION DETERMINES THAT THE COMMODITIES, SERVICES OR CONSTRUCTION ARE NECESSARY FOR THE ENTITY TO PERFORM ITS FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE CONTRACTOR WHO WILL SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY AT A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING AND SHALL BE PUBLIC DOCUMENTS. C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP- ULATION REQUIRED BY THIS SUBDIVISION IS IN VIOLATION THEREOF, THE CONTRACTING ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE CONTRAC- TOR AN OPPORTUNITY TO RESPOND. IF THE CONTRACTING ENTITY FINDS THAT A VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE AND PROVIDED FOR BY LAW, RULE OR CONTRACT, INCLUDING, BUT NOT LIMITED TO, IMPOSING SANCTIONS, SEEKING COMPLIANCE, RECOVERING DAMAGES OR DECLARING THE CONTRACTOR IN DEFAULT. D. AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT INCLUDE CONTRACTS WITH GOVERNMENTAL AND NON-PROFIT ORGANIZATIONS, CONTRACTS AWARDED PURSUANT TO EMERGENCY PROCUREMENT PROCEDURES OR CONTRACTS, RESOLUTIONS, INDENTURES, DECLARATIONS OF TRUST OR OTHER INSTRUMENTS AUTHORIZING OR RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD, SALE OR PURCHASE OF BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR OTHER FISCAL OBLIGATIONS, PROVIDED THAT THE POLICIES OF THIS SUBDIVISION SHALL BE CONSIDERED WHEN SELECTING A CONTRACTOR TO PROVIDE FINANCIAL OR LEGAL ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH ACTIVITIES. S 2. This act shall take effect immediately and shall apply to all contracts signed and executed on or after such effective date.