10 un qa 03/27/18 1 67294-02-8 DRAFT LEDC aN ACT to amend the state finance law, in relation to requiring bids submitted to the state or any agency or department of the state to contain a certification concerning sexual harassment (Subpart A); to amend the civil practice law and rules, in relation to prohibiting mandatory arbi- tration clauses (Subpart B); to amend the public officers law, in relation to reimbursement of funds paid by state agencies, state entities and public entities for the payment of awards adjudicated in sexual harassment claims (Subpart C); to amend the general obligations law and the civil practice law and rules, in relation to nondisclosure agceements (Subpart D); to amend the labor law, in relation to the establishment of a model policy regarding the prevention of sexual harassment and a model training Program to prevent sexual harassment in the workplace (Subpart B); and to amend the executive law, in relation to sexual harassment relating to non-employees (Subpart F) (part PP); The People of the State of New York, represented in Senate and Assen- bly, do enact as follows: PART Be Section 1. This Part enacts into law major components of legislation which are necessary to combat sexual harassment in the workplace. Bach component is wholly contained within a Subpart identified as subparts A through F. The effective date for each particular provision contained within such Subpart is set forth in the last section of such subpart. Any provision in any section contained within a Subpart, including the effective date of the Subpart, which makes a reference to @ section “of ‘this act," when used in connection with that particular component, shall be Geened to mean and refer to the corresponding section of the Subpart in which it 4s found. Section three of this Part sets forth the general effective date of the Part.10 a a2 13 1s 1s. 16 WwW 18 qs 20 2 22 23 24 25 26 03/27/18 2 57294-02-8 SUBPART A Section 1. The state finance law is amended by adding a new section 139-1 to read as follows: 139-1, Statesent on sexual harassment, in bids. 1. (a) Every bid hereafter nade to the state or any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, shall contain the following statement subscribed by the bidder and affirmed by such bidder as true under the penalties of perjury: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its oun organization, under penalty of Gnd Was implewarteel perjury, that the bidder hag\a written policy addressing sexual _harass- Pyeventian ment \in the workplace and provides annual sexual harassment prevention fraining to all of its employees. Such policy shall, at a minimum, meet the requicements of section two hundred one-g of the labor law." (b) very bid hereafter made to the state or any public department or agency thereof, where competitive bidding ie not required by statute rule of regulation, for work or services perforned or to be performed or goods sold or to be sold, may contain, at the discretion of the depart- ment, agency or official, the certification required pursuant to para~ graph (a) of this subdivision. 2. Notwithstanding the foregoing, the statenent required by paragraph (a) of subdivision one of this section may be submitted electronicatl, An_accordance with the provisions of subdivision seven of section one hundred sixty-three of thie chapter.10 a 2 13 u as 1s ce] 18 as 20 21 22 2a 24 25 26 27 28 asavps 3 67294-02-8 2s Abid shall not be considered for avard nor shall any avard be mage when the pldéer has not complied with subdivision one of this section; Provided, however, that if the bidder cannot make the foregoing certit- ication, such bidder shall so state and shall furnish with the bid a9 signed statement which sets forth in detail the reasons therefor. 4. Any bid hereafter made to the state or any public departnent, agen- S¥_or official thereof, by a corporate bidder for work or services performed or to be performed or goods sold or to be sold, where such bid contains the statement required by subdivision one of this section Shall_be deemed to have been authorized by the board of directors of such bidder, and such authorization shall be deemed to include the sign- ing and submission of such bid and the inclusion therein of such _state~ ment as the act and deed of the corporation § 2. Subdivision 7 of section 163 of the state finance lav, as amended by section 10 of part L of chapter 55 of the laws of 2012, is anended to read as follows: 7. Method of procurement. Consistent with the requirements of subdivi- sions three and four of this section, state agencies shall select among Permissible methods of procurement including, but not limited to, an invitation for bid, request for proposals or other means of solicitation Pursuant to guidelines issued by the state procurement council. state agencies may accept bids electronically including subsission of the statement of non-collusion required by section one hundred thirty-nine-a of Cert ifianaion of this chapter, and the statement required by section one hundred thir: tyonine-1 of this chapter, and, starting April first, two thousand twelve, and ending March thirty-first, two thousand fifteen, may, for commodity, service and technology contracts require electronic submission as the sole method for the submission of bids for the solic20 ua a aB aa as 16 u as as 20 a 22 23 2 25 26 27 03/27/18 4 67294-02-8 itation. State agencies shall undertake no more than eighty-five such electronic bid solicitations, none of which shall be reverse auctions, Prior to April first, two thousand fifteen. tn addition, state agencies may conduct up to twenty reverse auctions through electronic means, Prior to April first, two thousand fifteen. Prior to requiring the elec tronic submission of bids, the agency shall make a determination, hich shall be documented in the procurement record, that electronic submission affords a fair and equal opportunity for offerers to submit Fesponsive offers. Within thirty days of the completion of the eighty- fifth electronic bid solicitation, or by April first, two thousand fifteen, whichever is earlier, the commissioner shall prepare a report assessing the use of electronic submissions and make recommendations regarding future use of this procurement method. In addition, within thirty days of the completion of the twentieth reverse auction through electronic means, or by April first, two thousand fifteen, vhichever is earlier, the commissioner shall prepare a report assessing the use of reverse auctions through electronic means and make recommendations regarding future use of this procurement method. Such reports shall be Published on the website of the office of general services. Except where otherwise provided by law, procurements shall be competitive, and state agencies shall conduct formal competitive procuresents to the maximon extent practicable. State agencies shall document the determination of the method of procurement and the basis of award in the procurement record. Where the basis for award is the best value offer, the state ‘agency shall document, in the procurement record and in advance of the initial receipt of offers, the determination of the evaluation criteria, which whenever possible, shall be quantifiable, and the process to be10 a 12 13 ua 15 1s a7 18 as 20 2 22 23 24 25 26 03/27/18 5 6728 used in the determination of best value and the manner in whic! evaluation process and selection shall be conducted, § 3, This act shall take effect on the first of January next su ing the date on which it shall have become a la 7 provided, hos that the amendments to subdivision 7 of section 163 of the state £. law made by section one of this act shall not affect the repeal o section and shall be deemed repealed therewith. SUBPART B Section 1. the civil practice law and rules are amended by add: new section 7515 to read as follow: 4-02-8 hh the coved f such ing a 7515. Mandatory arbitration clauses; prohibited. (a) Definitions. as used in this sectio: 1: the term “employer” shall have the sane meaning as provided in subdivision five of section two hundred ninety-two of the executivi 2. the term "prohibited clause" shall mean any clause or provisi. any_contract which requires asa condition of the enforcenent sontract or obtaining renedios under the contract that the _p submit to mandatory arbitration to resolve any allegation or cli sexual harassment. fe law. on_in of the arties ain of 2. The term “mandatory arbitration clause" shall _mean_a_term or Provision contained in a written contract which requires the part: such contract to submit any matter thereafter arising under sontract to arbitration prior to the commencement of any legal act: enforce the provisions of such contract and which also further pr language to the effect that the facts found or determination made arbitrator or panel of arbitrators in its application to a part ies to such ion to ovides b of the alleo—see? cS) we a? ve € uF ® 7 a 10 a 12 13. 4 15 16 7 18 1s 20 a 22 23 24 25 26 03/27/18 6 67294-02-8 ing_an unlawful discriminatory practice based on sexual harassment shall be £inal and not subject to independent court review. the_term arbitration" shall mean the use of a decision making forum conducted by an arbitrator or panel of arbitrators within the meaning and _subject_to the provisions of article seventy-five of the civil practice lav and rules. {) i) Prohibition, Except where inconsistent with federal law, no weitten contract, entered into on or after the effective date of this Section shall contain a prohibited clause as defined in paragraph two of Subdivision (a) of this section. ii) Exceptions, Nothing contained in this section shall be construed 0_impair or prohibit an employer from incorporating a non-prohibited glause or other mandatory arbitration provision within such contract. that the parties agree upon. 4ii) Mandatory arbitration clause null and void. Except where incon- proved sistent vith federal lav, the provisions of such a wmaatory arbitration giause shall be null and void. The inclusion of such clause in a written sontract shall not serve to impair the enforceability of any other provision of such contract. (c) Where there is a conflict between any collective bargaining agree- ment and this section, such agreement shall be controlling. ment and this section, such agreement shall be controlling. § 2, This act shall take effect on the ninetieth day after it shall have become a law, SUBPART Cc Section 1. the public officers law is amended by adding a new section 17-a to read as follows:10 nu 2 a3 ua a5 1s uv rr) 13 2 a 22 23 mu 25 26 27 03/27/18 7 67294-02-8 L Reimbursement of funds paid by state agencies and state en: ties for the paynent of avards adjudicated in sexual harassment claims. 1._As_used in this section, the term "employee" shall mean any person holding a position by election, appointment, or employment in the Service of the state of New York, whether or not compensated. the tern “employee” shall include a former employee or judicially appointed personal representative. 2. Notwithstanding any law to the contrary, any employee who has been subject to a final judgnent of personal liability for intentional wrong- claim of doing related tosexual harassment, shall reinburse any state agency or bised on entity that makes a payment to a plaintiff for an adjudicated avard ime sexual harassment claim resulting in a judgnent, for his or her propor- tlonate share of such judgement, such employes shall personally _reia- burse uch state agency or entity within ninety days of the state agenc of entity's payment of such awara 3. If such employes hee fai164 to reimburse such state agency or enti- £¥_pursuant to subdivision two of this section within ninety days from the date such state agency or entity makes a payment for the financial AYP Obtains ol Mend jc mon award, the comptroller shalyvithhold frontéuen enplovee'S "Sohpensation the anounts allovable pursuant to section fifty-two hundred_thirty-one of the civil practice lay and rules. 4. If such employee is no longer employed by such state agency or entity such state agency or entity shall have the right to receive zeimbursenent through the enforcement of a money judgenent pursuant to article fifty-two of the civil practice law and rules. § 2. the public officers law is amended by adding a new section lea to read as follows:10 a a2 13 aa 45 16 a 18 19 20 21 22 23 24 25 26 27 28 03/27/18 28: of awards sec! (a) the a 67294 Reimbursement of funds paid by a public entity for the -02-8 ment adjudicated _in sexual harassment claims. 1. As used in this term “public entity" shall mean (i) a county, city, village or any other political sub@ivision or civil division of state; (ii )_a_schoot district, board of cooperative educat Services, or any other governmental entity or combination or associ, town, the sonal, ation of governnental entities operating a public school, college, communit college_or (ay) a publi ration; or university; (iii) a public improvement or special district; ie authority, (v) any other ommission, agency or public benefit: sor po~ Separate corporate instrumentality or unit of government; but shall not include the state of New York or_any public entit of this arti other ty the employees of which are covered by section seventeen-a ou (b] the term “employee" shall mean any commissioner, member public board other _persor or commi scion, n_holding a pé of a trustee, director, officer, employee, or any osition by election, appointment or employment in the service of a public entity, whether or not compensated. The "employee" shall include personal representative. 2. Notwithstanding any law to the contrary, any employee who has subject to a final judgsent of personal liabillt doing related \to sexual harassment Toi oF term 4_former employee or judicially appointed been for intentional wrong- shall reimburse any public entity, ona coin of shat makes a payment to a plaintiff for an adjudicated award my a soxual harassment eli resulting in a judgment, for his or her proportionate share of si public entit; award. uch judgement, within ninet: Such employee shall personally reimburse such Gays of the public entity's payment of such03/27/18 9 67298-02-8 1 3_If such employes fails to reisburse such public entity pursuant to 2 subdivision two of this section within ninety days fromthe date such 3 public entity makes a payment for the financial awacd, the chief fiscal Cpa cb. nay jo 4 officer of sen public entity shal1, ‘witnnola “tron, suet deotoyeo's 5 compensation the anounts allowable pursuant to section fifty-two hundred 6 thirty-one of the civil practice lew and rules. 7 4z_X€ such employee is no longer employed by such public entity, such 8 public entity shall have the right to receive reinbursenent through the 9 enforcement of s noney judgement pussuant to article fifty-two of the 10 civil practice lay and rules. 11 § 3. This act shall take effect immediately. 12 SUBPART D 13 Section 1. The general obligations law is amended by adding a new 14 section 5-336 to read as follows: as 57336. Nondisclosure agreements. Notwithstanding any other law to 16 the contrary, foray tor —oause—of act iony—whether—filed_or 17 unftted;—actuas ential —andwhether ari. dex-onmen_law, 18 equi ‘eny_proviston of —iew;—the—factual_foundation for which 19 duvolves sexual Harassment; —tw resolving, by-agreed—judquent_st ipu~ 20 dation; eeeree; aureenent-to—setttey—assurance—of—diseontinuance or. 21 “otherwise, no employer, its officers or employees shall have the author- Se 23° tion that would prevent the disclosure of the underlying facts ana © 24 circumstances to the claim or action unless the condition of contiden- © 6 25 tiality is the complainant's preference. Any such condition must be 26 provided to ali parties, and the complainant chall have twenty-one days10 nh a2 13 14 a5 16 7 18 19 20 a 22 23 24 25 26 27 03/27/18 10 67294-02-8 0 consider the condition. 1f after twenty-one days such condition is the complainant's preference, such preference shall be _menorialized in an_agreement signed by all parties. for a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreenent shall not become effective or enforcea- ble until the revocation period has oxpired. § 2. The civil practice law and rules is anended by adding a new section 5003-b to read as follows: 5003-b. Nondisclosure agreements. Notwithstanding any other law to the contrary, for any claim or cause of action, whether arising under common law, equity, or any provision of lav, the factual foundation for which involves sexual harassment, in resolving, by agreed _judgnent stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, no employer, its officer or employee shall have the authorit. fo include or agree to include in such resolution any term or condition that would prevent the disclosure of the underlying facts and circum stances to the claim or action unless the condition of confidentialit is the plaintiff's preference. Any such condition must be provided to all_parties, and the plaintiffs shall have twenty-one days to consider the condition. If after twenty-one days such condition is the plaintife's preference, such _prefezence shall_be memorialized in an agreenent signed by all partios. For a period of at least seven days following the execution of such agreement, the plaintiff may revoke the agreement, and the agreement shall not becone effective or enforceable until the revocation period has expire: § 3. his act shall take effect on the ninetieth day after it shall have become a law,10 a 2 aa 1a 15 16 a7 18 1 20 au 22 23 24 25 26 27 03/27/18 a 67294-02-8 SUBPARE E Section 1. the labor lew is anended by adding a new section 201-g to read as follows: 201-g. Prevention of sexual harassment. 1. The department shall Cree See bas consult with the division of hunan righteland publish a sodel Golicy — ptitntigr, that employers may utilize in their adoption of a, policy requirea by JMUene@ 9 Bani ha, cocunow sh vg a Such modei/polsey shall; (1) prohibit sexual harassment consistent Se. s/ Roseindt in Gaston wstntho, Ne vaSSt with guidance issued by thé Wivision of human rights and provide exam- HB ples of prohibited conduct that would constitute unlawful sexual harass- this section. ment; (ii) include but not be limited to information concerning the federal and state”statutory provisions concerning sexual harassment and \ — ¥% Homedics available to victine of sexual harassment (111) include a} %q 4, © % ox confidential investigation of complaints and ensure due process for _all ae x Parties) (v) inform employees of their rights of redress and available > SELLE (pec e6SrON iF % forums for adjudicating/conplaints administratively and judicially; (vi) clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial Bersomel who imovingly allow such behavior to continue: and (vii) Slearly state that retaliation against individuals who complain of sexu- al harassment or who testify or assist in any proceeding under_the law is untawfur. * aaa eral hessmatt Dre venbiun bs Every employer shall adopt the model! policy promulgated pursuant to this subdivision or establish a policy to prevent sexual harassment that f 7 equals or exceeds the mininun)standarés provided by such nodel ‘policy. ¥, Sewal hevesshunt Dre vertian 20,"set 03/27/18 asi rte 12 67294-02-8 Coayl baie 2 Such/pol icy shall be provided to all employees in weiting. Such model 2, mush steele stunts ond sig eo te welts of at % 3° the department and the division of human rights. Te * 4 2, the department shall consult with the division of hunan rights and %% 5 produce a model cizsinina progranto provent sexual harassnont in the ° > Cspuat prerntin 6 workplace. ? 7 92 Such model training program shall be interactive and include: _(4) eM eee sexual harassment concistent with guidance issued _b, a depedtnent incgav hae YG 9 sheAdivision “of human rights; (41) examples of conduct that would & % 10 constitute unlawful Sexual harassment; and (iii) information concerning 3 11 the federal and state statutory provisions concerning sexual harassment 17 and comedies available to victins of sexual arassnent36%(\v)/N[b1 Meany OpiCerni Scns OF Sexual haressnent Crm agers” igs P secs 13 be The department shall include information in such model training Gre at S 1 program addressing conduct by supervisors and eny adaitionai {responsi CNA cin, : aa te Swealleasred Lo ditty, 15 bilities for euch supervisors. ae Pernt Ongla laa, 16 Gs Every employer shall utilize the potelftre iene program pursuant to ad 37 $his subdivision or establish a training progran for employees _to 16 prevent sexual _hatassnent that equals or exceeds the minimm standards 19° Provided by such wofel training, Such training shall be provided to ali 20 employees on an annual basis. Spratt harasmant Pere, 21 3:_the commissioner may promulgate requlations as he or she deens 22 necessary for the purposes of carrying out the provisions of this 23 section 74 $2. This act ohall take effect on the one hundred eightieth day after 25 At shall have becone a tay. [Effective lene ey, the dogastvent megen. | 26 SUBPART F10 n 2 1 u a5 1s v ae as 20 2 2 23 2 25 26 27 28 03/27/18 13 67294-02-8 Section 1, The executive law is amended by adding a new section 296-a to read as follows: 296: Sexual harassment relating to non-employees. It shall be an unlawful discriminatory practice for an employer to permit sexual harassment of non-employees in its workplace. An employer may be hela Liable to a non-employee who is a contractor, subcontractor, vendor, sonsultant or othe: person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace, with respect to sexual harassment, when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment in the employer's work- place, and the employer fails to take immediate and appropriate correc- Live action. In reviewing such cases involving non-employees, the extent of the employer's control _and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered § 2. Subdivision 4 of section 292 of the executive lav, ae amended by chapter 97 of the laws of 2014, is amended to read as follows: 4. The term "unlawful discriminatory practice" includes only those Practices specified in sections two hundred ninety-six, two hundred Rinety-six-a [and], two hundred ninety-six-c and_two hundred ninety-six-d of this article. § 3. This act shall take effect immediately. § 2. Severability clause. If any clause, sentence, paragraph, subdivi- sion, section or subpart of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judonent shall not affect, impaiz, or invalidate the remainder thereof, but shall be confined in03/27/18 14 67294-02-8 its operation to the clause, sentence, paragraph, subdivision, section or subject thereof directly involved in the controversy in which such judgment shall have been rendered. 1t is hereby declared to be the intent of the legislature that this act would have been enacted even if such invali provieions had not been included herein. § 3. This act shall take effect immediately; provided, however, that the applicable effective dates of subparts A through F of this part shall be as specifically set forth in the last section of such subparts.03/26/18 as 6128-01 Ate operation to the claus: sentence, paragraph, subdivision, section ox aubject thereof directly involved in the controversy in which auch Judgment shall have boon rendered, It is hereby declared to be the Antent of the legislature that thin act would have bean enacted even if such invalid provisions had not been included herein. § 3. Mis act shall take effect inmediately: provided, however, that the applicable effective dates of subparts A through ¢ of thie part shell be as specifically set forth in the last section of such subparts