NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8765
SPONSOR: Rozic TITLE OF BILL: An act to amend the labor law, in relation to contract
provisions waiving certain substantive and procedural rights
PURPOSE:
This bill would prevent the enforcement of certain employee contract
provisions that conceal certain details or waive procedural rights or
remedies.
SUMMARY OF PROVISIONS:
Section 1 of the bill adds a new section 211 -b to the labor law.
Subdivision 1 of section 211-b provides that contract provisions which
waive a procedural right or remedy related to a claim of discrimination,
non-payment of wages or benefits, retaliation, harassment or violation
of public policy in employment shall be deemed unconscionable, void and
enforceable.
Subdivision 2 of section 211-b provides that contract provisions which
have the purpose or effect of concealing details relating to a claim of
discrimination, non-payment of wages or benefits, retaliation, harass-
ment or violation of public policy in employment, including claims that
are submitted to arbitration, shall be deemed unconscionable, void and
unenforceable. An exception to this subdivision is made for the terms
and conditions of an award issued by an arbitrator pursuant to section
75 of the civil practice law and rules, or the amount of any monetary
consideration provided in a settlement.
Subdivision 3 of section 211-b states that anyone enforcing or attempt-
ing to enforce a waiver prohibited under this new section shall be
liable for attorney's fees.
Subdivision 4 of section 211-b prohibits any person or employer from
taking any retaliatory action -- including failure to hire - against a
person because the person does not enter into an agreement or contract
that contains a waiver prohibited by this section.
Subdivision 5 of section 211-b creates a private right of action allow-
ing a person aggrieved by a violation of this new section of law to file
a civil action within three years of the violation, in addition to any
other rights and remedies available under other applicable laws.
Section 2 of the bill is a severability clause.
Section 3 of the bill sets forth the effective date.
JUSTIFICATION:
New York State has a tradition of enacting strong labor and anti-discri-
mination laws to protect employee rights. Attempts by employers to
compel employees to waive those protections as a condition of employ-
ment, particularly pertaining to sexual harassment and discrimination
protections, are unconscionable and should be explicitly prohibited in
New York as a matter of public policy.
Recent high-profile reports of sexual misconduct by powerful executives
have highlighted the role nondisclosure agreements play in protecting
abusive workplace cultures. These agreements are typically reached as
part of confidential settlements and include a provision that neither
party discuss the details of the case. The secrecy of these agreements
perpetuates cultures of sexual harassment and abuse by ensuring that
victims stay silent and the public stays uninformed.
The National Labor Relations Board has ruled that "a confidentiality
rule prohibiting employees from discussing their sexual harassment
complaints among themselves" constitutes an unfair labor practice in
violation of the Wagner Act. However, nothing prevents an employer from
using a nondisclosure agreement to bar an employee from seeking legal
action if he or she is a victim of workplace harassment, discrimination,
retaliation, or nonpayment of wages. This bargaining arrangement gives
undue power and control to an employer who can continue to engage in
misconduct while an employee is left without legal recourse. Further,
the agreement conceals a public hazard and allows potentially illegal
conduct to continue with future employees in a vicious cycle of power
imbalances, victimization, and suppression of legal remedies.
This bill addresses contracts that contain confidentiality clauses,
rendering those clauses unconscionable, void, and unenforceable in cases
of discrimination, retaliation, or harassment. The bill would also make
an employer liable if he or she attempts to enforce the confidentiality
clause or if he or she retaliates against an employee for not agreeing
to the clause. This liability would include payment of legal fees and
costs. Additionally, the bill would give a victim up to three years
after a violation to file a claim for a torts remedy, injunction, and
fees and costs. Under the bill's provisions, abusive employers would no
longer be able to use nondisclosure agreements to conceal illegal behav-
ior or purchase the silence of their victims. It is an essential measure
to ensure fair labor standards, prevent workplace hazards and miscon-
duct, and protect employee rights.
LEGISLATIVE HISTORY:
This is a new bill in the Assembly.
FISCAL IMPACT TO THE STATE:
None.
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all contracts
entered into, renewed, modified or amended on or after such date.
STATE OF NEW YORK
________________________________________________________________________
8765
2017-2018 Regular Sessions
IN ASSEMBLY
November 3, 2017
___________
Introduced by M. of A. ROZIC, QUART, WALLACE, BARNWELL -- read once and
referred to the Committee on Labor
AN ACT to amend the labor law, in relation to contract provisions waiv-
ing certain substantive and procedural rights
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 211-b to
2 read as follows:
3 § 211-b. Contracts; certain provisions prohibited. 1. A provision in
4 any contract waiving any substantive or procedural right or remedy
5 relating to a claim of discrimination, non-payment of wages or benefits,
6 retaliation, harassment or violation of public policy in employment
7 shall be deemed unconscionable, void and unenforceable, with respect to
8 any such claim arising after the waiver is made. No right or remedy
9 arising under this section, this chapter, common law, any other
10 provision of law or rule of procedure or the constitution shall be pros-
11 pectively waived. This section shall not render void or unenforceable
12 the remainder of the contract or agreement. The provisions of this
13 subdivision shall not apply to the terms of any collective bargaining
14 agreement between an employer and the bona fide collective bargaining
15 representative of that employer's employees.
16 2. A provision in any contract or agreement which has the purpose or
17 effect of concealing the details relating to a claim of discrimination,
18 non-payment of wages or benefits, retaliation, harassment or violation
19 of public policy in employment, including claims that are submitted to
20 arbitration, shall be deemed unconscionable, void and unenforceable. The
21 provisions of this subdivision shall not apply to the terms and condi-
22 tions of an award issued by an arbitrator pursuant to article seventy-
23 five of the civil practice law and rules or the amount of any monetary
24 consideration provided in a settlement.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04377-06-7
A. 8765 2
1 3. Whoever enforces or attempts to enforce a waiver deemed unconscion-
2 able, void or unenforceable under this section shall be liable for
3 reasonable attorney's fees and costs.
4 4. No person or employer shall take any retaliatory action, including,
5 but not limited to, failure to hire, discharge, suspension, demotion,
6 discrimination in the terms, conditions or privileges of employment, or
7 other adverse action, against a person, because the person does not
8 enter into an agreement or contract that contains a waiver deemed uncon-
9 scionable, void or unenforceable under this section.
10 5. A person aggrieved of a violation of this section may, within three
11 years after the violation, institute and prosecute in such person's own
12 name and on such person's own behalf a civil action for torts remedies,
13 injunctive relief, and the costs of litigation and reasonable attorney's
14 fees. The rights and remedies contained in this section shall not be
15 exclusive and shall not preempt other procedures and remedies available
16 under other applicable laws.
17 § 2. Severability clause. If any clause, sentence, paragraph, subdi-
18 vision, section or part of this act shall be adjudged by any court of
19 competent jurisdiction to be invalid, such judgment shall not affect,
20 impair, or invalidate the remainder thereof, but shall be confined in
21 its operation to the clause, sentence, paragraph, subdivision, section
22 or part thereof directly involved in the controversy in which such judg-
23 ment shall have been rendered. It is hereby declared to be the intent of
24 the legislature that this act would have been enacted even if such
25 invalid provisions had not been included herein.
26 § 3. This act shall take effect immediately and shall apply to all
27 contracts entered into, renewed, modified or amended on or after such
28 date.
