A recent change to the New York State Finance Law introduces a new requirement for competitive bidders on state contracts. Any employer participating in a statutorily mandated competitive bidding process for a contract with New York State or any of its public departments or agencies must now certify that it has a written “Gender-Based Violence and the Workplace Policy” in place at the time of the bid. Specifically, where competitive bidding is required by law, each bidder must certify that:
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 own organization, under penalty of
perjury, that the bidder has and has implemented a written policy
addressing gender-based violence and the workplace and has provided such
policy to all of its employees, directors and board members. Such policy
shall, at a minimum, meet the requirements of subdivision 11 of section
five hundred seventy-five of the executive law.
Under this new law, competitive bids will not be considered without the above certification, and, if the employer is unable to certify its compliance with the law, it must provide a written and signed statement explaining its reasons for noncompliance. To best advance their bid, employers should exhaust all efforts to comply with the requirements as the statute is silent on what, if any, circumstances would justify noncompliance with the certification requirement.
Where competitive bidding is not required by law, this certification is not required unless the department, agency, or official implementing the bidding process requires compliance.
Requirements for Compliance
To comply with the requirements outlined in this new law, covered employers must ensure they are implementing a compliant Gender-Based Violence and the Workplace Policy to meet the requirements outlined in Subdivision 11 of Section 575 of the Executive Law and providing this policy to all employees, directors, and board members.
To aid employers in meeting the requirements of Subdivision 11 of Section 575 of the Executive Law, the New York State Office for the Prevention of Domestic Violence (OPDV) published the Gender-Based Violence and the Workplace Model Policy for NYS Bidders Policy. With the purpose of “identify[ing] and prescribe[ing] employment practices that will respond effectively to employees’ needs as victims of gender-based violence and promote safety in the workplace,” the following must be included in the policy:
- Share Information: Employers must provide information regarding gender-based violence where employees can see and access it, including displaying the NYS Domestic and Sexual Violence Hotline information and a gender-based violence and the workplace poster. When possible, materials should be available in an employee’s primary language.
- Refer Employee-Survivors to Services: The policy must require that the employer refer employees who disclose current or past victim status to the NYS Domestic and Sexual Violence Hotline and/or a local service provider. For bidders outside of New York State, referrals should be made to a local provider or statewide hotline. While employers are required to provide referrals, it is not required for the employee to access services.
- Prohibit Retaliation: The policy must clearly state that discrimination or retaliation against employees who identify as victims or survivors of gender-based violence is prohibited.
- Comply With Laws: The policy must follow state law. For employers based in New York State, this means that the policy must follow the SAFE Leave Act, New York State Human Rights Law, and any other relevant laws or regulations.
- Offer Implementation Support: Employers should also be aware that OPDV is available to assist employers in developing and implementing this policy. Employers must also provide information to supervisors and human resources, where available, about this technical assistance from OPDV. OPDV can be contacted at workplace@opdv.ny.gov.
What Bidders Should Do Now
Employers who regularly participate in statutorily mandated competitive bidding processes should ensure they comply with this new law. Employers impacted by this change should:
- Update policies to meet the OPDV standards outlined above.
- Provide information on the policy and legal requirements to supervisors and human resources and consider offering formalized training.
- Maintain records of policy distribution and acknowledgements by all employees, directors, and board members.
If you have any questions about the content of this alert, please contact Megan Bahas, of counsel, at mbahas@barclaydamon.com; Meghan McGovern, associate, at mamcgovern@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.