2006 New York Code - (enacted Without Section Heading)

 
    §  6-126 a. This section shall be known and may be cited as the "Equal
  Benefits Law."
    b. For purposes of this section only, the following terms  shall  have
  the following meanings:
    (1)   "Contract"  means  any  written  agreement,  purchase  order  or
  instrument whereby the city is committed to expend or does expend  funds
  in  return  for  an  interest  in  real property, work, labor, services,
  supplies,  equipment,  materials,  construction,  construction   related
  service or any combination of the foregoing.
    (2)  "Contracting  agency"  means  a  city,  county, borough, or other
  office, position, administration, department, division, bureau, board or
  commission, or a corporation, institution or agency of  government,  the
  expenses of which are paid in whole or in part from the city treasury.
    (3)   "Contractor"   means   any   individual,   sole  proprietorship,
  partnership, joint venture, corporation or other form of doing business.
    (4) "Covered contract" means a contract between a  contracting  agency
  and  a  contractor which by itself or when aggregated with all contracts
  awarded  to  such  contractor  by  any  contracting  agency  during  the
  immediately  preceding twelve months has a value of one hundred thousand
  dollars or more.
    (5) "Domestic partners" means persons who  are  domestic  partners  as
  defined  in  section  3-240(a)  of  the administrative code, or who have
  registered  as  domestic  partners  with  a   contractor   pursuant   to
  subdivision n of this section.
    (6) "Employee" means a person employed by a contractor.
    (7)  "Employment  benefits"  means benefits including, but not limited
  to,  health  insurance,  pension,  retirement,   disability   and   life
  insurance,  family,  medical,  parental,  bereavement  and  other  leave
  policies, tuition reimbursement, legal assistance, adoption  assistance,
  dependent   care   insurance,  moving  and  other  relocation  expenses,
  membership or membership discounts, and travel benefits  provided  by  a
  contractor to its employees.
    (8) "Equal benefits" means employment benefits equal to those provided
  to employees with spouses and to their spouses.
    (9)  "Household member coverage" means the provision of equal benefits
  to an employee and to one designated member of such employee's household
  provided that such household member is eighteen years of age  or  older,
  lives permanently with the employee, is unmarried, is not a dependent of
  any other person and is not the tenant or landlord of the employee.
    (10) "Implementing agency" means the city chief procurement officer or
  any agency or officer that the mayor designates.
    c.  (1)  No  contracting  agency shall enter into or renew any covered
  contract with a  contractor  that  discriminates  in  the  provision  of
  employment  benefits  between  employees with spouses and employees with
  domestic partners and/or between the domestic partners  and  spouses  of
  such employees; and unless the contractor certifies that:
    (a)(i)  it  offers equal benefits to employees with domestic partners;
  or
    (ii) if the contractor is a religious or denominational institution or
  organization, or an organization operated for charitable or  educational
  purposes which is operated, supervised or controlled by or in connection
  with  a  religious  organization,  and  the  certification  required  in
  subsection c(1)(a)(i) of this section would,  in  the  opinion  of  such
  contractor, be inconsistent with the religious principles for which such
  organization  was  established or maintained, it offers household member
  coverage to its employees, provided that such  employees  shall  not  be
  required to disclose to the contractor information concerning the nature
  of  their  relationship  with  a designated household member beyond that


  which such contractor  deems  necessary  to  determine  eligibility  for
  household member coverage; and
    (b)  it  will  not  retaliate  against  an  employee  in the terms and
  conditions of employment in the event that such employee requests  equal
  benefits  or informs the city that such contractor has failed to provide
  equal benefits in violation of this section.
    (2) Such certification shall be in writing and shall be signed  by  an
  authorized  officer  of  the  contractor  and  delivered,  along  with a
  description of the contractor's employee benefits plan or plans, to  the
  contracting agency and to the implementing agency prior to entering into
  a  covered contract. The implementing agency shall reject a contractor's
  certification if it determines that such contractor discriminates in the
  provision of employment benefits in violation of this section, or if the
  implementing agency determines that the contractor was  created,  or  is
  being used, for the purpose of evading the requirements of this section.
    d.  Every  covered  contract  shall  contain a provision detailing the
  contractor's obligations pursuant to this  section,  which  shall  be  a
  material provision of such contract.
    e. The requirements of subdivision c shall apply to the employees of a
  contractor  who,  during the term of such contract, work within the city
  of New York, and to those employees of a contractor who work outside  of
  the  city of New York and who work directly on fulfilling the terms of a
  covered contract.
    f. In the event that a contractor's actual cost of providing an  equal
  benefit  or  benefits  exceeds  that of providing the equivalent spousal
  benefit or benefits,  such  contractor  shall  not  be  deemed  to  have
  discriminated in the provision of employment benefits if such contractor
  conditions  the  provision  of  such  equal benefit or benefits upon the
  employee agreeing to pay the excess costs.
    g. Nothing in this section shall be construed to require a  contractor
  to  pay  income  tax liabilities incurred through the provision of equal
  benefits as required under this section.
    h. (1) In the event a contractor is unable  to  provide  a  particular
  equal  benefit  or benefits as required pursuant to this section despite
  taking all reasonable measures to do so, such contractor  shall  not  be
  deemed to have discriminated in the provision of employment benefits for
  failure   to  provide  such  employment  benefit  or  benefits  if  such
  contractor provides the cash equivalent of such  employment  benefit  or
  benefits  to  the affected employee(s). The contractor shall provide the
  implementing agency with sufficient proof of such inability  to  provide
  such  benefit  or  benefits,  which  shall include the measures taken to
  provide such benefit or benefits and the cash equivalent proposed, along
  with the certification  required  pursuant  to  subdivision  c  of  this
  section.  The  implementing  agency  shall, based on submitted evidence,
  determine whether the contractor's failure to  provide  such  employment
  benefit  or  benefits  precludes  such  contractor  from entering into a
  covered contract pursuant to the requirements of this section.
    (2) In the event that a contractor is unable to provide  a  particular
  equal  benefit  or benefits as required pursuant to this section because
  it would require administrative action that would delay the provision of
  such equal benefit or benefits,  then  the  contractor  may  request  an
  extension  of  time  to  take such administrative action which shall not
  exceed three months. Applications for such extensions of time  shall  be
  submitted to the implementing agency, which shall have the discretion to
  grant  such  applications.  A  contractor  may, if necessary, request an
  additional extension of time to provide the  delayed  equal  benefit  or
  benefits.  Applications  for such additional extensions of time shall be
  submitted to the implementing agency, which shall have the discretion to


  grant such applications provided that the contractor provides  the  cash
  equivalent  of  any  delayed  equal  benefit or benefits to the affected
  employee(s) during the additional  extension  period.  The  implementing
  agency  shall monitor contracting agencies to which it grants extensions
  of time to ensure compliance  with  the  requirements  of  this  section
  within such extension periods.
    i. Every contractor shall, to the extent permitted by law, provide the
  contracting agency and the implementing agency access to its records for
  the purpose of audits and/or investigations to ascertain compliance with
  the  provisions of this section, and upon request shall provide evidence
  that the contractor  is  in  compliance  with  the  provisions  of  this
  section.
    j.  If  during  the  term  of a covered contract a contractor fails to
  provide equal benefits as required pursuant to this  section,  or  if  a
  contractor retaliates against an employee in the terms and conditions of
  employment  for requesting equal benefits or for informing the city that
  such contractor has failed  to  provide  equal  benefits,  such  failure
  and/or  retaliation  shall be deemed a material breach of such contract.
  Upon receiving information that a contractor has failed to provide equal
  benefits as required pursuant to this section and/or retaliated  against
  an  employee in violation of this section, the implementing agency shall
  review such information, notify the contractor of such  information  and
  offer  the  contractor  an opportunity to respond. If it is found that a
  violation has occurred, the implementing agency shall take  such  action
  as  may be appropriate and provided by law, rule or contract, including,
  but not limited to, imposing sanctions, seeking  compliance,  recovering
  damages,  declaring  the  contractor in default and/or seeking a finding
  that the contractor is not a responsible contractor pursuant to  section
  335  of  the  charter. Nothing in this subdivision shall be construed to
  limit the remedies a contractor's employee or the  domestic  partner  of
  such  employee  may  seek  in  law  or  equity  in  the  event  of  such
  contractor's non-compliance.
    k. (1)  The  requirements  of  this  section  may  be  waived  by  the
  implementing  agency  upon application by a contracting agency under the
  following circumstances:
    (i) for sole source contracts entered into pursuant to section 321  of
  the  charter,  where  the  sole  source  is unwilling to comply with the
  requirements of this section; or
    (ii) for emergency contracts entered into pursuant to section  315  of
  the charter and for which no entity which complies with the requirements
  of  this  section  and  which  is capable of fulfilling such contract is
  immediately available; or
    (iii) where compliance with the requirements  of  this  section  would
  violate  or  be  inconsistent  with  the terms or conditions of a grant,
  subvention or contract with a public agency or the  instructions  of  an
  authorized  representative  of  any such agency with respect to any such
  grant, subvention or contract; or
    (iv) where there are no prospective bidders for a  contract  that  are
  willing  to  comply  with  the  requirements  of  this section and it is
  essential for the city to enter into such contract.
    (2) All applications for waivers pursuant to this subdivision shall be
  made in writing. The implementing  agency  shall,  within  a  reasonable
  period of time, determine whether to grant such waiver applications. All
  decisions regarding waivers shall be issued in writing and shall include
  the reason for the granting or denial of such application. All decisions
  granting waivers shall become part of the relevant contract file.
    (3)  Beginning twelve months after the effective date of the local law
  that added this section and annually thereafter, the implementing agency


  shall  report  to  the  council  regarding  the  twelve   month   period
  immediately  preceding  the report, the number and total dollar value of
  waivers for which it received  applications  disaggregated  by  type  of
  waiver  and  contracting  agency;  the  number and total dollar value of
  waivers granted disaggregated by type of waiver and contracting  agency;
  and  the  number  and  total dollar value of waivers denied or withdrawn
  disaggregated by type of waiver and contracting agency.
    l. The requirements of this  section  shall  not  apply  to  contracts
  relating to the investment of assets held in trust by the city or to the
  investment of city monies.
    m.  The  comptroller  shall conduct annual investigations, on a sample
  basis, to measure contractor compliance with the  requirements  of  this
  section.  Contractors  shall  make  such  information  available  as  is
  necessary to conduct such investigations. Beginning twelve months  after
  the effective date of the local law that added this section and annually
  thereafter,   the   comptroller   shall   report  the  results  of  such
  investigations to the mayor and the council.
    n. A contractor may institute an internal registry to  allow  for  the
  provision  of equal benefits to employees with domestic partners who are
  not  domestic  partners  as  defined  in   section   3-240(a)   of   the
  administrative  code, or who are located in a jurisdiction where no such
  governmental domestic partnership registry  exists;  provided,  however,
  that  a  contractor  that  institutes  such  a registry shall not impose
  criteria for registration that are more stringent  than  those  required
  for  domestic  partnership  registration  by  the  city  of  New York. A
  contractor may also verify the existence of a  domestic  partnership  or
  marriage  to  the  extent  such  verification  is undertaken equally for
  employees with domestic partners and employees with spouses.
    o. Nothing in this section shall be  construed  to  limit  the  city's
  authority  to  cancel or terminate a contract, deny or withdraw approval
  to perform a subcontract or provide supplies, issue a non-responsibility
  finding, issue a non-responsiveness finding, deny  a  person  or  entity
  pre-qualification,  or  to  otherwise  deny  a  person  or  entity  city
  business.
    p. This section shall only apply to contracts entered into or  renewed
  on or after the effective date of the local law that added this section.
    q.  The procurement policy board may promulgate rules to implement the
  requirements of this section.