STATE OF NEW YORK ________________________________________________________________________ 6328 2023-2024 Regular Sessions IN SENATE April 14, 2023 ___________ Introduced by Sens. RAMOS, COONEY, GOUNARDES, HARCKHAM, MANNION, RIVERA, SKOUFIS -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to preventing the displace- ment of call center workers who provide call center services for the government in certain circumstances 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 article 21-B to 2 read as follows: 3 ARTICLE 21-B 4 PROTECTION OF CALL CENTER WORKERS FROM DISPLACEMENT 5 Section 790. Definitions. 6 791. Terminated call center contract. 7 792. Entering into a call center contract. 8 793. Remedies. 9 794. No conflict with collective bargaining agreements. 10 § 790. Definitions. As used in this article: 11 1. The term "call center" means a facility or other operation in which 12 employees receive phone calls or other communications, including elec- 13 tronic communications for the purpose of providing customer assistance 14 or for related services supportive of business processes. 15 2. The term "call center contract" means a contract with a govern- 16 mental body, or a subcontract with an entity that has a contract with a 17 governmental body, pursuant to which the contractor furnishes call 18 center services for the benefit of the governmental body. 19 3. The term "governmental body" means the state of New York or any 20 political subdivision thereof, and any public authority or public bene- 21 fit corporation in the state of New York. 22 4. The term "call center employee" means any person employed to 23 perform call center services who has been regularly assigned to such EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06817-01-3
S. 6328 2 1 work for a call center contractor on a full or part-time basis for at 2 least ninety days, except for (a) persons whose work for a call center 3 is managerial or supervisory; and (b) persons regularly scheduled to 4 work fewer than four hours per week for the call center. 5 5. The term "entity" means a person, partnership, proprietorship, 6 association, limited liability company, trust, corporation, firm, joint 7 venture or enterprise of any kind. 8 6. The term "call center contractor" means an entity (a) that is a 9 party to a call center contract, and (b) provides call center services 10 for the benefit of a governmental body, and (c) employs call center 11 employees or engages a subcontractor or other entity to perform such 12 call center services and that entity employs call center employees. 13 7. The term "terminating call center contractor" means an entity that 14 has provided services as a call center contractor pursuant to a call 15 center contract which is being terminated. 16 8. The term "former call center contractor" means an entity that 17 provided services as a call center contractor pursuant to a call center 18 contract which has been terminated, and after termination of that 19 contractor, a successor call center contractor has performed some or all 20 of the same services pursuant to a call center contract. 21 9. The term "successor call center contractor" means an entity that, 22 pursuant to a call center service contract, succeeds to the performance 23 of call center services previously performed by a terminating call 24 center contractor. 25 § 791. Terminated call center contract. 1. No less than thirty calen- 26 dar days before termination of a call center contract in circumstances 27 where a successor call center contractor will undertake to provide 28 services that were the subject of the terminating contract, the termi- 29 nating call center contractor shall provide to the successor call center 30 contractor a full and accurate list containing the name, address, date 31 of hire and employment classification of each call center employee whose 32 work includes providing call center services that were the subject of 33 the terminating contract. The terminating call center contractor shall 34 simultaneously post the list in a notice to the call center employees 35 that also sets forth the rights provided by this article. The posting 36 shall be in a manner or location reasonably calculated to be seen by 37 affected employees. The posting may be electronic, provided that if it 38 is electronic, it must be directed to each affected employee individual- 39 ly and may not be a general posting on a website. Such notice shall also 40 be provided to the employees' collective bargaining representative, if 41 any. 42 2. Upon termination of a call service contract in circumstances in 43 which services provided under that contract will be performed by a 44 successor call center contractor, the successor call center contractor 45 shall retain those call center employees who performed such services for 46 the former call center contractor immediately prior to termination of 47 that contract. Such employees shall be retained for a ninety-day tran- 48 sition employment period. 49 3. If the successor call center contractor is obligated to retain call 50 center employees pursuant to subdivision two of this section, but deter- 51 mines that fewer call center employees are required to perform the 52 services that are the subject of the contract than had been required to 53 perform such services by the former call center contractor, the succes- 54 sor call center contractor shall fill the positions that it determines 55 are needed with the call center employees with the greatest seniority 56 within job classification; provided, that during the ninety-day transi-
S. 6328 3 1 tion period, the successor call center contractor shall maintain a pref- 2 erential hiring list of those call center employees not retained, and 3 those on the preferential hiring list shall be given a right of first 4 refusal to any jobs within their classifications that become available 5 during that period. 6 4. Except as provided in subdivision three of this section, during the 7 ninety-day transition period, the successor call center contractor shall 8 not discharge without cause a call center employee retained pursuant to 9 this article. 10 5. At the end of the ninety-day transition period, the successor call 11 center contractor shall perform a written performance evaluation for 12 each call center employee retained pursuant to this article. If such 13 employee's performance during the ninety-day transition period is satis- 14 factory, the successor call center contractor shall offer such employee 15 continued employment. 16 6. If the successor call center contractor engages a subcontractor or 17 other entity to perform call center services provided for in a successor 18 call center contract, that successor call center contractor shall 19 require the subcontractor or other entity to adhere to all of the obli- 20 gations of this article. 21 § 792. Entering into a call center contract. 1. Whenever a govern- 22 mental body shall undertake to procure call center services using a call 23 center contractor, the governmental body shall ensure that the call 24 center contract with such entity includes the obligations pursuant to 25 this article, including, where applicable, the call center contractor's 26 obligation to retain call center employees of the former call center 27 contractor. The obligation to retain the terminating call center 28 contractor's employees shall be included in the call center contract 29 irrespective of whether the terminating call center contractor's 30 contract included the obligations pursuant to this article. Such obli- 31 gations shall be set forth in requests for proposals or other solicita- 32 tions and, in any event, shall be included in each call center contract. 33 Whether or not the provisions are included in such contract, the obli- 34 gations under this article shall apply to the successor call center 35 contractor whenever such contractor begins performance on a successor 36 call center contract on or after the effective date of this article. 37 2. A governmental body intending to enter into a call center service 38 contract, in circumstances in which such services had theretofore been 39 performed by call center employees pursuant to a call center contract, 40 shall require any entity seeking to enter into such contract to demon- 41 strate that it will establish the site for its performance in a location 42 which is reasonably accessible to the employees who have been performing 43 such services prior to the solicitation of bids for a successor call 44 center contract. In determining whether the site proffered by a bidder 45 meets the reasonable accessibility standard, the governmental body shall 46 consider the availability of public transportation to retained call 47 center employees and prevailing traffic patterns in and around the 48 proposed site. A site which is within ten miles of, or average travel 49 time by public or private transportation of not more than one-half hour 50 from, the location of the affected employees' work facility when 51 employed by the former call center contractor shall be presumed to be 52 reasonably accessible unless unusual obstacles to access are present. 53 § 793. Remedies. 1. A call center employee who has been discharged or 54 not retained in violation of this article may bring an action in the 55 supreme court against a former call center contractor or successor call 56 center contractor, including its subcontractors, or in appropriate
S. 6328 4 1 circumstances, against both, for violation of any obligation imposed 2 pursuant to this article. 3 2. The court shall have authority to order preliminary and permanent 4 equitable relief, including, but not limited to, reinstatement of any 5 employee who has been discharged or not retained in violation of this 6 article. 7 3. If the court finds that a call center employee has been discharged 8 or not retained in violation of this article, it shall award to the 9 employee: 10 (a) Back pay, and an equal amount as liquidated damages, for each day 11 during which the violation continues, which shall be calculated at a 12 rate of compensation not less than the higher of (i) the average regular 13 rate of pay received by the employee during the six months of the 14 employee's employment in the same occupation classification; or (ii) the 15 final regular rate received by the employee. Back pay shall apply to the 16 period commencing with the date of the discharge or refusal-to-retain 17 through the effective date of any offer of instatement or reinstatement 18 of the employee; and 19 (b) Costs of benefits the former call center contractor or successor 20 call center contractor would have incurred for the employee under such 21 employee's benefit plan; and 22 (c) The employee's reasonable attorney's fees and costs. 23 4. In any such action, the court shall have authority to order the 24 former call center contractor or the successor call center contractor, 25 as applicable, to provide any information required pursuant to this 26 article. 27 § 794. No conflict with collective bargaining agreements. The 28 provisions of this article shall not apply to any: 29 1. Successor call center contractor that, on or before the effective 30 date of a termination of a call center contract, agrees to assume, or to 31 be bound by, the collective bargaining agreement of the former call 32 center contractor, provided that the collective bargaining agreement 33 provides terms and conditions for the discharge or laying off of employ- 34 ees that are at least as protective of employee rights as those pursuant 35 to this article; and 36 2. Successor call center contractor whose call center employees will 37 be accreted to a bargaining unit with a pre-existing collective bargain- 38 ing agreement, provided that the collective bargaining agreement 39 provides terms and conditions for the discharge or laying off of employ- 40 ees that are at least as protective of employee rights as those pursuant 41 to this article; and 42 3. Former call center contractor that obtains a written commitment 43 from a successor call center contractor that the successor call center 44 contractor's call center employees will be covered by a collective 45 bargaining agreement that provides terms and conditions for the 46 discharge or laying off of employees that are at least as protective of 47 employee rights as those pursuant to this article. 48 § 2. Severability. If any provision of this law or the application 49 thereof to any person or circumstance is held invalid, such invalidity 50 shall not affect other provisions of the law which can be given effect 51 without the invalid provision or application, and to this end the 52 provisions of this article shall be severable. 53 § 3. This act shall take effect immediately.