S 3814  ADAMS???????????????   Same as A 1480  Wright (MS) 
ON FILE: 04/03/09 General Business Law
TITLE....Enacts the New York consumer and worker protection act
04/01/09 REFERRED TO CONSUMER PROTECTION
A1480 Wright (MS)    Same as S 3814  ADAMS 
General Business Law
TITLE....Enacts the New York consumer and worker protection act
01/07/09 referred to consumer affairs and protection

                STATE OF NEW YORK
        ________________________________________________________________________

                                          3814

                               2009-2010 Regular Sessions

                    IN SENATE

                                      April 1, 2009
                                       ___________

        Introduced  by  Sen.  ADAMS  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Consumer Protection

        AN ACT to amend the general business law, the  state  finance  law,  the
          general  obligations  law,  the  labor  law  and the executive law, in
          relation to enacting the "New York consumer and worker protection act"

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  This act shall be known and may be cited as the "New York
     2  consumer and worker protection act".
     3     2. The general business law is amended by adding a new article  24-D
     4  to read as follows:

     5                                ARTICLE 24-D
     6                 NEW YORK CONSUMER AND WORKER PROTECTION ACT
     7  Section 375.   Legislative intent.
     8          375-a. Notice concerning outsourcing of jobs.
     9          375-b. Ratification of certain agreements.
    10     375. Legislative intent. The legislature recognizes the necessity to
    11  stem  the  flow of skilled and unskilled labor out of New York state, to
    12  end New York state taxpayer subsidies for moving American jobs overseas,
    13  to protect the security of  sensitive,  private  medical  and  financial
    14  personal information in order to prevent identity theft and other fraud,
    15  and  to  prevent  state  commitment to government procurement agreements
    16  with foreign countries without subjecting such agreements  to  ratifica-
    17  tion  by the legislature. In many cases, consumers are not informed that
    18  their sensitive personal information is being sent overseas. The  legis-
    19  lature finds that while the practice of outsourcing jobs may allow firms
    20  to reduce costs in the short term, the cost to the state of New York and
    21  the  United States in the long term is detrimental to domestic technical
    22  advancement, job opportunities, wages and consumer protection.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00191-01-9

        S. 3814                             2

     1     375-a. Notice concerning outsourcing of jobs.  1.  For  purposes  of
     2  this section:
     3    a.  "Outsourcing  jobs" means to relocate or move employment, jobs, or
     4  positions from the state of New York or the United States or its  terri-
     5  tories to an outside locality.
     6    b.  "Manufacturer"  means  a  person,  firm  or corporation engaged in
     7  making,  converting,  processing,  altering,  repairing,  finishing   or
     8  preparing any consumer product for sale to a consumer.
     9    c.  "Importer"  means  a  person,  firm  or corporation engaged in the
    10  distribution of any consumer product for sale or lease to a consumer  in
    11  this state.
    12    d. "Merchant" means a person, firm or corporation engaged in the sale,
    13  display  or offering for sale consumer products or merchandise at retail
    14  to a consumer.
    15    2. Any merchant, manufacturer, firm, corporation, association or agent
    16  or employee thereof licensed to do business within this state  which  is
    17  involved  in  the  practice  of  outsourcing jobs or services to foreign
    18  locations shall disclose such outsourcing to any consumer doing business
    19  with such entity. Such services shall include professional and  consumer
    20  services,  including  but  not  limited to, health, accounting, banking,
    21  mortgage, and income tax preparation.
    22    3. Such merchants, manufacturers, firms, corporations, associations or
    23  agents or employees thereof  shall  conspicuously  post  the  disclosure
    24  required by subdivision two of this section in the places of business of
    25  such entities and distribute a written disclosure to consumers.
    26    4.  The  provisions  of  this  section shall not be deemed to alter or
    27  otherwise supersede any other disclosure requirement imposed by state or
    28  federal law.
    29    5. A violation of this section shall be deemed to be both a  deceptive
    30  act  and  false advertising and shall be subject to the penalties other-
    31  wise prescribed in article twenty-two-A of this chapter.
    32     375-b. Ratification of certain agreements. As  provided  in  section
    33  thirteen  of  the  executive law, the state, through the governor, shall
    34  not enter into or adopt or support any multi-national procurement agree-
    35  ment or agree to amend or renew any existing multi-national  procurement
    36  agreement  with  any  multi-national  trade organization, corporation or
    37  other business entity without the ratification  by  the  legislature  of
    38  such agreement.
    39      3.  The state finance law is amended by adding a new section 147 to
    40  read as follows:
    41     147. State contracts; outsourcing prohibited. 1. Definitions.    For
    42  purposes  of  this section, the following terms shall have the following
    43  meanings:
    44    a. "Developmental assistance"  (1)  shall  mean  any  form  of  public
    45  assistance,  including  tax expenditures, made for the purpose of stimu-
    46  lating economic  development  of  a  corporation,  industry,  geographic
    47  jurisdiction  or  any other sector of the state's economy, including but
    48  not limited to industrial development  bonds,  training  grants,  loans,
    49  loan  guarantees,  enterprise  zones,  empowerment  zones, tax increment
    50  financing, fee waivers, land price subsidies, infrastructure whose prin-
    51  cipal beneficiary is a single business or defined group of businesses at
    52  the time it is built or improved, matching funds,  tax  abatements,  tax
    53  credits  and tax discounts of every kind, including corporate franchise,
    54  personal income, sales and compensating use, raw materials, real proper-
    55  ty, job creation, individual  investment,  excise,  utility,  inventory,

        S. 3814                             3

     1  accelerated  depreciation,  and research and development tax credits and
     2  discounts.
     3    (2) shall not include:
     4    (i)  assistance  generally available to all businesses or to a general
     5  class of similar businesses, such as a line of business, size, location,
     6  or similar general criteria;
     7    (ii) redevelopment property polluted as defined in  the  environmental
     8  conservation law or pursuant to federal law, rules, or regulations;
     9    (iii)  assistance  provided  for the sole purpose of renovating old or
    10  decaying building stock or bringing such stock into compliance with  the
    11  relevant building and fire codes, and assistance provided for designated
    12  historic preservation districts, provided that such assistance in either
    13  case is equal to or less than fifty percent of the total cost;
    14    (iv) assistance for housing;
    15    (v) assistance for pollution control or abatement;
    16    (vi) assistance for energy conservation;
    17    (vii) tax reductions resulting from conformity with federal tax law;
    18    (viii) workers' compensation and unemployment compensation;
    19    (ix) benefits derived from regulation;
    20    (x)  assistance  for  collaboration  between  an institution of higher
    21  education within the state and a business;
    22    (xi) general changes in tax increment financing law and other  general
    23  tax law changes of a principally technical nature;
    24    (xii)  federal assistance until such assistance has been repaid to and
    25  reinvested by the state or a municipal agency; and
    26    (xiii) federal loan funds provided through the United  States  depart-
    27  ment of commerce, economic development administration.
    28    b.  "Outsourcing  jobs" means to relocate or move employment, jobs, or
    29  positions from the state of New York or the United States or its  terri-
    30  tories to an outside locality.
    31    2.  The  state and any governmental agency or political subdivision or
    32  public benefit corporation of the state shall not engage in the practice
    33  of outsourcing jobs and shall not contract for any purpose, in any form,
    34  with any entity which engages in the practice of outsourcing  jobs  when
    35  state funds are used for such jobs or services.
    36    3. A clause shall be inserted in all specifications or contracts here-
    37  after made or awarded by the state, or any public department or official
    38  thereof,  prohibiting any contractor, to whom any contract shall be let,
    39  granted or awarded, as required by law, from outsourcing jobs.   If  any
    40  contractor,  to  whom any contract is hereafter let, granted or awarded,
    41  as required by law, by the state, or by any public department  or  offi-
    42  cial  thereof,  shall  outsource jobs as prohibited by this section, the
    43  state shall revoke and  annul  such  contract,  and  the  state,  public
    44  department  or  officer,  as  the  case  may  be,  shall be relieved and
    45  discharged from any and all liability and  obligations  growing  out  of
    46  such contract, and shall forfeit and lose all moneys, theretofore earned
    47  under  such contract except so much as may be required to pay his or her
    48  employees.
    49    4. No contractor that receives developmental assistance from the state
    50  shall engage in the practice of outsourcing  jobs.  If  such  contractor
    51  engages  in  such prohibited practice, such contractor shall return such
    52  assistance to the state. Any contractor that violates the provisions  of
    53  this  section shall not receive any state developmental assistance for a
    54  period of five years from the date of the latest violation  or  determi-
    55  nation of violation of this section, whichever is later.

        S. 3814                             4

     1    5. Any business entity that receives developmental assistance from the
     2  state shall submit an annual report to the attorney general and granting
     3  agency stating the amount of such developmental assistance received, the
     4  amount  of employment by such business entity gained or lost in New York
     5  over  the  course  of  the year, what such developmental assistance went
     6  towards, and any other data  the  attorney  general  may  require.  Such
     7  report shall be submitted on or before February first of each year.
     8    6.  Each  report  shall  be  made available to the public in an easily
     9  accessible format, including but not limited to  an  electronic  version
    10  via the world wide web.
    11      4.  The  general obligations law is amended by adding a new section
    12  5-707 to read as follows:
    13     5-707. Consent to transmission of personal information. 1. No corpo-
    14  ration or other business entity shall sell, share, transfer or otherwise
    15  disclose nonpublic personal information to  or  with  any  nonaffiliated
    16  third  parties which are located outside the United States or its terri-
    17  tories without the prior written consent of the  consumer  to  whom  the
    18  nonpublic personal information relates.
    19    2. For purposes of this section:
    20    a.  "Nonaffiliated third party" means any entity that is not an affil-
    21  iate of, or related by  common  ownership  or  affiliated  by  corporate
    22  control  with,  the  financial institution, but does not include a joint
    23  employee of that institution and a third party.
    24    b. "Consumer" means an individual resident  of  this  state,  or  that
    25  individual's  legal  representative,  who obtains or has obtained from a
    26  financial institution a financial product or service to be used primari-
    27  ly for personal, family, or household purposes.  For  purposes  of  this
    28  section,  an  individual  resident  of  this state is someone whose last
    29  known mailing address, other than an armed forces post office  or  Fleet
    30  post  office  address, as shown in the records of the financial institu-
    31  tion, is located in this state. For purposes of this section,  an  indi-
    32  vidual is not a consumer of a financial institution solely because he or
    33  she is (i) a participant or beneficiary of an employee benefit plan that
    34  a financial institution administers or sponsors, or for which the finan-
    35  cial  institution  acts as a trustee, insurer or fiduciary, (ii) covered
    36  under a group or blanket insurance  policy  or  group  annuity  contract
    37  issued  by  the financial institution, (iii) a beneficiary in a workers'
    38  compensation plan, (iv) a beneficiary of a trust for which the financial
    39  institution is a trustee or (v) a person who has designated  the  finan-
    40  cial  institution  as  trustee  for a trust, provided that the financial
    41  institution provides all required notices required by  this  section  to
    42  the plan sponsor, group or blanket insurance policyholder or group annu-
    43  ity contract holder.
    44    c.  "Nonpublic  personal  information"  means  personally identifiable
    45  information (i) provided by a consumer or (ii) resulting from any trans-
    46  action with the consumer or any  service  performed  for  the  consumer.
    47  Nonpublic  personal  information  does  not  include  publicly available
    48  information where there is a  reasonable  basis  to  believe  that  such
    49  information is lawfully made available to the general public from feder-
    50  al,  state  or  local  government  records,  widely distributed media or
    51  disclosures to the general public that are required to be made by feder-
    52  al, state or local law. Nonpublic personal information shall include any
    53  list, description or other grouping of consumers, and publicly available
    54  information pertaining to them, that  is  derived  using  any  nonpublic
    55  personal  information  other  than  publicly  available information, but
    56  shall not include any list, description or other grouping of  consumers,

        S. 3814                             5

     1  and publicly available information pertaining to such consumers, that is
     2  derived without using any nonpublic personal information.
     3     5. The labor law is amended by adding a new section 201-g to read as
     4  follows:
     5      201-g.  Notice of outsourcing; prohibited replacement training.  1.
     6  For purposes of this section, "outsourcing jobs" means  to  relocate  or
     7  move  employment,  jobs,  or  positions from the state of New York to an
     8  outside locality other than a locality located within the United  States
     9  or its territories.
    10    2.  Any  employer that engages or is planning on engaging in the prac-
    11  tice of outsourcing jobs which are within New York state to  a  location
    12  outside  the United States or its territories shall provide its affected
    13  employees with at least one hundred eighty days notice immediately prior
    14  to such outsourcing. The notice required by this section shall  also  be
    15  provided  to the department at least one hundred eighty days immediately
    16  prior to such outsourcing.
    17    3. Any employee displaced by the practice of  outsourcing  jobs  shall
    18  not  be  required,  as a condition of receipt of severance pay, to train
    19  employees outside the United States or its territories who are replacing
    20  such displaced employee.
    21    4. Any employer found to be in violation  of  this  section  shall  be
    22  subject  to  the penalties of section two hundred thirteen of this arti-
    23  cle.
    24     6. The executive law is amended by adding a new section 13  to  read
    25  as follows:
    26      13.  Procurement  agreements between the governor and multinational
    27  organizations. Notwithstanding any other law,  the  state,  through  the
    28  governor,  shall  not  enter  into or adopt or support any multinational
    29  procurement agreement or agree to amend or renew any  existing  multina-
    30  tional  procurement agreement with any multinational trade organization,
    31  corporation or other business entity without ratification by the  legis-
    32  lature  of  such agreement.  Any such agreement shall be deemed ratified
    33  by the legislature after the governor's certification to  the  temporary
    34  president  of the senate, the speaker of the assembly, and the secretary
    35  of state, that such contract, through its terms, between the  state  and
    36  the  multinational  trade  organization,  corporation  or other business
    37  entity by statute, by executive order, or by  the  terms  of  any  other
    38  agreement entered into by or on behalf of such organization, corporation
    39  or  other  business  entity,  provides assurance that such multinational
    40  trade organization, corporation or other business entity will adhere  to
    41  and  carry  out  the  provisions  of  such  agreement  pursuant  to  the
    42  provisions of article twenty-four-D of the general business law, section
    43  one hundred forty-seven of the state finance law, section 5-707  of  the
    44  general obligations law, and section two hundred one-g of the labor law,
    45  and  upon  a  majority  vote  by  the senate and assembly approving such
    46  agreement.
    47     7. Nothing in this act shall be construed  to  impede,  infringe  or
    48  diminish  the integrity of collective bargaining agreements in existence
    49  and effect on the effective date of this act. Nothing in this act  shall
    50  be  construed  to impede, infringe or diminish any agreement or contract
    51  provisions in existence and effect on the effective date of this act.
    52     8. If any item, clause, sentence, subparagraph, paragraph,  subdivi-
    53  sion, section, or any other part of this act, or the application thereof
    54  to  any  person  or  circumstances,  is held to be invalid, such holding
    55  shall not affect, impair, or invalidate the remainder of this act, or of
    56  the application of such section or part of a section  held  invalid,  to

        S. 3814                             6

     1  any  other  person or circumstances, but shall be confined in its opera-
     2  tion to the item, clause, sentence,  subparagraph,  paragraph,  subdivi-
     3  sion, section, or other part of this act directly involved in such hold-
     4  ing, or to the person and circumstances therein involved.
     5     9. This act shall take effect on the one hundred eightieth day after
     6  it  shall  have  become a law and shall apply to agreements or contracts
     7  entered into on or after such date.

NEW YORK STATE SENATE
INTRODUCER'S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1
 
BILL NUMBER: S3814

SPONSOR: ADAMS???????????????
  TITLE OF BILL: An act to amend the general business law, the state finance law, the general obligations law, the labor law and the executive law, in relation to enacting the "New York consumer and worker protection act"   PURPOSE OR GENERAL IDEA OF BILL: To stem the flow of skilled and unskilled labor out of New York state; end state taxpayer subsidies for moving American jobs overseas; protect the security of sensitive, private medical and financial personal infor- mation; and to prevent the Governor from committing the state to govern- ment procurement agreements with foreign countries without ratification by the state legislature.   SUMMARY OF SPECIFIC PROVISIONS: Section one names the bill the New York consumer and worker protection act. Section two amends the state general business law to require the full disclosure to consumers of foreign outsourcing of professional and consumer services, including health, accounting, banking, mortgage, and income tax preparation services. Section three amends the state finance law to prohibit the outsourcing of state work, state procurement of services, and municipal government procurement when state funds are used. The section also requires busi- nesses receiving state economic development assistance to report annual- ly to the attorney general and granting agency information about the development assistance received and the amount of employment gained or lost in the state. Section four amends the state general obligations law to require that businesses receive prior written consent from consumers before transmit- ting their sensitive personal information overseas. Section five amends the state labor law to require that businesses plan- ning on moving domestic jobs overseas provide lBO-day notice to affected employees and the department of labor, and prohibits workers displaced by foreign out sourced employees from being required to train their foreign replacements as a condition of receiving their severance pay. Section six requires the governor to obtain legislative ratification of any multinational government procurement agreement before entering into any such agreement.   EXISTING LAW: Current law places no restriction on the types or numbers of domestic jobs that can be sent overseas.   JUSTIFICATION: Millions of jobs and billions of dollars in wages have already been outsourced offshore, and the strategy has been growing sharply in recent years. The trend presents two distinct dangers: the loss of jobs at a time when our state and nation struggle to recover from the economic downturn, and the distribution of sensitive personal information in income tax returns, banking, mortgage and medical records to foreign countries without the same consumer fraud and identity theft protections as exist in the United States.   LEGISLATIVE HISTORY: 2007: A.645 2006: A.10515 2005: S.1597 2004: S.6935 - Referred to Consumer Protection   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: One hundred eighty days after it shall become law.

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