Special End of Session Update
June 15, 2012

With four days left on the 2012 legislative calendar, here is a status report on key legislation, including the Business Council’s proactive end of session list and key bills on our defensive agenda.

We urge you to weigh in with your Senate and Assembly representatives on those issues of greatest concern to your business.

Please feel free to contact our government affairs staff with any questions or comments.

Ken Pokalsky
Vice President of Government Affairs

Support Agenda

Wage Theft Prevention Act reform. S.6063-A (Defrancisco)/A.8856 (Gabryszak). This legislation, which has already passed the Senate, repeals the mandate that all employees receive, and provide a signed acknowledgement of, an additional annual wage notice.

  • Still under consideration in Assembly; TBC has offered additional amendments to the Assembly to address some concerns of advocates.

Wage withholding legislation. S.5786 (Young)/A.8465 (Morelle), also S.2837 (Young). This legislation would authorize additional categories of allowable, voluntary wage withholdings by employers for the benefit of employees.

  • This issue has been subject to three way negotiations, and a final agreement seems likely that would reinstate additional categories of allowable payroll withholdings for “the benefit of the employee.” 

Executive Order 38 Reform (by legislation or amended EO). This EO places restrictions on executive compensation and administrative costs incurred by entities with service contracts with the state.

  • Implementation rules were proposed by thirteen agencies on 5/30/12, with comments due in 45 days; applicability criteria exempts many private sector entities from these limitations (e.g., it will only apply to entities with contracts for provision of services directly to individuals on behalf of the state, and where such contracts account for at least 30 percent of the entity’s total New York source income.)  No further legislation is under consideration at this point.

Restore/reform the “qualified emerging technology company” credit. S.6838 (Golden). Would reform and permanently extend the state’s main small technology business tax incentive program.

  • Some three way negotiations have occurred, no action has been taken yet on this legislation.

Unemployment insurance wage base bill. S.6850 (Ritchie)/A.9725 (Morelle). Eliminates UI account charges against an employer who released an employee for cause, in instances where the employee obtains and is laid off by a subsequent employer, and exclude from calculation of UI benefits those wages earned from an employers from whom the claimant lost employment under conditions that would disqualify him or her from UI benefits.

  • Has not moved out of Labor Committee in either house.

Creation of Tourism Development Fund. S.6663 (Little)/A.9605 (Markey). This legislation would create a development fund, using I LOVE NY licensing income and state appropriates, with funds dedicated to  promotion and development of tourist travel, vacation, cultural and convention activities within the state.

  • This legislation has passed both houses.

Allow Paycheck Payment cards. S.6288-A (Robach)/A.6894-A (Wright). This bill allows for payment of wages with payroll cards (i.e., debit cards), in addition to checks and direct deposit. It also establishes provisions for issuance and use of payroll cards, including making the use of payroll cards at the discretion of the individual employees, and requirements of at least one free cash withdrawal per pay period.

  • This legislation was recently amended to be a “same as,” and discussions are ongoing, but has not advanced out of the Labor Committee in either house.

“Permanent place of abode.” S.3998-C (LaValle)/A.6266-C (Thiele). Overturns a recent Tax Tribunal decision and provides that the usage or ownership of a vacation home is not sufficient to establish a permanent place of abode for PIT purposes so long as the taxpayer spends less than 90 days a year at the vacation home and the home is located more than 50 miles from the taxpayer's primary place of employment in New York.

  • This bill has passed the Senate, but has not moved from Assembly Ways and Means committee. Final passage is likely depended upon reaching consensus on fiscal impact.

Workers’ Comp Loss Cost Provisions. S.6978 (Seward)/A.10160 (Wright). Would extend the state’s current workers’ comp rate setting through June  2018 and continues the loss cost model for the setting of workers' compensation insurance rates in New York State.

  • Has passed Senate; is on Assembly calendar; final approval is expected.

Letters of Credit. S.5671-A (DeFrancisco)/A.8641-A (Gantt). This bill would limit the amount of any letter of credit required by state entities to no more than 3% of the total contract for vendors contracting with the state.

  • Has passed both houses.

Brownfield Cleanup Programs extension. A.10593 (Sweeney), S.6942 (Grisanti) and S.7368 (Marcellino). These bills take different approaches to extending current brownfield remediation, redevelopment and environmental insurance tax credits, which are currently set to expire on March 31, 2015. Projects have on average been taking nearly three years to advance through the program.

  • This issue remains under discussion, but there is no “same as” proposal yet;  A.10593 (extend the current credits until December 31, 2015) is on the Assembly calendar; S.6942 (permanent extension plus other program reforms) is on the Senate calendar; and  S.7368 (extends the credits thru March 31, 2030) remains in Senate Investigations Committee.

Defensive Agenda

Minimum wage. S.6413 (Klein)/A.9148 (Wright). Would increase the minimum wage to $8.50/hour and index future annual increases to the CPI.

  • Has passed the Assembly; no action is expected in the Senate.

Consultant Contracts. S.3093 (Robach) and A.5128-B (Bronson). Requires the state to determine that a consultant contract is less expensive than performing services than with state employees. In part, this bill replicates and expands on existing state contract requirements, and will impose additional costs/uncertainty into the bidding process.

  • Has passed Assembly, is on Senate Calendar; negotiations underway, prospects uncertain. The Business Council continues to oppose this legislation, but has offered amendments to achieve a more fair cost comparison and assure that any legislation does not impose additional costs or uncertainties on the contract review process.

Prevailing Wage. S.3827 (Maziarz)/A.6970 (Wright). Extends public sector prevailing wage mandates to private sector projects requiring street opening permits.

  • This bill is on the Assembly calendar; it has not moved in the Senate. No final action is expected in 2012.

Call Centers. S.6918 (Kennedy)/A.9809 (Jeffries). Would prohibit businesses that move a portion of existing in-state call center jobs to a foreign nation from state provided financial incentives, tax credits and/or procurement contracts for a period of five years, regardless of the business’ remaining in-state employment or investment.

  • Was reported from Assembly Labor, and is currently in Codes. We do not expect this to advance in the Senate.

Physician Collective Bargaining. S.3186-A (Hannon)/A.2474-A (Canestrari) and S.7615 (Hannon)/A.10678 ( Rules/Canestrari). The first bill  would permit health care providers statewide to collectively bargaining with health plans, the second bill creates a similar pilot program in an eleven county Capital Region.

  • The statewide bill, which passed the Senate in 2011, has not moved out of committee in either house this session; the second bill also has yet to advance in either house, but passage in Senate is possible.

Martin Act expansion. S.7465 (Libous)/A.9627 (Abbate). Would authorize public retirement systems to direct the Attorney General to investigate alleged violations of the “Martin Act;” would direct any recoveries through settlement or judgment to be returned to the damaged pension fund.

  • Was approved in Assembly Codes and Ways and Means Committee, is currently in Assembly Rules Committee, and is expected to pass the Assembly; no action is expected in the Senate.

"Martin Act" Surcharges. A.8367-A (Silver @ Request of State Comptroller) and S.7036-B (Sampson)/A.9885 (Silver). These bills, respectively, create new public campaign funding systems for the office of state comptroller rand for all state wide and state legislative elections; both would generate revenues through new surcharges on penalties and settlements under Article 23-A of the General Business Law, commonly referred to as the Martin Act.

  • Both bills are on the Assembly calendar; S.7036 has not moved in the Senate.

Mandated minimum payment for “out of network” health care services. S.5068-A (Hannon)/A.7489-B (Gottfried). Would require health plans which choose to cover out-of-network services to reimburse out-of-network medical services at the 80th percentile of the actual charges billed for that service by an out-of-network provider in the same specialty and in the same geographic area.

  • This bill is still in the Insurance Committee in both houses, but is not expected to be given final approval in 2012.

Restrictions on application WC medical treatment guidelines. S.3741 (Maziarz)/A.6294 (Wright). Would partially repeal a cost savings component of 2007 workers’ compensation reform legislation by limiting the applicability of the state’s Medical Treatment Guideline (adopted in 2009) from being applied to injuries incurred prior to their adoption.

  • This bill, which also passed the Assembly in 2011, is on the Assembly calendar for possible passage; it has not moved out of the Senate Labor Committee. We do not expect the Senate to act on this bill in 2012.

Restrictions on Workers’ Comp Pharmaceutical Networks. S.3749-C (Robach)/A.5183-C (Simotas). In instances where an employer has entered into a contract with a pharmacy network to supply medicines to workers’ comp claimants, this bill would allow an injured employee to utilize any pharmacy that matched the state’s “published prices,” regardless of whether such pharmacy was in the employer’s network.

  • This bill has advanced to the calendar in both houses, and remains under active discussion.

DOL Collections for Sole Proprietor contracts. S.4129-C (Golden)/A.6698-B (Silver). Would direct the Department of Labor to intercede on behalf of sole proprietor/independent contractor, for failure to receive prompt payment from a client, regardless of compliance with other provisions of their contract; establishes presumptions in favor of sole proprietors in such actions; and authorizes total recovery and penalties of up to four times the disputed payment plus legal costs.

  • This bill is on the Assembly calendar; while it has not been reported from Senate Labor Committee, the sponsor has indicated interest in moving the bill.

“Transportation fair pay” act. S.6267 (Golden)/A.8997 (Wright). This bill would impose new, unprecedented assumptions for making employee/contractor determinations in the commercial transportation sector, and calls for independent contractor tests far beyond those currently used or needed.

  • This bill was reported from the Assembly Labor committee, but has not moved in the Senate. No final action is expected in 2012.

Mandatory Purchase of Solar RECs. S.4178-A (Maziarz) and A.5713-C (Englebright). Would lock energy distribution utilities into a solar purchasing mandate with contracts running as late as 2032.

  • These bills are no longer “same as,” and are not progressing in either house; three way negotiations are ongoing on a broader bill that includes a long term commitment of existing “renewable portfolio standard” funding for solar projects, sales tax exemptions for the purchase and installation of solar equipment by commercial entities, and possible amendments to the state’s implementation of the “regional greenhouse gas initiative.”  Our position is dependent on the final content of this bill.

Foreign Debt Obligations. S3767-C (Bonacic)/A.7967-A (Simotas) and S.6949 (Bonacic)/A.9953-A Simotas (MS). The first bill applies only to debt obligations of foreign states, the second to all applications of the “merger doctrine” under the state’s civil practice laws and rules; both bills limit the merger of certain  individual claims  into a final judgment related to debt obligation, impairing the ability for cases such as bankruptcies and defaults to achieve final settlements.

  • At this point, we do not believe either version of this legislation will be approved in the 2012 session.

Shareholder remote participation. S.7328 (Ranzenhofer)/A.1710-A (Kavanagh). Would provide discretion to boards of directors of NYS-incorporated entities to authorize remote participation of shareholders at shareholder meetings.

  • This is on the calendar in both houses; Assembly passage is likely; we do not expect it to approved by the Senate.

Biennial Workers' Compensation Fee Schedule Reassessment. S.5090 (Griffo)/A.7356 (Canestrari). This would compel the Workers’ Compensation Board to biennially prepare and establish new health care fee schedules for treatment under the state’s Workers’ Comp law.

  • This bill has passed the Assembly, but no action is expected in the Senate.

Disclosure of Employee Personal Account Credentials. S.6831 (Klein)/A.9654 (Dinowitz). This would prohibit an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service, including those provided by the employer.

    • On Assembly calendar; we do not expect it to move in the Senate.