End of 2013 Legislative Session Summary
It is encouraging that the 2013 session closed with a focus on promoting economic growth. End of session action produced a new business incentive program, expanded small business assistance through the Excelsior jobs program, and – subject to voter approval – allowed new gaming venues upstate. Each of these measures will promote new investments and jobs.
Unfortunately, the legislature missed opportunities to adopt other broad-based, pro-growth measures. As example, both the Administration and the Senate majority coalition supported legislation to reform the state’s wage theft prevention act, and ease restrictions on the storage and transportation of liquefied natural gas. However, both proposals were rejected by the Assembly majority.
Earlier New York had another on-time, low-growth budget, and beneficial reforms to the state’s unemployment insurance and workers’ compensation programs. Those positive steps were offset by energy tax extensions and a minimum wage increase that will eventually add a $1 billion a year to business cost.
Several positive bills receiving two-house approval included eligibility expansion under the at-risk youth jobs tax credit, reforms in the assessment of utility properties, regulatory streamlining for state-chartered banks, and simplified administrative adjudication for small business.
On the other hand, the legislature approved several bills of concern to the Council, including a new “biofuel” mandate for downstate business and residents that will add millions to annual heating costs, and the so-called “transportation fair pay act” that will impose new compliance standards on independent truckers and their business customers.
The final “StartupNY” legislation contained several major modifications from earlier drafts, including annual caps on the number of employees that would be allowed income tax exemptions, increased opportunity for participation by downstate campuses, and more specific business sector targeting in the metropolitan New York area. The final bill also included reforms to the existing Excelsior jobs tax credit program that will expand opportunities for small business looking to invest and grow in New York.
Overall, the 2013 session provided mixed messages to New York’s business community. While New York is moving in the right direction on big issues such as balanced budgets and controlled spending growth, more needs to be done to make New York economically competitive, and to reduce compliance burdens on business.
The following provides our issue-by-issue summary of key legislation addressed during the 2013 regular session. Please feel free to contact Business Council staff regarding any of these proposals, or for information on other legislative issues of concern to your business.
Campaign Finance Reform
- “2013 Fair Elections Act”
S.4705-A (Stewart-Cousins)/A.4980-C (Silver)
The so-called“2013 Fair Elections Act” would have created a campaign finance system, similar to the NYC model, using taxpayer money and additional surcharges on businesses.
- “Integrity in Elections Act of 2013”
Would create a campaign finance model based on the NYC model, using taxpayer money and additional surcharges on businesses. This bill did limit party transfers and capped housekeeping contributions, but would have prohibited any political contribution from a business entity.
- “Campaign Finance Reform Act of 2013”
Governor’s Program Bill #12
The language was introduced towards the end of session and was never picked up by a Senate or Assembly sponsor. This bill, like the others mentioned above, would have created a campaign finance system funded by taxpayer money and additional surcharges on businesses.
- The “Public Trust Act”
Governor’s Program Bill #3 - would have enhanced civil and criminal penalties for bribery and public corruption.
Governor’s Program Bill #4
This bill would have made changes to the nominating system by removing the Wilson-Pakula requirement that gives extraordinary power to party bosses. This bill would have also created an enforcement unit within the State Board of Elections.
- NYC Public Construction Contractor Claims
S.3551 (Ranzenhofer)/A.5443 (Brennan)
Brings the process of filing construction claims on public works projects in NYC in line with that same process throughout the rest of the state.
- Transportation Industry Fair Play Act
S.5867 (Savino)/A.5237-B (Wright)
Establishes independent contractordetermination tests for the trucking industry when engaged in transportation of commercial goods.
- Job Order Contracts
S.3564-A (Bonacic)/A.4810-A (Abbate)
Places new conditions and restrictions on the use of job order contracts (JOC) in public work bids.
- Street Cutter Prevailing Wage
S.1075 (Maziarz)/A.5234 (Wright)
Mandate utility companies and their contractors to pay public works-related prevailing wage to all their employees working on projects requiring street opening permits. Not passed by either house.
- Public Construction Savings Pilot Act
S.3484-A (Ranzenhofer)/A.6523 (Schimminger)
Authorizes a pilot project to demonstrate the benefits of changing current requirements for public works projects and project labor agreements (PLAs).
- Piggyback Contracts
S.3766-A (Little)/A.5119-A (Russell)
This bill provides necessary clarification to Ch. 308 of the Laws of 2012 which expanded local governments’ ability to piggyback of off other governmental entities contracts. This chapter amendment will allow them to use contracts let by best value.
- BOCES Telecomm Contracts
S.5706 (Valesky)/A.1398-A (Gunther)
This gives BOCES the ability to enter into contracts with public libraries to provide telecommunications services.
- Cost Comparisons
S.5643 (Robach)/A.7506 (Bronson)
This bill would have required cost comparison studies to be conducted for any consultant work being procured by an agency equal to or above $250,000.
- Procurement Council
S.4915 (Golden)/A.7148 (Camara)
This bill would have expanded the NYS Procurement Council to include representatives from a statewide business trade organization and a local government association and would have also required the Office of General Services to make periodic reports on any major initiatives (IE Strategic Sourcing Initiative) to the Procurement Council.
- “Start-Up NY”
S.5903 (Libous)/A.8113 (Silver), Part A
Creates university-based tax free zones for new economic growth projects; provides business income, personal income, sales/use and, in most cases, real property tax exemptions to businesses locating on designated tax free zones; up to 10,000 new employees per year to receive personal income tax exemption. Tax free period runs for 10 years for approved businesses; the program is closed to new business applications on 12/31/2020.
- Excelsior Jobs program reforms
S.5903 (Libous)/A.8113 (Silver), Part C
Excelsior amendments include: a 50% reduction in the job creation threshold for program eligibility; a new 25 jobs threshold (10 for manufacturers) for eligibility in the program’s investment track; allowance for a proportional reduction in tax credits if a business does not achieve 100 percent of its jobs target; and the ability for ESDC to roll over 50% of any unallocated credits to future program years.
- Casinos – See Tourism section below.
- NYC Angel Investor Credit
S.5238 (Golden)/A.2355 (Scarborough)
Authorizes NYC to adopt a an angel investor credit against the city’s unincorporated business and personal income tax, for investment in certain qualified emerging companies.
- Biodiesel Heating Oil
S.1184A (Maziarz)/A.7906 (Sweeney)
Mandate a two percent biodiesel requirement for all heating oil sold in the MTA region by October 1, 2013 and statewide by July 1, 2014.
S.5844 (RULES)/A.8073 (Sweeney)
Amends the powers and duties of the department of public service and the Long Island power authority; reconstitutes the makeup of the board of trustees of LIPA.
- Natural Gas Transportation and Storage
Promotes the extension of natural gas service to business, institutional and residential customers with permitting, financial assistance, real property tax abatement provisions as well as project financing. A less acceptable alternative was presented in S.5846-A Maziarz/A.8110 (Camara), which required criteria for siting and the transportation of liquefied natural and petroleum gas by the end of 2013.
- Solar Funding
Requires the PSC to mandate a minimum $150 million per year solar program for 10 years.
S.5861 (Maziarz) /A.8095 (Brennan)
Authorizes the power authority of the state of New York and the Long Island power authority to enter into public-private partnerships for the improvement of the state's electric transmission grid.
- Mercury-containing Thermostats
S.1676A (Grisanti) / A.8084 (Sweeney)
Requires manufacturers of thermostats to collect mercury-containing thermostats; requires educational outreach; establishes collection goals; requires reporting of collection efforts.
- Sea-level Rise
S.5138 (Fuschillo)/A.6558 (Sweeney)
Among other things, this bill would require certain major permits issued pursuant to the Uniform Procedures Act to include consideration of climate risk.
- Credit Union Memberships and Membership Powers
S.2089 (Griffo)/A.3510 (Robinson)
Expands qualifications for membership into credit unions and creates parity with federal credit unions in the areas of investing and branching.
- Foster Expansion of the Commercial Insurance Market in New York State
S.4327 (Seward)/A.6918 (Steck)
Extends the exemption from rate and form filing requirements for large commercial insureds for two additional years.
- Foreign Investments by Life Insurance Companies
S.2890 (Seward)/A.2130 (Simotas)
Increases the permitted foreign investments by life insurers from 16% to 20% of the insurers assets.
- Regulatory Update
S.4366-A (Griffo)/A.7213-A (Robinson)
This bill updates the statutory framework for the regulation of banking and related entities subject to the jurisdiction of the Department of Financial Services.
- Expedited Foreclosure
S.5719 (Skelos)/A.7871 (Weinstein)
Provides for summary action to foreclose upon vacant and abandoned real property.
- Foreclosure Fraud Prevention Act of 2013
S.5251 (Klein)/A.7395 (Weinstein)
Creates criminal penalties for residential mortgage businesses and agents who intentionally engage in foreclosure fraud.
- Credit Union Deposit Program
S.5016 (Maziarz)/A.7198 (Rodriguez)
Allows the State Comptroller and the Commissioner of Taxation and Finance to place state funds into local credit unions.
- Employer Retaliation Protections
S.4453 (Savino)/A.815 (Abinanti)
Prohibits employer retaliation against employees in financial services industry who report violations of laws, rules and regulations.
- Post Sandy Insurance “Reform” Bills
A number of bills were proposed, but none received two-house approval. Significant bills included: S3045 (Lanza) /A.2287-A (Silver), homeowners’ bill of rights; S.3413-A (Carlucci)/A.1092-A (Skoufis), expedited claim investigation and settlement; S.2032 (Lavalle)/A.2729 (Weisenberg), homeowners deductibles triggers for windstorm; A.5780 (Weinstein), private right of action for unfair claim settlements; S.5580 (Seward)/A.7452 (Moya), regarding denial of business interruption insurance; A.7455-A (Goldfeder), anti-concurrent causation clauses; and S.5582 (Seward)/A.7456 (Brook-Krasny), requires the Superintendent of DFS to prepare report cards on how insurers performed during an emergency or disaster.
- Freelancer’s Union Insurance program
S.4526 (Hannon) / A.6519 (Silver)
This creates a new exempts the Freelancers Union’s Health Insurance product from the community rating law and other ACA related mandates, allowing only that organization the opportunity to offer experience rated insurance products at a steep discount compared to other carriers, decreasing the pool of customers from the soon to be established State Exchange and creating an imbalance.
S.5715 (Bonacic)/A.7828 (Weinstein)
Will deny health plans the ability to engage in subrogation for third-party source payments made in the context of a settlement, thus removing the ability of health plans to remedy improper settlements ultimately charged to New York’s employers as the primary payers of health insurance premiums.
- Mail Order Pharma
S.3995 (Maziarz) / A.5723 (Heastie)
Limited pharmacy mail order options for health insurance purchasers and would have both reduced competition and raised prices for health insurance consumers. Passed the Assembly.
- Out of Network Providers
S.2551 (Hannon) / A.7253 (Montesano)
Would have required health plans which cover out-of-network services to reimburse out-of-network medical services as a percentage of 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. It also requires that health plans make available a policy in each geographic region of the state that would provide out-of-network coverage for at least 80% of the FAIR Health UCR. Passed Senate.
- Repeal of WTPA Annual Notice
S.2313 (DeFrancisco)/A.2482 (Gabryszak)
This bill would repeal the annual notice requirement of the Wage Theft Prevention Act of 2010. It passed the Senate only.
- Women’s Equality Act (Governor’s Program Bill #19)
This legislation contained all ten points of the Governor’s proposed Woman’s Equality Act. It passed the Assembly.
- Women’s Equality Act
The Senate introduced the act as ten separate bills, and passed all ten. Of particular interest to Business Council members are: S.5872 (Savino), modifies sex-based wage discrimination provisions, prohibits restrictions on wage disclosure, and increases penalties for wage discrimination; S.5873 (Valesky), extends existing sexual harassment prohibitions to employers of fewer than four; S.5874 (Little), authorizes awarding attorney fees to either prevailing party in sex discrimination cases; S.5875 (Little), prohibits family status-based discrimination by employers; and S.5880 (Hannon), clarifies existing reasonable accommodation provisions related to pregnancy-related medical conditions. These are all Governor’s Program Bills, and have not been individually introduced in the Assembly. These proposals largely reflect amendments recommended by The Business Council.
- Whistle blower protections
S.3862-A (Klein)/A.5696-A (Benedetto)
Would expand current protections for whistleblowers by defining illegal business activity very broadly and subjecting employers to limitless exposure. It passed the Assembly.
- Direct Relationship in Corrections Law
S.3357 (Hassell-Thompson)/A.4887 (Sepulveda)
This bill prohibits an employer from denying employment due to a prior criminal conviction, unless the employer determines a connection between the crime and the job or determines the hiring would create an unreasonable safety risk to people or property. It passed the Assembly.
- Reasonable Accommodation for Victims of Domestic Violence
S.3385 (Hassell-Thompson)/A.898 (Weinstein)
The bill would require employers to extend “reasonable accommodation” to victims of domestic violence. It passed the Assembly.
- Credit privacy in Employment Act
Would prohibit employers from using a consumer credit report in any hiring or employment related decisions. It passed the Assembly.
- Tax credits – See Economic Development section above for summary of business development-related tax credit legislation.
- Youth Tax Credit
S.4762 (DeFrancisco)/A.7928-A (Roberts)
Amends the eligibility provisions of the New York Youth Works Tax Credit, which was previously extended to cover 2014 through 2018, by reduce the minimum hours a week an full time student needed to work from 20 hours to 10 hours in order for the employer to qualify for the tax credit.
- Utility Property Assessments
S.2644 (Little)/A.5503 (Galef)
Authorizes the State Board of Real Property Tax Services to establish a process for the determination and utilization of assessment ceilings to be used in the local assessment of public utility mass properties.
- Rapid Response to Declared State Disaster
S.5323-A (Maziarz)/A.7340-A (Farrell)
Removes thresholds for establishing residency or doing business in New York for out-of-state companies that temporarily provide resources and personnel in the state during a state declared emergency.
- Assessment Ceilings for Public Utility Mass Real Property
S.2644 (Little)/A.5503 (Galef)
Creates a uniform assessment standard for utility transmission property located on public or private land.
- Publication of Rate Schedules by Telephone Corporations
S.2512-B (Maziarz)/A.5466-A (Morelle)
Eliminates telephone corporation rate schedule filings with the PSC for non-basic services. Companies can post schedules on their websites.
- Broadband Tax Credits
S.5481 (Maziarz)/A.7588 (Magee)
Provides a refundable tax credit for small businesses and residents who install broadband.
- Telecommunications Call Centers
S.4434-B (Maziarz)/A.7144-A (Rosenthal)
Prevents telecommunications providers from using call centers out of state.
- Employee Personal Account Disclosures
S.2434-B (Klein)/A.443-B (Dinowitz)
Prohibits employer from requesting an employee to disclose their personal account credentials.
- “Upstate Economic Development Act of 2013”
S.5883 (Bonacic)/ A.8101 (Pretlow)
Provides for a system governing the application and siting process for casino gaming licenses.
- Casino Constitutional Amendment
S.5898 (Bonacic)/A.8068 (Pretlow)
This was the required second passage of this bill for a constitutional amendment necessary to allow for casino gaming at up to seven facilities in New York State. This issue will now go before voters in a public referendum before full casino gaming can be legalized (outside of the Native American run gaming facilities).
- Sunday Sales
S.2227 (Grisanti)/A.3735 (Benedetto)
This bill would have allowed alcohol sales for on-site consumption to begin at 11AM on Sundays.
- Service Charges
S.3109-A (Martins) and A.2179-D (Goldfeder)
These bills would have clarified in Labor Law the treatment of service charges that are not gratuities and would have also created an affirmative defense for employers facing lawsuits that stem from DOL advisory opinions that were contrary to a court ruling (World Yacht v. Samiento).
S.3131-B (Martins) / A.5940 (Bronson)
Mandates the Comp Board to include treatment by duly licensed or certified acupuncturists under the Workers’ Compensation Law, like leading to a proliferation of acupuncture treatment under the comp system, increasing costs for employers.
- Surviving Spouses
S.4090 (Savino) / A.6559 (Wright)
Allows for the continuation of workers' compensation death benefits to a surviving spouse and children regardless of remarriage.
- Pharma networks
S.1754 (Robach) / A.2653 (Simotas)
Would have reversed one of the cost reductions included in the 2007 workers’ compensation reform package, allowing an injured employee to utilize any pharmacy that charges below the state’s “published prices,” a price typically considerably higher than an in-network negotiated price, regardless of whether such pharmacy was in the employer’s network. Passed Assembly, died in Senate Rules Committee.
- PPD Claimants in DOL Programs
S.5294 (Savino) / A.7961 (Heastie)
Would have mandated payment of comp awards in cases former employees with partial disabilities who have voluntarily withdrawn from the labor market and enrolled in one of the Department of Labor's reemployment services or educational institutions. Did not pass either house.
- Collateral Estoppel
S.5754 (Nozzolio)/A.7757-A (Heastie)
Would have reversed the recent Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, which clarified the usage of “collateral estoppel” on a Workers Comp Board proceeding’s findings of fact in the context of civil suits on the same set of facts. Passed the Assembly.
- Massage Therapy
S.1114-A (Maziarz)/A.6634 (Wright)
Would have created a fee schedule for massage therapy services, essentially expanding the comp system to include yet another group of workers’ compensation providers and mandating that employers and insurers pay for the services of licensed massage therapists (LMTs) under the Workers’ Compensation Law. Did not pass either house.