ALBANY, N.Y.—The Business Council of New York State, Inc. today joined with sixteen other groups, representing a diverse coalition of companies and organizations who regularly conduct business with the state, to formally call for the state to rescind Executive Order 162.
“The Executive Order may be well-intentioned, but it is fatally flawed and cannot be fixed through informal guidance or implementation plans,” said Heather C. Briccetti Esq., president and CEO of The Business Council of New York State, Inc. “While we appreciate the administration’s willingness to delay implementation and provide for a public comment period, the fact remains that this order is simply unworkable.”
Executive Order 162 was issued January 11, 2017, and is applicable to state contracts executed on or after June 1, 2017. It requires state contractors and their subcontractors to submit extensive, detailed workforce and salary data to the state, either quarterly or monthly, depending on the type of contract.
The full text of the coalition’s letter is available online and copied here:
The undersigned organizations represent diverse business sectors. Our members include numerous firms that are current or potential contractors with New York State and therefore subject to the expanded workforce utilization reporting requirements proposed under Executive Order 162.
We support existing federal and state statutory equal pay protections, but we strongly oppose EO 162 and its burdensome and excessive data collection and reporting mandates.
It is questionable whether the Governor has the authority to implement an Executive Order of this type. Moreover, even if the Administration has such authority, the Executive Order and the draft guidance documents create significant and unworkable compliance obligations. Moreover, these obligations in some respects duplicate, and in other respects conflict with, the expanded federal pay equity reporting obligations expected to take effect in early 2018 with the implementation of the revised EEO-1 reports.
In contrast to the federal plan, the state Executive Order and its preliminary implementation plan will result in the arbitrary collection of unreliable, and in some respects, meaningless or misleading, information by the state. This policy and data will do little to advance the state’s interest in assuring pay equity by contractors. The new state mandate will be especially hard on smaller contractors, including MWBEs, which have limited administrative staffing and lack the means to hire additional staffing to comply with reporting mandates. For many small businesses, the most onerous aspect of doing business with New York is the recordkeeping and reporting requirements. This proposal will only make it more difficult for businesses, particularly small businesses, to contract with the state.
Finally, despite the words used in the preliminary guidance documents presented by Empire State Development, the Order and implementation plan fail to actually safeguard the confidentiality of company and employee information. Such assurances are of little value without being adopted through a more formal legal process.
For these reasons, Executive Order 162 is fatally flawed and cannot be remedied through informal guidance, implementation plans, or FAQ documents. We urge the Administration to rescind the current order, and engage in a meaningful dialogue with the contracting community and other interested parties, in a manner consistent with long-held administrative law principles.
The list of organizations joining The Business Council in opposing this order are:
American Council of Engineering Companies of New York
The Associated General Contractors of New York State
Association of New York City Concrete Producers, Inc.
Building Contractors Association of Westchester and the Mid-Hudson Region
Construction Industry Council of Westchester and Hudson Valley, Inc.
Empire State Subcontractors Association
General Contractors Association of NY
Internet Association
IT Alliance for Public Sector
Long Island Contractors’ Association, Inc.
New York Bankers Association
New York Health Plan Association
New York State Society of CPAs
SIFMA
Subcontractors Trade Association
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