S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          853
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    January 7, 2015
                                      ___________
       Introduced  by M. of A. STECK -- read once and referred to the Committee
         on Governmental Operations
       AN ACT to amend the executive law, in relation to  the  state  employees
         equal employment opportunity act
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The executive law is amended by adding a new  article  14-A
    2  to read as follows:
    3                                 ARTICLE 14-A
    4              STATE EMPLOYEES EQUAL EMPLOYMENT OPPORTUNITY ACT
    5  SECTION 280. PURPOSES OF ARTICLE.
    6          280-A. DEFINITIONS.
    7          280-B. POLICIES.
    8          280-C. AGENCY PROGRAM.
    9          280-D. AGENCY PROCESSING.
   10          280-E. PRE-COMPLAINT PROCESSING.
   11          280-F. INDIVIDUAL COMPLAINTS.
   12          280-G. DISMISSALS OF COMPLAINTS.
   13          280-H. INVESTIGATION OF COMPLAINTS.
   14          280-I. HEARINGS.
   15          280-J. CLASS COMPLAINTS.
   16          280-K. RELATIONSHIP TO NEGOTIATED GRIEVANCE PROCEDURE.
   17          280-L. APPEALS TO THE COMMISSION.
   18          280-M. DECISIONS ON APPEALS.
   19          280-N. REMEDIES AND RELIEF.
   20          280-O. COMPLIANCE WITH FINAL DECISIONS.
   21          280-P. ENFORCEMENT OF FINAL DECISIONS.
   22          280-Q. INTERIM RELIEF.
   23          280-R. JOINT PROCESSING AND CONSOLIDATION OF COMPLAINTS.
   24          280-S. APPEALS OF DECISIONS OF THE COMMISSION.
   25          280-T. EEO GROUP STATISTICS.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04416-01-5
       A. 853                              2
    1    S  280. PURPOSES OF ARTICLE. IT IS THE POLICY OF THE STATE OF NEW YORK
    2  TO PROVIDE EQUAL OPPORTUNITY IN EMPLOYMENT  FOR  ALL  EMPLOYEES  OF  THE
    3  STATE  WITH  THE  SAME  PROTECTIONS PROVIDED TO EMPLOYEES IN THE PRIVATE
    4  SECTOR AS SET FORTH IN ARTICLE FIFTEEN OF THIS CHAPTER, CONSTITUTING THE
    5  HUMAN  RIGHTS LAW. THIS ACT SHALL BE KNOWN AS THE "STATE EMPLOYEES EQUAL
    6  EMPLOYMENT OPPORTUNITY ACT."
    7    S 280-A. DEFINITIONS. 1.  FOR  PURPOSES  OF  THIS  ARTICLE,  THE  TERM
    8  "DISCRIMINATION" SHALL INCLUDE SEXUAL HARASSMENT AND PREGNANCY DISCRIMI-
    9  NATION AS FORMS OF PROHIBITED DISCRIMINATION.
   10    2. THE TERM "EEO" SHALL MEAN EQUAL EMPLOYMENT OPPORTUNITY.
   11    S 280-B. POLICIES. 1. NO STATE EMPLOYEE OR PERSON ACTING IN SUPPORT OF
   12  SUCH  EMPLOYEE,  WHETHER PRE-INVESTIGATION OR DURING THE PROCESSING OF A
   13  COMPLAINT, SHALL BE SUBJECT TO RETALIATION  FOR  OPPOSING  ANY  PRACTICE
   14  MADE UNLAWFUL BY VIRTUE OF THE NEW YORK STATE HUMAN RIGHTS LAW.
   15    2.  EVERY STATE EMPLOYEE ACCUSED OF DISCRIMINATION COVERED UNDER ARTI-
   16  CLE FIFTEEN OF THIS CHAPTER MAY USE THE PROCEDURES SET FORTH  HEREIN  TO
   17  CHALLENGE  THE  VALIDITY  OF SUCH ACCUSATIONS AND ANY ADVERSE EMPLOYMENT
   18  ACTION IMPOSED AS A RESULT OF SUCH ACCUSATIONS. PROVIDED, HOWEVER,  THAT
   19  ANY RELIEF GRANTED HEREIN FOR AN EMPLOYEE WRONGFULLY ACCUSED OF DISCRIM-
   20  INATION SHALL BE LIMITED TO THE AFFECTED EMPLOYEE, AS NO EMPLOYEE MAKING
   21  AN ACCUSATION OF DISCRIMINATION SHALL BE RETALIATED AGAINST IN ANY WAY.
   22    3.  (A)  THIS ARTICLE APPLIES TO THE STATE, ALL AGENCIES, BRANCHES, OR
   23  DEPARTMENTS OR DIVISIONS THEREOF, THE EXECUTIVE AND LEGISLATIVE BRANCHES
   24  AT ALL LEVELS OF GOVERNMENT, A COUNTY, CITY, TOWN, VILLAGE OR ANY  OTHER
   25  MUNICIPAL  CORPORATION,  A  SCHOOL  DISTRICT  OR ANY GOVERNMENTAL ENTITY
   26  OPERATING A PUBLIC SCHOOL, COLLEGE OR UNIVERSITY, A  PUBLIC  IMPROVEMENT
   27  OR  SPECIAL  DISTRICT, A PUBLIC AUTHORITY, COMMISSION, OR PUBLIC BENEFIT
   28  CORPORATION, OR ANY OTHER PUBLIC CORPORATION, AGENCY OR  INSTRUMENTALITY
   29  OR UNIT OF GOVERNMENT WHICH EXERCISES GOVERNMENTAL POWERS UNDER THE LAWS
   30  OF  THE  STATE.  THE WORD "AGENCY" AS USED IN THIS ARTICLE SHALL EMBRACE
   31  ALL OF THE AFOREMENTIONED GOVERNMENTAL ENTITIES.
   32    (B) THIS ARTICLE APPLIES TO ALL CLASS  AND  INDIVIDUAL  COMPLAINTS  OF
   33  DISCRIMINATION  COGNIZABLE  UNDER  ARTICLE  FIFTEEN OF THIS CHAPTER, THE
   34  EQUAL PAY ACT SET FORTH IN ARTICLE SIX OF THE  LABOR  LAW,  AND  ARTICLE
   35  TWENTY-THREE-A OF THE CORRECTION LAW.
   36    4.  ALL  NOTICES REQUIRED IN THIS CHAPTER TO BE GIVEN TO AN INDIVIDUAL
   37  EMPLOYEE SHALL BE IN WRITING AND SHALL BE SIGNED  BY  THE  AGGRIEVED  OR
   38  AFFECTED INDIVIDUAL.
   39    S  280-C.  AGENCY PROGRAM. 1. EVERY AGENCY SHALL MAINTAIN A CONTINUING
   40  AFFIRMATIVE ACTION PROGRAM TO PROMOTE EQUAL OPPORTUNITY AND TO  IDENTIFY
   41  AND  ELIMINATE DISCRIMINATORY PRACTICES AND POLICIES. IN SUPPORT OF SUCH
   42  PROGRAM, WHICH SHALL BE SUBMITTED TO THE NEW YORK  STATE  COMMISSION  ON
   43  HUMAN RIGHTS FOR REVIEW AND APPROVAL, THE AGENCY SHALL:
   44    (A)  PROVIDE  SUFFICIENT RESOURCES TO ITS EQUAL EMPLOYMENT OPPORTUNITY
   45  PROGRAM TO ENSURE EFFICIENT AND SUCCESSFUL OPERATION;
   46    (B)  PROVIDE  FOR  THE  PROMPT,  FAIR  AND  IMPARTIAL  PROCESSING   OF
   47  COMPLAINTS IN ACCORDANCE WITH THIS ARTICLE;
   48    (C) CONDUCT A CONTINUING CAMPAIGN TO ERADICATE EVERY FORM OF PREJUDICE
   49  OR  DISCRIMINATION  FROM  THE AGENCY'S PERSONNEL POLICIES, PRACTICES AND
   50  WORKING CONDITIONS;
   51    (D) COMMUNICATE THE AGENCY'S EQUAL EMPLOYMENT OPPORTUNITY  POLICY  AND
   52  PROGRAM  AND ITS EMPLOYMENT NEEDS TO ALL SOURCES OF JOB CANDIDATES WITH-
   53  OUT REGARD TO ANY PROHIBITED  CHARACTERISTIC  SET  FORTH  IN  THE  HUMAN
   54  RIGHTS  LAW,  THE  EQUAL  PAY  ACT,  AND  ARTICLE  TWENTY-THREE-A OF THE
   55  CORRECTION LAW AND PROVIDE RECRUITMENT ASSISTANCE ON A CONTINUING BASIS;
       A. 853                              3
    1    (E) REVIEW, EVALUATE, AND CONTROL MANAGERIAL AND SUPERVISORY  PERFORM-
    2  ANCE  IN  SUCH  A MANNER AS TO ENSURE CONTINUING AFFIRMATIVE APPLICATION
    3  AND VIGOROUS ENFORCEMENT OF THE POLICY OF EQUAL OPPORTUNITY AS SET FORTH
    4  IN THIS ARTICLE, AND PROVIDE ORIENTATION, TRAINING AND ADVICE TO  MANAG-
    5  ERS  AND SUPERVISORS TO ASSURE THEIR UNDERSTANDING AND IMPLEMENTATION OF
    6  THE EQUAL EMPLOYMENT OPPORTUNITY POLICY AND PROGRAM;
    7    (F) TAKE APPROPRIATE DISCIPLINARY ACTION AGAINST EMPLOYEES WHO  ENGAGE
    8  IN DISCRIMINATORY PRACTICES;
    9    (G) MAKE REASONABLE ACCOMMODATION TO THE RELIGIOUS NEEDS OF APPLICANTS
   10  AND  EMPLOYEES WHEN THOSE ACCOMMODATIONS CAN BE MADE WITHOUT UNDUE HARD-
   11  SHIP ON THE BUSINESS OF THE AGENCY;
   12    (H) MAKE REASONABLE ACCOMMODATION TO  THE  KNOWN  PHYSICAL  OR  MENTAL
   13  LIMITATIONS  OF  QUALIFIED  APPLICANTS  AND  EMPLOYEES WITH DISABILITIES
   14  UNLESS THE ACCOMMODATION WOULD IMPOSE AN UNDUE HARDSHIP ON THE OPERATION
   15  OF THE AGENCY'S PROGRAM. IN THIS REGARD, AN UNPAID LEAVE OF  ABSENCE  TO
   16  ENABLE  AN EMPLOYEE TO RECOVER FROM AN EPISODIC MANIFESTATION OF A DISA-
   17  BILITY SHALL CONSTITUTE REASONABLE ACCOMMODATION;
   18    (I) PROVIDE RECOGNITION TO EMPLOYEES, SUPERVISORS, MANAGERS AND  UNITS
   19  DEMONSTRATING SUPERIOR ACCOMPLISHMENT IN EQUAL EMPLOYMENT OPPORTUNITY;
   20    (J)  ESTABLISH  A SYSTEM FOR PERIODICALLY EVALUATING THE EFFECTIVENESS
   21  OF THE AGENCY'S OVERALL EQUAL EMPLOYMENT OPPORTUNITY EFFORT;
   22    (K) PROVIDE THE MAXIMUM FEASIBLE OPPORTUNITY TO EMPLOYEES  TO  ENHANCE
   23  THEIR SKILLS THROUGH ON-THE-JOB TRAINING, WORK-STUDY PROGRAMS, AND OTHER
   24  TRAINING  MEASURES  SO  THAT THEY MAY PERFORM AT THEIR HIGHEST POTENTIAL
   25  AND ADVANCE IN ACCORDANCE WITH THEIR ABILITIES;
   26    (L) INFORM ITS EMPLOYEES AND RECOGNIZED  LABOR  ORGANIZATIONS  OF  THE
   27  AFFIRMATIVE  EQUAL  EMPLOYMENT OPPORTUNITY POLICY AND PROGRAM AND ENLIST
   28  THEIR COOPERATION; AND
   29    (M) PARTICIPATE AT THE COMMUNITY  LEVEL  WITH  OTHER  EMPLOYERS,  WITH
   30  SCHOOLS  AND  UNIVERSITIES,  AND WITH OTHER PUBLIC AND PRIVATE GROUPS IN
   31  COOPERATIVE ACTION TO IMPROVE  EMPLOYMENT  OPPORTUNITIES  AND  COMMUNITY
   32  CONDITIONS THAT AFFECT EMPLOYABILITY.
   33    2.  IN  ORDER  TO IMPLEMENT ITS PROGRAM, EACH AGENCY SHALL, SUBJECT TO
   34  REVIEW AND APPROVAL BY THE NEW YORK STATE COMMISSION ON HUMAN RIGHTS:
   35    (A) DEVELOP THE PLANS, PROCEDURES AND REGULATIONS NECESSARY  TO  CARRY
   36  OUT ITS PROGRAM;
   37    (B)  ESTABLISH  OR  MAKE  AVAILABLE  AN ALTERNATIVE DISPUTE RESOLUTION
   38  PROGRAM. SUCH PROGRAM MUST BE AVAILABLE FOR BOTH THE PRE-COMPLAINT PROC-
   39  ESS AND THE FORMAL COMPLAINT PROCESS;
   40    (C) APPRAISE ITS PERSONNEL OPERATIONS AT REGULAR INTERVALS  TO  ASSURE
   41  THEIR CONFORMITY WITH ITS PROGRAM AND THIS STATUTE;
   42    (D)  DESIGNATE:  A  DIRECTOR  OF  EEO;  EEO  OFFICER OR OFFICERS; SUCH
   43  SPECIAL EMPHASIS PROGRAM MANAGERS, INCLUDING, BUT NOT LIMITED TO, PEOPLE
   44  WITH DISABILITIES PROGRAM, WOMEN'S PROGRAM, MINORITY EMPLOYMENT PROGRAM;
   45  AND CLERICAL AND ADMINISTRATIVE SUPPORT AS MAY BE NECESSARY TO CARRY OUT
   46  THE FUNCTIONS DESCRIBED IN THIS CHAPTER IN ALL ORGANIZATIONAL  UNITS  OF
   47  THE  AGENCY  AND AT ALL AGENCY INSTALLATIONS.  THE EEO DIRECTOR SHALL BE
   48  UNDER THE IMMEDIATE SUPERVISION OF THE AGENCY HEAD,  PROVIDED,  HOWEVER,
   49  THAT  NO AGENCY SHALL BE REQUIRED TO HIRE ADDITIONAL PERSONNEL TO EFFEC-
   50  TUATE THIS MANDATE UNLESS THIS MANDATE CANNOT BE  COMPLIED  WITH  UNLESS
   51  ADDITIONAL  PERSONNEL  ARE HIRED. THE FUNCTIONS IN THIS PARAGRAPH MAY BE
   52  CONSOLIDATED IN ONE EXISTING EMPLOYEE FOR APPROPRIATE SIZED AGENCIES;
   53    (E) MAKE WRITTEN MATERIALS AVAILABLE TO ALL EMPLOYEES  AND  APPLICANTS
   54  INFORMING  THEM  OF THE VARIETY OF EQUAL EMPLOYMENT OPPORTUNITY PROGRAMS
   55  AND ADMINISTRATIVE AND JUDICIAL REMEDIAL PROCEDURES  AVAILABLE  TO  THEM
       A. 853                              4
    1  AND  PROMINENTLY  POST  SUCH  WRITTEN MATERIALS IN ALL PERSONNEL AND EEO
    2  OFFICES AND THROUGHOUT THE WORKPLACE;
    3    (F)  ENSURE  THAT FULL COOPERATION IS PROVIDED BY ALL AGENCY EMPLOYEES
    4  TO EEO COUNSELORS, AGENCY EEO PERSONNEL, AND EEO  INVESTIGATORS  IN  THE
    5  PROCESSING  AND  RESOLUTION  OF  PRE-COMPLAINT  MATTERS  AND  COMPLAINTS
    6  INVOLVING THE AGENCY AND  THAT  FULL  COOPERATION  IS  PROVIDED  TO  THE
    7  COMMISSION  IN  THE  COURSE OF APPEALS, INCLUDING GRANTING INVESTIGATORS
    8  AND THE COMMISSION ROUTINE ACCESS TO PERSONNEL, EMAIL, AND OTHER RECORDS
    9  OF THE AGENCY WHEN REQUIRED IN CONNECTION WITH AN INVESTIGATION; AND
   10    (G) PUBLICIZE TO ALL EMPLOYEES AND POST AT ALL TIMES THE NAMES,  BUSI-
   11  NESS  TELEPHONE  NUMBERS  AND  BUSINESS  ADDRESSES OF THE EEO COUNSELORS
   12  (UNLESS THE COUNSELING FUNCTION IS CENTRALIZED, IN WHICH CASE  ONLY  ONE
   13  TELEPHONE NUMBER AND ADDRESS NEED BE PUBLICIZED AND POSTED), A NOTICE OF
   14  THE  TIME  LIMITS  AND  THE  NECESSITY  OF CONTACTING A COUNSELOR BEFORE
   15  FILING A COMPLAINT, AND THE TELEPHONE NUMBERS AND ADDRESSES OF  THE  EEO
   16  DIRECTOR, EEO OFFICER OR OFFICERS AND SPECIAL EMPHASIS PROGRAM MANAGERS,
   17  OR OTHER PERSON RESPONSIBLE FOR EEO MATTERS.
   18    3.  UNDER  EACH  AGENCY PROGRAM, THE EEO DIRECTOR SHALL BE RESPONSIBLE
   19  FOR:
   20    (A) ADVISING THE HEAD OF THE AGENCY WITH RESPECT TO THE PREPARATION OF
   21  EQUAL EMPLOYMENT OPPORTUNITY PLANS, PROCEDURES, REGULATIONS, REPORTS AND
   22  OTHER MATTERS PERTAINING TO THE POLICY SET FORTH IN SECTION TWO  HUNDRED
   23  EIGHTY OF THIS ARTICLE AND THE AGENCY PROGRAM;
   24    (B)  EVALUATING  FROM TIME TO TIME THE SUFFICIENCY OF THE TOTAL AGENCY
   25  PROGRAM FOR EEO AND REPORTING TO THE HEAD OF THE AGENCY WITH RECOMMENDA-
   26  TIONS AS TO ANY IMPROVEMENT OR CORRECTION NEEDED, INCLUDING REMEDIAL  OR
   27  DISCIPLINARY  ACTION  WITH  RESPECT  TO MANAGERIAL, SUPERVISORY OR OTHER
   28  EMPLOYEES WHO HAVE FAILED IN THEIR RESPONSIBILITIES;
   29    (C) WHEN AUTHORIZED BY THE HEAD  OF  THE  AGENCY,  MAKING  CHANGES  IN
   30  PROGRAMS  AND  PROCEDURES DESIGNED TO ELIMINATE DISCRIMINATORY PRACTICES
   31  AND TO IMPROVE THE AGENCY'S PROGRAM FOR EQUAL EMPLOYMENT OPPORTUNITY;
   32    (D) PROVIDING FOR COUNSELING OF  AGGRIEVED  INDIVIDUALS  AND  FOR  THE
   33  RECEIPT  AND  PROCESSING OF INDIVIDUAL AND CLASS COMPLAINTS OF DISCRIMI-
   34  NATION; AND
   35    (E) ASSURING THAT INDIVIDUAL  COMPLAINTS  ARE  FAIRLY  AND  THOROUGHLY
   36  INVESTIGATED  AND THAT THE AGENCY COOPERATES WITH THE INVESTIGATION IN A
   37  TIMELY MANNER IN ACCORDANCE WITH THIS ARTICLE.
   38    4. THE COMMISSION SHALL PROVIDE DIRECTIVES,  INSTRUCTIONS,  FORMS  AND
   39  OTHER  MATERIALS  AS  NEEDED TO CARRY OUT THE COMMANDS AND OBJECTIVES OF
   40  THIS ARTICLE.
   41    S 280-D. AGENCY PROCESSING. 1. EACH AGENCY SHALL ADOPT PROCEDURES  FOR
   42  PROCESSING  INDIVIDUAL  AND  CLASS COMPLAINTS OF DISCRIMINATION THAT ARE
   43  CONSISTENT  WITH  THE  REQUIREMENTS  OF  THIS  ARTICLE  AND   WITH   THE
   44  INSTRUCTIONS  FOR COMPLAINT PROCESSING AS SET FORTH IN DIRECTIVES OF THE
   45  NEW YORK STATE COMMISSION ON HUMAN RIGHTS.
   46    2. THE COMMISSION  SHALL  PERIODICALLY  REVIEW  AGENCY  RESOURCES  AND
   47  PROCEDURES TO ENSURE COMPLIANCE WITH THIS ARTICLE.
   48    S  280-E.  PRE-COMPLAINT  PROCESSING. 1. AGGRIEVED PERSONS WHO BELIEVE
   49  THEY HAVE SUFFERED DISCRIMINATION OR RETALIATION PROHIBITED IN  THE  NEW
   50  YORK  STATE  HUMAN  RIGHTS  LAW  MUST  CONSULT AN EEO COUNSELOR PRIOR TO
   51  FILING A COMPLAINT IN ORDER TO TRY TO INFORMALLY RESOLVE THE MATTER.
   52    2. EACH AGENCY SHALL MAKE SUCH A COUNSELOR AVAILABLE TO  SUCH  PERSON,
   53  PROVIDED,  HOWEVER, THAT SUCH EEO COUNSELOR MUST NOTIFY SUCH PERSON IN A
   54  WRITING SIGNED BY THAT PERSON OR HIS OR HER REPRESENTATIVE THE RIGHT  TO
   55  UTILIZE  AS  AN  ALTERNATIVE  AN  EEO COUNSELOR PROVIDED BY THE NEW YORK
   56  STATE COMMISSION ON HUMAN RIGHTS.
       A. 853                              5
    1    3. AN AGGRIEVED PERSON MUST INITIATE CONTACT WITH A  COUNSELOR  WITHIN
    2  NINETY DAYS OF THE DATE OF THE MATTER ALLEGED TO BE DISCRIMINATORY.  THE
    3  NINETY  DAYS  SHALL  RUN FROM THE TIME WHEN THE AGGRIEVED PERSON KNEW OR
    4  SHOULD HAVE KNOWN THROUGH INFORMATION READILY AVAILABLE TO  HIM  OR  HER
    5  THAT THE DISCRIMINATORY ACT OR CHALLENGED PERSONNEL ACTION HAD OCCURRED.
    6    4. THE AGENCY OR THE COMMISSION SHALL EXTEND THE NINETY DAY TIME LIMIT
    7  IN  SUBDIVISION  THREE OF THIS SECTION WHEN THE INDIVIDUAL SHOWS THAT HE
    8  OR SHE WAS NOT NOTIFIED OF THE TIME LIMITS, THAT DESPITE  DUE  DILIGENCE
    9  HE  OR SHE WAS PREVENTED BY CIRCUMSTANCES BEYOND HIS OR HER CONTROL FROM
   10  CONTACTING THE COUNSELOR WITHIN THE TIME LIMITS, OR  FOR  OTHER  REASONS
   11  CONSIDERED SUFFICIENT BY THE AGENCY OR THE COMMISSION.
   12    5.  AT THE INITIAL COUNSELING SESSION, COUNSELORS MUST ADVISE INDIVID-
   13  UALS IN WRITING OF THEIR  RIGHTS  AND  RESPONSIBILITIES,  INCLUDING  THE
   14  RIGHT  TO  REQUEST AN INVESTIGATION, THE RIGHT TO REQUEST A HEARING, THE
   15  DUTY TO MITIGATE DAMAGES, ADMINISTRATIVE AND COURT TIME FRAMES, AND THAT
   16  ONLY THE CLAIMS RAISED IN PRE-COMPLAINT COUNSELING, OR ISSUES OR  CLAIMS
   17  LIKE,  OR  RELATED  TO,  ISSUES  OR CLAIMS RAISED IN PRE-COMPLAINT COUN-
   18  SELING, MAY BE ALLEGED IN A SUBSEQUENT COMPLAINT FILED WITH THE  AGENCY,
   19  EXCEPT  AS  PROVIDED HEREIN. COUNSELORS MUST ADVISE INDIVIDUALS OF THEIR
   20  DUTY TO KEEP THE AGENCY AND COMMISSION INFORMED OF THEIR CURRENT ADDRESS
   21  AND, WHERE APPLICABLE, TO SERVE COPIES OF RELEVANT PAPERS ON THE AGENCY.
   22  THE NOTICE SHALL  INCLUDE  A  NOTICE  OF  THE  RIGHT  TO  FILE  A  CLASS
   23  COMPLAINT.  IF THE AGGRIEVED PERSON INFORMS THE COUNSELOR THAT HE OR SHE
   24  WISHES TO FILE A CLASS COMPLAINT, THE COUNSELOR SHALL EXPLAIN THE  CLASS
   25  COMPLAINT PROCEDURES AND THE RESPONSIBILITIES OF A CLASS AGENT.
   26    6.  COUNSELORS  SHALL  ADVISE AGGRIEVED PERSONS THAT, WHERE THE AGENCY
   27  AGREES TO OFFER ALTERNATIVE DISPUTE RESOLUTION IN THE  PARTICULAR  CASE,
   28  THEY  MAY CHOOSE BETWEEN PARTICIPATION IN THE ALTERNATIVE DISPUTE RESOL-
   29  UTION PROGRAM AND THE COUNSELING ACTIVITIES PROVIDED FOR HEREIN.
   30    7. COUNSELORS SHALL CONDUCT COUNSELING ACTIVITIES IN  ACCORDANCE  WITH
   31  THE DIRECTIVES OF THE COMMISSION.
   32    8.  WHEN  ADVISED  THAT  A  COMPLAINT  HAS  BEEN FILED BY AN AGGRIEVED
   33  PERSON, THE COUNSELOR SHALL SUBMIT A WRITTEN REPORT WITHIN FIFTEEN  DAYS
   34  TO  THE  AGENCY OFFICE THAT HAS BEEN DESIGNATED TO ACCEPT COMPLAINTS AND
   35  THE AGGRIEVED PERSON CONCERNING THE ISSUES DISCUSSED AND  ACTIONS  TAKEN
   36  DURING COUNSELING.  THE AGGRIEVED PERSON MAY RESPOND WITH ANY OBJECTIONS
   37  THAT THE COUNSELOR'S REPORT DOES NOT FAIRLY EXPRESS THE ISSUES DISCUSSED
   38  AND THE ACTIONS TAKEN DURING COUNSELING.
   39    9.  UNLESS  THE  AGGRIEVED  PERSON AGREES IN WRITING TO A LONGER COUN-
   40  SELING PERIOD, OR THE AGGRIEVED PERSON CHOOSES  AN  ALTERNATIVE  DISPUTE
   41  RESOLUTION PROCEDURE PROVIDED BY THE AGENCY, THE COUNSELOR SHALL CONDUCT
   42  THE  FINAL INTERVIEW WITH THE AGGRIEVED PERSON WITHIN THIRTY DAYS OF THE
   43  DATE THE AGGRIEVED PERSON CONTACTED THE  EEO  OFFICE  TO  REQUEST  COUN-
   44  SELING.  IF THE MATTER HAS NOT BEEN RESOLVED, THE AGGRIEVED PERSON SHALL
   45  BE INFORMED IN WRITING BY THE COUNSELOR, NOT LATER  THAN  THE  THIRTIETH
   46  DAY  AFTER  CONTACTING  THE  COUNSELOR, OF THE RIGHT TO FILE A DISCRIMI-
   47  NATION COMPLAINT. THE NOTICE SHALL INFORM THE COMPLAINANT OF  THE  RIGHT
   48  TO  FILE A DISCRIMINATION COMPLAINT WITHIN THIRTY DAYS OF RECEIPT OF THE
   49  NOTICE, OF THE APPROPRIATE OFFICIAL WITH WHOM TO FILE A  COMPLAINT,  AND
   50  OF  THE  COMPLAINANT'S  DUTY TO ASSURE THAT THE AGENCY IS INFORMED IMME-
   51  DIATELY IF THE COMPLAINANT RETAINS COUNSEL OR A REPRESENTATIVE.
   52    10. PRIOR TO  THE  END  OF  THE  THIRTY  DAY  COUNSELING  PERIOD,  THE
   53  AGGRIEVED  PERSON  MAY  AGREE IN WRITING WITH THE AGENCY TO POSTPONE THE
   54  FINAL INTERVIEW AND EXTEND THE COUNSELING PERIOD FOR AN ADDITIONAL PERI-
   55  OD OF NO MORE THAN SIXTY DAYS, WHICH  SHALL  EXTEND  THE  TIME  BY  LIKE
   56  AMOUNT FOR ANY OTHER NOTICES CALLED FOR IN THIS SECTION.
       A. 853                              6
    1    11.  WHERE  THE AGGRIEVED PERSON CHOOSES TO PARTICIPATE IN AN ALTERNA-
    2  TIVE DISPUTE RESOLUTION PROCEDURE IN ACCORDANCE WITH THIS  SECTION,  THE
    3  PRE-COMPLAINT  PROCESSING  PERIOD SHALL BE NINETY DAYS. IF THE CLAIM HAS
    4  NOT BEEN RESOLVED BEFORE THE NINETIETH DAY, THE NOTICE OF RIGHT TO  FILE
    5  A COMPLAINT SHALL BE ISSUED.
    6    12.  THE  COUNSELOR  SHALL  NOT  ATTEMPT  IN  ANY  WAY TO RESTRAIN THE
    7  AGGRIEVED PERSON FROM FILING A COMPLAINT. THE COUNSELOR SHALL NOT REVEAL
    8  THE IDENTITY OF AN AGGRIEVED PERSON WHO CONSULTED THE COUNSELOR,  EXCEPT
    9  WHEN  AUTHORIZED  TO  DO SO BY THE AGGRIEVED PERSON, OR UNTIL THE AGENCY
   10  HAS RECEIVED A DISCRIMINATION COMPLAINT UNDER  THIS  SECTION  FROM  THAT
   11  PERSON INVOLVING THAT SAME MATTER.
   12    S  280-F. INDIVIDUAL COMPLAINTS. 1. A COMPLAINT MUST BE FILED WITH THE
   13  AGENCY THAT ALLEGEDLY DISCRIMINATED AGAINST THE COMPLAINANT. SUCH AGENCY
   14  SHALL FILE A COPY OF THE COMPLAINT WITH THE COMMISSION  WITH  NOTICE  TO
   15  THE COMPLAINANT.  SHOULD THE AGENCY FAIL TO FILE A COPY OF THE COMPLAINT
   16  TO  THE  COMMISSION,  ALL  DEADLINES  SET FORTH HEREIN SHALL BE EXTENDED
   17  UNTIL THE TIME OF SUCH TRANSMISSION. AN INDIVIDUAL COMPLAINANT MAY  ALSO
   18  FILE A COPY OF THE COMPLAINT WITH THE COMMISSION.
   19    2.  A  COMPLAINT  MUST  BE  FILED WITHIN THIRTY DAYS OF RECEIPT OF THE
   20  NOTICE REQUIRED BY SUBDIVISION NINE OF SECTION TWO HUNDRED  EIGHTY-E  OF
   21  THIS ARTICLE.
   22    3.  A COMPLAINT MUST CONTAIN A SIGNED STATEMENT FROM THE PERSON CLAIM-
   23  ING TO BE AGGRIEVED OR OF AN ATTORNEY REPRESENTING THAT HE OR SHE IS THE
   24  ATTORNEY FOR THE AGGRIEVED PERSON. THIS STATEMENT MUST  BE  SUFFICIENTLY
   25  PRECISE  TO  IDENTIFY  THE  AGGRIEVED  INDIVIDUAL  AND THE AGENCY AND TO
   26  DESCRIBE GENERALLY THE ACTION OR ACTIONS OR PRACTICE OR  PRACTICES  THAT
   27  FORM THE BASIS OF THE COMPLAINT. THE COMPLAINT MUST ALSO CONTAIN A TELE-
   28  PHONE NUMBER AND ADDRESS WHERE THE COMPLAINANT OR THE REPRESENTATIVE CAN
   29  BE  CONTACTED.  THE COMPLAINT SHOULD ALSO INCLUDE A LIST OF WITNESSES TO
   30  BE CONTACTED DURING THE INVESTIGATION AND A  BRIEF  DESCRIPTION  OF  THE
   31  RELEVANT INFORMATION KNOWN TO EACH.
   32    4.  A  COMPLAINANT  MAY  AMEND  A  COMPLAINT  AT ANY TIME PRIOR TO THE
   33  CONCLUSION OF THE INVESTIGATION TO INCLUDE  ISSUES  OR  CLAIMS  LIKE  OR
   34  RELATED  TO THOSE RAISED IN THE COMPLAINT. AFTER REQUESTING A HEARING, A
   35  COMPLAINANT MAY FILE A MOTION WITH THE ADMINISTRATIVE JUDGE TO  AMEND  A
   36  COMPLAINT TO INCLUDE ISSUES OR CLAIMS LIKE OR RELATED TO THOSE RAISED IN
   37  THE COMPLAINT.
   38    5. THE AGENCY SHALL ACKNOWLEDGE RECEIPT OF A COMPLAINT OR AN AMENDMENT
   39  TO  A  COMPLAINT  IN  WRITING  AND INFORM THE COMPLAINANT OF THE DATE ON
   40  WHICH THE COMPLAINT OR AMENDMENT WAS FILED. THE AGENCY SHALL ADVISE  THE
   41  COMPLAINANT  IN  THE ACKNOWLEDGMENT OF HIS OR HER RIGHT TO A HEARING AND
   42  THE COMMISSION'S ADDRESS WHERE A REQUEST FOR A HEARING  SHALL  BE  SENT.
   43  SUCH ACKNOWLEDGMENT SHALL ALSO ADVISE THE COMPLAINANT THAT:
   44    (A)  THE  COMPLAINANT  HAS  THE RIGHT TO APPEAL THE FINAL ACTION ON OR
   45  DISMISSAL OF A COMPLAINT TO THE COMMISSION; AND
   46    (B) THE AGENCY IS REQUIRED TO INITIATE AN  IMPARTIAL  AND  APPROPRIATE
   47  INVESTIGATION  OF  THE  COMPLAINT  WITHIN ONE HUNDRED EIGHTY DAYS OF THE
   48  FILING OF THE COMPLAINT UNLESS THE PARTIES AGREE IN  WRITING  TO  EXTEND
   49  THE  TIME  PERIOD.  WHEN  A COMPLAINT HAS BEEN AMENDED, THE INVESTIGATOR
   50  SHALL COMPLETE HIS OR HER INVESTIGATION WITHIN ONE HUNDRED  EIGHTY  DAYS
   51  AFTER  THE  LAST  AMENDMENT TO THE COMPLAINT OR THREE HUNDRED SIXTY DAYS
   52  AFTER THE FILING OF THE ORIGINAL COMPLAINT, WHICHEVER IS EARLIER, EXCEPT
   53  THAT THE COMPLAINANT MAY REQUEST A HEARING FROM AN ADMINISTRATIVE  JUDGE
   54  ON  THE  CONSOLIDATED  COMPLAINTS ANY TIME AFTER ONE HUNDRED EIGHTY DAYS
   55  FROM THE DATE OF THE FIRST FILED COMPLAINT.
       A. 853                              7
    1    S 280-G. DISMISSALS OF COMPLAINTS. 1. PRIOR TO A REQUEST FOR A HEARING
    2  IN A CASE, THE AGENCY SHALL DISMISS AN ENTIRE COMPLAINT THAT:
    3    (A)  FAILS TO ALLEGE FACTS ASSERTING A CLAIM OF DISCRIMINATION THAT IS
    4  COGNIZABLE UNDER THE HUMAN RIGHTS LAW, THE EQUAL  PAY  ACT,  OR  ARTICLE
    5  TWENTY-THREE-A  OF  THE CORRECTION LAW, OR STATES THE SAME CLAIM THAT IS
    6  PENDING BEFORE OR HAS ALREADY BEEN DECIDED BY THE AGENCY OR COMMISSION;
    7    (B) FAILS TO COMPLY WITH APPLICABLE TIME LIMITS, AS EXTENDED, OR  THAT
    8  RAISES  A MATTER THAT HAS NOT BEEN BROUGHT TO THE ATTENTION OF A COUNSE-
    9  LOR AND IS NOT LIKE OR RELATED TO A MATTER THAT HAS BEEN BROUGHT TO  THE
   10  ATTENTION OF A COUNSELOR;
   11    (C)  IS  THE  BASIS  OF  A  PENDING CIVIL ACTION IN THE NEW YORK STATE
   12  SUPREME COURT IN WHICH THE COMPLAINANT IS A PARTY, OR THAT WAS THE BASIS
   13  OF A PRIOR CIVIL ACTION DECIDED BY THE NEW YORK STATE SUPREME  COURT  IN
   14  WHICH  THE COMPLAINANT WAS A PARTY. AN AGGRIEVED INDIVIDUAL SHALL RETAIN
   15  THE RIGHT TO BRING A CIVIL  ACTION  IN  NEW  YORK  STATE  SUPREME  COURT
   16  CONCERNING  THE  SUBJECT MATTER OF THE COMPLAINT IF THE INVESTIGATION OF
   17  THE COMPLAINT IS NOT COMPLETED WITHIN ONE HUNDRED  EIGHTY  DAYS  OF  THE
   18  COMPLAINT,  IF  THE  COMPLAINT  IS  NOT AMENDED, OR, IF THE COMPLAINT IS
   19  AMENDED, WITHIN THE EARLIER OF ONE HUNDRED EIGHTY DAYS  AFTER  THE  LAST
   20  AMENDMENT  TO THE COMPLAINT OR THREE HUNDRED SIXTY DAYS AFTER THE FILING
   21  OF THE ORIGINAL COMPLAINT, OR A HEARING HAS NOT  BEEN  COMMENCED  WITHIN
   22  ONE HUNDRED EIGHTY DAYS OF THE REQUEST FOR SAME;
   23    (D) RAISES THE MATTER IN A NEGOTIATED GRIEVANCE PROCEDURE THAT PERMITS
   24  ALLEGATIONS OF DISCRIMINATION AS DESCRIBED IN THIS ARTICLE;
   25    (E) IS MOOT ON THE GROUND THAT THE REMEDY REQUESTED BY THE COMPLAINANT
   26  HAS ALREADY BEEN ADOPTED BY THE AGENCY;
   27    (F)  CANNOT  BE  PURSUED  BECAUSE  THE  COMPLAINANT CANNOT BE LOCATED,
   28  PROVIDED THAT REASONABLE EFFORTS HAVE BEEN MADE TO LOCATE THE  COMPLAIN-
   29  ANT AND THE COMPLAINANT HAS NOT RESPONDED WITHIN THIRTY DAYS TO A NOTICE
   30  OF PROPOSED DISMISSAL SENT TO HIS OR HER LAST KNOWN ADDRESS;
   31    (G)  THE AGENCY HAS PROVIDED THE COMPLAINANT WITH A WRITTEN REQUEST TO
   32  PROVIDE RELEVANT INFORMATION OR OTHERWISE PROCEED  WITH  THE  COMPLAINT,
   33  AND  THE  COMPLAINANT  HAS  FAILED  TO RESPOND WITHIN THIRTY DAYS OF ITS
   34  RECEIPT. A COMPLAINT MAY BE DISMISSED FOR FAILURE TO COOPERATE, BUT MUST
   35  BE ADJUDICATED IF SUFFICIENT INFORMATION FOR  THAT  PURPOSE  IS  ALREADY
   36  AVAILABLE  NOTWITHSTANDING  THE  COMPLAINANT'S  FAILURE  TO  RESPOND  TO
   37  FURTHER REQUESTS FOR INFORMATION; OR
   38    (H) ALLEGES DISSATISFACTION WITH THE PROCESSING OF A PREVIOUSLY  FILED
   39  COMPLAINT TO WHICH THE PROCEDURES OF THIS ARTICLE ARE APPLICABLE.
   40    2.  WHERE THE AGENCY BELIEVES THAT SOME BUT NOT ALL OF THE CLAIMS IN A
   41  COMPLAINT SHOULD BE DISMISSED FOR THE REASONS CONTAINED IN PARAGRAPH (A)
   42  OF SUBDIVISION  ONE  OF  THIS  SECTION,  THE  AGENCY  SHALL  NOTIFY  THE
   43  COMPLAINANT  IN  WRITING  OF  ITS  DETERMINATION, THE RATIONALE FOR THAT
   44  DETERMINATION, AND THAT THOSE CLAIMS WILL NOT BE INVESTIGATED, AND SHALL
   45  PLACE A COPY OF THE NOTICE IN THE INVESTIGATIVE FILE.
   46    3. AN AGGRIEVED PERSON MAY REQUEST REVIEW  OF  A  DETERMINATION  UNDER
   47  SUBDIVISION  TWO  OF  THIS  SECTION  BY  AN  ADMINISTRATIVE JUDGE IF THE
   48  COMPLAINT IS DISMISSED IN ITS ENTIRETY. IF A PORTION OF A  COMPLAINT  IS
   49  DISMISSED, THE REMAINDER SHALL PROCEED TO INVESTIGATION AND THE DISMISS-
   50  AL  OF  A PORTION OF THE COMPLAINT SHALL BE REVIEWABLE BY AN ADMINISTRA-
   51  TIVE JUDGE WHEN A HEARING IS REQUESTED ON THE REMAINDER OF THE COMPLAINT
   52  AFTER THE INVESTIGATION IS COMPLETE.
   53    S  280-H.  INVESTIGATION  OF  COMPLAINTS.  1.  THE  INVESTIGATION   OF
   54  COMPLAINTS SHALL BE CONDUCTED BY AN INVESTIGATOR APPROVED BY THE COMMIS-
   55  SION.    SUCH  INVESTIGATOR  MAY  BE AN EMPLOYEE OF THE AGENCY BUT IN NO
       A. 853                              8
    1  EVENT MAY THE AGENCY APPOINT AN INVESTIGATOR NOT APPROVED BY THE COMMIS-
    2  SION.
    3    2.  THE  COMMISSION  SHALL  PROMULGATE  REGULATIONS TO ASSURE THAT THE
    4  INVESTIGATION IS CONDUCTED IN  AN  INDEPENDENT  MANNER  NOT  SUBJECT  TO
    5  INFLUENCE BY THE AGENCY. IN ACCORDANCE WITH SUCH REGULATIONS, THE INVES-
    6  TIGATOR  SHALL  DEVELOP AN IMPARTIAL AND APPROPRIATE FACTUAL RECORD UPON
    7  WHICH TO MAKE FINDINGS ON THE CLAIMS RAISED BY THE WRITTEN COMPLAINT. AN
    8  APPROPRIATE FACTUAL RECORD IS ONE THAT ALLOWS A REASONABLE  FACT  FINDER
    9  TO  DRAW  CONCLUSIONS  AS  TO WHETHER DISCRIMINATION OCCURRED.  INVESTI-
   10  GATORS MAY USE INTERVIEWS, AN EXCHANGE OF LETTERS OR MEMORANDA, INTERRO-
   11  GATORIES, FACT-FINDING CONFERENCES OR  ANY  OTHER  FACT-FINDING  METHODS
   12  THAT EFFICIENTLY AND THOROUGHLY ADDRESS THE MATTERS AT ISSUE.
   13    3.  INVESTIGATORS  MAY  NOT  RELY ON STATEMENTS FROM WITNESSES WITHOUT
   14  OBTAINING THE WITNESS'S SIGNATURE ON THE STATEMENT  UNDER  OATH  FROM  A
   15  NOTARY  PUBLIC.    ANY SUCH STATEMENT MUST INCLUDE AN ACKNOWLEDGEMENT BY
   16  THE WITNESS THAT THE STATEMENT IS THE  WITNESS'S  OWN  WORDS,  THAT  THE
   17  WITNESS  HAS  NOT  BEEN THREATENED OR COERCED INTO MAKING THE STATEMENT,
   18  AND THAT THE WITNESS HAS BEEN ADVISED THAT A WITNESS CANNOT  BE  RETALI-
   19  ATED AGAINST FOR PARTICIPATING IN AN EEO INVESTIGATION.
   20    4.  WHEN  THE  COMPLAINANT, OR THE AGENCY AGAINST WHICH A COMPLAINT IS
   21  FILED, OR ITS EMPLOYEES FAIL WITHOUT GOOD CAUSE SHOWN TO  RESPOND  FULLY
   22  AND  IN  TIMELY  FASHION  TO REQUESTS BY THE INVESTIGATOR FOR DOCUMENTS,
   23  RECORDS, COMPARATIVE DATA, STATISTICS, AFFIDAVITS, OR THE ATTENDANCE  OF
   24  WITNESS OR WITNESSES, THE INVESTIGATOR MUST NOTE THAT FACT.
   25    5. THE INVESTIGATOR, THE ADMINISTRATIVE JUDGE, OR THE COMMISSION SHALL
   26  ON APPEAL, IN APPROPRIATE CIRCUMSTANCES:
   27    (A)  DRAW  AN ADVERSE INFERENCE THAT THE REQUESTED INFORMATION, OR THE
   28  TESTIMONY OF THE REQUESTED WITNESS, WOULD HAVE REFLECTED UNFAVORABLY  ON
   29  THE PARTY REFUSING TO PROVIDE THE REQUESTED INFORMATION;
   30    (B)  CONSIDER THE MATTERS TO WHICH THE REQUESTED INFORMATION OR TESTI-
   31  MONY PERTAINS TO BE ESTABLISHED IN FAVOR OF THE OPPOSING PARTY;
   32    (C) EXCLUDE OTHER EVIDENCE OFFERED BY THE PARTY FAILING TO PRODUCE THE
   33  REQUESTED INFORMATION OR WITNESS;
   34    (D) ISSUE A DECISION FULLY OR  PARTIALLY  IN  FAVOR  OF  THE  OPPOSING
   35  PARTY, OR;
   36    (E) TAKE SUCH OTHER ACTIONS AS IT DEEMS APPROPRIATE.
   37    6. NO PERSON SHALL INVESTIGATE ANY CLAIM UNLESS SUCH PERSON HAS APPRO-
   38  PRIATE QUALIFICATIONS MEETING CRITERIA ESTABLISHED BY THE COMMISSION AND
   39  IS ON A LIST OF APPROVED INVESTIGATORS ESTABLISHED BY THE COMMISSION.
   40    7. THE INVESTIGATOR SHALL COMPLETE HIS OR HER INVESTIGATION WITHIN ONE
   41  HUNDRED EIGHTY DAYS OF THE DATE OF FILING OF AN INDIVIDUAL COMPLAINT. BY
   42  WRITTEN  AGREEMENT  WITHIN  SUCH  TIME  PERIOD,  THE COMPLAINANT AND THE
   43  RESPONDENT AGENCY MAY VOLUNTARILY EXTEND THE TIME PERIOD  FOR  NOT  MORE
   44  THAN AN ADDITIONAL NINETY DAYS.
   45    8. WITHIN ONE HUNDRED EIGHTY DAYS FROM THE FILING OF THE COMPLAINT, OR
   46  WHERE  A COMPLAINT WAS AMENDED, WITHIN THE EARLIER OF ONE HUNDRED EIGHTY
   47  DAYS AFTER THE LAST AMENDMENT TO THE COMPLAINT OR  THREE  HUNDRED  SIXTY
   48  DAYS  AFTER THE FILING OF THE ORIGINAL COMPLAINT, THE INVESTIGATOR SHALL
   49  PROVIDE THE COMPLAINANT AND THE AGENCY WITH A COPY OF HIS OR  HER  DECI-
   50  SION  AND  A  COMPLETE  UNSANITIZED  COPY OF THE INVESTIGATIVE FILE, AND
   51  SHALL NOTIFY THE COMPLAINANT THAT, WITHIN THIRTY DAYS OF RECEIPT OF  THE
   52  INVESTIGATIVE  FILE,  THE COMPLAINANT HAS THE RIGHT TO REQUEST A HEARING
   53  AND DECISION FROM AN ADMINISTRATIVE JUDGE OF THE  COMMISSION  WHO  SHALL
   54  CONSIDER  THE  MATTER DE NOVO ON THE RECORD COMPILED BY THE INVESTIGATOR
   55  TOGETHER WITH ALL EVIDENCE OFFERED BY THE PARTIES AT THE HEARING.
       A. 853                              9
    1    9. THE INVESTIGATOR SHALL STATE WHETHER OR NOT THERE IS PROBABLE CAUSE
    2  TO BELIEVE DISCRIMINATION OR RETALIATION OCCURRED.
    3    10. EITHER THE AGENCY OR THE COMPLAINANT MAY REQUEST AN ADMINISTRATIVE
    4  HEARING  CONCERNING  THE  MATTER.  IF  THERE IS A FINDING OF NO PROBABLE
    5  CAUSE, AND  THE  COMPLAINANT  DOES  NOT  REQUEST  A  HEARING,  THEN  THE
    6  COMPLAINT  SHALL  BE DISMISSED, AND SUCH DISMISSAL SHALL NOT BE APPEALA-
    7  BLE. IF THERE IS A FINDING OF PROBABLE CAUSE, AND THE AGENCY CHOOSES  TO
    8  ADOPT  THAT FINDING AS FINAL AGENCY ACTION, THEN THE AGENCY MUST PROVIDE
    9  A REMEDY TO THE COMPLAINANT. IF THE COMPLAINANT IS DISSATISFIED WITH THE
   10  REMEDY, THE COMPLAINANT MAY REQUEST A HEARING AT WHICH ONLY  THE  REMEDY
   11  WILL BE AT ISSUE.
   12    11. WHERE THE COMPLAINANT HAS RECEIVED THE NOTICE REQUIRED IN SUBDIVI-
   13  SION  EIGHT OF THIS SECTION OR AT ANY TIME AFTER ONE HUNDRED EIGHTY DAYS
   14  HAVE ELAPSED FROM THE  FILING  OF  THE  COMPLAINT,  OR,  IF  AN  AMENDED
   15  COMPLAINT  HAS BEEN FILED, WITHIN THE EARLIER OF ONE HUNDRED EIGHTY DAYS
   16  AFTER THE LAST AMENDMENT TO THE COMPLAINT OR THREE  HUNDRED  SIXTY  DAYS
   17  AFTER  THE FILING OF THE ORIGINAL COMPLAINT, THE COMPLAINANT MAY REQUEST
   18  A HEARING BY SUBMITTING A WRITTEN REQUEST FOR A HEARING DIRECTLY TO  THE
   19  COMMISSION'S  OFFICE  INDICATED  IN  THE  INVESTIGATOR'S DECISION.   THE
   20  COMMISSION SHALL NOTIFY THE AGENCY THAT A HEARING  HAS  BEEN  REQUESTED.
   21  WITHIN  FIFTEEN  DAYS OF RECEIPT OF A COPY OF THE REQUEST FOR A HEARING,
   22  THE AGENCY SHALL PROVIDE A COPY OF THE COMPLAINT FILE TO THE COMMISSION.
   23    S 280-I. HEARINGS. 1. WHEN A COMPLAINANT  OR  THE  AGENCY  REQUESTS  A
   24  HEARING, THE COMMISSION SHALL APPOINT AN ADMINISTRATIVE JUDGE TO CONDUCT
   25  A  HEARING IN ACCORDANCE WITH THIS SECTION. UPON APPOINTMENT, THE ADMIN-
   26  ISTRATIVE JUDGE SHALL ASSUME FULL RESPONSIBILITY FOR THE ADJUDICATION OF
   27  THE COMPLAINT, INCLUDING OVERSEEING THE DEVELOPMENT OF THE  RECORD.  THE
   28  ADMINISTRATIVE JUDGE SHALL DECIDE THE MATTERS RAISED IN THE COMPLAINT DE
   29  NOVO  WITHOUT  REGARD  TO  ANY  FINDINGS  OF THE INVESTIGATOR, PROVIDED,
   30  HOWEVER, THAT ALL MATERIALS IN THE INVESTIGATIVE FILE SHALL  BE  CONSID-
   31  ERED TO DETERMINE WHETHER SUCH MATERIALS CONSTITUTE ADMISSIBLE EVIDENCE.
   32    2.  WHEN  A  PARTY  IS  REPRESENTED BY COUNSEL, THE AGENCY MAY MAKE AN
   33  OFFER OF RESOLUTION TO A COMPLAINANT AND  SUCH  OFFER  MAY  BE  ACCEPTED
   34  WITHOUT  INVOLVEMENT  OF  THE  ADMINISTRATIVE JUDGE. WHEN A PARTY IS NOT
   35  REPRESENTED BY COUNSEL, THE AGENCY MAY MAKE AN OFFER OF RESOLUTION TO  A
   36  COMPLAINANT,  BUT  THE  ADMINISTRATIVE JUDGE MUST REVIEW AND APPROVE THE
   37  OFFER FOR FAIRNESS UNDER ALL THE CIRCUMSTANCES INCLUDING  THE  ESTIMATED
   38  LIKELIHOOD  THAT THE COMPLAINANT OR THE AGENCY MAY OR MAY NOT PREVAIL AT
   39  A HEARING. ANY RESULTANT SETTLEMENT MAY BE CONFIDENTIAL IF THE COMPLAIN-
   40  ANT AND THE AGENCY AGREE AND THE ADMINISTRATIVE JUDGE, ON APPLICATION BY
   41  THE PARTIES, FINDS THAT CONFIDENTIALITY IS IN THE REASONABLE INTEREST OF
   42  THE COMPLAINANT.
   43    3. THE ADMINISTRATIVE JUDGE SHALL NOTIFY THE PARTIES OF THE  RIGHT  TO
   44  SEEK  DISCOVERY PRIOR TO THE HEARING AND MAY ISSUE SUCH DISCOVERY ORDERS
   45  AS ARE APPROPRIATE. UNLESS THE PARTIES AGREE IN WRITING  CONCERNING  THE
   46  METHODS  AND  SCOPE  OF  DISCOVERY,  THE  PARTY  SEEKING DISCOVERY SHALL
   47  REQUEST AUTHORIZATION FROM THE ADMINISTRATIVE JUDGE PRIOR TO  COMMENCING
   48  DISCOVERY  ON  THE  GROUND THAT THE REQUESTED INFORMATION WAS NOT SUFFI-
   49  CIENTLY DEVELOPED IN THE INVESTIGATIVE FILE OR  TO  CONFIRM  FACTS  THAT
   50  WERE  CONTESTED IN THE INVESTIGATION. THE ADMINISTRATIVE JUDGE MAY LIMIT
   51  DISCOVERY TO MATTERS NOT SUFFICIENTLY  DEVELOPED  IN  THE  INVESTIGATIVE
   52  FILE  OR  TO  FACTS  THAT  REMAIN CONTESTED FOLLOWING THE INVESTIGATION.
   53  EVIDENCE MAY BE  DEVELOPED  THROUGH  INTERROGATORIES,  DEPOSITIONS,  AND
   54  REQUESTS  FOR  ADMISSIONS,  STIPULATIONS, OR PRODUCTION OF DOCUMENTS. IT
   55  SHALL BE GROUNDS FOR OBJECTION TO PRODUCING EVIDENCE THAT  THE  INFORMA-
   56  TION  SOUGHT  BY  EITHER PARTY IS IRRELEVANT, UNDULY BURDENSOME, REPETI-
       A. 853                             10
    1  TIOUS, OR PRIVILEGED. AGENCIES MAY NOT  ASSERT  AS  PRIVILEGED  INTERNAL
    2  DECISION-MAKING  PROCESSES,  EXCEPT  THAT CONSULTATIONS WITH COUNSEL ARE
    3  PRIVILEGED.
    4    4.  AGENCIES  SHALL  PROVIDE  FOR  THE  ATTENDANCE AT A HEARING OF ALL
    5  EMPLOYEES APPROVED AS WITNESSES BY AN ADMINISTRATIVE  JUDGE.  ATTENDANCE
    6  AT  HEARINGS WILL BE LIMITED TO PERSONS DETERMINED BY THE ADMINISTRATIVE
    7  JUDGE TO HAVE DIRECT, PERSONAL KNOWLEDGE RELATING TO THE COMPLAINT.  THE
    8  ADMINISTRATIVE  JUDGE  SHALL HAVE THE POWER TO REGULATE THE CONDUCT OF A
    9  HEARING, LIMIT THE NUMBER OF WITNESSES WHERE TESTIMONY WOULD BE  REPETI-
   10  TIOUS,  AND EXCLUDE ANY PERSON FROM THE HEARING FOR CONTUMACIOUS CONDUCT
   11  OR MISBEHAVIOR THAT OBSTRUCTS  THE  HEARING.  THE  ADMINISTRATIVE  JUDGE
   12  SHALL  RECEIVE  INTO  EVIDENCE  INFORMATION OR DOCUMENTS RELEVANT TO THE
   13  COMPLAINT. RULES OF EVIDENCE SHALL NOT BE APPLIED STRICTLY, AND  HEARSAY
   14  SHALL  BE  PERMITTED  AS TO BACKGROUND AND INCIDENTAL MATTERS BUT NOT TO
   15  AVOID THE TESTIMONY OF WITNESSES HAVING A CENTRAL OR IMPORTANT  ROLE  IN
   16  THE  MATTER.  AN  AGENCY WITNESS SHALL NOT BE PERMITTED TO TESTIFY AS TO
   17  COMPLAINTS ABOUT AN EMPLOYEE UNLESS SUCH COMPLAINTS WERE PUT IN  WRITING
   18  CONTEMPORANEOUSLY  WITH THE ALLEGED COMPLAINT.  THE ADMINISTRATIVE JUDGE
   19  SHALL EXCLUDE IRRELEVANT OR REPETITIOUS EVIDENCE.
   20    5. THE COMPLAINANT, AN AGENCY, AND ANY EMPLOYEE  OF  AN  AGENCY  SHALL
   21  PRODUCE  SUCH DOCUMENTARY AND TESTIMONIAL EVIDENCE AS THE ADMINISTRATIVE
   22  JUDGE DEEMS NECESSARY. THE ADMINISTRATIVE JUDGE SHALL SERVE  ALL  ORDERS
   23  TO PRODUCE EVIDENCE ON BOTH PARTIES.
   24    6. ADMINISTRATIVE JUDGES ARE AUTHORIZED TO ADMINISTER OATHS. TESTIMONY
   25  OF  WITNESSES SHALL BE MADE UNDER OATH OR AFFIRMATION OR, ALTERNATIVELY,
   26  BY WRITTEN STATEMENT UNDER PENALTY OF PERJURY IF THE  PARTIES  AGREE  TO
   27  ACCEPT  SUCH WITNESS'S TESTIMONY IN THAT MANNER OR IF THE ADMINISTRATIVE
   28  JUDGE DETERMINES THAT THE WITNESS IS UNAVAILABLE AND HIS OR HER TESTIMO-
   29  NY COULD NOT BE TAKEN BY DEPOSITION.
   30    7. IF A PARTY BELIEVES THAT SOME OR ALL  MATERIAL  FACTS  ARE  NOT  IN
   31  GENUINE  DISPUTE  AND  THERE  IS NO GENUINE ISSUE AS TO CREDIBILITY, THE
   32  PARTY MAY, AT LEAST FIFTEEN DAYS PRIOR TO THE DATE OF THE HEARING OR  AT
   33  SUCH EARLIER TIME AS REQUIRED BY THE ADMINISTRATIVE JUDGE, FILE A STATE-
   34  MENT  WITH  THE  ADMINISTRATIVE JUDGE PRIOR TO THE HEARING SETTING FORTH
   35  THE FACT OR FACTS AND REFERRING TO THE PARTS OF THE RECORD RELIED ON  TO
   36  SUPPORT  THE  STATEMENT. THE STATEMENT MUST DEMONSTRATE THAT THERE IS NO
   37  GENUINE ISSUE AS TO ANY SUCH MATERIAL FACT. THE PARTY  SHALL  SERVE  THE
   38  STATEMENT ON THE OPPOSING PARTY.
   39    8.  THE  OPPOSING  PARTY MAY FILE AN OPPOSITION WITHIN FIFTEEN DAYS OF
   40  RECEIPT OF THE STATEMENT IN SUBDIVISION SEVEN OF THIS SECTION. THE OPPO-
   41  SITION MAY REFER TO THE RECORD IN THE CASE TO REBUT THE STATEMENT THAT A
   42  FACT IS NOT IN DISPUTE OR MAY FILE AN AFFIDAVIT STATING THAT  THE  PARTY
   43  CANNOT,  FOR  REASONS STATED, PRESENT FACTS TO OPPOSE THE REQUEST. AFTER
   44  CONSIDERING THE SUBMISSIONS, THE ADMINISTRATIVE  JUDGE  MAY  ORDER  THAT
   45  DISCOVERY  BE PERMITTED ON THE FACT OR FACTS INVOLVED, LIMIT THE HEARING
   46  TO THE ISSUES REMAINING IN DISPUTE, ISSUE A DECISION WITHOUT A  HEARING,
   47  OR MAKE SUCH OTHER RULING AS IS APPROPRIATE.
   48    9.  THE HEARING SHALL BE RECORDED AND THE AGENCY SHALL ARRANGE AND PAY
   49  FOR VERBATIM TRANSCRIPTS. ALL DOCUMENTS SUBMITTED TO, AND  ACCEPTED  BY,
   50  THE ADMINISTRATIVE JUDGE AT THE HEARING SHALL BE MADE PART OF THE RECORD
   51  OF THE HEARING.  THE ADMINISTRATIVE JUDGE SHALL PROVIDE THE PARTIES WITH
   52  A  LIST  OF  ALL  DOCUMENTS  HE OR SHE HAS ADMITTED INTO EVIDENCE AT THE
   53  HEARING AND A LIST OF ALL DOCUMENTS THAT WERE PROPOSED FOR ADMISSION BUT
   54  NOT ACCEPTED INTO EVIDENCE. SUCH LISTS SHALL FORM PART OF THE RECORD  OF
   55  THE  CASE.  EITHER  PARTY MAY REQUEST REPRODUCTION OF A DOCUMENT IT DOES
   56  NOT HAVE IN ITS POSSESSION.
       A. 853                             11
    1    10. UNLESS THE ADMINISTRATIVE JUDGE MAKES A WRITTEN DETERMINATION THAT
    2  NECESSARY CAUSE EXISTS FOR EXTENDING THE TIME FOR ISSUING A DECISION, AN
    3  ADMINISTRATIVE JUDGE SHALL ISSUE A DECISION ON THE COMPLAINT, AND  SHALL
    4  ORDER  APPROPRIATE  REMEDIES  AND  RELIEF WHERE DISCRIMINATION IS FOUND,
    5  WITHIN  NINETY DAYS OF RECEIPT BY THE ADMINISTRATIVE JUDGE OF THE RECORD
    6  OF THE HEARING. THE ADMINISTRATIVE JUDGE SHALL SEND COPIES OF THE  HEAR-
    7  ING  RECORD,  INCLUDING  THE TRANSCRIPT, AND ULTIMATELY THE DECISION, TO
    8  THE PARTIES. THE PARTIES SHALL BE PERMITTED  TO  SUBMIT  BRIEFS  ON  THE
    9  MATTER  WITHIN THIRTY DAYS OF RECEIPT BY THE ADMINISTRATIVE JUDGE OF THE
   10  RECORD OF THE HEARING.
   11    11. ANY PARTY ADVANCING A PROPOSITION SHALL BEAR THE BURDEN  OF  PROOF
   12  BY A PREPONDERANCE OF THE EVIDENCE. IF THE DISCIPLINE OR DISCHARGE OF AN
   13  EMPLOYEE  IS  AT  ISSUE, AND THE EMPLOYEE HAS PROVEN THAT DISCRIMINATION
   14  WAS A SUBSTANTIAL FACTOR IN THE ADVERSE  EMPLOYMENT  ACTION,  THEN  SUCH
   15  DISCIPLINE  OR  DISCHARGE  SHALL  BE  SET ASIDE AND APPROPRIATE REMEDIES
   16  PROVIDED AS SET FORTH IN THIS ARTICLE.
   17    12. ANY DECISION MUST CONTAIN NOTICE OF BOTH PARTIES' RIGHT TO  APPEAL
   18  TO THE COMMISSION.
   19    S 280-J. CLASS COMPLAINTS. 1. A COMPLAINANT MAY FILE WITH THE AGENCY A
   20  CLASS  COMPLAINT  AT ANY REASONABLE POINT IN THE PROCESS WHEN IT BECOMES
   21  APPARENT THAT THERE ARE CLASS IMPLICATIONS TO THE  CLAIM  RAISED  IN  AN
   22  INDIVIDUAL COMPLAINT.
   23    2. WITHIN THIRTY DAYS OF AN AGENCY'S RECEIPT OF A CLASS COMPLAINT, THE
   24  AGENCY SHALL FORWARD THE COMPLAINT, ALONG WITH A COPY OF THE COUNSELOR'S
   25  REPORT AND ANY OTHER INFORMATION PERTAINING TO TIMELINESS OR OTHER RELE-
   26  VANT  CIRCUMSTANCES  RELATED  TO  THE  COMPLAINT, TO THE COMMISSION. THE
   27  COMPLAINANT SHALL BE SENT NOTIFICATION OF FILING WITH THE COMMISSION.
   28    3. WITHIN FORTY-FIVE DAYS AFTER FILING SUCH COMPLAINT,  A  COMPLAINANT
   29  SHALL  MOVE  BEFORE  THE COMMISSION FOR CLASS CERTIFICATION, WHICH SHALL
   30  APPOINT AN ADMINISTRATIVE JUDGE TO HEAR THE MOTION, UNLESS  AN  ADMINIS-
   31  TRATIVE JUDGE HAD ALREADY BEEN APPOINTED.
   32    4. IF A COMPLAINANT MOVES FOR CLASS CERTIFICATION AFTER COMPLETING THE
   33  COUNSELING  PROCESS  CONTAINED  IN  SECTION TWO HUNDRED EIGHTY-E OF THIS
   34  ARTICLE, NO ADDITIONAL COUNSELING IS REQUIRED.
   35    5. THE ADMINISTRATIVE JUDGE SHALL DENY CLASS  CERTIFICATION  WHEN  THE
   36  COMPLAINANT  DOES NOT MEET THE CRITERIA ESTABLISHED IN LAW FOR ACTING AS
   37  AN AGENT FOR THE CLASS OR THE COMPLAINANT HAS UNDULY DELAYED  IN  MOVING
   38  FOR CERTIFICATION, SUCH AS WHEN THE CLASS IMPLICATIONS TO THE CLAIM WERE
   39  REASONABLY  APPARENT  BUT  NO ACTION WAS TAKEN BY THE COMPLAINANT DURING
   40  COUNSELING OR INVESTIGATION OF THE MATTER. IF, HOWEVER, THE CLASS IMPLI-
   41  CATIONS BECOME APPARENT ONLY DURING OR AFTER  RECEIPT  OF  THE  INVESTI-
   42  GATIVE FILE, THE CLASS COMPLAINT SHOULD BE REFERRED BACK TO THE INVESTI-
   43  GATOR FOR FURTHER INVESTIGATION ONLY AS TO THE CLASS-RELATED ISSUE AND A
   44  DETERMINATION  AS  TO PROBABLE CAUSE OR NO PROBABLE CAUSE CONCERNING THE
   45  ISSUE INVOLVING THE CLASS.
   46    6. FILING AND PRESENTATION OF A CLASS COMPLAINT:
   47    (A) A CLASS COMPLAINT MUST BE SIGNED BY THE  AGENT  OR  REPRESENTATIVE
   48  AND  MUST  IDENTIFY THE POLICY OR PRACTICE ADVERSELY AFFECTING THE CLASS
   49  AS WELL AS THE SPECIFIC ACTION OR MATTER AFFECTING THE CLASS  AGENT  AND
   50  WHY  THE  AGENT  QUALIFIES UNDER LAW TO REPRESENT THE CLASS AS AGENT FOR
   51  THE CLASS.
   52    (B) THE COMPLAINT SHALL BE INVESTIGATED IN THE SAME MANNER AS PROVIDED
   53  WITH RESPECT TO INDIVIDUAL COMPLAINTS, EXCEPT AS PROVIDED IN SUBDIVISION
   54  FIVE OF THIS SECTION.
   55    (C) THE  ADMINISTRATIVE  JUDGE  MAY  DISMISS  THE  COMPLAINT,  OR  ANY
   56  PORTION,  FOR  ANY OF THE REASONS LISTED IN SECTION TWO HUNDRED EIGHTY-G
       A. 853                             12
    1  OF THIS ARTICLE OR BECAUSE IT DOES NOT MEET THE PREREQUISITES OF A CLASS
    2  COMPLAINT AS DESCRIBED HEREIN.
    3    7.  WHEN APPROPRIATE, THE ADMINISTRATIVE JUDGE MAY DECIDE THAT A CLASS
    4  BE DIVIDED INTO SUBCLASSES AND THAT EACH SUBCLASS BE TREATED AS A CLASS,
    5  AND THE PROVISIONS OF THIS SECTION THEN SHALL BE CONSTRUED  AND  APPLIED
    6  ACCORDINGLY.
    7    8.  THE  ADMINISTRATIVE  JUDGE  SHALL  TRANSMIT HIS OR HER DECISION TO
    8  ACCEPT OR DISMISS A CLASS COMPLAINT TO THE AGENCY  AND  THE  AGENT.  THE
    9  DECISION SHALL INFORM THE AGENCY OR THE AGENT OF THE RIGHT TO APPEAL THE
   10  DECISION TO THE COMMISSION IN THE SAME MANNER AS ANY OTHER APPEAL. PROC-
   11  ESSING  OF  THE  INDIVIDUAL COMPLAINT SHALL CONTINUE WHILE THE APPEAL IS
   12  PENDING. SHOULD THE COMMISSION REVERSE  A  DECISION  NOT  TO  CERTIFY  A
   13  CLASS, A HEARING ON CLASS-RELATED ISSUES MAY BE HELD SEPARATELY.
   14    9.  WITHIN  FIFTEEN  DAYS  OF RECEIVING NOTICE THAT THE ADMINISTRATIVE
   15  JUDGE HAS ACCEPTED A CLASS COMPLAINT OR A REASONABLE TIME  FRAME  SPECI-
   16  FIED BY THE ADMINISTRATIVE JUDGE, THE AGENCY SHALL USE REASONABLE MEANS,
   17  SUCH  AS  MAILING  TO  LAST KNOWN ADDRESS OR DISTRIBUTION, TO NOTIFY ALL
   18  CLASS MEMBERS OF THE ACCEPTANCE OF THE  CLASS  COMPLAINT.  SUCH  NOTICES
   19  SHALL CONTAIN:
   20    (A)  THE  NAME  OF THE AGENCY OR ORGANIZATIONAL SEGMENT, ITS LOCATION,
   21  AND THE DATE OF CERTIFICATION OF THE CLASS COMPLAINT;
   22    (B) A DESCRIPTION  OF  THE  ISSUES  ACCEPTED  AS  PART  OF  THE  CLASS
   23  COMPLAINT;
   24    (C)  AN  EXPLANATION  OF  THE  BINDING NATURE OF THE FINAL DECISION OR
   25  RESOLUTION OF THE COMPLAINT ON CLASS MEMBERS; AND
   26    (D) THE NAME, ADDRESS AND TELEPHONE NUMBER OF  THE  ATTORNEY  FOR  THE
   27  CLASS REPRESENTATIVE, IF ANY, AND OF THE CLASS REPRESENTATIVE.
   28    10.  THE  ADMINISTRATIVE  JUDGE  SHALL NOTIFY THE AGENT AND THE AGENCY
   29  REPRESENTATIVE OF THE TIME PERIOD THAT WILL BE ALLOWED BOTH  PARTIES  TO
   30  PREPARE  THEIR  CASES AS TO THE CLASS-RELATED ISSUES BUT IN NO CASE LESS
   31  THAN NINETY DAYS. REASONABLE EXTENSIONS OF TIME SHOULD BE GRANTED.
   32    11. BOTH PARTIES ARE ENTITLED TO REASONABLE DEVELOPMENT OF EVIDENCE ON
   33  MATTERS RELEVANT TO THE ISSUES RAISED IN THE COMPLAINT. THE  SAME  RULES
   34  RELATING  TO  DISCOVERY  AND  TO EVIDENCE IN INDIVIDUAL COMPLAINTS SHALL
   35  APPLY.  PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE JUDGE SHALL TAKE INTO
   36  ACCOUNT THE CLASS NATURE OF THE COMPLAINT  IN  GRANTING  A  REQUEST  FOR
   37  ADDITIONAL DISCOVERY.
   38    12. THE PROCESS FOR VOLUNTARY RESOLUTION OF A CLASS COMPLAINT SHALL BE
   39  THE  SAME AS FOR AN INDIVIDUAL COMPLAINT. PROVIDED, HOWEVER, THAT NOTICE
   40  OF A RESOLUTION AGREED UPON BY THE PARTIES SHALL BE GIVEN TO  ALL  CLASS
   41  MEMBERS  IN  THE  SAME  MANNER  AS NOTIFICATION OF THE ACCEPTANCE OF THE
   42  CLASS COMPLAINT AND TO THE ADMINISTRATIVE  JUDGE.  IT  SHALL  STATE  THE
   43  RELIEF,  IF ANY, TO BE GRANTED BY THE AGENCY AND THE NAME AND ADDRESS OF
   44  THE ADMINISTRATIVE JUDGE ASSIGNED TO THE CASE. IT SHALL STATE THAT WITH-
   45  IN THIRTY DAYS OF THE DATE OF THE NOTICE OF RESOLUTION,  ANY  MEMBER  OF
   46  THE CLASS MAY PETITION THE ADMINISTRATIVE JUDGE TO VACATE THE RESOLUTION
   47  BECAUSE  IT  BENEFITS  ONLY  THE  CLASS AGENT, OR IS OTHERWISE NOT FAIR,
   48  ADEQUATE AND REASONABLE TO THE CLASS  AS  A  WHOLE.  THE  ADMINISTRATIVE
   49  JUDGE  SHALL  REVIEW THE NOTICE OF RESOLUTION AND CONSIDER ANY PETITIONS
   50  TO VACATE FILED. IF THE ADMINISTRATIVE JUDGE  FINDS  THAT  THE  PROPOSED
   51  RESOLUTION IS NOT FAIR, ADEQUATE AND REASONABLE TO THE CLASS AS A WHOLE,
   52  THE  ADMINISTRATIVE  JUDGE SHALL ISSUE A DECISION VACATING THE AGREEMENT
   53  AND MAY, BUT IS NOT REQUIRED TO, REPLACE THE ORIGINAL CLASS AGENT WITH A
   54  DIFFERENT PETITIONER OR SOME OTHER CLASS MEMBER WHO IS  ELIGIBLE  TO  BE
   55  THE  CLASS  AGENT  DURING FURTHER PROCESSING OF THE CLASS COMPLAINT. THE
   56  DECISION SHALL INFORM THE AGENCY, THE CLASS AGENT, FORMER  CLASS  AGENT,
       A. 853                             13
    1  OR THE PETITIONER OF THE RIGHT TO APPEAL THE DECISION TO THE COMMISSION.
    2  IF  THE ADMINISTRATIVE JUDGE FINDS THAT THE RESOLUTION IS FAIR, ADEQUATE
    3  AND REASONABLE TO THE CLASS AS A WHOLE, THE ADMINISTRATIVE  JUDGE  SHALL
    4  SO ORDER AND THE RESOLUTION SHALL BIND ALL MEMBERS OF THE CLASS.
    5    13.  ON  EXPIRATION OF THE PERIOD ALLOWED FOR PREPARATION OF THE CASE,
    6  THE ADMINISTRATIVE JUDGE SHALL SET A DATE FOR HEARING. THE  HEARING  MAY
    7  BE  SET FOR THE SAME DATE AS ON THE INDIVIDUAL COMPLAINT OR ON A DIFFER-
    8  ENT DATE AS APPROPRIATE. THE HEARING SHALL  BE  CONDUCTED  IN  THE  SAME
    9  MANNER AS A HEARING ON AN INDIVIDUAL COMPLAINT.
   10    14.  (A) THE ADMINISTRATIVE JUDGE SHALL DECIDE WHETHER SYSTEMIC RELIEF
   11  FOR THE CLASS IS APPROPRIATE WITH REGARD  TO  THE  PERSONNEL  ACTION  OR
   12  MATTER  THAT GAVE RISE TO THE COMPLAINT, AND THE RELEVANT TIME PERIOD IN
   13  WHICH SUCH PERSONNEL ACTION OR MATTER ADVERSELY AFFECTED THE CLASS.
   14    (B) IF THE ADMINISTRATIVE JUDGE FINDS NO CLASS RELIEF APPROPRIATE,  HE
   15  OR  SHE  SHALL  DETERMINE  IF  A FINDING OF INDIVIDUAL DISCRIMINATION IS
   16  WARRANTED AND, IF SO, SHALL DETERMINE APPROPRIATE RELIEF.
   17    (C) THE ADMINISTRATIVE JUDGE SHALL NOTIFY THE AGENCY AND THE COMPLAIN-
   18  ANT AND/OR AGENT OF THE DECISION AND OF  THE  RIGHT  TO  APPEAL  TO  THE
   19  COMMISSION.
   20    (D) THE AGENCY SHALL, WITHIN THIRTY DAYS OF THE DECISION, NOTIFY CLASS
   21  MEMBERS  OF  THE  FINAL DECISION AND RELIEF AWARDED, IF ANY, THROUGH THE
   22  SAME MEDIA EMPLOYED TO  GIVE  NOTICE  OF  THE  EXISTENCE  OF  THE  CLASS
   23  COMPLAINT.  THE  NOTICE,  WHERE  APPROPRIATE,  SHALL INCLUDE INFORMATION
   24  CONCERNING THE RIGHTS OF CLASS MEMBERS TO SEEK INDIVIDUAL RELIEF, AND OF
   25  THE PROCEDURES TO BE FOLLOWED, AND OF THE RIGHT TO APPEAL TO THE COMMIS-
   26  SION.
   27    (E) WHEN DISCRIMINATION IS FOUND, AN AGENCY MUST ELIMINATE  OR  MODIFY
   28  THE  EMPLOYMENT  POLICY OR PRACTICE OUT OF WHICH THE COMPLAINT AROSE AND
   29  PROVIDE INDIVIDUAL RELIEF FOR  CLASS  MEMBERS,  INCLUDING  AN  AWARD  OF
   30  ATTORNEY'S FEES AND COSTS, TO THE AGENT.
   31    (F)  WHEN CLASS-WIDE DISCRIMINATION IS NOT FOUND, BUT IT IS FOUND THAT
   32  THE CLASS AGENT IS A VICTIM OF DISCRIMINATION AGAINST HIM OR HER  AS  AN
   33  INDIVIDUAL,  THE ADMINISTRATIVE JUDGE SHALL AWARD ALL APPROPRIATE RELIEF
   34  TO THE INDIVIDUAL COMPLAINANT.
   35    (G) WHEN CLASS DISCRIMINATION IS FOUND IN THE  FINAL  DECISION  AND  A
   36  CLASS  MEMBER  BELIEVES THAT HE OR SHE IS ENTITLED TO INDIVIDUAL RELIEF,
   37  THE CLASS MEMBER MAY FILE A WRITTEN CLAIM WITH THE HEAD OF THE AGENCY OR
   38  ITS EEO DIRECTOR WITHIN THIRTY DAYS OF RECEIPT OF  NOTIFICATION  BY  THE
   39  AGENCY OF ITS FINAL DECISION.  ADMINISTRATIVE JUDGES SHALL RETAIN JURIS-
   40  DICTION  OVER THE COMPLAINT IN ORDER TO RESOLVE ANY DISPUTED CLAIMS MADE
   41  BY CLASS MEMBERS THAT THEY ARE ENTITLED  TO  INDIVIDUAL  RELIEF.  TO  BE
   42  ENTITLED  TO  INDIVIDUAL  RELIEF,  THE  CLAIM  MUST  INCLUDE A SPECIFIC,
   43  DETAILED SHOWING THAT THE CLAIMANT IS A CLASS MEMBER WHO WAS AFFECTED BY
   44  THE DISCRIMINATORY POLICY OR  PRACTICE,  AND  THAT  THIS  DISCRIMINATORY
   45  ACTION TOOK PLACE WITHIN THE PERIOD OF TIME FOR WHICH THE ADMINISTRATIVE
   46  JUDGE  FOUND  CLASS-WIDE  DISCRIMINATION  IN  HIS OR HER FINAL DECISION.
   47  WHERE A FINDING OF DISCRIMINATION AGAINST A CLASS HAS BEEN  MADE,  THERE
   48  SHALL BE A PRESUMPTION OF DISCRIMINATION AS TO EACH MEMBER OF THE CLASS.
   49  THE  AGENCY  MUST  SHOW  BY CLEAR AND CONVINCING EVIDENCE THAT ANY CLASS
   50  MEMBER IS NOT ENTITLED TO RELIEF. THE ADMINISTRATIVE JUDGE  MAY  HOLD  A
   51  HEARING  OR  OTHERWISE SUPPLEMENT THE RECORD ON A CLAIM FILED BY A CLASS
   52  MEMBER. ANY DECISION BY THE ADMINISTRATIVE  JUDGE  SHALL  BE  APPEALABLE
   53  UNDER THE SAME PROCEDURES APPLICABLE TO ANY INDIVIDUAL COMPLAINT.
   54    S  280-K.  RELATIONSHIP  TO  NEGOTIATED GRIEVANCE PROCEDURE. 1. WHEN A
   55  PERSON IS EMPLOYED BY AN AGENCY AND IS A MEMBER  OF  A  BARGAINING  UNIT
   56  COVERED BY A COLLECTIVE BARGAINING AGREEMENT THAT PERMITS ALLEGATIONS OF
       A. 853                             14
    1  DISCRIMINATION  TO  BE  RAISED  IN  A  NEGOTIATED GRIEVANCE PROCEDURE, A
    2  PERSON WISHING TO FILE A COMPLAINT OR A GRIEVANCE ON A MATTER OF ALLEGED
    3  EMPLOYMENT DISCRIMINATION MUST ELECT TO  RAISE  THE  MATTER  UNDER  THIS
    4  CHAPTER  OR  IN  THE  NEGOTIATED  GRIEVANCE PROCEDURE, BUT NOT BOTH.  AN
    5  ELECTION TO PROCEED UNDER THIS PART IS INDICATED ONLY BY THE FILING OF A
    6  WRITTEN COMPLAINT; USE OF THE  PRE-COMPLAINT  PROCESS  AS  DESCRIBED  IN
    7  SECTION  TWO  HUNDRED  EIGHTY-E  OF  THIS ARTICLE DOES NOT CONSTITUTE AN
    8  ELECTION FOR PURPOSES OF THIS SECTION. AN AGGRIEVED EMPLOYEE WHO FILES A
    9  COMPLAINT UNDER THIS PART MAY NOT THEREAFTER FILE  A  GRIEVANCE  ON  THE
   10  SAME  MATTER. AN ELECTION TO PROCEED UNDER A NEGOTIATED GRIEVANCE PROCE-
   11  DURE IS INDICATED BY THE FILING  OF  A  TIMELY  WRITTEN  GRIEVANCE,  THE
   12  DENIAL  OF  SUCH GRIEVANCE BY THE AGENCY, AND THE PURSUIT OF SUCH GRIEV-
   13  ANCE TO THE NEXT STAGE OF THE GRIEVANCE PROCESS. AN  AGGRIEVED  EMPLOYEE
   14  WHO  FILES A GRIEVANCE WITH AN AGENCY WHOSE NEGOTIATED AGREEMENT PERMITS
   15  THE ACCEPTANCE OF GRIEVANCES WHICH ALLEGE DISCRIMINATION MAY NOT  THERE-
   16  AFTER  FILE  A COMPLAINT ON THE SAME MATTER UNDER THIS CHAPTER IRRESPEC-
   17  TIVE OF WHETHER THE AGENCY HAS INFORMED THE INDIVIDUAL OF  THE  NEED  TO
   18  ELECT.  ANY SUCH COMPLAINT FILED AFTER A GRIEVANCE HAS BEEN FILED ON THE
   19  SAME MATTER SHALL BE DISMISSED WITHOUT PREJUDICE  TO  THE  COMPLAINANT'S
   20  RIGHT  TO PROCEED THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE.  UPON SUCH
   21  DISMISSAL, WHICH SHALL INCLUDE NOTICE OF THE RIGHT  TO  SEEK  A  HEARING
   22  BEFORE  AN  ADMINISTRATIVE  JUDGE, THE COMPLAINANT MAY SEEK A HEARING ON
   23  THE DISMISSAL BEFORE AN ADMINISTRATIVE LAW JUDGE IN THE SAME  MANNER  AS
   24  IN  ANY  INDIVIDUAL COMPLAINT, INCLUDING THE ULTIMATE RIGHT TO APPEAL TO
   25  THE COMMISSION.
   26    2. WHEN A PERSON IS NOT COVERED BY A COLLECTIVE  BARGAINING  AGREEMENT
   27  THAT  PERMITS ALLEGATIONS OF DISCRIMINATION TO BE RAISED IN A NEGOTIATED
   28  GRIEVANCE PROCEDURE, ALLEGATIONS OF DISCRIMINATION SHALL BE PROCESSED AS
   29  COMPLAINTS UNDER THIS CHAPTER. THE ERRONEOUS FILING OF A GRIEVANCE UNDER
   30  A COLLECTIVE BARGAINING AGREEMENT THAT DOES NOT  PERMIT  ALLEGATIONS  OF
   31  DISCRIMINATION  TO  BE  RAISED IN THE COURSE OF THE NEGOTIATED GRIEVANCE
   32  PROCEDURE SHALL NOT PREJUDICE A PERSON FROM  FILING  A  COMPLAINT  UNDER
   33  THIS CHAPTER.
   34    3.  IF  AN ADMINISTRATIVE JUDGE DETERMINES THAT THE FILING OF A GRIEV-
   35  ANCE RESULTED IN NONCOMPLIANCE WITH THE TIME LIMITS SET  FORTH  IN  THIS
   36  ARTICLE, THAT THE AGENCY HAD NOTICE OF THE ALLEGATIONS OF DISCRIMINATION
   37  THROUGH  THE  GRIEVANCE PROCESS, AND THAT THE COMPLAINANT HAS SOME BASIS
   38  FOR FAILING TO TIMELY FILE UNDER THIS ARTICLE, INCLUDING THAT THE  INDI-
   39  VIDUAL  WAS  OPERATING  UNDER  ERRONEOUS ADVICE PROVIDED BY SOMEONE WITH
   40  MANAGEMENT AUTHORITY AT THE AGENCY, OR AN EEO COUNSELOR, OR DID NOT HAVE
   41  THE BENEFIT OF COUNSEL, THEN THE ADMINISTRATIVE JUDGE SHALL GRANT RELIEF
   42  FROM THE TIME LIMITS SET FORTH IN THIS ARTICLE.
   43    S 280-L. APPEALS TO THE COMMISSION. 1. ALL APPEALS TO  THE  COMMISSION
   44  REFERRED  TO IN THIS ARTICLE MUST BE FILED WITHIN THIRTY DAYS OF RECEIPT
   45  OF THE DISMISSAL, FINAL ACTION, OR  DECISION.  AN  APPEAL  IS  TAKEN  BY
   46  FILING A NOTICE OF APPEAL WITH THE COMMISSION.
   47    2.  THE  APPELLANT SHALL FURNISH A COPY OF THE NOTICE OF APPEAL TO THE
   48  OPPOSING PARTY AT THE SAME TIME IT IS FILED WITH THE COMMISSION.  IN  OR
   49  ATTACHED TO THE APPEAL TO THE COMMISSION, THE APPELLANT MUST CERTIFY THE
   50  DATE AND METHOD BY WHICH SERVICE WAS MADE ON THE OPPOSING PARTY.
   51    3.  IF  AN APPELLANT DOES NOT FILE AN APPEAL WITHIN THE TIME LIMITS OF
   52  THIS SUBPART, THE APPEAL SHALL BE DISMISSED BY THE COMMISSION AS UNTIME-
   53  LY, THOUGH THE COMMISSION, UPON APPLICATION, MAY  EXTEND  THE  TIME  FOR
   54  GOOD CAUSE SHOWN.
   55    4. THE COMMISSION SHALL SET A SCHEDULE FOR THE BRIEFING OF AN APPEAL.
       A. 853                             15
    1    5.  THE PARTIES SHALL NOT BE RESPONSIBLE FOR PREPARATION OF THE RECORD
    2  ON APPEAL, THOUGH THE COMMISSION MAY  REQUIRE  A  PARTY  TO  PROVIDE  AN
    3  APPENDIX CONTAINING THE MOST PERTINENT PORTIONS OF THE RECORD.
    4    6.  THE  RECORD  SHALL  CONSIST  OF THE FILE OF THE ADMINISTRATIVE LAW
    5  JUDGE, ANY MATTERS ADMITTED  INTO  EVIDENCE,  OR  OFFERED  AS  EVIDENCE,
    6  BEFORE  THE ADMINISTRATIVE JUDGE, AND THE TRANSCRIPT OF THE HEARING. ANY
    7  PARTY MAY EXAMINE THE RECORD AT HIS  OR  HER  REQUEST  FOR  PURPOSES  OF
    8  PREPARING A BRIEF ON THE APPEAL.
    9    7. THE COMMISSION SHALL HEAR ARGUMENTS ON AN APPEAL IN THE SAME MANNER
   10  AS AN APPELLATE COURT.
   11    8.  THE  COMMISSION  MAY  HEAR  APPEALS IN A PANEL CONSISTING OF THREE
   12  COMMISSIONERS DESIGNATED IN RANDOM FASHION.
   13    S 280-M. DECISIONS ON APPEALS. 1. THE DECISION SHALL BE BASED  ON  THE
   14  PREPONDERANCE  OF THE EVIDENCE. THE DECISION ON AN APPEAL FROM THE DECI-
   15  SION OF THE ADMINISTRATIVE JUDGE SHALL BE DE NOVO, EXCEPT THAT THE FIND-
   16  INGS OF THE ADMINISTRATIVE JUDGE AS  TO  THE  CREDIBILITY  OF  WITNESSES
   17  SHALL BE BASED ON A SUBSTANTIAL EVIDENCE STANDARD OF REVIEW.
   18    2.  THE  DECISION SHALL ADVISE THE PARTIES OF THEIR RIGHT TO APPEAL TO
   19  THE APPELLATE DIVISION.
   20    3. A PARTY MAY REQUEST RECONSIDERATION WITHIN THIRTY DAYS  OF  RECEIPT
   21  OF  A DECISION OF THE COMMISSION, WHICH THE COMMISSION IN ITS DISCRETION
   22  MAY GRANT, IF THE PARTY DEMONSTRATES THAT:
   23    (A) THE APPELLATE DECISION INVOLVED A CLEARLY ERRONEOUS INTERPRETATION
   24  OF MATERIAL FACT OR LAW; OR
   25    (B) THE DECISION WILL HAVE A SUBSTANTIAL IMPACT ON THE POLICIES, PRAC-
   26  TICES OR OPERATIONS OF THE AGENCY IN WHICH  CASE  THE  COMMISSION  SHALL
   27  CONSIDER  ONLY  THE  QUESTION OF HOW TO MITIGATE THE IMPACT ON THE POLI-
   28  CIES, PROCEDURES OR OPERATIONS OF THE AGENCY.
   29    S 280-N. REMEDIES AND RELIEF. 1. WHEN AN ADMINISTRATIVE JUDGE, OR  THE
   30  COMMISSION,  IN  AN  INDIVIDUAL  CASE  OF  DISCRIMINATION, FINDS THAT AN
   31  APPLICANT OR AN EMPLOYEE HAS BEEN DISCRIMINATED AGAINST, THE ADMINISTRA-
   32  TIVE JUDGE SHALL PROVIDE FULL RELIEF WHICH SHALL INCLUDE  THE  FOLLOWING
   33  ELEMENTS IN APPROPRIATE CIRCUMSTANCES:
   34    (A) NOTIFICATION TO ALL EMPLOYEES OF THE AGENCY IN THE AFFECTED FACIL-
   35  ITY  OF  THEIR RIGHT TO BE FREE OF UNLAWFUL DISCRIMINATION AND ASSURANCE
   36  THAT THE PARTICULAR TYPES OF DISCRIMINATION FOUND WILL NOT RECUR;
   37    (B) COMMITMENT THAT CORRECTIVE, CURATIVE, OR PREVENTIVE ACTION WILL BE
   38  TAKEN, OR MEASURES ADOPTED, TO ENSURE THAT VIOLATIONS OF THE LAW SIMILAR
   39  TO THOSE FOUND WILL NOT RECUR;
   40    (C) AN UNCONDITIONAL OFFER TO EACH IDENTIFIED VICTIM OF DISCRIMINATION
   41  OF PLACEMENT IN THE POSITION THE PERSON WOULD HAVE OCCUPIED BUT FOR  THE
   42  DISCRIMINATION  SUFFERED  BY  THAT PERSON, OR A SUBSTANTIALLY EQUIVALENT
   43  POSITION;
   44    (D) PAYMENT TO EACH IDENTIFIED VICTIM  OF  DISCRIMINATION  ON  A  MAKE
   45  WHOLE  BASIS  FOR ANY LOSS OF EARNINGS THE PERSON MAY HAVE SUFFERED AS A
   46  RESULT OF THE DISCRIMINATION TOGETHER WITH INTEREST ON SUCH  LOST  EARN-
   47  INGS; AND
   48    (E)  COMMITMENT  THAT  THE  AGENCY  SHALL  CEASE  FROM ENGAGING IN THE
   49  SPECIFIC UNLAWFUL EMPLOYMENT PRACTICE FOUND IN THE CASE.
   50    2. (A) WHEN AN AGENCY, OR THE COMMISSION, FINDS THAT AN APPLICANT  FOR
   51  EMPLOYMENT  HAS  BEEN  DISCRIMINATED AGAINST, THE AGENCY SHALL OFFER THE
   52  APPLICANT THE POSITION THAT THE APPLICANT  WOULD  HAVE  OCCUPIED  ABSENT
   53  DISCRIMINATION  OR,  IF  JUSTIFIED BY THE CIRCUMSTANCES, A SUBSTANTIALLY
   54  EQUIVALENT POSITION.  THE OFFER SHALL BE MADE IN WRITING. THE INDIVIDUAL
   55  SHALL HAVE THIRTY DAYS FROM RECEIPT OF THE OFFER WITHIN WHICH TO  ACCEPT
   56  OR  DECLINE THE OFFER. FAILURE TO ACCEPT THE OFFER WITHIN THE THIRTY DAY
       A. 853                             16
    1  PERIOD WILL BE CONSIDERED A DECLINATION OF THE OFFER, UNLESS  THE  INDI-
    2  VIDUAL CAN SHOW THAT CIRCUMSTANCES BEYOND HIS OR HER CONTROL PREVENTED A
    3  RESPONSE WITHIN THE TIME LIMIT.
    4    (B)  IF THE OFFER IS ACCEPTED, APPOINTMENT SHALL BE RETROACTIVE TO THE
    5  DATE THE APPLICANT WOULD HAVE BEEN HIRED. BACK PAY WITH  INTEREST  SHALL
    6  BE AWARDED FROM THE DATE THE INDIVIDUAL WOULD HAVE ENTERED ON DUTY UNTIL
    7  THE DATE THE INDIVIDUAL ACTUALLY ENTERS ON DUTY. THE INDIVIDUAL SHALL BE
    8  DEEMED  TO  HAVE PERFORMED SERVICE FOR THE AGENCY DURING THIS PERIOD FOR
    9  ALL PURPOSES EXCEPT FOR MEETING SERVICE REQUIREMENTS FOR COMPLETION OF A
   10  REQUIRED PROBATIONARY OR TRIAL PERIOD.
   11    (C) IF THE OFFER OF EMPLOYMENT IS DECLINED, THE AGENCY SHALL AWARD THE
   12  INDIVIDUAL A SUM EQUAL TO THE BACK PAY HE OR  SHE  WOULD  HAVE  RECEIVED
   13  FROM  THE  DATE HE OR SHE WOULD HAVE BEEN HIRED UNTIL THE DATE THE OFFER
   14  WAS DECLINED.  INTEREST ON BACK PAY SHALL BE INCLUDED IN  THE  BACK  PAY
   15  COMPUTATION.  THE  AGENCY  SHALL  INFORM  THE APPLICANT, IN ITS OFFER OF
   16  EMPLOYMENT, OF THE RIGHT TO  THIS  AWARD  IN  THE  EVENT  THE  OFFER  IS
   17  DECLINED.
   18    3.  WHEN  AN  ADMINISTRATIVE  JUDGE,  OR THE COMMISSION, FINDS THAT AN
   19  EMPLOYEE OF THE AGENCY  WAS  DISCRIMINATED  AGAINST,  THE  AGENCY  SHALL
   20  PROVIDE  RELIEF, WHICH SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, ONE OR
   21  MORE OF THE FOLLOWING ACTIONS:
   22    (A) NONDISCRIMINATORY PLACEMENT, WITH BACK PAY AND INTEREST;
   23    (B) CANCELLATION OF AN UNWARRANTED PERSONNEL ACTION AND RESTORATION OF
   24  THE EMPLOYEE TO HIS OR HER FORMER POSITION OR A SUBSTANTIALLY EQUIVALENT
   25  POSITION;
   26    (C) EXPUNCTION FROM THE AGENCY'S  RECORDS  OF  ANY  ADVERSE  MATERIALS
   27  RELATING TO THE DISCRIMINATORY EMPLOYMENT PRACTICE; AND
   28    (D)  FULL  OPPORTUNITY  TO PARTICIPATE IN THE EMPLOYEE BENEFIT DENIED,
   29  INCLUDING, BUT NOT LIMITED TO, TRAINING, PREFERENTIAL WORK  ASSIGNMENTS,
   30  AND OVERTIME SCHEDULING.
   31    4.  THE  AGENCY  HAS  THE  BURDEN OF PROVING BY A PREPONDERANCE OF THE
   32  EVIDENCE THAT THE COMPLAINANT HAS FAILED TO MITIGATE HIS OR HER DAMAGES.
   33  FAILURE TO MITIGATE MUST BE RAISED AT THE HEARING BEFORE THE ADMINISTRA-
   34  TIVE JUDGE OR IS WAIVED.
   35    5. (A) NOTWITHSTANDING ANY PROVISION  OF  LAW  TO  THE  CONTRARY,  THE
   36  PROVISIONS  OF THIS SUBDIVISION RELATING TO THE AWARD OF ATTORNEY'S FEES
   37  OR COSTS SHALL APPLY TO ALL ALLEGATIONS OF DISCRIMINATION COVERED  UNDER
   38  THIS  ARTICLE  AND  TO  ALL  ALLEGATIONS  OF DISCRIMINATION COVERED WITH
   39  RESPECT TO PRIVATE EMPLOYEES UNDER  ARTICLE  FIFTEEN  OF  THIS  CHAPTER,
   40  CONSTITUTING  THE  HUMAN  RIGHTS LAW. IN A DECISION OF AN ADMINISTRATIVE
   41  JUDGE, OR THE COMMISSION, OR OF A COURT IN A CASE  INVOLVING  A  PRIVATE
   42  EMPLOYEE  COVERED  UNDER  THE  HUMAN  RIGHTS  LAW,  OR A PUBLIC EMPLOYEE
   43  COVERED UNDER THIS CHAPTER, THE ADMINISTRATIVE JUDGE, THE COMMISSION, OR
   44  THE COURT, AS APPLICABLE, SHALL AWARD THE APPLICANT OR EMPLOYEE  REASON-
   45  ABLE  ATTORNEY'S  FEES (INCLUDING EXPERT WITNESS AND PARALEGAL FEES) AND
   46  OTHER COSTS AND DISBURSEMENTS INCURRED IN THE INVESTIGATION AND PROCESS-
   47  ING OF THE COMPLAINT, FROM THE FIRST INVOLVEMENT OF COUNSEL THROUGH  ALL
   48  APPEALS.  ANY  AWARD  OF  ATTORNEY'S  FEES OR COSTS SHALL BE PAID BY THE
   49  AGENCY.
   50    (B) WHEN THE ADMINISTRATIVE JUDGE, THE  COMMISSION,  OR  A  COURT,  AS
   51  APPROPRIATE,  DETERMINES AN ENTITLEMENT TO ATTORNEY'S FEES OR COSTS, THE
   52  COMPLAINANT'S ATTORNEY SHALL SUBMIT A VERIFIED STATEMENT  OF  ATTORNEY'S
   53  FEES,  INCLUDING  BUT  NOT LIMITED TO, EXPERT WITNESS FEES AND PARALEGAL
   54  FEES, AND OTHER COSTS AND DISBURSEMENTS, AS APPROPRIATE, TO THE ADMINIS-
   55  TRATIVE JUDGE, THE COMMISSION,  OR  THE  COURT  WITHIN  THIRTY  DAYS  OF
   56  RECEIPT  OF THE DECISION AND SHALL SUBMIT A COPY OF THE STATEMENT TO THE
       A. 853                             17
    1  AGENCY. A STATEMENT OF ATTORNEY'S FEES AND COSTS SHALL BE ACCOMPANIED BY
    2  AN AFFIDAVIT EXECUTED BY THE ATTORNEY OF RECORD ITEMIZING THE ATTORNEY'S
    3  CHARGES FOR LEGAL SERVICES USING THE ATTORNEY'S ORDINARY  AND  CUSTOMARY
    4  RECORDKEEPING PROCESS FOR ACCOUNTING FOR HIS OR HER TIME. THE AGENCY MAY
    5  OBJECT  IN  WHOLE OR IN PART TO A STATEMENT OF ATTORNEY'S FEES AND COSTS
    6  WITHIN THIRTY DAYS OF ITS RECEIPT.
    7    (C) THE ADMINISTRATIVE JUDGE, THE COMMISSION, OR THE COURT SHALL ISSUE
    8  A DECISION DETERMINING THE AMOUNT OF ATTORNEY'S FEES OR COSTS DUE WITHIN
    9  SIXTY DAYS OF RECEIPT OF THE STATEMENT AND AFFIDAVIT. THE DECISION SHALL
   10  INCLUDE THE SPECIFIC REASONS FOR DETERMINING THE AMOUNT OF THE AWARD.
   11    (D) THE AMOUNT OF  ATTORNEY'S  FEES  SHALL  BE  CALCULATED  USING  THE
   12  FOLLOWING  STANDARDS:  THE  STARTING  POINT SHALL BE THE NUMBER OF HOURS
   13  REASONABLY EXPENDED MULTIPLIED BY A REASONABLE HOURLY RATE. THE  REASON-
   14  ABLE  HOURLY RATE SHALL BE THE SAME AS THE LODESTAR RATE THEN PREVAILING
   15  IN FEDERAL COURT FOR ATTORNEYS OF LIKE EXPERIENCE IN THE PARTICULAR PART
   16  OF THE STATE WHERE THE CASE AROSE.  THERE IS A STRONG  PRESUMPTION  THAT
   17  THIS AMOUNT REPRESENTS THE REASONABLE FEE.
   18    S  280-O.  COMPLIANCE  WITH  FINAL DECISIONS. 1.   RELIEF ORDERED IN A
   19  FINAL DECISION OF AN ADMINISTRATIVE JUDGE, IF NOT APPEALED,  OR  OF  THE
   20  COMMISSION,  IS  MANDATORY AND BINDING ON THE AGENCY EXCEPT AS OTHERWISE
   21  PROVIDED IN THIS SECTION.  FAILURE TO IMPLEMENT ORDERED RELIEF SHALL  BE
   22  SUBJECT TO JUDICIAL ENFORCEMENT AS SET FORTH IN THIS CHAPTER.
   23    2.  NOTWITHSTANDING  SUBDIVISION  ONE OF THIS SECTION, WHEN THE AGENCY
   24  REQUESTS RECONSIDERATION OR APPEALS AND THE CASE INVOLVES REMOVAL, SEPA-
   25  RATION, OR SUSPENSION CONTINUING BEYOND THE  DATE  OF  THE  REQUEST  FOR
   26  RECONSIDERATION,  AND  WHEN THE DECISION ORDERS RETROACTIVE RESTORATION,
   27  THE AGENCY SHALL COMPLY WITH THE DECISION TO THE EXTENT OF THE TEMPORARY
   28  OR CONDITIONAL RESTORATION OF THE EMPLOYEE TO DUTY STATUS IN  THE  POSI-
   29  TION  SPECIFIED  BY  THE ADMINISTRATIVE JUDGE OF THE COMMISSION, PENDING
   30  THE OUTCOME OF THE AGENCY REQUEST FOR RECONSIDERATION.
   31    3. SERVICE UNDER THE TEMPORARY OR CONDITIONAL  RESTORATION  PROVISIONS
   32  OF  SUBDIVISION  TWO  OF  THIS  SECTION  SHALL  BE  CREDITED  TOWARD THE
   33  COMPLETION OF A  PROBATIONARY  OR  TRIAL  PERIOD,  OR  SHALL  COUNT  FOR
   34  PROMOTION AS APPROPRIATE.
   35    4.  WHEN  THE AGENCY REQUESTS RECONSIDERATION, OR APPEALS IT MAY DELAY
   36  THE PAYMENT OF ANY AMOUNTS ORDERED TO BE PAID TO THE  COMPLAINANT  UNTIL
   37  AFTER  THE REQUEST FOR RECONSIDERATION OR THE APPEAL IS RESOLVED. IF THE
   38  AGENCY DELAYS PAYMENT OF ANY AMOUNT PENDING THE OUTCOME OF  THE  REQUEST
   39  TO RECONSIDER OR THE APPEAL, AND THE RESOLUTION OF THE REQUEST OR APPEAL
   40  REQUIRES  THE  AGENCY  TO  MAKE  THE  PAYMENT, THEN THE AGENCY SHALL PAY
   41  INTEREST FROM THE DATE OF THE ORIGINAL DECISION IT HAD APPEALED OR ASKED
   42  TO BE RECONSIDERED UNTIL PAYMENT  IS  MADE,  AS  WELL  AS  ALL  INTEREST
   43  REQUIRED PRIOR TO THE REQUEST FOR RECONSIDERATION OR APPEAL.
   44    5. THE AGENCY SHALL NOTIFY THE ADMINISTRATIVE JUDGE OR THE COMMISSION,
   45  AS APPROPRIATE, AND THE EMPLOYEE IN WRITING AT THE SAME TIME IT REQUESTS
   46  RECONSIDERATION  OR  APPEALS THAT THE RELIEF IT PROVIDES IS TEMPORARY OR
   47  CONDITIONAL AND, IF APPLICABLE, THAT IT WILL DELAY THE  PAYMENT  OF  ANY
   48  AMOUNTS  OWED  BUT WILL PAY INTEREST AS SET FORTH ABOVE IN THE EVENT ITS
   49  APPLICATION OR APPEAL IS UNSUCCESSFUL.  FAILURE OF THE AGENCY TO PROVIDE
   50  NOTIFICATION WILL RESULT IN THE DISMISSAL OF  THE  AGENCY'S  REQUEST  OR
   51  APPEAL.
   52    6. WHEN NO APPEAL IS TAKEN, OR NO REQUEST FOR RECONSIDERATION IS FILED
   53  OR  WHEN  A  REQUEST  FOR  RECONSIDERATION  IS  DENIED, THE AGENCY SHALL
   54  PROVIDE THE RELIEF ORDERED AND THERE IS NO FURTHER RIGHT TO DELAY IMPLE-
   55  MENTATION OF THE ORDERED RELIEF.  THE RELIEF SHALL BE PROVIDED  IN  FULL
       A. 853                             18
    1  NOT  LATER  THAN  SIXTY  DAYS AFTER RECEIPT OF THE FINAL DECISION UNLESS
    2  OTHERWISE ORDERED IN THE DECISION.
    3    S  280-P.  ENFORCEMENT  OF FINAL DECISIONS. A COMPLAINANT MAY PETITION
    4  THE SUPREME COURT OF THE STATE OF NEW YORK PURSUANT TO ARTICLE  SEVENTY-
    5  EIGHT  OF THE CIVIL PRACTICE LAW AND RULES FOR ENFORCEMENT OF A DECISION
    6  ISSUED BY AN ADMINISTRATIVE JUDGE THAT IS NOT APPEALED  TO  THE  COMMIS-
    7  SION,  THAT  IS ISSUED UNDER THE COMMISSION'S APPELLATE JURISDICTION, OR
    8  OF ANY SETTLEMENT AGREEMENT EXECUTED IN THE COURSE OF THE ADMINISTRATIVE
    9  PROCESS. A SETTLEMENT AGREEMENT IS BINDING EVEN IF NOT EXECUTED  BY  ALL
   10  PARTIES  IF  THE ESSENTIAL TERMS WERE CLEARLY ENTERED INTO THE RECORD OR
   11  IF THE EXCHANGE OF CORRESPONDENCE CLEARLY  INDICATES  AGREEMENT  ON  THE
   12  ESSENTIAL TERMS. THE COURT MAY SUPPLY ANY ADDITIONAL NON-ESSENTIAL TERMS
   13  BASED ON THE SUBMISSIONS OF THE PARTIES.
   14    S  280-Q.  INTERIM  RELIEF.  1.  WHEN  THE AGENCY APPEALS AND THE CASE
   15  INVOLVES REMOVAL, SEPARATION, OR SUSPENSION CONTINUING BEYOND  THE  DATE
   16  OF  THE  APPEAL,  AND  WHEN  THE  ADMINISTRATIVE JUDGE'S DECISION ORDERS
   17  RETROACTIVE RESTORATION, THE AGENCY SHALL COMPLY WITH  THE  DECISION  TO
   18  THE  EXTENT  OF THE TEMPORARY OR CONDITIONAL RESTORATION OF THE EMPLOYEE
   19  TO DUTY STATUS IN THE POSITION SPECIFIED IN THE  DECISION,  PENDING  THE
   20  OUTCOME OF THE AGENCY APPEAL.
   21    2.  SERVICE  UNDER THE TEMPORARY OR CONDITIONAL RESTORATION PROVISIONS
   22  OF SUBDIVISION  ONE  OF  THIS  SECTION  SHALL  BE  CREDITED  TOWARD  THE
   23  COMPLETION  OF  A  PROBATIONARY  OR  TRIAL  PERIOD,  OR  ELIGIBILITY FOR
   24  PROMOTION, IF THE  COMMISSION  UPHOLDS  THE  DECISION  ON  APPEAL.  SUCH
   25  SERVICE  SHALL  NOT  BE CREDITED TOWARD THE COMPLETION OF ANY APPLICABLE
   26  PROBATIONARY OR TRIAL PERIOD  OR  TOWARD  PROMOTION  IF  THE  COMMISSION
   27  REVERSES THE DECISION ON APPEAL.
   28    3.  WHEN  THE  AGENCY APPEALS, IT MAY DELAY THE PAYMENT OF ANY AMOUNT,
   29  OTHER THAN PAY AND BENEFITS  ACCRUING  UNDER  TEMPORARY  OR  CONDITIONAL
   30  RESTORATION,  WHICH HAD BEEN ORDERED TO BE PAID TO THE COMPLAINANT UNTIL
   31  AFTER THE APPEAL IS  RESOLVED.  SUCH  DELAY  SHALL  BE  ADMINISTERED  IN
   32  ACCORDANCE WITH SECTION TWO HUNDRED EIGHTY-O OF THIS ARTICLE.
   33    S 280-R. JOINT PROCESSING AND CONSOLIDATION OF COMPLAINTS.  COMPLAINTS
   34  OF  DISCRIMINATION  FILED  BY  TWO  OR  MORE  COMPLAINANTS CONSISTING OF
   35  SUBSTANTIALLY SIMILAR ALLEGATIONS OF DISCRIMINATION OR RELATING  TO  THE
   36  SAME MATTER MAY BE CONSOLIDATED BY THE AGENCY, THE ADMINISTRATIVE JUDGE,
   37  OR THE COMMISSION FOR JOINT PROCESSING AFTER APPROPRIATE NOTIFICATION TO
   38  THE  PARTIES. TWO OR MORE COMPLAINTS OF DISCRIMINATION FILED BY THE SAME
   39  COMPLAINANT SHALL BE CONSOLIDATED BY THE AGENCY, BY  THE  ADMINISTRATIVE
   40  JUDGE,  OR  BY  THE  COMMISSION  FOR  JOINT PROCESSING AFTER APPROPRIATE
   41  NOTIFICATION TO THE COMPLAINANT. WHEN A COMPLAINT HAS BEEN  CONSOLIDATED
   42  WITH ONE OR MORE EARLIER FILED COMPLAINTS, THE AGENCY SHALL COMPLETE ITS
   43  INVESTIGATION  WITHIN  ONE  HUNDRED  EIGHTY DAYS AFTER THE FILING OF THE
   44  LAST COMPLAINT OR THREE HUNDRED SIXTY  DAYS  AFTER  THE  FILING  OF  THE
   45  ORIGINAL  COMPLAINT,  EXCEPT  THAT THE COMPLAINANT MAY REQUEST A HEARING
   46  FROM AN ADMINISTRATIVE JUDGE ON THE  CONSOLIDATED  COMPLAINTS  ANY  TIME
   47  AFTER  ONE  HUNDRED  EIGHTY  DAYS  FROM  THE  DATE  OF  THE  FIRST FILED
   48  COMPLAINT. AN AGGRIEVED INDIVIDUAL SHALL RETAIN THE  RIGHT  TO  BRING  A
   49  CIVIL  ACTION  IN  NEW  YORK  STATE SUPREME COURT CONCERNING THE SUBJECT
   50  MATTER OF THE  CONSOLIDATED  COMPLAINTS  IF  THE  INVESTIGATION  OF  THE
   51  CONSOLIDATED  COMPLAINTS IS NOT COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS
   52  OF CONSOLIDATION OR THREE HUNDRED SIXTY DAYS AFTER  THE  FILING  OF  THE
   53  FIRST  COMPLAINT,  WHICHEVER  IS  EARLIER,  OR  A  HEARING  HAS NOT BEEN
   54  COMMENCED WITHIN ONE HUNDRED EIGHTY DAYS OF THE REQUEST FOR SAME.
   55    S 280-S. APPEALS OF DECISIONS OF  THE  COMMISSION.  DECISIONS  OF  THE
   56  COMMISSION  SHALL BE APPEALABLE TO THE APPELLATE DIVISION OF THE SUPREME
       A. 853                             19
    1  COURT IN THE PARTICULAR DEPARTMENT WHERE THE EMPLOYEE ACTING IN  HIS  OR
    2  HER  INDIVIDUAL  CAPACITY OR ACTING AS THE AGENT OF A CLASS WAS EMPLOYED
    3  AT THE TIME HE OR SHE FILED THE COMPLAINT. DECISIONS OF  THE  COMMISSION
    4  SHALL  NOTIFY  THE  COMPLAINANT  OR  CLASS AGENT AND THE AGENCY OF THEIR
    5  RIGHT TO APPEAL TO THE APPELLATE DIVISION. NOTICE  OF  APPEAL  SHALL  BE
    6  FILED  WITH  THE  COMMISSION,  WHICH  SHALL  THEN NOTIFY THE APPROPRIATE
    7  APPELLATE DIVISION OF THE PENDENCY OF AN APPEAL.  THE  TIME  TO  FILE  A
    8  NOTICE  OF APPEAL SHALL BE THIRTY DAYS FROM THE DATE OF THE COMMISSION'S
    9  ISSUANCE OF ITS DECISION AND MAILING OF THAT DECISION BY THE  COMMISSION
   10  TO BOTH PARTIES.
   11    S  280-T.  EEO GROUP STATISTICS. 1. EACH AGENCY, SUBJECT TO REVIEW AND
   12  APPROVAL BY THE COMMISSION, UNDER A  TIMELINE  SET  BY  THE  COMMISSION,
   13  SHALL ESTABLISH:
   14    (A)  A  SYSTEM TO COLLECT AND MAINTAIN ACCURATE EMPLOYMENT INFORMATION
   15  ON THE RACE, NATIONAL ORIGIN, SEX AND DISABILITIES OF ITS EMPLOYEES; AND
   16    (B) A SYSTEM FOR REPORTING THE NUMBER OF EEO  COMPLAINTS  FILED  UNDER
   17  THIS ARTICLE, AND THE DISPOSITION OF SUCH COMPLAINTS.
   18    2. THE DATA GATHERED SHALL BE REPORTED IN PDF FORMAT ON AN EEO SECTION
   19  OF  SUCH  AGENCY'S WEBSITE AND SHALL BE COLLECTED STATEWIDE AND REPORTED
   20  IN PDF FORMAT ON THE COMMISSION'S WEBSITE.
   21    3. DATA ON RACE, NATIONAL ORIGIN, AND SEX SHALL BE COLLECTED BY VOLUN-
   22  TARY SELF-IDENTIFICATION. IF AN EMPLOYEE DOES  NOT  VOLUNTARILY  PROVIDE
   23  THE  REQUESTED  INFORMATION, THE AGENCY SHALL ADVISE THE EMPLOYEE OF THE
   24  IMPORTANCE OF THE DATA AND OF THE AGENCY'S OBLIGATION TO REPORT  IT.  IF
   25  THE  EMPLOYEE  STILL REFUSES TO PROVIDE THE INFORMATION, THE AGENCY MUST
   26  MAKE VISUAL IDENTIFICATION AND INFORM THE EMPLOYEE OF THE DATA  IT  WILL
   27  BE  REPORTING.  IF  AN  AGENCY  BELIEVES THAT INFORMATION PROVIDED BY AN
   28  EMPLOYEE IS INACCURATE, THE AGENCY SHALL ADVISE THE EMPLOYEE  ABOUT  THE
   29  SOLELY  STATISTICAL  PURPOSE  FOR WHICH THE DATA IS BEING COLLECTED, THE
   30  NEED FOR ACCURACY, THE AGENCY'S RECOGNITION OF THE  SENSITIVITY  OF  THE
   31  INFORMATION, AND THE EXISTENCE OF PROCEDURES TO PREVENT ITS UNAUTHORIZED
   32  DISCLOSURE.  IF,  THEREAFTER, THE EMPLOYEE DECLINES TO CHANGE THE APPAR-
   33  ENTLY INACCURATE SELF-IDENTIFICATION, THE AGENCY MUST ACCEPT IT.
   34    4. THE INFORMATION COLLECTED UNDER SUBDIVISION  TWO  OF  THIS  SECTION
   35  SHALL BE DISCLOSED ONLY IN THE FORM OF GROSS STATISTICS. AN AGENCY SHALL
   36  NOT  COLLECT OR MAINTAIN ANY INFORMATION ON THE RACE, NATIONAL ORIGIN OR
   37  SEX OF INDIVIDUAL EMPLOYEES EXCEPT WHEN  AN  AUTOMATED  DATA  PROCESSING
   38  SYSTEM  IS USED IN ACCORDANCE WITH STANDARDS AND REQUIREMENTS PRESCRIBED
   39  BY THE COMMISSION TO INSURE INDIVIDUAL PRIVACY  AND  THE  SEPARATION  OF
   40  THAT INFORMATION FROM THE EMPLOYEE'S PERSONNEL RECORD.
   41    5. EACH SYSTEM IS SUBJECT TO THE FOLLOWING CONTROLS:
   42    (A)  ONLY  THOSE  CATEGORIES OF RACE AND NATIONAL ORIGIN PRESCRIBED BY
   43  THE  COMMISSION,  OR  CATEGORIES  CONCERNING  THE  PROCESSING   OF   EEO
   44  COMPLAINTS, MAY BE USED;
   45    (B) ONLY THE SPECIFIC PROCEDURES FOR THE COLLECTION AND MAINTENANCE OF
   46  DATA THAT ARE PRESCRIBED OR APPROVED BY THE COMMISSION MAY BE USED;
   47    (C)  THE COMMISSION SHALL REVIEW THE OPERATION OF THE AGENCY SYSTEM TO
   48  INSURE ADHERENCE TO COMMISSION PROCEDURES AND  REQUIREMENTS.  AN  AGENCY
   49  MAY MAKE AN EXCEPTION TO THE PRESCRIBED PROCEDURES AND REQUIREMENTS ONLY
   50  WITH THE ADVANCE WRITTEN APPROVAL OF THE COMMISSION;
   51    (D)  THE  AGENCY  MAY  USE THE DATA ONLY IN STUDIES AND ANALYSES WHICH
   52  CONTRIBUTE AFFIRMATIVELY  TO  ACHIEVING  THE  OBJECTIVES  OF  THE  EQUAL
   53  EMPLOYMENT  OPPORTUNITY  PROGRAM.  AN AGENCY SHALL NOT ESTABLISH A QUOTA
   54  FOR THE EMPLOYMENT OF PERSONS ON THE BASIS  OF  RACE,  COLOR,  RELIGION,
   55  SEX, OR NATIONAL ORIGIN;
       A. 853                             20
    1    (E)  DATA ON DISABILITIES SHALL ALSO BE COLLECTED BY VOLUNTARY SELF-I-
    2  DENTIFICATION. IF AN EMPLOYEE DOES NOT VOLUNTARILY PROVIDE THE REQUESTED
    3  INFORMATION, THE AGENCY SHALL ADVISE THE EMPLOYEE OF THE  IMPORTANCE  OF
    4  THE DATA AND OF THE AGENCY'S OBLIGATION TO REPORT IT. IF AN EMPLOYEE WHO
    5  HAS  BEEN APPOINTED PURSUANT TO SPECIAL APPOINTMENT AUTHORITY FOR HIRING
    6  INDIVIDUALS WITH DISABILITIES, OR WHO HAS REQUESTED REASONABLE  ACCOMMO-
    7  DATION FOR A DISABILITY, STILL REFUSES TO PROVIDE THE REQUESTED INFORMA-
    8  TION,  THE AGENCY MUST IDENTIFY THE EMPLOYEE'S DISABILITY BASED UPON THE
    9  RECORDS SUPPORTING THE APPOINTMENT OR THE REQUEST FOR REASONABLE  ACCOM-
   10  MODATION.  IF  ANY OTHER EMPLOYEE STILL REFUSES TO PROVIDE THE REQUESTED
   11  INFORMATION OR PROVIDES INFORMATION THAT THE AGENCY BELIEVES TO BE INAC-
   12  CURATE, THE AGENCY SHOULD REPORT THE  EMPLOYEE'S  DISABILITY  STATUS  AS
   13  UNKNOWN;
   14    (F)  AN  AGENCY  SHALL REPORT TO THE COMMISSION ON EMPLOYMENT BY RACE,
   15  NATIONAL ORIGIN, SEX AND DISABILITY IN THE FORM AND AT SUCH TIMES AS THE
   16  COMMISSION MAY REQUIRE.
   17    S 2. Section 293 of the executive law, as amended by  chapter  958  of
   18  the  laws of 1968, subdivisions 1 and 2 as amended by chapter 166 of the
   19  laws of 2000, is amended to read as follows:
   20    S 293. [Division of] NEW YORK STATE COMMISSION ON human  rights.    1.
   21  There  is hereby created in the executive department a [division of] NEW
   22  YORK STATE COMMISSION ON human rights hereinafter in this article called
   23  the [division] COMMISSION.  THE COMMISSION SHALL CONSIST OF FIVE MEMBERS
   24  WITH FOUR YEAR TERMS. THE  GOVERNOR  SHALL  APPOINT  EACH  OF  THE  FIVE
   25  MEMBERS.  THE  INITIAL TERM OF EACH MEMBER SHALL BE ONE YEAR, TWO YEARS,
   26  THREE YEARS, FOUR YEARS, AND FIVE YEARS, SO THAT THE TERMS ARE STAGGERED
   27  TO GUARANTEE THE INDEPENDENCE OF THE COMMISSION. The head of such [divi-
   28  sion] COMMISSION shall be [a commissioner hereinafter  in  this  article
   29  called the commissioner] AN EXECUTIVE DIRECTOR, who shall be [appointed]
   30  ELECTED  by  the  [governor,  by  and with the advice and consent of the
   31  senate and shall hold office at the pleasure of the governor] MEMBERS OF
   32  THE COMMISSION.   The commissioner shall  be  entitled  to  his  or  her
   33  expenses actually and necessarily incurred by him or her in the perform-
   34  ance of his or her duties.
   35    2.  The commissioner may establish, consolidate, reorganize or abolish
   36  such bureaus and other organizational units within the division as he or
   37  she determines to be necessary for efficient operation.
   38    S 3. (a) Wherever the term "state division of human rights" appears in
   39  the consolidated or unconsolidated laws of  this  state,  such  term  is
   40  hereby changed to the "New York state commission on human rights".
   41    (b)  Wherever  the term "commissioner of the division of human rights"
   42  appears in the consolidated or unconsolidated laws of this  state,  such
   43  term  is hereby changed to the "executive director of the New York state
   44  commission on human rights".
   45    (c) The legislative bill drafting commission  is  hereby  directed  to
   46  effectuate  this  provision,  and  shall  be  guided  by a memorandum of
   47  instruction setting forth the specific provisions of law to be  amended.
   48  Such  memorandum  shall  be transmitted to the legislative bill drafting
   49  commission within sixty days of enactment of this provision. Such  memo-
   50  randum  shall be issued jointly by the governor, the temporary president
   51  of the senate and the speaker of the assembly, or  by  the  delegate  of
   52  each.
   53    S 4. This act shall take effect on January 1, 2017.