Introduced in House Passed House Introduced in Senate Passed Senate Became Law
01/07/2020     01/29/2020  

Local arbitration agreements; disclosure of certain information.

Requires a locality, for any procurement contract for goods and services and any purchasing decision, to ensure that solicitations require the bidder to disclose certain information regarding pre-dispute arbitration clauses and consider each bidder's policies and practices related to arbitration. The bill requires each locality to seek to contract with qualified entities and business owners that can demonstrate or will certify that they do not use pre-dispute arbitration clauses in contracts with employees or consumers, and evaluate bidders based on disclosures required under the bill, in the event no bidder can demonstrate or will certify that they do not use pre-dispute arbitration clauses in contracts with employees or consumers. The bill authorizes a locality to cancel, terminate, or suspend, in whole or in part, the contract of any contractor who violates a provision of the bill, and declare the contractor ineligible for further contracts with such locality.

Date Version PDF TXT
01/29/2020 Senate: Committee substitute printed 20106982D-S1 Open
01/07/2020 Senate: Prefiled and ordered printed; offered 01/08/20 20104696D Open

            

2020 SESSION

    20106982D
    SENATE BILL NO. 645
    AMENDMENT IN THE NATURE OF A SUBSTITUTE
    (Proposed by the Senate Committee on General Laws and Technology
    on January 29, 2020)
    (Patron Prior to Substitute--Senator Surovell)
    A BILL to amend the Code of Virginia by adding in Chapter 43 of Title 2.2 an article numbered 7, consisting of sections numbered 2.2-4377.1 through 2.2-4377.5, relating to local arbitration agreements.

    Be it enacted by the General Assembly of Virginia:

    1. That the Code of Virginia is amended by adding in Chapter 43 of Title 2.2 an article numbered 7, consisting of sections numbered 2.2-4377.1 through 2.2-4377.5, as follows:

    Article 7.
    Arbitration Agreements Act.

    2.2-4377.1. Definitions.

    As used in this article:

    "Consumer dispute" means a dispute between an individual who seeks or acquires real or personal property, services, money, or credit for personal, family, or household purposes and the seller or provider of such property, services, money, or credit.

    "Employment dispute" means a dispute (i) between an employer and his employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act (29 U.S.C. � 201 et seq.), state labor law, or by contract, or (ii) as to whether an individual categorized as an independent contractor is an employee under applicable law.

    "Pre-dispute arbitration clause" means any contractual provision that compels or otherwise relates to arbitration of disputes that arise after the contract is formed.

    2.2-4377.2. Procurement procedures; disclosure required for pre-award actions.

    A. For any procurement contract for goods and services and any purchasing decision, a locality shall ensure that solicitations require the bidder or offeror to disclose information regarding pre-dispute arbitration clauses. The locality shall require the bidder or offeror to provide written submissions, together with any documents referenced in such submissions, to allow the locality to ascertain:

    1. Whether the bidder or offeror requires employees to sign a contract containing a pre-dispute arbitration clause as a condition of employment;

    2. If the pre-dispute arbitration clause is not a condition of employment, whether the pre-dispute arbitration clause binds employees who do not take affirmative steps to opt out;

    3. If there is an opt-out provision, what procedures and time periods govern its application;

    4. If there is an opt-out provision, what percentage of the bidder or offerors workforce has opted out of the pre-dispute arbitration clause;

    5. Whether the bidder or offeror requires consumers to sign a contract containing a pre-dispute arbitration clause as a condition of purchasing products or services;

    6. Whether the pre-dispute arbitration clause applies to all potential causes of action related to the employment relationship, and if not, whether the pre-dispute arbitration clause applies to claims concerning (i) sexual harassment or other forms of gender discrimination, (ii) racial discrimination or other claims arising pursuant to Title VII of the Civil Rights Act of 1964 (42 U.S.C. � 2000e et seq.) or (iii) the Fair Labor Standards Act (29 U.S.C. � 201 et seq.) or an equivalent state law claim;

    7. Whether the pre-dispute arbitration clause limits the ability of employees, consumers, or other parties to participate in collective, class, or representative actions;

    8. Whether the pre-dispute arbitration clause limits discovery;

    9. Whether the pre-dispute arbitration clause purports to limit the right of an employee or consumer to lodge or pursue a complaint with public agencies;

    10. The estimated costs the bidder or offerors employees or consumers are required to bear to pursue arbitration;

    11. Whether the pre-dispute arbitration clause designates a venue other than the state in which non-bidder or non-offeror party resides;

    12. Whether the pre-dispute arbitration clause (i) imposes any limits on the relief that an arbitrator may award, or (ii) waives the right to seek certain forms of relief;

    13. Whether the pre-dispute arbitration clause requires employees or consumers to waive the right to assert any claims;

    14. Whether the pre-dispute arbitration clause imposes any limit on the time period in which an employee or consumer may initiate arbitration, other than the statute of limitations under state or federal law;

    15. Which, if any, arbitration administrator or arbitration service provider is designated by the pre-dispute arbitration clause;

    16. How many times the bidder or offeror filed a motion to compel arbitration in a judicial proceeding in the last five years;

    17. How many requests for arbitration the bidder or offeror received in the last five years;

    18. Whether the bidder or offerors retainer agreement with its arbitral provider gives the bidder or offerors directors and executives access to arbitration outcomes or findings;

    19. Who reviews the bidder or offerors arbitration outcomes and how the arbitration outcomes are evaluated; and

    20. Whether the bidder or offeror retains authority to take independent action to make personnel changes based on arbitral findings.

    B. Such disclosures shall be open to the inspection of any citizen, or any interested person, firm or corporation, in accordance with the Virginia Freedom of Information Act (� 2.2-3700 et seq.)

    C. No disclosure requirements shall apply to procurements for construction, construction-related services, transportation construction, or transportation-related construction.

    2.2-4377.3. Solicitation evaluation criteria.

    A. In addition to other factors relevant to awarding contracts under existing law, a locality shall consider each bidder or offerors policies and practices related to arbitration as disclosed in submissions required pursuant to � 2.2-4377.2. Each locality shall seek to contract with qualified entities and business owners that can demonstrate or will certify that they do not use pre-dispute arbitration clauses in contracts with employees or consumers.

    B. If no otherwise qualified bidder or offeror can demonstrate or will certify that they do not use pre-dispute arbitration clauses in contracts with employees or consumers, a locality shall evaluate the disclosures provided pursuant to � 2.2-4377.2 in selecting a bidder or offeror.

    C. No bidder or offeror that fails to disclose the information required pursuant to � 2.2-4377.2 shall be eligible to enter a contract to provide goods or services to a locality.

    2.2-4377.4. Compliance for post-award actions.

    A. A contractor required to provide information pursuant to � 2.2-4377.2 shall be required to update such information every six months during the performance of any contract. The contractor shall furnish all submissions and documents required pursuant to � 2.2-4377.2 to the contracting locality and shall permit access to its books, records, and accounts by the contracting agency for purposes of investigating compliance with this article.

    B. Such contractor shall include answers to the disclosure inquiry provisions of subdivision 20 of � 2.2-4377.2 in every subcontract or purchase order related to the performance of its contract with the city or its agencies and make such disclosures binding upon each subcontractor or vendor.

    C. The contractor shall take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions, including sanctions for noncompliance.

    2.2-4377.5. Penalty.

    Upon violation by a contractor of any provision of this article, a locality may cancel, terminate, or suspend, in whole or in part, any such contractors contract and may declare the contractor ineligible for further contracts with such locality.

    Picture Name From Date Type
    Scott A. Surovell D-Richmond Sponsor
    Date Branch Action
    01/31/2020 Senate Senate: Constitutional reading dispensed (37-Y 0-N)
    01/29/2020 Senate Senate: Committee substitute printed 20106982D-S1
    01/29/2020 Senate Senate: Reported from General Laws and Technology with substitute (8-Y 6-N)
    01/07/2020 Senate Senate: Prefiled and ordered printed; offered 01/08/20 20104696D
    01/07/2020 Senate Senate: Referred to Committee on General Laws and Technology
    Summary
    Congress - Bill Number Major Title
    Branch Vote Date Yes No Not Voting
    Senate 1/1/2111 12:00:00 AM 37 0 0
    Senate 1/29/2020 12:00:00 AM 8 6 0
    Wiki
    Date Bill Major Title
    Committee Name
    Subject Type