senate Bill S5885B

Increases penalties for wage payment violations; relates to liability of members of limited liability companies and establishes the wage theft prevention account

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  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 18 / Jun / 2013
    • REFERRED TO RULES
  • 21 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1632
  • 21 / Jun / 2013
    • RECOMMITTED TO RULES
  • 08 / Jan / 2014
    • REFERRED TO LABOR
  • 13 / Jun / 2014
    • AMEND (T) AND RECOMMIT TO LABOR
  • 13 / Jun / 2014
    • PRINT NUMBER 5885A
  • 16 / Jun / 2014
    • AMEND AND RECOMMIT TO LABOR
  • 16 / Jun / 2014
    • PRINT NUMBER 5885B
  • 19 / Jun / 2014
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 19 / Jun / 2014
    • ORDERED TO THIRD READING CAL.1605
  • 19 / Jun / 2014
    • SUBSTITUTED BY A8106C

Summary

Increases penalties for wage payment violations; relates to liability of members of limited liability companies and establishes the wage theft prevention enforcement account.

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Bill Details

See Assembly Version of this Bill:
A8106C
Versions:
S5885
S5885A
S5885B
Legislative Cycle:
2013-2014
Law Section:
Labor Law
Laws Affected:
Amd §§195, 198, 218, 215, 219 & 663, add §861-g, Lab L; amd §609, Lim Lil L; add §97-pppp, St Fin L

Sponsor Memo

BILL NUMBER:S5885B

TITLE OF BILL: An act to amend the labor law, in relation to increased
penalties for violations of wage payment provisions and contractor
accountability; to amend the limited liability company law, in relation
to liability of members; and to amend the state finance law, in relation
to establishing the wage theft prevention account

PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to provide
additional protections for employees against wage theft.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends Subdivision 1(a) of Section 195 of the Labor Law to
strike the annual notice requirement from the Wage Theft Prevention Act
when the same information is provided in another manner.

Section 2 amends Subdivisions 1-b and 1-d of Section 198 of the Labor
Law to increase penalties for employers' failure to comply with certain
sections of the Wage Theft Prevention Act.

Section 3 amends Subdivision 1 of Section 218 of the Labor Law if an
order directing payment of wages, benefits, wage supplements, and liqui-
dated damages is issued to an employer who had previously committed wage
theft, or to an employer whose violation is willful or egregious, the
employer will be required to report specified employee and wage data to
the Commissioner of Labor, which will be published on the Department of
Labor's website. Section 3 also adds a new Subdivision 5 of Section 218
of the Labor Law to provide that an employer similar in operation or
ownership to a prior employer who had previously committed wage theft is
liable for the acts of the prior employer for the purposes of civil
penalties.

Section 4 adds a new Subdivision 4 to Section 219 of the Labor Law to
provide that an employer similar in operation or ownership to a prior
employer who had previously committed wage theft is liable for the acts
of the prior employer for the purposes of orders directing payment of
wages from the Commissioner of Labor or other decisions.

Section 5 amends Subdivision 3 of Section 198 of the Labor Law to
provide that the Commissioner's investigation into employer retaliation
against an employee for reporting wage theft will cover the entire six-
year statute of limitations period unless he otherwise notifies all
affected employees.

Section 6 amends Subdivision 1(b) of Section 215 of the Labor. Law to
authorize the Commissioner to assess a greater civil penalty for those
employers who have committed wage theft and had a previous violation
within the previous six years.

Section 7 amends Subdivision 3 of Section 218 of the Labor. Law to
require rather than allow the Commissioner to assign the money due to an

employee, and that an order or decision regarding civil penalties can be
filed in the name of an employee as well as the Commissioner.

Section 8 amends Subdivision 3 of Section 219 of the Labor. Law to
require rather than allow the Commissioner to assign the money due to an
employee, and that orders directing payment of wages from the Commis-
sioner of Labor or other decisions can be filed in the name of an
employee as well as the Commissioner.

Section 9 amends Subdivision of Section 663 of the Labor. Law to provide
that the Commissioner's investigation related to civil actions will
cover the entire six-year statute of limitations period unless he other-
wise notifies all affected employees.

Section 10 adds a new Section 861-g of the Labor Law to provide that if
a contractor is found to have committed wage theft, the contractor will
be required to notify all of its employees and its subcontractors'
employees of the violations.

Section 11 adds new Subdivisions (c) and (d) to the Limited Liability
Company Law requiring that the ten members with the largest percentage
ownership in a limited liability company be personally liable for all
debts, wages, or salaries due and owing to any of its laborers, servants
or employees, for services performed by them for such limited liability
company. The bill requires written notice of one hundred and eighty days
after termination of services before any laborer, servant, or employee
may charge any of those ten members under this section. An action to
enforce such liability shall be commenced within ninety days. After the
return of an execution unsatisfied against the limited liability company
upon a judgment recovered against it for such services. The bill allows
for any member who has paid more than his or her pro rata share to be
entitled to contribution pro rata from the other members liable under
this section with respect to the excess so paid, over and above his or
her pro rata share, and may sue them jointly or severally or any number
of them to recover the amount due from them. The bill defines wages or
salaries as all compensation and benefits payable by an employer to or
for the account of the employee, servant or laborer, for services
performed by them for such limited liability company;

Section 12 would add a new Section 97-pppp of the State Finance Law to
create the Wage Theft Prevention Enforcement Account which would be
established in the custody of the state comptroller. The fund shall
consist of moneys collected pursuant to the provisions of Articles five,
six, nineteen, and nineteen-A and sections two hundred fifteen and two
hundred eighteen of the Labor Law, and the regulations promulgated ther-
eunder.. The bill prohibits the moneys to be paid out without a certif-
icate of allocation and a schedule of amounts to be made available upon
issuance by the director of the budget, and a copy of such certificate
to have been filed with the, comptroller.

Section 13 is the effective date.

JUSTIFICATION: The Wage Theft Prevention Act was enacted in 2010 to
provide the Department of Labor with the tools necessary to ensure that
workers across the State of New York are paid the wages to which they
are entitled. However, many employees are still vulnerable to wage theft
by unscrupulous employers. This bill would better ensure that all New
York workers receive the wages they have rightfully earned.

PRIOR LEGISLATIVE HISTORY: 2013 - similar bill died in Labor Committee
in both Houses

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None known.

EFFECTIVE DATE: This bill shall take effect 60 days after enactment.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5885--B

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 18, 2013
                               ___________

Introduced  by  Sens. SAVINO, TKACZYK -- read twice and ordered printed,
  and when printed to be committed to the Committee on Rules  --  recom-
  mitted  to  the  Committee  on Labor in accordance with Senate Rule 6,
  sec. 8 -- committee discharged, bill  amended,  ordered  reprinted  as
  amended  and  recommitted  to  said committee -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee

AN  ACT  to  amend the labor law, in relation to increased penalties for
  violations of wage payment provisions and  contractor  accountability;
  to  amend  the limited liability company law, in relation to liability
  of members; and to amend the state finance law, in relation to  estab-
  lishing the wage theft prevention account

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (a) of subdivision 1 of section 195 of the  labor
law,  as  amended by chapter 564 of the laws of 2010, is amended to read
as follows:
  (a) provide his or her employees, in writing in  English  and  in  the
language  identified  by  each  employee as the primary language of such
employee, at the time of hiring[, and on or  before  February  first  of
each  subsequent year of the employee's employment with the employer], a
notice containing the following information: the rate or  rates  of  pay
and  basis  thereof, whether paid by the hour, shift, day, week, salary,
piece, commission, or other; allowances, if any, claimed as part of  the
minimum  wage,  including  tip, meal, or lodging allowances; the regular
pay day designated by  the  employer  in  accordance  with  section  one
hundred ninety-one of this article; the name of the employer; any "doing
business  as"  names  used  by the employer; the physical address of the
employer's main office or principal place of  business,  and  a  mailing
address  if  different;  the telephone number of the employer; plus such
other information as the commissioner deems material and necessary. Each

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11592-12-4

S. 5885--B                          2

time the employer provides such notice  to  an  employee,  the  employer
shall  obtain  from the employee a signed and dated written acknowledge-
ment, in English and in the primary language of the employee, of receipt
of  this  notice, which the employer shall preserve and maintain for six
years. Such acknowledgement shall include an affirmation by the employee
that the employee accurately identified his or her primary  language  to
the  employer,  and  that  the  notice  provided by the employer to such
employee pursuant to this subdivision was in the language so  identified
or  otherwise complied with paragraph (c) of this subdivision, and shall
conform to any additional requirements established by  the  commissioner
with  regard  to  content and form. For all employees who are not exempt
from overtime compensation as established in the commissioner's  minimum
wage  orders  or otherwise provided by New York state law or regulation,
the notice must state the regular hourly rate and overtime rate of pay;
  S 2. Subdivisions 1-b and 1-d of section 198  of  the  labor  law,  as
added  by  chapter  564  of  the  laws  of  2010, are amended to read as
follows:
  1-b. If any employee is not provided within ten business days  of  his
or  her  first day of employment a notice as required by subdivision one
of section one hundred ninety-five  of  this  article,  he  or  she  may
recover  in a civil action damages of fifty dollars for each work [week]
DAY that the violations occurred or continue to occur, but not to exceed
a total of [two] FIVE thousand [five  hundred]  dollars,  together  with
costs  and  reasonable  attorney's  fees. The court may also award other
relief, including injunctive and declaratory relief, that the  court  in
its discretion deems necessary or appropriate.
  On  behalf of any employee not provided a notice as required by subdi-
vision one of section one  hundred  ninety-five  of  this  article,  the
commissioner may bring any legal action necessary, including administra-
tive action, to collect such claim, and as part of such legal action, in
addition  to  any other remedies and penalties otherwise available under
this article, the commissioner may assess against the  employer  damages
of  fifty  dollars for each work [week] DAY that the violations occurred
or continue to occur, BUT  NOT  TO  EXCEED  A  TOTAL  OF  FIVE  THOUSAND
DOLLARS.  In  any action or administrative proceeding to recover damages
for violation of paragraph [(d)] (A) of subdivision one of  section  one
hundred  ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages  due
pursuant  to  this  article or article nineteen or article nineteen-A of
this chapter to the employee who was not provided notice as required  by
subdivision  one  of  section one hundred ninety-five of this article or
(ii) the employer reasonably believed in good  faith  that  it  was  not
required to provide the employee with notice pursuant to subdivision one
of section one hundred ninety-five of this article.
  1-d.  If  any  employee  is  not provided a statement or statements as
required by subdivision three of section one hundred ninety-five of this
article, he or she shall recover in a civil action damages of [one]  TWO
hundred  FIFTY  dollars  for  each  work  [week] DAY that the violations
occurred or continue to occur, but not to exceed a total of [twenty-five
hundred] FIVE THOUSAND  dollars,  together  with  costs  and  reasonable
attorney's  fees.  The  court  may  also  award  other relief, including
injunctive and declaratory relief, that  the  court  in  its  discretion
deems necessary or appropriate.
  On  behalf  of  any  employee  not provided a statement as required by
subdivision three of section one hundred ninety-five  of  this  article,
the  commissioner may bring any legal action necessary, including admin-

S. 5885--B                          3

istrative action, to collect such claim,  and  as  part  of  such  legal
action, in addition to any other remedies and penalties otherwise avail-
able under this article, the commissioner may assess against the employ-
er  damages  of [one] TWO hundred FIFTY dollars for each work [week] DAY
that the violations occurred or continue to occur, BUT NOT TO  EXCEED  A
TOTAL OF FIVE THOUSAND DOLLARS. In any action or administrative proceed-
ing to recover damages for violation of subdivision three of section one
hundred  ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages  due
pursuant  to  this  article  or  articles nineteen or nineteen-A of this
chapter to the employee who was not provided statements as  required  by
subdivision  three of section one hundred ninety-five of this article or
(ii) the employer reasonably believed in good  faith  that  it  was  not
required  to  provide the employee with statements pursuant to paragraph
(e) of subdivision one of section one hundred ninety-five of this  arti-
cle.
  S  3.  Subdivision  1  of  section 218 of the labor law, as amended by
chapter 564 of the laws of 2010, the opening paragraph and second undes-
ignated paragraph as further amended by section 104 of part A of chapter
62 of the laws of 2011, is amended and a new subdivision 5 is  added  to
read as follows:
  1.  If  the  commissioner  determines  that an employer has violated a
provision of article six (payment of wages), article  nineteen  (minimum
wage  act),  article  nineteen-A  (minimum wage standards and protective
labor practices for farm workers), section two hundred twelve-a, section
two hundred twelve-b, section one hundred sixty-one  (day  of  rest)  or
section  one hundred sixty-two (meal periods) of this chapter, or a rule
or regulation promulgated thereunder, the commissioner  shall  issue  to
the  employer  an  order  directing  compliance  therewith,  which shall
describe particularly the nature of the alleged  violation.  A  copy  of
such  order  shall be provided to any employee who has filed a complaint
and any authorized representative of him or her. In addition to  direct-
ing  payment of wages, benefits or wage supplements found to be due, and
liquidated damages in the amount of one hundred percent of unpaid wages,
such order, if issued to an employer who previously has  been  found  in
violation  of  those provisions, rules or regulations, or to an employer
whose violation is willful or egregious, shall  direct  payment  to  the
commissioner of an additional sum as a civil penalty in an amount not to
exceed  double  the total amount of wages, benefits, or wage supplements
found to be due.  ADDITIONALLY, SUCH ORDER, IF ISSUED TO AN EMPLOYER WHO
PREVIOUSLY HAS BEEN FOUND IN VIOLATION OF  THOSE  PROVISIONS,  RULES  OR
REGULATIONS,  OR TO AN EMPLOYER WHOSE VIOLATION IS WILLFUL OR EGREGIOUS,
SHALL DIRECT SUCH EMPLOYER TO REPORT, BY LOCATION, AND FOR  SUCH  PERIOD
AS  THE  COMMISSIONER  SHALL  DETERMINE,  (A)  THE  NUMBER  OF PERMANENT
FULL-TIME EMPLOYEES, THE NUMBER OF TEMPORARY  FULL-TIME  EMPLOYEES,  THE
NUMBER  OF  PERMANENT  PART-TIME  EMPLOYEES,  THE  NUMBER  OF  TEMPORARY
PART-TIME EMPLOYEES, AND THE NUMBER OF TEMPORARY STAFFING AGENCY EMPLOY-
EES PERFORMING WORK FOR THE EMPLOYER;  (B)  THE  HOURLY  RATES  OF  SUCH
EMPLOYEES  REPORTED IN THE FOLLOWING BRACKETS: THE STATE MINIMUM WAGE TO
$9.99; $10.00 TO $11.99; $12.00 TO $14.99; AND $15.00 OR MORE;  (C)  THE
NUMBER  OF  EMPLOYEES WHO REGULARLY WORKED THE FOLLOWING NUMBER OF HOURS
PER WEEK DURING THE RELEVANT CALENDAR PERIOD: AT LEAST SIXTY;  AT  LEAST
FIFTY  BUT  FEWER  THAN  SIXTY; AT LEAST FORTY, BUT FEWER THAN FIFTY; AT
LEAST THIRTY-FIVE BUT FEWER THAN FORTY; AT LEAST THIRTY BUT  FEWER  THAN
THIRTY-FIVE; AT LEAST TWENTY-FIVE BUT FEWER THAN THIRTY; AT LEAST TWENTY
BUT FEWER THAN TWENTY-FIVE; AT LEAST TEN BUT FEWER THAN TWENTY; AT LEAST

S. 5885--B                          4

FIVE  BUT  FEWER  THAN  TEN;  FEWER THAN FIVE. NO INDIVIDUAL IDENTIFYING
INFORMATION OF SUCH EMPLOYEES SHALL BE REPORTED OR  OTHERWISE  DISCLOSED
TO  THE  DEPARTMENT. THE DEPARTMENT SHALL POST THE DATA COLLECTED ON THE
DEPARTMENT'S  WEBSITE.  FOR  THE  PURPOSES  OF  THIS  SECTION, TEMPORARY
EMPLOYEES SHALL BE THOSE EMPLOYEES WHO ARE HIRED FOR A PERIOD  OF  SIXTY
DAYS  OR  LESS  DURING  THE  RELEVANT CALENDAR YEAR, FULL-TIME EMPLOYEES
SHALL BE THOSE REGULARLY WORKING FORTY HOURS OR MORE PER WEEK DURING THE
RELEVANT CALENDAR YEAR, PART-TIME EMPLOYEES SHALL BE THOSE WORKING  LESS
THAN  FORTY HOURS PER WEEK DURING THE RELEVANT CALENDAR YEAR. In no case
shall the order direct payment of an amount less than the  total  wages,
benefits  or  wage supplements found by the commissioner to be due, plus
the liquidated damages in the amount of one hundred  percent  of  unpaid
wages, the appropriate civil penalty, and interest at the rate of inter-
est  then  in  effect,  as prescribed by the superintendent of financial
services pursuant to section fourteen-a of the  banking  law  per  annum
from  the date of the underpayment to the date of the payment. Where the
violation is for a reason other  than  the  employer's  failure  to  pay
wages,  benefits  or  wage  supplements found to be due, the order shall
direct payment to the commissioner of a civil penalty in an  amount  not
to  exceed  one  thousand  dollars  for  a first violation, two thousand
dollars for a second violation or three thousand dollars for a third  or
subsequent  violation.  In  assessing  the  amount  of  the penalty, the
commissioner shall give due consideration to the size of the  employer's
business,  the  good  faith  basis  of  the employer to believe that its
conduct was in compliance with the law, the gravity  of  the  violation,
the  history  of previous violations and, in the case of wages, benefits
or supplements violations, the failure to comply with  recordkeeping  or
other non-wage requirements.
  Where  there  is  a violation of section one hundred ninety-eight-b of
this chapter, the order shall direct payment back to the employee of the
amount of wages, supplements or other thing of value unlawfully received
plus liquidated damages in the amount of one hundred percent  of  unpaid
wages,  and  interest  at  the  rate  of  interest  then  in  effect, as
prescribed by the  superintendent  of  financial  services  pursuant  to
section  fourteen-a  of  the  banking law per annum from the date of the
payback, return, donation or contribution to the date  of  payment,  and
shall  include such other relief as may be appropriate, including rehir-
ing or reinstatement of the employee to his or her former position, back
wages, and restoration of seniority. In addition, the commissioner shall
order payment of a civil penalty of at least twenty-five hundred dollars
but not more than five thousand dollars per violation. In assessing  the
amount  of the penalty, the commissioner shall give due consideration to
the size of the employer's business, the good faith basis of the employ-
er to believe that its conduct was in compliance with the law, the grav-
ity of the violation, the history of previous violations.
  At the discretion of the commissioner,  the  commissioner  shall  have
full  authority to provide for inclusion of an automatic fifteen percent
additional amount of damages to come due and owing  upon  expiration  of
ninety  days  from  an  order to comply becoming final. The commissioner
shall provide written notice to the employer in the order to  comply  of
this additional damage.
  5.  AN EMPLOYER SIMILAR IN OPERATION AND OWNERSHIP TO A PRIOR EMPLOYER
WHICH HAD BEEN FOUND IN VIOLATION OF ARTICLE SIX, NINETEEN OR NINETEEN-A
OF THIS CHAPTER, SHALL BE DEEMED THE SAME EMPLOYER FOR THE  PURPOSES  OF
THIS  SECTION  IF  THE  EMPLOYEES  OF  THE  NEW  EMPLOYER ARE ENGAGED IN
SUBSTANTIALLY THE SAME WORK IN SUBSTANTIALLY THE SAME WORKING CONDITIONS

S. 5885--B                          5

UNDER SUBSTANTIALLY THE SAME SUPERVISORS, OR IF THE SUBSEQUENT  EMPLOYER
HAS  SUBSTANTIALLY  THE  SAME PRODUCTION PROCESS, PRODUCES SUBSTANTIALLY
THE SAME PRODUCTS AND HAS SUBSTANTIALLY THE SAME BODY OF CUSTOMERS. SUCH
SUBSEQUENT  EMPLOYER  SHALL  CONTINUE  TO BE SUBJECT TO THIS SECTION AND
LIABLE FOR THE ACTS OF THE PRIOR EMPLOYER UNDER THIS SECTION.
  S 4. Section 219 of the labor law is amended by adding a new  subdivi-
sion 4 to read as follows:
  4.  AN EMPLOYER SIMILAR IN OPERATION AND OWNERSHIP TO A PRIOR EMPLOYER
FOUND TO BE IN VIOLATION OF ARTICLE SIX, NINETEEN OR NINETEEN-A OF  THIS
CHAPTER,  SHALL  BE  DEEMED  THE  SAME EMPLOYER FOR THE PURPOSES OF THIS
SECTION IF THE EMPLOYEES OF  THE  SUBSEQUENT  EMPLOYER  ARE  ENGAGED  IN
SUBSTANTIALLY THE SAME WORK IN SUBSTANTIALLY THE SAME WORKING CONDITIONS
UNDER  SUBSTANTIALLY  THE  SAME  SUPERVISORS,  OR  IF THE NEW ENTITY HAS
SUBSTANTIALLY THE SAME PRODUCTION PROCESS,  PRODUCES  SUBSTANTIALLY  THE
SAME  PRODUCTS  AND HAS SUBSTANTIALLY THE SAME BODY OF CUSTOMERS. SUCH A
SUBSEQUENT EMPLOYER WILL CONTINUE TO BE  SUBJECT  TO  THIS  SECTION  AND
SHALL BE LIABLE FOR THE ACTS OF THE PRIOR EMPLOYER UNDER THIS SECTION.
  S  5.  Subdivision  3  of  section 198 of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
  3. Notwithstanding any other provision of law, an  action  to  recover
upon  a  liability  imposed by this article must be commenced within six
years.  The statute of limitations shall be  tolled  from  the  date  an
employee  files  a  complaint  with the commissioner or the commissioner
commences an investigation, whichever is  earlier,  until  an  order  to
comply  issued  by  the commissioner becomes final, or where the commis-
sioner does not issue an order, until the date on which the commissioner
notifies the complainant that the investigation has concluded.  Investi-
gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
against a person bringing a civil action under this section. All employ-
ees shall have the right  to  recover  full  wages,  benefits  and  wage
supplements and liquidated damages accrued during the six years previous
to  the  commencing of such action, whether such action is instituted by
the employee or by the commissioner.   THE COMMISSIONER'S  INVESTIGATION
SHALL COVER THE ENTIRE SIX-YEAR STATUTE OF LIMITATIONS PERIOD UNLESS THE
COMMISSIONER OTHERWISE NOTIFIES ALL AFFECTED EMPLOYEES.
  S 6. Paragraph (b) of subdivision 1 and paragraph (a) of subdivision 2
of  section  215 of the labor law, as amended by chapter 564 of the laws
of 2010, are amended to read as follows:
  (b) If after investigation the commissioner finds that an employer  or
person has violated any provision of this section, the commissioner may,
by  an  order  which  shall  describe  particularly  the  nature  of the
violation, assess the employer or person a civil  penalty  of  not  less
than  one thousand nor more than ten thousand dollars PROVIDED, HOWEVER,
THAT IF THE COMMISSIONER  FINDS  THAT  THE  EMPLOYER  HAS  VIOLATED  THE
PROVISIONS  OF  THIS  SECTION  IN THE PRECEDING SIX YEARS, HE OR SHE MAY
ASSESS A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND NOR MORE THAN TWEN-
TY THOUSAND DOLLARS. The commissioner may  also  order  all  appropriate
relief including enjoining the conduct of any person or employer; order-
ing payment of liquidated damages to the employee by the person or enti-
ty  in  violation;  and,  where  the person or entity in violation is an
employer ordering rehiring or reinstatement of the employee  to  his  or
her  former  position  or  an  equivalent position, and an award of lost
compensation or an award of front pay in lieu of  reinstatement  and  an
award of lost compensation. Liquidated damages shall be calculated as an
amount not more than [ten] TWENTY thousand dollars. The commissioner may
assess  liquidated  damages  on behalf of every employee aggrieved under

S. 5885--B                          6

this section, in addition  to  any  other  remedies  permitted  by  this
section.
  (a)  An  employee  may  bring  a  civil action in a court of competent
jurisdiction against any employer or persons alleged  to  have  violated
the  provisions  of  this  section. The court shall have jurisdiction to
restrain violations  of  this  section,  within  two  years  after  such
violation, regardless of the dates of employment of the employee, and to
order  all  appropriate  relief,  including enjoining the conduct of any
person or employer; ordering payment of liquidated  damages,  costs  and
reasonable  attorneys'  fees  to the employee by the person or entity in
violation; and, where the person or entity in violation is an  employer,
ordering  rehiring or reinstatement of the employee to his or her former
position with restoration of seniority or an award of front pay in  lieu
of  reinstatement,  and an award of lost compensation and damages, costs
and reasonable attorneys' fees. Liquidated damages shall  be  calculated
as  an  amount  not  more  than [ten] TWENTY thousand dollars. The court
shall award liquidated damages to every employee  aggrieved  under  this
section,  in  addition  to any other remedies permitted by this section.
The statute of limitations shall be tolled from  the  date  an  employee
files a complaint with the commissioner or the commissioner commences an
investigation,  whichever is earlier, until an order to comply issued by
the commissioner becomes final, or where the commissioner does not issue
an order,  until  the  date  on  which  the  commissioner  notifies  the
complainant  that  the investigation has concluded. Investigation by the
commissioner shall not be a prerequisite to nor a bar against  a  person
bringing a civil action under this section.
  S  7.  Subdivision  3  of  section 218 of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
  3. Provided that no proceeding for administrative or  judicial  review
as  provided  in  this  chapter  shall  then be pending and the time for
initiation of such proceeding shall have expired, the  commissioner  may
file  with  the county clerk of the county where the employer resides or
has a place of business the order of the commissioner, or  the  decision
of the industrial board of appeals containing the amount found to be due
including   the  civil  penalty,  if  any,  and  at  the  commissioner's
discretion, an additional fifteen percent damages upon  any  outstanding
monies  owed.  At  the request of an employee, [and at the discretion of
the commissioner,] the commissioner [may] SHALL assign that  portion  of
the  money  due  that  constitutes  wages, wage supplements, interest on
wages or wage supplements, or liquidated damages due that  employee,  to
that  employee  and  file  an  order  in that amount in the name of that
employee with the county clerk of the county where the employer  resides
or  has  a place of business. The filing of such order or decision shall
have the full force and effect of a judgment duly docketed in the office
of such clerk. The order or decision may be enforced by and in the  name
of  the  commissioner,  OR BY THE EMPLOYEE, in the same manner, and with
like effect, as that prescribed by the civil practice law and rules  for
the enforcement of a money judgment.
  S  8.  Subdivision  3  of  section 219 of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
  3. Provided that no proceeding for administrative or  judicial  review
as  provided  in  this  chapter  shall  then be pending and the time for
initiation of such proceeding shall have expired, the  commissioner  may
file  with  the county clerk of the county where the employer resides or
has a place of business the order of the commissioner or the decision of
the industrial board of appeals containing the amount found to  be  due,

S. 5885--B                          7

including,  at  the  commissioner's  discretion,  an  additional fifteen
percent damages upon any outstanding monies owed. At the request  of  an
employee,  [and at the discretion of the commissioner,] the commissioner
[may] SHALL assign that portion of the money due that constitutes wages,
wage  supplements,  interest on wages or wage supplements, or liquidated
damages due the employee, to that employee and file  an  order  in  that
amount  in the name of such employee with the county clerk of the county
where the employer resides or has a place of  business.  The  filing  of
such  order  or decision shall have the full force and effect of a judg-
ment duly docketed in the office of such clerk. The  order  or  decision
may  be  enforced  by  and  in  the  name of the commissioner, OR BY THE
EMPLOYEE, in the same manner, and with like effect, as  that  prescribed
by the civil practice law and rules for the enforcement of a money judg-
ment.
  S  9.  Subdivision  3  of  section 663 of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
  3. Limitation of time. Notwithstanding any other provision of law,  an
action  to  recover  upon  a  liability  imposed by this article must be
commenced within six years. The statute of limitations shall  be  tolled
from the date an employee files a complaint with the commissioner or the
commissioner  commences an investigation, whichever is earlier, until an
order to comply issued by the commissioner becomes final, or  where  the
commissioner  does  not  issue  an  order,  until  the date on which the
commissioner  notifies  the  complainant  that  the  investigation   has
concluded.  THE COMMISSIONER'S INVESTIGATION SHALL COVER THE ENTIRE SIX-
YEAR STATUTE OF LIMITATIONS PERIOD  UNLESS  THE  COMMISSIONER  OTHERWISE
NOTIFIES  ALL  AFFECTED  EMPLOYEES.    Investigation by the commissioner
shall not be a prerequisite to nor a bar against  a  person  bringing  a
civil action under this article.
  S  10.  The labor law is amended by adding a new section 861-g to read
as follows:
  S 861-G. CONTRACTOR ACCOUNTABILITY. WHEN A CONTRACTOR OR  SUB-CONTRAC-
TOR  IS FOUND TO HAVE FAILED TO PAY ALL WAGES AS REQUIRED BY ARTICLE SIX
OR NINETEEN OF THIS CHAPTER, EITHER BY  A  FINAL  ORDER  ISSUED  BY  THE
COMMISSIONER,  AN  ASSURANCE  OF DISCONTINUANCE OR FINAL SETTLEMENT WITH
THE OFFICE OF THE ATTORNEY GENERAL, OR A FINAL JUDGMENT OR  ORDER  OF  A
COURT  OF COMPETENT JURISDICTION, THE CONTRACTOR OR SUB-CONTRACTOR SHALL
NOTIFY ALL OF ITS EMPLOYEES OF THE NATURE OF THESE VIOLATIONS.   NOTIFI-
CATION SUMMARIZING THE FINDINGS SHALL BE MADE VIA PAYCHECK ATTACHMENT TO
EMPLOYEES  AT ALL WORKSITES ACCORDING TO SUCH FORM AND MANNER ORDERED BY
THE COMMISSIONER. THE COMMISSIONER SHALL HAVE THE AUTHORITY  TO  PROMUL-
GATE RULES NECESSARY TO EFFECTUATE THE TERMS OF THIS SECTION.
  S  11.  Section 609 of the limited liability company law is amended by
adding two new subdivisions (c) and (d) to read as follows:
  (C) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS (A) AND (B) OF THIS
SECTION, THE TEN MEMBERS WITH THE LARGEST PERCENTAGE OWNERSHIP INTEREST,
AS DETERMINED AS OF THE BEGINNING OF THE PERIOD DURING WHICH THE  UNPAID
SERVICES  REFERRED  TO  IN  THIS SECTION ARE PERFORMED, OF EVERY LIMITED
LIABILITY COMPANY, SHALL JOINTLY AND SEVERALLY BE PERSONALLY LIABLE  FOR
ALL DEBTS, WAGES OR SALARIES DUE AND OWING TO ANY OF ITS LABORERS, SERV-
ANTS  OR  EMPLOYEES,  FOR  SERVICES  PERFORMED  BY THEM FOR SUCH LIMITED
LIABILITY COMPANY. BEFORE SUCH LABORER, SERVANT OR EMPLOYEE SHALL CHARGE
SUCH MEMBER FOR SUCH SERVICES, HE OR SHE SHALL GIVE NOTICE IN WRITING TO
SUCH MEMBER THAT HE OR SHE INTENDS TO HOLD SUCH MEMBER LIABLE UNDER THIS
SECTION. SUCH NOTICE SHALL BE GIVEN WITHIN ONE HUNDRED EIGHTY DAYS AFTER
TERMINATION OF SUCH SERVICES. AN ACTION TO ENFORCE SUCH LIABILITY  SHALL

S. 5885--B                          8

BE  COMMENCED WITHIN NINETY DAYS AFTER THE RETURN OF AN EXECUTION UNSAT-
ISFIED AGAINST THE LIMITED LIABILITY COMPANY UPON A  JUDGMENT  RECOVERED
AGAINST IT FOR SUCH SERVICES. A MEMBER WHO HAS PAID MORE THAN HIS OR HER
PRO  RATA SHARE UNDER THIS SECTION SHALL BE ENTITLED TO CONTRIBUTION PRO
RATA FROM THE OTHER MEMBERS LIABLE UNDER THIS SECTION  WITH  RESPECT  TO
THE  EXCESS  SO  PAID, OVER AND ABOVE HIS OR HER PRO RATA SHARE, AND MAY
SUE THEM JOINTLY OR SEVERALLY OR ANY  NUMBER  OF  THEM  TO  RECOVER  THE
AMOUNT  DUE FROM THEM. SUCH RECOVERY MAY BE HAD IN A SEPARATE ACTION. AS
USED IN THIS SUBDIVISION, "PRO RATA" MEANS IN PROPORTION  TO  PERCENTAGE
OWNERSHIP  INTEREST.  BEFORE  A MEMBER MAY CLAIM CONTRIBUTION FROM OTHER
MEMBERS UNDER THIS SECTION, HE OR SHE SHALL GIVE THEM NOTICE IN  WRITING
THAT HE OR SHE INTENDS TO HOLD THEM SO LIABLE TO HIM OR HER.
  (D) FOR THE PURPOSES OF THIS SECTION, WAGES OR SALARIES SHALL MEAN ALL
COMPENSATION  AND  BENEFITS PAYABLE BY AN EMPLOYER TO OR FOR THE ACCOUNT
OF THE EMPLOYEE, SERVANT OR LABORER, FOR SERVICES PERFORMED BY THEM  FOR
SUCH LIMITED LIABILITY COMPANY. THESE SHALL SPECIFICALLY INCLUDE BUT NOT
BE  LIMITED  TO SALARIES, OVERTIME, VACATION, HOLIDAY AND SEVERANCE PAY;
EMPLOYER CONTRIBUTIONS TO OR PAYMENTS OF INSURANCE OR WELFARE  BENEFITS;
EMPLOYER CONTRIBUTIONS TO PENSION OR ANNUITY FUNDS; AND ANY OTHER MONEYS
PROPERLY  DUE OR PAYABLE FOR SERVICES RENDERED BY SUCH EMPLOYEE, SERVANT
OR LABORER, INCLUDING ANY  CONCOMITANT  LIQUIDATED  DAMAGES,  PENALTIES,
INTEREST, ATTORNEYS' FEES OR COSTS.
  S 12. The state finance law is amended by adding a new section 97-pppp
to read as follows:
  S  97-PPPP.  WAGE  THEFT  PREVENTION  ENFORCEMENT ACCOUNT. 1. THERE IS
HEREBY ESTABLISHED IN THE CUSTODY OF  THE  STATE  COMPTROLLER  THE  WAGE
THEFT PREVENTION ENFORCEMENT ACCOUNT.
  2.  SUCH  FUND  SHALL  CONSIST  OF  MONEYS  COLLECTED  PURSUANT TO THE
PROVISIONS OF ARTICLES FIVE, SIX, NINETEEN AND NINETEEN-A OF  THE  LABOR
LAW,  AND  SECTIONS  TWO HUNDRED FIFTEEN AND TWO HUNDRED EIGHTEEN OF THE
LABOR LAW, AND THE REGULATIONS PROMULGATED THEREUNDER.
  3. MONEYS OF THE FUND SHALL BE AVAILABLE TO THE COMMISSIONER OF  LABOR
FOR  PURPOSES  OF  OFFSETTING  THE COSTS INCURRED BY THE COMMISSIONER OF
LABOR FOR THE ADMINISTRATION AND  ENFORCEMENT  OF  ARTICLES  FIVE,  SIX,
NINETEEN  AND  NINETEEN-A  OF  THE  LABOR  LAW, AND SECTIONS TWO HUNDRED
FIFTEEN AND TWO HUNDRED EIGHTEEN OF THE LABOR LAW, AND  THE  REGULATIONS
PROMULGATED THEREUNDER.
  4.  THE  MONEYS SHALL BE PAID OUT OF THE FUND ON THE AUDIT AND WARRANT
OF THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER
OF LABOR OR HIS OR HER DESIGNEE.
  5. NOTWITHSTANDING THE PROVISIONS OF ANY GENERAL OR  SPECIAL  LAW,  NO
MONEYS  SHALL  BE  AVAILABLE  FROM THE FUND UNTIL A CERTIFICATE OF ALLO-
CATION AND A SCHEDULE OF AMOUNTS TO BE  AVAILABLE  THEREFOR  SHALL  HAVE
BEEN  ISSUED  BY  THE DIRECTOR OF THE BUDGET, AND A COPY OF SUCH CERTIF-
ICATE FILED WITH THE COMPTROLLER. SUCH CERTIFICATE MAY BE  AMENDED  FROM
TIME  TO  TIME  BY  THE  DIRECTOR  OF THE BUDGET AND A COPY OF EACH SUCH
AMENDMENT SHALL BE FILED WITH THE COMPTROLLER.
  S 13. This act shall take effect on the sixtieth day  after  it  shall
have become a law.

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