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

                                  1267

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             January 8, 2015
                               ___________

Introduced by M. of A. LUPARDO, HEASTIE -- read once and referred to the
  Committee on Labor

AN  ACT  to amend the labor law, in relation to penalties for violations
  of wage payment provisions and  contractor  accountability;  to  amend
  chapter  537 of the laws of 2014 amending the labor law and other laws
  relating  to  increased  penalties  for  violations  of  wage  payment
  provisions and contractor accountability, in relation to the effective
  date  of  certain provisions thereof; and to repeal section 97-pppp of
  the state finance law relating to the wage theft  prevention  enforce-
  ment account

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

  Section 1. Subdivision 1 of section 218 of the labor law,  as  amended
by chapter 537 of the laws of 2014, is amended 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12006-01-5
              

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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  employees
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  thir-
ty-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
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

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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, AND 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.
  S  2. Section 219-c of the labor law is amended by adding a new subdi-
vision 3 to read as follows:
  3. WHERE AN ORDER IS ISSUED UNDER SECTION TWO HUNDRED EIGHTEEN OF THIS
ARTICLE THAT  ASSESSES  A  CIVIL  PENALTY  AGAINST  AN  EMPLOYER  FOR  A
REPEATED,  WILLFUL,  OR  EGREGIOUS VIOLATION, TO DIRECT SUCH EMPLOYER TO
REPORT, BY LOCATION, AND TO POST ON THE DEPARTMENT'S WEBSITE,  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
FIVE  BUT  FEWER  THAN  TEN;  FEWER THAN FIVE. NO INDIVIDUAL IDENTIFYING
INFORMATION OF SUCH EMPLOYEES SHALL BE REPORTED OR  OTHERWISE  DISCLOSED
TO  THE  DEPARTMENT. FOR THE PURPOSES OF THIS SECTION "TEMPORARY EMPLOY-
EES" 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.
  S  3.  Subdivision  3  of  section 198 of the labor law, as amended by
chapter 537 of the laws of 2014, 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

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shall cover the entire six-year statute of limitations period unless the
commissioner otherwise notifies all affected employees.]
  S  4.  Subdivision  3  of  section 663 of the labor law, as amended by
chapter 537 of the laws of 2014, 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 5. Subdivision 3 of section 218 of the  labor  law,  as  amended  by
chapter 537 of the laws of 2014, 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,  the  commissioner  shall
assign,  WITHOUT  CONSIDERATION OR LIABILITY, that portion of the [money
due] FILED ORDER that constitutes wages, wage supplements,  interest  on
wages  or  wage supplements, or liquidated damages due that employee, to
that employee and MAY file an ASSIGNMENT OR 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  ASSIGN-
MENT,  order or decision shall have the full force and effect of a judg-
ment duly docketed in the office of such clerk. The ASSIGNMENT, 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  6.  Subdivision  3  of  section 219 of the labor law, as amended by
chapter 537 of the laws of 2014, 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,  at  the  commissioner's  discretion,  an  additional fifteen
percent damages upon any outstanding monies owed. At the request  of  an
employee,  the  commissioner  shall  assign,  WITHOUT  CONSIDERATION  OR
LIABILITY, that portion of the [money due] FILED ORDER that  constitutes
wages,  wage  supplements,  interest  on  wages  or wage supplements, or
liquidated damages due the employee, to that employee and  MAY  file  an
ASSIGNMENT OR 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

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business. The filing of such ASSIGNMENT, order or  decision  shall  have
the  full  force and effect of a judgment duly docketed in the office of
such clerk. The ASSIGNMENT, 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 7. Section 97-pppp of the state finance law is REPEALED.
  S 8. Section 13 of chapter 537 of the laws of 2014, amending the labor
law  and  other  laws  relating to increased penalties for violations of
wage payment provisions and contractor  accountability,  is  amended  to
read as follows:
  S  13.  This  act shall take effect on the sixtieth day after it shall
have become a law, EXCEPT THAT SECTION ONE OF THIS ACT SHALL TAKE EFFECT
IMMEDIATELY.
  S 9. This act shall take effect immediately; provided,  however,  that
sections  one  through  seven  of this act shall take effect on the same
date and in the same manner as chapter 537 of the laws of 2014.