LBD16308-01-0
A. 10163 2
HUNDRED SIXTY-ONE OF THIS ARTICLE, THE COMMISSIONER MAY BRING ANY LEGAL
ACTION NECESSARY, INCLUDING ADMINISTRATIVE ACTION, TO RECOVER DAMAGES
PROVIDED BY THIS SECTION.
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION TO RECOVER
DAMAGES PROVIDED BY THIS SECTION SHALL BE COMMENCED WITHIN SIX YEARS.
THE STATUTE OF LIMITATIONS SHALL BE TOLLED FROM THE DATE AN EMPLOYEE
FILES A COMPLAINT WITH THE COMMISSIONER 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.
5. THE REMEDIES PROVIDED IN THIS SECTION SHALL BE AVAILABLE ONLY TO
EMPLOYEES NOT EXEMPT FROM OVERTIME COMPENSATION AS ESTABLISHED IN THE
COMMISSIONER'S MINIMUM WAGE ORDERS OR OTHERWISE PROVIDED BY LAW OR REGU-
LATION. NOTHING IN THIS SECTION SHALL ALTER THE RIGHTS OF ANY EMPLOYEE
TO MEAL PERIODS UNDER SECTION ONE HUNDRED SIXTY-TWO OR TO DAYS OF REST
UNDER SECTION ONE HUNDRED SIXTY-ONE OF THIS ARTICLE.
6. THE REMEDIES PROVIDED BY THIS SECTION MAY BE ENFORCED SIMULTANEOUS-
LY OR CONSECUTIVELY WITH ANY OTHER REMEDIES PROVIDED BY ARTICLE SIX OR
ARTICLE NINETEEN OF THIS CHAPTER SO FAR AS THEY ARE CONSISTENT WITH EACH
OTHER.
7. ANY DAMAGES RECOVERABLE PURSUANT TO THIS SECTION MAY BE RECOVERED
IN ANY ACTION THAT A COURT MAY AUTHORIZE TO BE BROUGHT AS A CLASS
ACTION. SUBDIVISION B OF SECTION NINE HUNDRED ONE OF THE CIVIL PRACTICE
LAW AND RULES SHALL NOT PRECLUDE AN AWARD OF DAMAGES UNDER THIS SECTION
ON A CLASS-WIDE BASIS.
S 4. Subdivisions 1, 2, 3, and 4 of section 195 of the labor law, as
added by chapter 548 of the laws of 1966 and subdivision 1 as amended by
chapter 270 of the laws of 2009, are amended and a new subdivision 4-a
is added to read as follows:
1. [notify] PROVIDE his or her employees, in writing IN ENGLISH AND IN
THE PRIMARY LANGUAGE OF THE EMPLOYEE, at the time of hiring [of], AND ON
OR BEFORE FEBRUARY FIRST OF EACH SUBSEQUENT YEAR OF THE EMPLOYEE'S
EMPLOYMENT WITH THE EMPLOYER, A NOTICE INCLUDING THE FOLLOWING INFORMA-
TION: the rate OR RATES of pay and [of] ITS BASIS, WHETHER PAID BY THE
HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER; ALLOWANCES,
IF ANY, TO BE 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[, and];
THE NAME OF THE EMPLOYER; ANY "DOING BUSINESS AS" NAMES USED BY THE
EMPLOYER; NAMES OF ANY INDIVIDUAL, PARTNERSHIP, JOINT VENTURE, CORPO-
RATION, OR OTHER ENTITY THAT HOLDS A TWENTY PERCENT OR GREATER OWNERSHIP
INTEREST IN THE EMPLOYER; A MAILING ADDRESS FOR THE EMPLOYER THAT IS NOT
A POST OFFICE BOX; THE TELEPHONE NUMBER OF THE EMPLOYER; PLUS SUCH OTHER
INFORMATION AS THE COMMISSIONER DEEMS MATERIAL AND NECESSARY. EACH TIME
THE EMPLOYER PROVIDES SUCH NOTICE TO AN EMPLOYEE, THE EMPLOYER SHALL
obtain FROM THE EMPLOYEE a SIGNED AND DATED written acknowledgement
[from each employee], 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 conform to any
requirements established by the commissioner with regard to content and
form. For all employees who are [eligible for] NOT EXEMPT FROM overtime
compensation as established in the commissioner's minimum wage orders or
otherwise provided by law or regulation, the notice must state the regu-
lar hourly rate and overtime rate of pay;
A. 10163 3
2. notify his OR HER employees IN WRITING of any changes TO THE INFOR-
MATION SET FORTH in [the pay] SUBDIVISION ONE OF THIS SECTION, AT LEAST
SEVEN CALENDAR days prior to the time of such changes;
3. furnish each employee with a statement with every payment of wages,
listing THE FOLLOWING: THE DATES OF WORK COVERED BY THAT PAYMENT OF
WAGES; NAME OF EMPLOYEE; NAME OF EMPLOYER; ADDRESS AND PHONE NUMBER OF
EMPLOYER; RATE OR RATES OF PAY AND ITS BASIS, WHETHER PAID BY THE HOUR,
SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER; gross wages[,];
deductions; ALLOWANCES, IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE; and
net wages[, and upon]. FOR ALL EMPLOYEES WHO ARE NOT EXEMPT FROM OVER-
TIME COMPENSATION AS ESTABLISHED IN THE COMMISSIONER'S MINIMUM WAGE
ORDERS OR OTHERWISE PROVIDED BY LAW OR REGULATION, THE STATEMENT SHALL
INCLUDE THE REGULAR HOURLY RATE OR RATES OF PAY; THE OVERTIME RATE OR
RATES OF PAY; THE NUMBER OF REGULAR HOURS WORKED, AND THE NUMBER OF
OVERTIME HOURS WORKED. FOR ALL EMPLOYEES PAID A PIECE RATE, THE STATE-
MENT SHALL INCLUDE THE APPLICABLE PIECE RATE OR RATES OF PAY AND NUMBER
OF PIECES COMPLETED AT EACH PIECE RATE. FOR ALL EMPLOYEES PAID BY
COMMISSION, THE STATEMENT SHALL INCLUDE THE BASIS ON WHICH THE COMMIS-
SION IS CALCULATED. UPON the request of an employee, AN EMPLOYER SHALL
furnish an explanation IN WRITING of how such wages were computed;
4. establish, maintain and preserve for not less than [three] SIX
years CONTEMPORANEOUS, TRUE, AND ACCURATE payroll records showing FOR
EACH WEEK WORKED the hours worked[,]; THE RATE OR RATES OF PAY AND ITS
BASIS, WHETHER PAID BY THE HOUR, SHIFT, DAY, WEEK, SALARY, PIECE,
COMMISSION, OR OTHER; gross wages[,]; deductions; ALLOWANCES, IF ANY,
CLAIMED AS PART OF THE MINIMUM WAGE; and net wages for each employee.
FOR ALL EMPLOYEES WHO ARE NOT EXEMPT FROM OVERTIME COMPENSATION AS
ESTABLISHED IN THE COMMISSIONER'S MINIMUM WAGE ORDERS OR OTHERWISE
PROVIDED BY LAW OR REGULATION, THE PAYROLL RECORDS SHALL INCLUDE THE
REGULAR HOURLY RATE OR RATES OF PAY, THE OVERTIME RATE OR RATES OF PAY,
THE NUMBER OF REGULAR HOURS WORKED, AND THE NUMBER OF OVERTIME HOURS
WORKED. FOR ALL EMPLOYEES PAID A PIECE RATE, THE PAYROLL RECORDS SHALL
INCLUDE THE APPLICABLE PIECE RATE OR RATES OF PAY AND NUMBER OF PIECES
COMPLETED AT EACH PIECE RATE. FOR ALL EMPLOYEES PAID BY COMMISSION, THE
STATEMENT SHALL INCLUDE THE BASIS ON WHICH THE COMMISSION IS CALCULATED;
4-A. AFFORD CURRENT AND FORMER EMPLOYEES THE RIGHT TO INSPECT OR COPY
THE PAYROLL RECORDS PERTAINING TO THAT CURRENT OR FORMER EMPLOYEE, UPON
REASONABLE REQUEST TO THE EMPLOYER. THE EMPLOYER MAY TAKE REASONABLE
STEPS TO ASSURE THE IDENTITY OF A CURRENT OR FORMER EMPLOYEE. IF THE
EMPLOYER PROVIDES COPIES OF THE RECORDS, THE ACTUAL COST OF REPRODUCTION
MAY BE CHARGED TO THE CURRENT OR FORMER EMPLOYEE. AN EMPLOYER WHO
RECEIVES A WRITTEN OR ORAL REQUEST TO INSPECT OR COPY RECORDS PURSUANT
TO THIS SUBDIVISION PERTAINING TO A CURRENT OR FORMER EMPLOYEE, SHALL
COMPLY WITH THE REQUEST AS SOON AS PRACTICABLE, BUT NO LATER THAN TWEN-
TY-ONE CALENDAR DAYS FROM THE DATE OF THE REQUEST. AN EMPLOYER MAY
DESIGNATE THE PERSON TO WHOM A REQUEST UNDER THIS SUBDIVISION SHALL BE
MADE;
S 5. Section 196 of the labor law, as added by chapter 548 of the laws
of 1966, paragraph b of subdivision 1 as amended by chapter 328 of the
laws of 1972 and paragraph e of subdivision 1 as added by chapter 336 of
the laws of 1985, is amended to read as follows:
S 196. Powers of commissioner. 1. In addition to the powers of the
commissioner specified in other sections of this chapter, the commis-
sioner shall have the following duties, powers and authority:
A. 10163 4
a. He OR SHE shall investigate and attempt to adjust equitably contro-
versies between employers and employees relating to this [article] CHAP-
TER.
b. He OR SHE may take assignments of claims for wages [as defined in]
UNDER this [article] CHAPTER from employees or third parties in trust
for such employees or for the benefit of various funds for such employ-
ees. All such assignments shall run to the commissioner and his OR HER
successor in office. The commissioner may sue employers on wage claims
thus assigned, with the benefits and subject to the provisions of exist-
ing law applying to actions by employees for collection of wages. He OR
SHE may join in a single action any number of wage claims against the
same employer.
c. He OR SHE may institute proceedings on account of any criminal
violation of any provision of this [article] CHAPTER.
d. If it shall appear to him OR HER that any employer has been
convicted of a violation of any provision of this article OR ARTICLE
NINETEEN OR NINETEEN-A OF THIS CHAPTER or that any [judgement] ORDER TO
COMPLY ISSUED against an employer [for non-payment of wages] UNDER THIS
ARTICLE OR ARTICLE NINETEEN OR NINETEEN-A OF THIS CHAPTER remains unsat-
isfied for a period of ten days after the time to appeal therefrom has
expired, and that no appeal therefrom is then pending, the commissioner
may require such employer to deposit with him OR HER a bond in such sum
as he OR SHE may deem sufficient and adequate in the circumstances,
together with two or more sureties or a duly authorized surety company,
to be approved by the commissioner. The bond shall be payable to the
commissioner and shall be conditioned that the employer will, for a
definite future period, not exceeding two years, pay his OR HER employ-
ees in accordance with the provisions of this article OR ARTICLE NINE-
TEEN OR NINETEEN-A OF THIS CHAPTER, and shall be further conditioned
upon the payment by the employer of any AMOUNTS DUE PURSUANT TO AN ORDER
TO COMPLY OR judgment [which may be recovered] against such employer
pursuant to the provisions of this article OR ARTICLE NINETEEN OR NINE-
TEEN-A OF THIS CHAPTER.
If within ten days after demand for such bond, which demand may be
made by certified or registered mail, such employer shall fail to depos-
it the same, the commissioner may bring an action in the name and on
behalf of the people of the state of New York against such employer in
the supreme court to compel such employer to furnish such a bond or to
cease doing business until he OR SHE has done so. The employer shall
have the burden of proving that either such a bond is unnecessary or
that the amount demanded is excessive. If the court finds that there is
just cause for requiring the bond and that same is reasonably necessary
or proper to secure prompt payment of the wages of the employees of such
employer and his OR HER compliance with the provisions of this article
OR ARTICLE NINETEEN OR NINETEEN-A OF THIS CHAPTER, the court may enjoin
such employer and such other person or persons as may have been or may
be concerned with or in any way participating in the failure to pay the
wages resulting in the conviction [or in the judgment] OR ORDER TO
COMPLY as aforesaid, from doing business until the requirement is met
and make other and further orders appropriate to compel compliance with
the requirement.
IF ANY ORDER TO COMPLY ISSUED AGAINST AN EMPLOYER UNDER THIS ARTICLE
OR ARTICLE NINETEEN OR NINETEEN-A OF THIS CHAPTER REMAINS UNSATISFIED
FOR A PERIOD OF TEN DAYS AFTER THE TIME TO APPEAL THEREFROM HAS EXPIRED,
AND THAT NO APPEAL THEREFROM IS THEN PENDING, THE COMMISSIONER MAY
REQUIRE THE EMPLOYER TO PROVIDE AN ACCOUNTING OF ASSETS OF THE EMPLOYER,
A. 10163 5
INCLUDING BUT NOT LIMITED TO, A LIST OF ALL BANK ACCOUNTS, ACCOUNTS
RECEIVABLE, PERSONAL PROPERTY, REAL PROPERTY, AUTOMOBILES OR OTHER VEHI-
CLES, AND ANY OTHER ASSETS, IN A FORM AND MANNER AS PRESCRIBED BY THE
COMMISSIONER. AN EMPLOYER SHALL PROVIDE AN AMENDED ACCOUNTING OF ASSETS
WITHIN TEN DAYS OF ANY CHANGES. IF WITHIN TEN DAYS AFTER DEMAND FOR SUCH
AN ACCOUNTING OF ASSETS, WHICH DEMAND MAY BE MADE BY CERTIFIED OR REGIS-
TERED MAIL, SUCH EMPLOYER SHALL FAIL TO PROVIDE SAME, OR IF THE EMPLOYER
FAILS TO PROVIDE AN AMENDED ACCOUNTING AS REQUIRED UNDER THIS SECTION,
THE COMMISSIONER MAY BRING AN ACTION IN THE NAME AND ON BEHALF OF THE
PEOPLE OF THE STATE OF NEW YORK AGAINST SUCH EMPLOYER IN THE SUPREME
COURT TO COMPEL SUCH EMPLOYER TO FURNISH THE ACCOUNTING AND PAY A CIVIL
PENALTY OF NO LESS THAN TEN THOUSAND DOLLARS AND NO MORE THAN FIFTY
THOUSAND DOLLARS.
ANY COURT WITH COMPETENT JURISDICTION OVER AN ACTION BROUGHT UNDER
THIS SECTION, IN ADDITION TO ALL OTHER AUTHORITY, SHALL ALSO HAVE THE
DISCRETION AND AUTHORITY TO TAKE ALL REASONABLE MEASURES TO IDENTIFY AND
PRESERVE THE EMPLOYER'S ASSETS THAT MAY BE NECESSARY TO SATISFY ANY
ORDER TO COMPLY OR JUDGMENT.
SUCH REASONABLE MEASURES MAY INCLUDE: (I) REQUIRING THE EMPLOYER TO
GIVE AN ACCOUNTING OF ITS ASSETS TO THE COURT; (II) ENJOINING THE
CONVEYANCE OF ASSETS; (III) PLACING ASSETS IN ESCROW; (IV) ATTACHING
ASSETS; (V) PLACING ASSETS IN RECEIVERSHIP; AND (VI) ALL OTHER RELIEF AS
MAY REASONABLY BE NECESSARY TO EFFECTUATE THE PURPOSES OF THIS CHAPTER.
e. He OR SHE is hereby authorized and empowered to enter into recipro-
cal agreements with the labor department or corresponding agency of any
other state or with the person, board, officer, or commission authorized
to act on behalf of such department or agency, for the collection in
such other states of claims and judgments for wages based upon claims
assigned to the commissioner.
The commissioner may, to the extent provided for by any reciprocal
agreement entered into by law or with any agency of another state as
herein provided, maintain actions in the courts of such other state for
the collection of claims and judgments for wages and may assign such
claims and judgments to the labor department or agency of such other
state for collection to the extent that such an assignment may be
permitted or provided for by the law of such state or by reciprocal
agreement.
The commissioner may, upon the written consent of the labor department
or other corresponding agency of any other state or of any person,
board, officer or commission of such state authorized to act on behalf
of such labor department or corresponding agency, maintain actions in
the courts of this state upon assigned claims and judgments for wages
arising in such other state in the same manner and to the same extent
that such actions by the commissioner are authorized when arising in
this state. However, such actions may be maintained only in cases where
such other state by law or reciprocal agreement extends a like comity to
cases arising in this state.
2. Nothing in this section shall be construed as requiring the commis-
sioner in every instance to investigate and attempt to adjust controver-
sies, or to take assignments of wage claims, or to institute criminal
prosecutions for any violation under this article OR ARTICLE FIVE,
SEVEN, NINETEEN OR NINETEEN-A OF THIS CHAPTER, but he OR SHE shall be
deemed vested with discretion in such matters.
S 6. Section 196-a of the labor law, as amended by chapter 417 of the
laws of 2009, is amended to read as follows:
A. 10163 6
S 196-a. Complaints by employees to commissioner. (a) Any employee[,];
PERSON OR ORGANIZATION ACTING ON THE EMPLOYEE'S BEHALF; or the recog-
nized and certified collective bargaining agent acting on the employee's
behalf, may file with the commissioner a complaint regarding a violation
of this article, article FIVE, SIX, SEVEN, nineteen, or [article] nine-
teen-A of this chapter for an investigation of such complaint and state-
ment setting the appropriate remedy, if any. THE COMMISSIONER SHALL
KEEP THE NAMES OF EMPLOYEES THAT ARE THE SUBJECT OF AN INVESTIGATION
CONFIDENTIAL UNTIL SUCH TIME THAT DISCLOSURE IS NECESSARY TO RESOLUTION
OF A COMPLAINT. Failure of an employer to keep [adequate] records OR
PROVIDE STATEMENTS OF WAGES TO EMPLOYEES AS REQUIRED UNDER THIS CHAPTER,
in addition to exposing such employer to penalties authorized under
subdivision one of section two hundred eighteen of this chapter, shall
not operate as a bar to filing of a complaint by an employee. [In such a
case the employer in violation shall bear the burden of proving that the
complaining employee was paid wages, benefits and wage supplements.]
WHERE AND EMPLOYER FAILS TO PROVIDE NOTICE TO AN EMPLOYEE OF ALLOW-
ANCES, IF ANY, TO BE CLAIMED AS PART OF THE MINIMUM WAGE; MAINTAIN
CONTEMPORANEOUS RECORDS OF ALLOWANCES CLAIMED AS PART OF THE MINIMUM
WAGE; OR PROVIDE STATEMENTS OF WAGES TO AN EMPLOYEE REFLECTING ALLOW-
ANCES CLAIMED AS PART OF THE MINIMUM WAGE, WHEN AND AS REQUIRED UNDER
THIS ARTICLE OR ARTICLE NINETEEN OR NINETEEN-A OF THIS CHAPTER, SUCH
EMPLOYER SHALL BE BARRED FROM TAKING ANY ALLOWANCES OTHERWISE PERMITTED
BY THIS CHAPTER, INCLUDING TIP, MEAL, OR LODGING ALLOWANCES.
WHERE AN EMPLOYER FAILS TO PROVIDE NOTICE TO AN EMPLOYEE OF HIS OR HER
REGULAR OR OVERTIME RATE OR RATES OF PAY; MAINTAIN CONTEMPORANEOUS
RECORDS OF AN EMPLOYEE'S REGULAR OR OVERTIME RATE OR RATES OF PAY; OR
PROVIDE STATEMENTS OF WAGES TO AN EMPLOYEE OF HIS OR HER REGULAR OR
OVERTIME RATE OR RATES OF PAY, WHEN AND AS REQUIRED UNDER THIS ARTICLE
OR ARTICLE NINETEEN OR NINETEEN-A OF THIS CHAPTER, SUCH EMPLOYEE'S REGU-
LAR HOURLY RATE OF PAY SHALL BE CALCULATED BY DIVIDING SUCH EMPLOYEE'S
TOTAL WEEKLY WAGES BY THE LESSER OF FORTY HOURS OR THE ACTUAL NUMBER OF
HOURS WORKED BY SUCH EMPLOYEE DURING THE WORK WEEK.
WHERE AN EMPLOYER HAS FAILED TO MAINTAIN ACCURATE, COMPLETE AND
CONTEMPORANEOUS RECORDS WHEN AND AS REQUIRED UNDER THIS ARTICLE OR ARTI-
CLE NINETEEN OR NINETEEN-A OF THIS CHAPTER, OF HOURS WORKED BY AN
EMPLOYEE, WAGES PAID TO SUCH EMPLOYEE, OR ALLOWANCES CLAIMED BY SUCH
EMPLOYER AS PART OF THE MINIMUM WAGE, THE EMPLOYEE'S CREDIBLE TESTIMONY
OF SAME SHALL FORM THE PROPER BASIS OF THE CALCULATION OF UNPAID WAGES
OWED SUCH EMPLOYEE ABSENT SPECIFIC, DETAILED AND CREDIBLE REBUTTABLE
EVIDENCE PROFFERED BY THE EMPLOYER.
(b) Any employee, or the recognized and certified collective bargain-
ing agent acting on the employee's behalf, contractor, or the recognized
and certified labor organization with which the contractor has executed
a collective bargaining agreement covering wages, benefits and supple-
ments, may file with the commissioner a complaint regarding an alleged
violation of this article or article nineteen of this chapter occasioned
by another person, corporation, employer or entities in violation of
article thirty-five-E of the general business law for an investigation
of such complaint and statement setting the appropriate remedy, if any.
S 7. Section 197 of the labor law, as amended by chapter 427 of the
laws of 2002, is amended to read as follows:
S 197. Civil penalty. Any employer who fails to pay the wages of his
employees or shall differentiate in rate of pay because of sex, as
provided in this article, shall forfeit to the people of the state the
sum of five hundred dollars for each such failure, to be recovered by
A. 10163 7
the commissioner in ANY LEGAL ACTION NECESSARY, INCLUDING ADMINISTRATIVE
ACTION OR a civil action.
S 8. Section 198 of the labor law, as added by chapter 548 of the laws
of 1966, subdivision 1-a as amended by chapter 372 of the laws of 2009
and subdivision 3 as amended by chapter 605 of the laws of 1997, is
amended to read as follows:
S 198. Costs, remedies. 1. In any action instituted upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court may allow such employee in addition to ordinary costs, a reason-
able sum, not exceeding fifty dollars for expenses which may be taxed as
costs. No assignee of a wage claim, except the commissioner, shall be
benefited by this provision.
1-a. On behalf of any employee paid less than the wage to which he or
she is entitled under the provisions of this article, the commissioner
may bring any legal action necessary, including administrative 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] SHALL assess against the employer THE FULL AMOUNT
OF ANY SUCH UNDERPAYMENT, AND an additional amount as liquidated damages
[equal to twenty-five percent of the total amount of wages found to be
due], unless the employer proves a good faith basis for believing that
its underpayment of wages was in compliance with the law. LIQUIDATED
DAMAGES SHALL BE CALCULATED BY THE COMMISSIONER AS NO LESS THAN FIFTY
PERCENT AND NO MORE THAN TWO HUNDRED PERCENT OF THE TOTAL AMOUNT OF
WAGES FOUND TO BE DUE. In any action instituted in the courts upon a
wage claim by an employee or the commissioner in which the employee
prevails, the court shall allow such employee TO RECOVER THE FULL AMOUNT
OF ANY UNDERPAYMENT, ALL reasonable attorney's fees, PREJUDGMENT INTER-
EST AS REQUIRED UNDER THE CIVIL PRACTICE LAW AND RULES, and, unless the
employer proves a good faith basis to believe that its underpayment of
wages was in compliance with the law, an additional amount as liquidated
damages equal to [twenty-five] TWO HUNDRED percent of the total amount
of the wages found to be due.
WHERE AN EMPLOYER FAILS TO PROVIDE NOTICE TO AN EMPLOYEE OF ALLOW-
ANCES, IF ANY, TO BE CLAIMED AS PART OF THE MINIMUM WAGE; MAINTAIN
CONTEMPORANEOUS RECORDS OF ALLOWANCES CLAIMED AS PART OF THE MINIMUM
WAGE; OR PROVIDE STATEMENTS OF WAGES TO AN EMPLOYEE REFLECTING ALLOW-
ANCES CLAIMED AS PART OF THE MINIMUM WAGE, WHEN AND AS REQUIRED UNDER
THIS ARTICLE, SUCH EMPLOYER SHALL BE BARRED FROM TAKING ANY ALLOWANCES
OTHERWISE PERMITTED BY THIS CHAPTER, INCLUDING TIP, MEAL, OR LODGING
ALLOWANCES.
WHERE AN EMPLOYER FAILS TO PROVIDE NOTICE TO AN EMPLOYEE OF HIS OR HER
REGULAR OR OVERTIME RATE OR RATES OF PAY; MAINTAIN CONTEMPORANEOUS
RECORDS OF AN EMPLOYEE'S REGULAR OR OVERTIME RATE OR RATES OF PAY; OR
PROVIDE STATEMENTS OF WAGES TO AN EMPLOYEE OF HIS OR HER REGULAR OR
OVERTIME RATE OR RATES OF PAY, WHEN AND AS REQUIRED UNDER THIS ARTICLE,
SUCH EMPLOYEE'S REGULAR HOURLY RATE OF PAY SHALL BE CALCULATED BY DIVID-
ING THE EMPLOYEE'S TOTAL WEEKLY WAGES BY THE LESSER OF FORTY HOURS OR
THE ACTUAL NUMBER OF HOURS WORKED BY SUCH EMPLOYEE DURING THE WORK WEEK.
WHERE AN EMPLOYER HAS FAILED TO MAINTAIN ACCURATE, COMPLETE AND
CONTEMPORANEOUS RECORDS WHEN AND AS REQUIRED UNDER THIS ARTICLE OF HOURS
WORKED BY AN EMPLOYEE, WAGES PAID TO SUCH EMPLOYEE, OR ALLOWANCES
CLAIMED BY SUCH EMPLOYER AS PART OF THE MINIMUM WAGE, THE EMPLOYEE'S
CREDIBLE TESTIMONY OF SAME SHALL FORM THE PROPER BASIS OF THE CALCU-
LATION OF UNPAID WAGES OWED SUCH EMPLOYEE ABSENT SPECIFIC, DETAILED AND
CREDIBLE REBUTTAL EVIDENCE PROFFERED BY THE EMPLOYER.
A. 10163 8
1-B. IF ANY EMPLOYEE IS NOT PROVIDED A NOTICE AS REQUIRED BY SUBDIVI-
SION ONE OF SECTION ONE HUNDRED NINETY-FIVE OF THIS ARTICLE, HE OR SHE
SHALL RECOVER IN A CIVIL ACTION STATUTORY DAMAGES OF FIFTY DOLLARS FOR
EACH WORK DAY THAT THE VIOLATIONS OCCURRED OR CONTINUE TO OCCUR, TOGETH-
ER 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 SHALL ASSESS AGAINST THE EMPLOYER STATU-
TORY DAMAGES OF FIFTY DOLLARS FOR EACH WORK DAY THAT THE VIOLATIONS
OCCURRED OR CONTINUE TO OCCUR.
1-C. IF ANY EMPLOYEE IS NOT PROVIDED A STATEMENT AS REQUIRED BY SUBDI-
VISION THREE OF SECTION ONE HUNDRED NINETY-FIVE OF THIS ARTICLE, HE OR
SHE SHALL RECOVER IN A CIVIL ACTION STATUTORY DAMAGES OF ONE HUNDRED
DOLLARS FOR EACH WORK WEEK THAT THE VIOLATIONS OCCURRED OR CONTINUE TO
OCCUR, 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-
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 SHALL ASSESS AGAINST THE
EMPLOYER STATUTORY DAMAGES OF ONE HUNDRED DOLLARS FOR EACH WORK WEEK
THAT THE VIOLATIONS OCCURRED OR CONTINUE TO OCCUR.
1-D. IF ANY EMPLOYEE IS NOT AFFORDED THE RIGHT TO INSPECT OR COPY
PAYROLL RECORDS AS REQUIRED BY SUBDIVISION FOUR-A OF SECTION ONE HUNDRED
NINETY-FIVE OF THIS ARTICLE, HE OR SHE SHALL RECOVER IN A CIVIL ACTION
STATUTORY DAMAGES OF FIFTY DOLLARS FOR EACH DAY THAT THE VIOLATIONS
OCCURRED OR CONTINUE TO OCCUR, BUT NOT TO EXCEED A TOTAL OF TWO 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 AFFORDED THE RIGHT TO INSPECT OR COPY
PAYROLL RECORDS AS REQUIRED BY SUBDIVISION FOUR-A OF SECTION ONE HUNDRED
NINETY-FIVE OF THIS ARTICLE, THE COMMISSIONER MAY BRING ANY LEGAL ACTION
NECESSARY, INCLUDING ADMINISTRATIVE 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 SHALL
ASSESS AGAINST THE EMPLOYER STATUTORY DAMAGES OF FIFTY DOLLARS FOR EACH
DAY THAT THE VIOLATIONS OCCURRED OR CONTINUE TO OCCUR, BUT NOT TO EXCEED
A TOTAL OF TWO THOUSAND FIVE HUNDRED DOLLARS.
IMPOSSIBILITY OF PERFORMANCE, NOT CAUSED BY OR A RESULT OF A VIOLATION
OF LAW, SHALL BE AN AFFIRMATIVE DEFENSE FOR AN EMPLOYER IN ANY ACTION
UNDER THIS SUBDIVISION.
2. ANY DAMAGES RECOVERABLE PURSUANT TO THIS SECTION MAY BE RECOVERED
IN ANY ACTION THAT A COURT MAY AUTHORIZE TO BE BROUGHT AS A CLASS
ACTION. SUBDIVISION B OF SECTION NINE HUNDRED ONE OF THE CIVIL PRACTICE
LAW AND RULES SHALL NOT PRECLUDE AN AWARD OF LIQUIDATED DAMAGES UNDER
THIS ARTICLE ON A CLASSWIDE BASIS.
A. 10163 9
3. NO RIGHTS OR REMEDIES AVAILABLE UNDER THIS ARTICLE MAY BE WAIVED OR
RELEASED EXCEPT BY COURT ORDER. A COURT OF COMPETENT JURISDICTION SHALL
NOT APPROVE SUCH WAIVER OR RELEASE UNLESS IT REPRESENTS A FAIR AND EQUI-
TABLE SETTLEMENT OF A BONA FIDE DISPUTE.
[2.] 4. The remedies provided by this article may be enforced simul-
taneously or consecutively so far as not inconsistent with each other.
[3.] 5. Notwithstanding any other provision of law, an action to
recover upon a liability imposed by this article must be commenced with-
in six years. THE STATUTE OF LIMITATIONS SHALL BE TOLLED FROM THE DATE
AN EMPLOYEE FILES A COMPLAINT WITH THE COMMISSIONER 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.
6. IN ANY CIVIL ACTION BY AN EMPLOYEE OR BY THE COMMISSIONER, THE
EMPLOYEE OR COMMISSIONER SHALL HAVE THE RIGHT TO COLLECT ATTORNEY'S FEES
AND COSTS INCURRED IN ENFORCING ANY COURT JUDGMENT IN ADDITION TO AN
ADDITIONAL THIRTY PERCENT DAMAGES UPON ANY AMOUNTS FOUND DUE AND OWING
AT THE EXPIRATION OF NINETY DAYS AFTER A COURT JUDGMENT BECOMES FINAL
AND NO LONGER ELIGIBLE FOR APPEAL.
7. ANY COURT WITH COMPETENT JURISDICTION OVER A CIVIL ACTION BROUGHT
UNDER THIS SECTION, IN ADDITION TO ALL OTHER AUTHORITY, SHALL ALSO HAVE
THE DISCRETION AND AUTHORITY TO TAKE ALL REASONABLE MEASURES, PRIOR TO
THE GRANTING OF A JUDGMENT, TO IDENTIFY AND PRESERVE THE EMPLOYER'S
ASSETS THAT MAY BE NECESSARY TO SATISFY THE POTENTIAL JUDGMENT IN SUCH
ACTION, INCLUDING SUCH AMOUNT TO SATISFY AN AWARD OF REASONABLE ATTOR-
NEYS' FEES AND COSTS.
A. SUCH REASONABLE MEASURES MAY INCLUDE: (I) REQUIRING THE EMPLOYER TO
GIVE AN ACCOUNTING OF ITS ASSETS TO THE COURT; (II) ENJOINING THE
CONVEYANCE OF ASSETS; (III) PLACING ASSETS IN ESCROW; (IV) ATTACHING
ASSETS; (V) PLACING ASSETS IN RECEIVERSHIP AND (VI) ALL OTHER RELIEF AS
MAY REASONABLY BE NECESSARY TO EFFECTUATE THE PURPOSES OF THIS CHAPTER.
B. A COURT EXERCISING ITS AUTHORITY UNDER THIS SECTION SHALL HAVE
DISCRETION TO: (I) BALANCE THE LIKELIHOOD OF SUCCESS ON THE MERITS WITH
THE POTENTIAL HARM TO DEFENDANTS IF SUCH EQUITABLE RELIEF IS GRANTED;
AND (II) WAIVE ANY OTHERWISE-APPLICABLE REQUIREMENTS TO POST A BOND IF
SUCH BOND WOULD CAUSE UNDUE HARDSHIP ON THE PARTY SEEKING TO INVOKE THE
COURT'S EQUITABLE POWERS UNDER THIS SECTION.
S 9. Section 198-a of the labor law, as amended by chapter 241 of the
laws of 2002, is amended to read as follows:
S 198-a. Criminal penalties. 1. (A) Every employer who does not pay
the wages of all of his employees in accordance with the provisions of
this chapter, and the officers and agents of any corporation, PARTNER-
SHIP, OR LIMITED LIABILITY COMPANY who knowingly permit the corporation,
PARTNERSHIP, OR LIMITED LIABILITY COMPANY to violate this chapter by
failing to pay the wages of any of its employees in accordance with the
provisions thereof, shall be guilty of a misdemeanor for the first
offense and upon conviction therefor shall be fined not less than five
hundred nor more than twenty thousand dollars or imprisoned for not more
than one year, and, in the event that any second or subsequent offense
occurs within six years of the date of conviction for a prior offense,
A. 10163 10
shall be guilty of a felony for the second or subsequent offense, and
upon conviction therefor, shall be fined not less than five hundred nor
more than twenty thousand dollars or imprisoned for not more than one
year plus one day, or punished by both such fine and imprisonment, for
each such offense. An indictment of a person or corporation operating a
steam surface railroad for an offense specified in this section may be
found and tried in any county within the state in which such railroad
ran at the time of such offense.
(B) EVERY EMPLOYER WHO FAILS TO PAY THE WAGES OF ALL HIS OR HER
EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER, AND THE
OFFICERS AND AGENTS OF ANY CORPORATION, PARTNERSHIP, OR LIMITED LIABIL-
ITY COMPANY WHO KNOWINGLY PERMIT THE CORPORATION, PARTNERSHIP, OR LIMIT-
ED LIABILITY COMPANY TO VIOLATE THIS CHAPTER BY FAILING TO PAY THE WAGES
OF ANY OF ITS EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAP-
TER, AND:
(I) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN TWENTY-FIVE THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS E
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN FOUR YEARS;
(II) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN ONE HUNDRED THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS D
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN SEVEN YEARS; OR
(III) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN FIVE HUNDRED THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS C
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN FIFTEEN YEARS.
2. Every employer who violates or fails to comply with the require-
ments of subdivision ONE OR four of section one hundred ninety-five of
this article, and the officers and agents of any corporation, PARTNER-
SHIP, OR LIMITED LIABILITY COMPANY who knowingly permit the corporation,
PARTNERSHIP, OR LIMITED LIABILITY COMPANY to violate or fail to comply
therewith, shall be guilty of a misdemeanor and upon conviction therefor
shall be fined not less than five hundred nor more than five thousand
dollars or imprisoned for not more than one year.
3. Every employer who knowingly violates or fails to comply with the
requirements of subdivision ONE OR four of section one hundred ninety-
five of this article, and the officers and agents of any corporation,
PARTNERSHIP, OR LIMITED LIABILITY COMPANY who knowingly permit the
corporation, PARTNERSHIP, OR LIMITED LIABILITY COMPANY to violate or
fail to comply therewith, shall be guilty of a felony where such employ-
er, officer or agent has been convicted of a violation of such subdivi-
sion within the previous six years, and upon conviction therefor shall
be fined not less than five hundred nor more than twenty thousand
dollars or imprisoned for not more than one year plus one day, or
punished by both such fine and imprisonment, for each such offense. In
determining the penalty, the court shall consider the severity of the
violation, the size of the employer, and the employer's good faith
effort to comply with the requirements of subdivision ONE OR four of
section one hundred ninety-five of this article.
A. 10163 11
S 10. Section 199-a of the labor law, as added by chapter 605 of the
laws of 1997, is amended to read as follows:
S 199-a. Notification of process. 1. Each employee who files a
complaint regarding a violation of a provision of THIS article [six]
(payment of wages), article nineteen (minimum wage act), or article
nineteen-A (MINIMUM WAGE STANDARDS AND PROTECTIVE LABOR PRACTICES FOR
FARM WORKERS), SECTION ONE HUNDRED SIXTY-ONE, SECTION ONE HUNDRED
SIXTY-TWO, section two hundred twelve-a [or], section two hundred
twelve-b, OR SECTION TWO HUNDRED FIFTEEN of this chapter, or a rule or
regulation promulgated thereunder, shall be provided with a written
description of the anticipated processing of the complaint, including
investigation, case conference, potential civil and criminal penalties,
and collection procedures.
2. EACH CLAIMANT AND HIS OR HER AUTHORIZED REPRESENTATIVE SHALL BE
PROVIDED A COPY OF ALL COMMUNICATIONS DIRECTED TO THE EMPLOYER THAT
INCLUDE ANY CALCULATION OF WAGES OWED OR DAMAGES TO BE ASSESSED WITH
RESPECT TO THAT CLAIMANT AND BE PROVIDED AN OPPORTUNITY TO REVIEW AND
CONTEST THE FACTUAL BASIS OF THAT CALCULATION PRIOR TO SETTLEMENT OF THE
CLAIM OR ISSUANCE OF AN ORDER TO COMPLY. Each employee and his or her
AUTHORIZED representative shall be notified in writing of any case
conference before it is held and given the opportunity to attend.
3. Each employee and his or her AUTHORIZED representative shall be
notified in writing of any award and collection of back wages and civil
penalties, and of any intent to seek criminal penalties. In the event
that criminal penalties are sought the employee and his or her AUTHOR-
IZED representative shall be notified of the outcome of prosecution.
S 11. Section 201 of the labor law, as amended by chapter 457 of the
laws of 1946, is amended to read as follows:
S 201. Laws and orders to be posted. Wherever persons are employed who
are affected by the provisions of this chapter or of the industrial
code, the commissioner shall furnish to the employer copies or abstracts
of such provisions, rules and orders as he may deem necessary affecting
such persons. The copies or abstracts [shall be in such language as the
commissioner may require and] shall be kept posted by the employer in a
conspicuous place on each floor of the premises. THE COPIES OR
ABSTRACTS POSTED BY AN EMPLOYER PURSUANT TO THIS SECTION SHALL BE IN
ENGLISH, ALL LANGUAGES THAT ARE THE PRIMARY LANGUAGE OF TEN PERCENT OR
MORE OF THAT EMPLOYER'S WORKFORCE AT EACH PREMISES, AND ANY OTHER
LANGUAGE AS THE COMMISSIONER MAY REQUIRE.
S 12. Section 215 of the labor law, as amended by chapter 744 of the
laws of 1986, subdivision 1 as amended by chapter 372 of the laws of
2009 and subdivision 2 as added by chapter 744 of the laws of 1986, is
amended to read as follows:
S 215. Penalties and civil action; employer who penalizes employees
because of complaints of employer violations. 1. (a) No employer or his
or her agent, or the officer or agent of any corporation, partnership,
or limited liability company, OR ANY OTHER PERSON, shall discharge,
THREATEN, penalize, or in any other manner discriminate or retaliate
against any employee (i) because such employee has made a complaint to
his or her employer, or to the commissioner or his or her authorized
representative, OR TO THE ATTORNEY GENERAL that the employer has
[violated any provision of] ENGAGED IN CONDUCT THAT THE EMPLOYEE, IN
GOOD FAITH, BELIEVES VIOLATES ANY OF HIS OR HER RIGHTS UNDER this chap-
ter, or (ii) BECAUSE SUCH EMPLOYER OR PERSON BELIEVES THAT SUCH EMPLOYEE
HAS MADE A COMPLAINT TO HIS OR HER EMPLOYER, OR THAT THE COMMISSIONER OR
HIS OR HER AUTHORIZED REPRESENTATIVE, OR TO THE ATTORNEY GENERAL, THAT
A. 10163 12
THE EMPLOYER HAS VIOLATED ANY OF HIS OR HER RIGHTS UNDER THIS CHAPTER,
OR (III) because such employee has caused to be instituted a proceeding
under or related to this chapter, or [(iii)] (IV) because such employee
has provided information to the commissioner or his or her authorized
representative OR THE ATTORNEY GENERAL, or [(iv)] (V) because such
employee has testified or is about to testify in an investigation or
proceeding under this chapter, or [(v)] (VI) because such employee has
otherwise exercised rights protected under this chapter, or [(vi)] (VII)
because the employer has received an adverse determination from the
commissioner involving the employee, OR (VIII) BECAUSE SUCH EMPLOYEE HAS
BEEN INFORMED, OR HAS INFORMED ANOTHER PERSON, ABOUT HIS OR HER RIGHTS
UNDER THIS CHAPTER.
"EMPLOYEE" FOR PURPOSES OF THIS SECTION SHALL INCLUDE ANY CURRENT OR
FORMER EMPLOYEE, OR ANY JOB APPLICANT.
A COMPLAINT MADE BY AN EMPLOYEE NEED NOT REFER TO THIS CHAPTER OR TO A
SPECIFIC VIOLATION OR PROVISION OF THIS CHAPTER.
CONDUCT MADE UNLAWFUL UNDER THIS SECTION INCLUDES CONDUCT THAT RESULTS
IN AN ADVERSE CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT AND ANY
ACT OR ACTS REASONABLY LIKELY TO DETER AN EMPLOYEE FROM ENGAGING IN ANY
ACTIVITY PROTECTED IN SUBPARAGRAPHS (I), (II), (III), (IV), (V), (VI),
(VII) AND (VIII) OF THIS PARAGRAPH.
(b) AN EMPLOYER IS PRESUMED TO HAVE VIOLATED PARAGRAPH (A) OF THIS
SUBDIVISION IF WITHIN NINETY DAYS AFTER AN EMPLOYEE ENGAGES IN ANY
ACTIVITY PROTECTED IN SUBPARAGRAPHS (I), (II), (III), (IV), (V), (VI),
(VII) AND (VIII) OF PARAGRAPH (A) OF THIS SUBDIVISION, THE EMPLOYER
DISCHARGES, THREATENS, OR PENALIZES THE EMPLOYEE, OR OTHERWISE CHANGES
THE TERMS OR CONDITIONS OF EMPLOYMENT SUCH THAT A REASONABLE EMPLOYEE
WOULD CONSIDER THE CHANGE ADVERSE. SUCH PRESUMPTION MAY ONLY BE REBUTTED
BY CLEAR AND CONVINCING EVIDENCE THAT THE ACTION WAS TAKEN FOR OTHER
PERMISSIBLE REASONS.
(C) If after investigation the commissioner finds that an employer has
violated any provision of this section, the commissioner [may] SHALL, by
an order which shall describe particularly the nature of the violation,
assess the employer a civil penalty of not less than one thousand nor
more than ten thousand dollars, and order [the employer to pay] ALL
APPROPRIATE RELIEF INCLUDING ENJOINING THE CONDUCT; ORDERING PAYMENT OF
lost compensation, DAMAGES, AND LIQUIDATED DAMAGES to the employee BY
THE EMPLOYER OR PERSON IN VIOLATION; AND ORDERING REHIRING OR REIN-
STATEMENT OF THE EMPLOYEE TO HIS OR HER FORMER POSITION WITH RESTORATION
OF SENIORITY, OR AN AWARD OF FRONT PAY IN LIEU OF REINSTATEMENT WHERE
APPROPRIATE. LIQUIDATED DAMAGES SHALL BE CALCULATED AS AN AMOUNT NOT
LESS THAN ONE THOUSAND DOLLARS NOR MORE THAN TEN THOUSAND DOLLARS. IN
THE CASE OF DISCHARGE IN VIOLATION OF THIS SECTION, LIQUIDATED DAMAGES
SHALL BE SET AT TEN THOUSAND DOLLARS. THE COMMISSIONER SHALL AWARD
LIQUIDATED DAMAGES TO EVERY EMPLOYEE AGGRIEVED UNDER THIS SECTION, IN
ADDITION TO ANY OTHER REMEDIES PERMITTED BY THIS SECTION, TO DETER
FUTURE VIOLATIONS.
[(c) Notwithstanding the provisions of section two hundred thirteen of
this article, the penalties set forth in this section shall be the
exclusive remedies available for violations of this section.]
(d) This section shall not apply to employees of the state or any
municipal subdivisions or departments thereof.
2. (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
A. 10163 13
violation, REGARDLESS OF THE DATES OF EMPLOYMENT OF THE EMPLOYEE, and to
order all appropriate relief, including 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 WHERE APPROPRIATE, AND
payment of lost compensation, damages, LIQUIDATED DAMAGES, COSTS, and
reasonable attorneys' fees. LIQUIDATED DAMAGES SHALL BE CALCULATED AS
AN AMOUNT NOT LESS THAN ONE THOUSAND DOLLARS NOR MORE THAN TEN THOUSAND
DOLLARS. IN THE CASE OF DISCHARGE IN VIOLATION OF THIS SECTION, LIQUI-
DATED DAMAGES SHALL BE SET AT TEN 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, TO DETER
FUTURE VIOLATIONS. THE STATUTE OF LIMITATIONS SHALL BE TOLLED FROM THE
DATE AN EMPLOYEE FILES A COMPLAINT WITH THE COMMISSIONER 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.
(B) At or before the commencement of any action under this section,
notice thereof shall be served upon the attorney general by the employ-
ee.
3. ANY COURT WITH COMPETENT JURISDICTION OVER A CIVIL ACTION BROUGHT
UNDER THIS SECTION, IN ADDITION TO ALL OTHER AUTHORITY, SHALL ALSO HAVE
THE DISCRETION AND AUTHORITY TO TAKE ALL REASONABLE MEASURES, PRIOR TO
THE GRANTING OF A JUDGMENT, TO IDENTIFY AND PRESERVE THE EMPLOYER'S
ASSETS THAT MAY BE NECESSARY TO SATISFY THE POTENTIAL JUDGMENT IN SUCH
ACTION, INCLUDING SUCH AMOUNT TO SATISFY AN AWARD OF REASONABLE ATTOR-
NEYS' FEES AND COSTS.
(A) SUCH REASONABLE MEASURES MAY INCLUDE: (I) REQUIRING THE EMPLOYER
TO GIVE AN ACCOUNTING OF ITS ASSETS TO THE COURT; (II) ENJOINING THE
CONVEYANCE OF ASSETS; (III) PLACING ASSETS IN ESCROW; (IV) ATTACHING
ASSETS; (V) PLACING ASSETS IN RECEIVERSHIP; AND (VI) ALL OTHER RELIEF AS
MAY REASONABLY BE NECESSARY TO EFFECTUATE THE PURPOSES OF THIS CHAPTER.
(B) A COURT EXERCISING ITS AUTHORITY UNDER THIS SECTION SHALL HAVE
DISCRETION TO: (I) BALANCE THE LIKELIHOOD OF SUCCESS ON THE MERITS WITH
THE POTENTIAL HARM TO DEFENDANTS IF SUCH EQUITABLE RELIEF IS GRANTED;
AND (II) WAIVE ANY OTHERWISE APPLICABLE REQUIREMENTS TO POST A BOND IF
SUCH BOND WOULD CAUSE UNDUE HARDSHIP ON THE PARTY SEEKING TO INVOKE THE
COURT'S EQUITABLE POWERS UNDER THIS SECTION.
4. ANY EMPLOYER OR HIS OR HER AGENT, OR THE OFFICER OR AGENT OF ANY
CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, OR ANY OTHER
PERSON WHO VIOLATES SUBDIVISION ONE OF THIS SECTION SHALL BE GUILTY OF A
MISDEMEANOR AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN
FIVE HUNDRED NOR MORE THAN TEN THOUSAND DOLLARS OR IMPRISONED FOR NOT
MORE THAN ONE YEAR, EXCEPT THAT ANY PERSON WHO DISCHARGES AN EMPLOYEE IN
VIOLATION OF SUBDIVISION ONE OF THIS SECTION SHALL BE GUILTY OF A FELONY
AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN FIVE HUNDRED
NOR MORE THAN TWENTY THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE THAN
ONE YEAR PLUS ONE DAY. WHERE ANY PERSON HAS PREVIOUSLY BEEN CONVICTED OF
A VIOLATION OF THIS SUBDIVISION WITHIN THE PREVIOUS SIX YEARS, UPON
CONVICTION FOR A SECOND OR SUBSEQUENT OFFENSE SUCH PERSON SHALL BE GUIL-
TY OF A FELONY AND FINED NOT LESS THAN FIVE HUNDRED NOR MORE THAN TWENTY
THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE THAN ONE YEAR PLUS ONE DAY.
S 13. Subdivisions 1 and 3 of section 218 of the labor law, subdivi-
sion 1 as amended by chapter 190 of the laws of 1990, the opening para-
graph of subdivision 1 as amended by chapter 304 of the laws of 2005 and
A. 10163 14
subdivision 3 as added by chapter 697 of the laws of 1980, are 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
THE MAXIMUM AMOUNT OF LIQUIDATED DAMAGES AVAILABLE UNDER THIS CHAPTER,
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 [equal
to] NOT TO EXCEED double the total amount OF WAGES, BENEFITS, OR WAGE
SUPPLEMENTS found to be due. 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 MAXIMUM AMOUNT OF LIQUI-
DATED DAMAGES AVAILABLE UNDER THIS CHAPTER, THE appropriate civil penal-
ty, AND INTEREST AT THE RATE OF INTEREST THEN IN EFFECT, AS PRESCRIBED
BY THE SUPERINTENDENT OF BANKS 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 employ-
er'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 employ-
er'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 THE MAXIMUM AMOUNT OF LIQUIDATED DAMAGES AVAILABLE UNDER THIS CHAP-
TER AND interest at the rate of interest then in effect, as prescribed
by the superintendent of banks 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 rehiring 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 employ-
er'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.
A. 10163 15
AT THE DISCRETION OF THE COMMISSIONER, THE COMMISSIONER SHALL HAVE
FULL AUTHORITY TO PROVIDE FOR INCLUSION OF AN AUTOMATIC THIRTY 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.
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 THIRTY PERCENT DAMAGES UPON ANY OUTSTANDING
MONIES OWED. AT THE REQUEST OF AN EMPLOYEE, AND AT THE DISCRETION OF THE
COMMISSIONER, THE COMMISSIONER MAY 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 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 14. Section 219 of the labor law, as added by chapter 697 of the
laws of 1980 and subdivision 1 as amended by chapter 417 of the laws of
1987, is amended to read as follows;
S 219. Violations of certain wage payment provisions; interest, filing
of order as judgment. 1. If the commissioner determines that an employ-
er has failed to pay wages, benefits or wage supplements required pursu-
ant to article six (payment of wages), article nineteen (minimum wage
act) or article [nineteen-a] NINETEEN-A (MINIMUM WAGE STANDARDS AND
PROTECTIVE LABOR PRACTICES FOR FARM WORKERS) 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 TO HIS OR HER AUTHORIZED REPRESENTATIVE. Such order shall direct
payment of wages or supplements found to be due, [including] THE MAXIMUM
AMOUNT OF LIQUIDATED DAMAGES AVAILABLE UNDER THIS CHAPTER, AND interest
at the rate of interest then in effect as prescribed by the superinten-
dent of banks pursuant to section fourteen-a of the banking law per
annum from the date of the underpayment to the date of the payment.
AT THE DISCRETION OF THE COMMISSIONER, THE COMMISSIONER SHALL HAVE
FULL AUTHORITY TO PROVIDE FOR INCLUSION OF AN AUTOMATIC THIRTY 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.
2. An order issued under subdivision one of this section shall be
final and not subject to review by any court or agency unless review is
had pursuant to section one hundred one of this chapter.
3. Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
A. 10163 16
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 THIRTY
PERCENT DAMAGES UPON ANY OUTSTANDING MONIES OWED. AT THE REQUEST OF AN
EMPLOYEE, AND AT THE DISCRETION OF THE COMMISSIONER, THE COMMISSIONER
MAY 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 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 15. The labor law is amended by adding three new sections 219-c,
219-d and 219-e to read as follows:
S 219-C. ARBITRATION FAIRNESS ACT. 1. FOR THE PURPOSES OF THIS
SECTION, "PREDISPUTE ARBITRATION AGREEMENT" MEANS ANY AGREEMENT TO ARBI-
TRATE DISPUTES THAT HAD NOT YET ARISEN AT THE TIME OF THE MAKING OF THE
AGREEMENT.
2. NO PREDISPUTE ARBITRATION AGREEMENT SHALL BE VALID OR ENFORCEABLE
IF IT REQUIRES ARBITRATION OF AN EMPLOYMENT DISPUTE ARISING UNDER ARTI-
CLE FIVE, SIX, NINETEEN OR NINETEEN-A, OR SECTION TWO HUNDRED FIFTEEN OF
THIS CHAPTER.
3. THE VALIDITY OR ENFORCEABILITY OF AN AGREEMENT TO ARBITRATE SHALL
BE DETERMINED BY THE COURT, RATHER THAN THE ARBITRATOR, IRRESPECTIVE OF
WHETHER THE PARTY RESISTING ARBITRATION CHALLENGES THE ARBITRATION
AGREEMENT SPECIFICALLY OR IN CONJUNCTION WITH OTHER TERMS OF THE
CONTRACT CONTAINING SUCH AGREEMENT.
4. NOTHING IN THIS SECTION SHALL APPLY TO ANY ARBITRATION PROVISION IN
A COLLECTIVE BARGAINING AGREEMENT.
5. THIS SECTION SHALL APPLY TO ANY PREDISPUTE ARBITRATION AGREEMENT IN
EFFECT ON OR AFTER THE ENACTMENT OF THE PROVISIONS OF THIS SECTION.
S 219-D. PUBLIC NOTICE OF EMPLOYER VIOLATIONS. 1. THE COMMISSIONER
SHALL HAVE THE FOLLOWING POWERS: (A) AFFIX TO ANY GOOD, IN THE MANUFAC-
TURE OR ASSEMBLY OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF
ARTICLE SIX, NINETEEN OR NINETEEN-A OF THIS CHAPTER, A NOTICE OF NO MORE
THAN SIX INCHES IN LENGTH BEARING THE WORDS "UNLAWFULLY MANUFACTURED."
ANY PERSON OTHER THAN THE COMMISSIONER, THE COMMISSIONER'S DULY AUTHOR-
IZED REPRESENTATIVE, OR CONSUMER OF SUCH GOOD WHO REMOVES, ALTERS,
DEFACES OR OTHERWISE INTERFERES WITH SUCH A NOTICE SHALL BE GUILTY OF A
MISDEMEANOR; AND
(B) WHERE AN EMPLOYER IS FOUND IN VIOLATION OF ARTICLE SIX, NINETEEN
OR NINETEEN-A OF THIS CHAPTER, TO POST AND/OR AFFIX A NOTICE OF NO LESS
THAN EIGHT AND ONE-HALF BY ELEVEN INCHES IN AN AREA VISIBLE TO EMPLOYEES
SUMMARIZING THE VIOLATIONS FOUND AND OTHER INFORMATION DEEMED PERTINENT
BY THE COMMISSIONER, ACCORDING TO SUCH FORM AND MANNER ORDERED BY THE
COMMISSIONER, AND TO POST AND/OR AFFIX IN AN AREA VISIBLE TO THE GENERAL
PUBLIC, AS ORDERED BY THE COMMISSIONER, A NOTICE OF NO LESS THAN EIGHT
AND ONE-HALF BY ELEVEN INCHES AS TO THE VIOLATIONS FOUND, ACCORDING TO
SUCH FORM AND MANNER ORDERED BY THE COMMISSIONER. ANY PERSON OTHER THAN
THE COMMISSION OR THE COMMISSIONER'S DULY AUTHORIZED REPRESENTATIVE WHO
A. 10163 17
REMOVES, ALTERS, DEFACES OR OTHERWISE INTERFERES WITH A NOTICE POSTED
AND/OR AFFIXED UNDER THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR.
S 219-E. WAGE LIENS. 1. ANY EMPLOYEE WHO HAS A CLAIM FOR WAGES PURSU-
ANT TO ARTICLE SIX, NINETEEN OR NINETEEN-A OF THIS CHAPTER OR THE
COMMISSIONER ACTING ON SUCH EMPLOYEE'S BEHALF, SHALL HAVE A LIEN UPON
ALL PROPERTY OF THE EMPLOYER, REAL OR PERSONAL, LOCATED IN THIS STATE
FOR THE FULL AMOUNT OF ANY WAGE CLAIM OR DEFICIENCY.
2. (A) A LIEN UNDER SUBDIVISION ONE OF THIS SECTION UPON REAL PROPERTY
TAKES EFFECT WHEN THE COMMISSIONER OR THE EMPLOYEE FILES A NOTICE OF THE
LIEN IN THE CLERK'S OFFICE OF THE COUNTY WHERE THE PROPERTY IS SITUATED
AND SERVES A COPY OF THAT NOTICE ON THE EMPLOYER IN THE SAME MANNER AS A
SUMMONS IS SERVED UNDER THE CIVIL PRACTICE LAW AND RULES. SUCH COPY
SHALL BE SERVED ON THE EMPLOYER WITHIN FIVE DAYS BEFORE AND THIRTY DAYS
AFTER FILING THE NOTICE OF LIEN. IF THE PROPERTY IS SITUATED IN TWO OR
MORE COUNTIES, THE NOTICE OF LIEN SHALL BE FILED IN THE OFFICE OF THE
CLERK OF EACH OF SUCH COUNTIES. THE COUNTY CLERK SHALL ENTER THE NOTICE
OF THE LIEN ON THE LIEN DOCKET.
(B) A LIEN UNDER SUBDIVISION ONE OF THIS SECTION UPON PERSONAL PROPER-
TY TAKES EFFECT WHEN THE COMMISSIONER OR THE EMPLOYEE FILES A NOTICE OF
THE LIEN AS IS REQUIRED UNDER PARAGRAPH TWO OF SUBSECTION (A) OF SECTION
9-501 OF THE UNIFORM COMMERCIAL CODE TO PERFECT A SECURITY INTEREST IN
SUCH PROPERTY AND SERVES A COPY OF THAT NOTICE ON THE EMPLOYER IN THE
SAME MANNER AS A SUMMONS IS SERVED UNDER THE CIVIL PRACTICE LAW AND
RULES. SUCH COPY SHALL BE SERVED ON THE EMPLOYER WITHIN FIVE DAYS BEFORE
AND THIRTY DAYS AFTER FILING THE NOTICE OF LIEN. SUCH NOTICE OF THE LIEN
SHALL BE MARKED, FILED, AND INDEXED BY THE FILING OFFICER IN THE SAME
MANNER AS A FINANCING STATEMENT.
3. THE COMMISSIONER OR AN EMPLOYEE SHALL FILE A NOTICE IN ACCORDANCE
WITH SUBDIVISION TWO OF THIS SECTION WITHIN SIX YEARS AFTER THE DATE ON
WHICH THE WAGES WERE DUE. SUCH NOTICE SHALL SPECIFY THE NATURE OF THE
CLAIM AND THE AMOUNT CLAIMED, DESCRIBE THE PROPERTY UPON WHICH THE CLAIM
IS MADE AND STATE THAT THE PERSON FILING THE NOTICE CLAIMS A LIEN ON
THAT PROPERTY.
4. EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, A LIEN
UNDER SUBDIVISION ONE OF THIS SECTION TAKES PRECEDENCE OVER THE RIGHTS
OF BONA FIDE PURCHASERS AND ALL OTHER DEBTS, JUDGMENTS, DECREES, LIENS,
OR MORTGAGES AGAINST THE EMPLOYER, REGARDLESS OF WHETHER THOSE OTHER
RIGHTS, DEBTS, JUDGMENTS, DECREES, LIENS, OR MORTGAGES ORIGINATE BEFORE
OR AFTER THE LIEN UNDER SUBDIVISION ONE OF THIS SECTION TAKES EFFECT. A
LIEN UNDER SUBDIVISION ONE OF THIS SECTION MAY BE ENFORCED IN THE MANNER
PROVIDED IN ARTICLES THREE AND NINE OF THE LIEN LAW, INSOFAR AS THOSE
PROVISIONS ARE APPLICABLE. THE LIEN CEASES TO EXIST IF THE EMPLOYEE DOES
NOT BRING AN ACTION TO ENFORCE THE LIEN WITHIN THE STATUTE OF LIMITA-
TIONS FOR THE UNDERLYING WAGE CLAIM.
5. EXCEPT AS PROVIDED IN THIS SUBDIVISION, A LIEN UNDER SUBDIVISION
ONE OF THIS SECTION DOES NOT TAKE PRECEDENCE OVER A LIEN OF A BANKING
ORGANIZATION AGAINST THE EMPLOYER THAT ORIGINATES BEFORE THE LIEN UNDER
SUCH SUBDIVISION TAKES EFFECT. A LIEN UNDER SUBDIVISION ONE OF THIS
SECTION TAKE PRECEDENCE OVER THE LIEN OF A BANKING ORGANIZATION AGAINST
THE EMPLOYER THAT ORIGINATES BEFORE THE LIEN UNDER SUCH SUBDIVISION
TAKES EFFECT ONLY AS TO THE FIRST TEN THOUSAND DOLLARS OF UNPAID WAGES
COVERED UNDER THE LIEN. "BANKING ORGANIZATION" SHALL HAVE THE MEANING
DEFINED IN SUBDIVISION ELEVEN OF SECTION TWO OF THE BANKING LAW.
6. A LIEN UNDER SUBDIVISION ONE OF THIS SECTION MAY BE ASSIGNED BY A
WRITTEN INSTRUMENT SIGNED AND ACKNOWLEDGED BY THE LIENOR, AT ANY TIME
BEFORE THE DISCHARGE THEREOF. SUCH ASSIGNMENT SHALL CONTAIN THE NAMES
A. 10163 18
AND PLACES OF RESIDENCE OF THE ASSIGNOR AND ASSIGNEE, THE AMOUNT OF THE
LIEN AND DATE OF FILING THE NOTICE OF LIEN, AND BE FILED IN THE OFFICE
WHERE HE NOTICE OF THE LIEN ASSIGNED IS FILED. THE FACTS RELATING TO
SUCH AN ASSIGNMENT AND THE NAMES OF THE ASSIGNEE SHALL BE ENTERED BY THE
PROPER OFFICER IN THE BOOK WHERE THE NOTICE OF LIEN IS ENTERED AND OPPO-
SITE THE ENTRY THEREOF. UNLESS SUCH ASSIGNMENT IS FILED, THE ASSIGNEE
NEED NOT BE MADE A DEFENDANT IN AN ACTION TO FORECLOSE A MORTGAGE, LIEN
OR OTHER ENCUMBRANCE. A PAYMENT MADE BY THE EMPLOYER OR BY HIS AGENT TO
THE ORIGINAL LIENOR, ON ACCOUNT OF SUCH LIEN, WITHOUT NOTICE OF SUCH
ASSIGNMENT AND BEFORE THE SAME IS FILED, SHALL BE VALID AND OF FULL
FORCE AND EFFECT. EXCEPT AS PRESCRIBED IN THIS SUBDIVISION, THE VALIDITY
OF AN ASSIGNMENT OF A LIEN SHALL NOT BE AFFECTED BY A FAILURE TO FILE
THE SAME.
7. A LIEN UNDER SUBDIVISION ONE OF THIS SECTION UPON REAL PROPERTY MAY
BE DISCHARGED AS FOLLOWS:
(A) BY THE CERTIFICATE OF THE LIENOR, DULY ACKNOWLEDGED OR PROVED AND
FILED IN THE OFFICE WHERE THE NOTICE OF LIEN IS FILED, STATING THAT THE
LIEN IS SATISFIED OR RELEASED AS TO THE WHOLE OR A PORTION OF THE PROP-
ERTY AFFECTED THEREBY AND MAY BE DISCHARGED IN WHOLE OR IN PART, SPECI-
FYING THE PART. UPON FILING SUCH CERTIFICATE, THE COUNTY CLERK IN THE
OFFICE WHERE THE SAME IS FILED, SHALL NOTE THE FACT OF SUCH FILING IN
THE "LIEN DOCKET" IN THE COLUMN HEADED "PROCEEDINGS HAD" OPPOSITE THE
DOCKET OF SUCH LIEN;
(B) BY A FAILURE TO BRING AN ACTION TO ENFORCE THE SAME WITHIN THE
TIME PRESCRIBED IN SUBDIVISION FOUR OF THIS SECTION;
(C) BY ORDER OF THE COURT VACATING OR CANCELING SUCH LIEN OF RECORD
FOR NEGLECT OF THE LIENOR TO PROSECUTE THE SAME. BEFORE SUCH ORDER SHALL
BE GRANTED, A NOTICE SHALL BE SERVED UPON THE LIENOR, EITHER PERSONALLY
OR BY LEAVING IT AT HIS OR HER LAST KNOWN PLACE OF RESIDENCE, WITH A
PERSON OF SUITABLE AGE, WITH DIRECTIONS TO DELIVER IT TO THE LIENOR.
SUCH NOTICE SHALL REQUIRE THE LIENOR TO COMMENCE AN ACTION TO ENFORCE
THE LIEN, WITHIN A TIME SPECIFIED IN THE NOTICE, NOT LESS THAN THIRTY
DAYS FROM THE TIME OF SERVICE, OR SHOW CAUSE AT A SPECIAL TERM OF A
COURT OF RECORD, OR AT A COUNTY COURT, IN A COUNTY IN WHICH THE PROPERTY
IS SITUATED, AT A TIME AND PLACE SPECIFIED THEREIN, WHY THE NOTICE OF
LIEN FILED SHOULD NOT BE VACATED AND CANCELLED, PROOF OF SUCH SERVICE
AND THAT THE LIENOR HAS NOT COMMENCED THE ACTION TO FORECLOSE SUCH LIEN,
AS DIRECTED IN THE NOTICE, SHALL BE MADE BY AFFIDAVIT, AT THE TIME OF
APPLYING FOR SUCH ORDER;
(D) BY THE EMPLOYER EXECUTING A BOND OR UNDERTAKING IN AN AMOUNT EQUAL
TO TWO HUNDRED PERCENT OF SUCH LIEN CONDITIONED FOR THE PAYMENT OF ANY
JUDGMENT WHICH MAY BE RENDERED AGAINST THE PROPERTY FOR THE ENFORCEMENT
OF THE LIEN:
(I) THE EXECUTION OF ANY SUCH BOND OR UNDERTAKING BY ANY FIDELITY OR
SURETY COMPANY AUTHORIZED BY THE LAWS OF THIS STATE TO TRANSACT BUSI-
NESS, SHALL BE SUFFICIENT; AND WHERE A CERTIFICATE OF QUALIFICATION HAS
BEEN ISSUED BY THE SUPERINTENDENT OF INSURANCE UNDER THE PROVISIONS OF
SECTION ONE THOUSAND ONE HUNDRED ELEVEN OF THE INSURANCE LAW, AND HAS
NOT BEEN REVOKED, NO JUSTIFICATION OR NOTICE THEREOF SHALL BE NECESSARY.
ANY SUCH COMPANY MAY EXECUTE ANY SUCH BOND OR UNDERTAKING AS SURETY BY
THE HAND OF ITS OFFICERS, OR ATTORNEY, DULY AUTHORIZED THERETO BY RESOL-
UTION OF ITS BOARD OF DIRECTORS, A CERTIFIED COPY OF WHICH RESOLUTION,
UNDER THE SEAL OF SAID COMPANY, SHALL BE FILED WITH EACH BOND OR UNDER-
TAKING. ANY SUCH BOND OR UNDERTAKING SHALL BE FILED WITH THE CLERK OF
THE COUNTY IN WHICH THE NOTICE OF LIEN IS FILED, AND A COPY SHALL BE
SERVED UPON THE ADVERSE PARTY. THE UNDERTAKING IS EFFECTIVE WHEN SO
A. 10163 19
SERVED AND FILED. IF A CERTIFICATE OF QUALIFICATION ISSUED PURSUANT TO
SUBSECTIONS (B), (C) AND (D) OF SECTION ONE THOUSAND ONE HUNDRED ELEVEN
OF THE INSURANCE LAW IS NOT FILED WITH THE UNDERTAKING, A PARTY MAY
EXCEPT, TO THE SUFFICIENCY OF A SURETY AND BY A WRITTEN NOTICE OF EXCEP-
TION SERVED UPON THE ADVERSE PARTY WITHIN TEN DAYS AFTER RECEIPT, A COPY
OF THE UNDERTAKING. EXCEPTIONS DEEMED BY THE COURT TO HAVE BEEN TAKEN
UNNECESSARILY, OR FOR VEXATION OR DELAY, MAY, UPON NOTICE, BE SET ASIDE,
WITH COSTS. WHERE NO EXCEPTION TO SURETIES IS TAKEN WITHIN TEN DAYS OR
WHERE EXCEPTIONS TAKEN ARE SET ASIDE, THE UNDERTAKINGS SHALL BE ALLOWED.
(II) IN THE CASE OF BONDS OR UNDERTAKINGS NOT EXECUTED PURSUANT TO
SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE EMPLOYER SHALL EXECUTE AN UNDER-
TAKING WITH TWO OR MORE SUFFICIENT SURETIES, WHO SHALL BE FREE HOLDERS,
TO THE CLERK OF THE COUNTY WHERE THE PROPERTY IS SITUATED. THE SURETIES
MUST TOGETHER JUSTIFY IN AT LEAST DOUBLE THE SUM NAMED IN THE UNDERTAK-
ING. A COPY OF THE UNDERTAKING, WITH NOTICE THAT THE SURETIES WILL
JUSTIFY BEFORE THE COURT, OR A JUDGE OR JUSTICE THEREOF, AT THE TIME AND
PLACE THEREIN MENTIONED, MUST BE SERVED UPON THE LIENOR OR HIS OR HER
ATTORNEY, NOT LESS THAN FIVE DAYS BEFORE SUCH TIME. UPON THE APPROVAL OF
THE UNDERTAKING BY THE COURT, JUDGE OR JUSTICE AN ORDER SHALL BE MADE BY
SUCH COURT, JUDGE OR JUSTICE DISCHARGING SUCH LIEN.
(III) IF THE LIENOR CANNOT BE FOUND, OR DOES NOT APPEAR BY ATTORNEY,
SERVICE MAY BE MADE BY LEAVING A COPY OF SUCH UNDERTAKING AND NOTICE AT
THE LIENOR'S PLACE OF RESIDENCE, OR IF A CORPORATION AT ITS PRINCIPAL
PLACE OF BUSINESS WITHIN THE STATE AS STATED IN THE NOTICE OF LIEN, WITH
A PERSON OF SUITABLE AGE AND DISCRETION THEREIN, OR IF THE HOUSE OF HIS
ABODE OR ITS PLACE OF BUSINESS IS NOT STATED IN SAID NOTICE OF LIEN AND
IS NOT KNOWN, THEN IN SUCH MANNER AS THE COURT MAY DIRECT. THE PREMISES,
IF ANY, DESCRIBED IN THE NOTICE OF LIEN AS THE LIENOR'S RESIDENCE OR
PLACE OF BUSINESS SHALL BE DEEMED TO BE HIS OR HER SAID RESIDENCE OR ITS
PLACE OF BUSINESS FOR THE PURPOSES OF SAID SERVICE AT THE TIME THEREOF,
UNLESS IT IS SHOWN AFFIRMATIVELY THAT THE PERSON SERVICING THE PAPERS OR
DIRECTING THE SERVICE HAD KNOWLEDGE TO THE CONTRARY. NOTWITHSTANDING
THE OTHER PROVISIONS OF THIS SUBDIVISION RELATING TO SERVICE OF NOTICE,
IN ANY CASE WHERE THE MAILING ADDRESS OF THE LIENOR IS OUTSIDE THE STATE
SUCH SERVICE MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH LIENOR AT THE MAILING ADDRESS CONTAINED IN THE NOTICE
OF LIEN.
(IV) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBDIVISION, THE PROVISIONS
OF ARTICLE TWENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES REGULATING
UNDERTAKINGS ARE APPLICABLE TO A BOND OR UNDERTAKING GIVEN FOR THE
DISCHARGE OF A LIEN UNDER THIS SUBDIVISION.
(V) A BOND GIVEN TO DISCHARGE A LIEN FILED UPON REAL PROPERTY MAY BE
VACATED AND CANCELLED BY AN ORDER OF A COURT OF RECORD. BEFORE SUCH
ORDER SHALL BE GRANTED, A NOTICE SHALL BE SERVED UPON THE LIENOR, EITHER
PERSONALLY OR BY LEAVING IT AT HIS LAST KNOWN PLACE OF RESIDENCE, WITH A
PERSON OF SUITABLE AGE, WITH DIRECTIONS TO DELIVER IT TO THE LIENOR.
SUCH NOTICE SHALL REQUIRE THE LIENOR TO COMMENCE AN ACTION TO ENFORCE
THE LIEN, WITHIN A TIME SPECIFIED IN THE NOTICE, NOT LESS THAN THIRTY
DAYS FROM THE TIME OF SERVICE, OR SHOW CAUSE AT A SPECIAL TERM OF A
COURT OF RECORD, OR AT A COUNTY COURT, IN A COUNTY IN WHICH THE PROPERTY
IS SITUATED, AT A TIME AND PLACE SPECIFIED THEREIN, WHY THE BOND GIVEN
SHOULD NOT BE VACATED AND CANCELLED. PROOF OF SUCH SERVICE AND THAT THE
LIENOR HAS NOT COMMENCED THE ACTION TO FORECLOSE SUCH LIEN, AS DIRECTED
IN THE NOTICE, SHALL BE MADE BY AFFIDAVIT, AT THE TIME OF APPLYING FOR
SUCH ORDER;
A. 10163 20
(E) UPON FILING IN THE OFFICE OF THE CLERK OF THE COUNTY WHERE THE
PROPERTY IS SITUATED, A TRANSCRIPT OF A JUDGMENT OF A COURT OF COMPETENT
JURISDICTION, TOGETHER WITH DUE PROOF OF SERVICE OF DUE NOTICE OF ENTRY
THEREOF, SHOWING A FINAL DETERMINATION OF THE ACTION IN FAVOR OF THE
OWNER OF THE PROPERTY AGAINST WHICH THE LIEN WAS CLAIMED;
(F) WHERE IT APPEARS FROM THE FACE OF THE NOTICE OF LIEN THAT THE
CLAIMANT HAS NO VALID LIEN BY REASON OF FAILURE TO COMPLY WITH THE
PROVISIONS OF THIS SECTION, OR WHERE IT APPEARS FROM THE PUBLIC RECORDS
THAT SUCH NOTICE HAS NOT BEEN FILED IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION, THE PROPERTY OWNER OR ANY OTHER PARTY IN INTEREST, MAY
APPLY TO THE SUPREME COURT OF THIS STATE, OR TO ANY JUSTICE THEREOF, OR
TO THE COUNTY JUDGE OF THE COUNTY IN WHICH THE NOTICE OF LIEN IS FILED,
FOR AN ORDER SUMMARILY DISCHARGING OF RECORD THE ALLEGED LIEN. A COPY OF
THE PAPERS UPON WHICH APPLICATION WILL BE MADE TOGETHER WITH A NOTICE
SETTING FORTH THE COURT OR THE JUSTICE THEREOF OR THE JUDGE TO WHOM THE
APPLICATION WILL BE MADE AT A TIME AND PLACE THEREIN MENTIONED MUST BE
SERVED UPON THE LIENOR NOT LESS THAN FIVE DAYS BEFORE SUCH TIME. IF THE
LIENOR CAN NOT BE FOUND, SUCH SERVICE MAY BE MADE AS THE COURT, JUSTICE
OR JUDGE MAY DIRECT. THE APPLICATION MUST BE MADE UPON A VERIFIED PETI-
TION ACCOMPANIED BY OTHER WRITTEN PROOF SHOWING A PROPER CASE THEREFOR,
AND UPON THE APPROVAL OF THE APPLICATION BY THE COURT, JUSTICE OR JUDGE,
AN ORDER SHALL BE MADE DISCHARGING THE ALLEGED LIEN OF RECORD; AND
(G) AT ANY TIME BEFORE AN ACTION IS COMMENCED TO FORECLOSE SUCH LIEN,
BY DEPOSITING WITH THE COUNTY CLERK, IN WHOSE OFFICE THE NOTICE OF LIEN
IS FILED, A SUM OF MONEY EQUAL TO THE AMOUNT CLAIMED IN SUCH NOTICE,
WITH INTEREST TO THE TIME OF SUCH DEPOSIT. AFTER SUCH DEPOSIT IS MADE
AND THE LIEN IS DISCHARGED THE COUNTY TREASURER OR ANY OTHER OFFICER
WITH WHOM THE MONEY IS DEPOSITED SHALL, WITHIN TEN DAYS THEREAFTER, SEND
A NOTICE BY MAIL TO THE LIENOR, AT THE ADDRESS GIVEN IN THE LIEN, THAT
SUCH LIEN HAS BEEN DISCHARGED BY DEPOSIT. AFTER ACTION TO FORECLOSE THE
LIEN IS COMMENCED IT MAY BE DISCHARGED BY A PAYMENT INTO COURT OF SUCH
SUM OF MONEY, AS, IN THE JUDGMENT OF THE COURT OR A JUDGE OR JUSTICE
THEREOF, AFTER AT LEAST FIVE DAYS' NOTICE TO ALL THE PARTIES TO THE
ACTION, WILL BE SUFFICIENT TO PAY ANY JUDGMENT WHICH MAY BE RECOVERED IN
SUCH ACTION. UPON ANY SUCH PAYMENT, THE COUNTY CLERK SHALL FORTHWITH
ENTER UPON THE LIEN DOCKET AND AGAINST THE LIEN FOR THE DISCHARGE OF
WHICH SUCH MONEYS WERE PAID, THE WORDS "DISCHARGED BY PAYMENT." A
DEPOSIT OF MONEY MADE AS PRESCRIBED IN THIS SECTION SHALL BE REPAID TO
THE PARTY MAKING THE DEPOSIT, OR HIS OR HER SUCCESSOR, UPON THE
DISCHARGE OF THE LIENS AGAINST THE PROPERTY PURSUANT TO LAW. ALL DEPOS-
ITS OF MONEY MADE AS PROVIDED IN THIS SECTION SHALL BE CONSIDERED AS
PAID INTO COURT AND SHALL BE SUBJECT TO THE PROVISIONS OF LAW RELATIVE
TO THE PAYMENT OF MONEY INTO COURT AND THE SURRENDER OF SUCH MONEY BY
ORDER OF THE COURT. AN ORDER FOR THE SURRENDER OF SUCH MONEYS TO THE
LIENOR OR DEPOSITOR MAY BE MADE BY ANY COURT OF RECORD HAVING JURISDIC-
TION OF THE PARTIES. IF NO ACTION IS BROUGHT IN A COURT OF RECORD TO
ENFORCE SUCH LIEN, SUCH ORDER MAY BE MADE BY ANY JUDGE OF A COURT OF
RECORD. IF APPLICATION FOR SUCH ORDER IS MADE BY LIENOR IT SHALL BE ON
NOTICE TO THE DEPOSITOR; IF MADE BY THE DEPOSITOR THAN ON NOTICE TO THE
LIENOR.
A DEPOSIT MADE TO DISCHARGE A LIEN PURSUANT TO THIS SECTION MAY BE
RETURNED BY AN ORDER OF A COURT OF RECORD. BEFORE SUCH ORDER SHALL BE
GRANTED, A NOTICE SHALL BE SERVED UPON THE LIENOR, EITHER PERSONALLY OR
BY LEAVING IT AT HIS OR HER LAST KNOWN PLACE OF RESIDENCE, WITH A PERSON
OF SUITABLE AGE, WITH DIRECTIONS TO DELIVER IT TO THE LIENOR. SUCH
NOTICE SHALL REQUIRE THE LIENOR TO COMMENCE AN ACTION TO ENFORCE THE
A. 10163 21
LIEN, WITHIN A TIME SPECIFIED IN THE NOTICE, NOT LESS THAN THIRTY DAYS
FROM THE TIME OF SERVICE, OR SHOW CAUSE AT A SPECIAL TERM OF A COURT OF
RECORD, OR AT A COUNTY COURT, IN A COUNTY IN WHICH THE PROPERTY IS SITU-
ATED, AT A TIME AND PLACE SPECIFIED THEREIN, WHY THE DEPOSIT SHOULD NOT
BE RETURNED. PROOF OF SUCH SERVICE AND THAT THE LIENOR HAS NOT COMMENCED
THE ACTION TO FORECLOSE SUCH LIEN, AS DIRECTED IN THE NOTICE, SHALL BE
MADE BY AFFIDAVIT, AT THE TIME OF APPLYING FOR SUCH ORDER.
8. A LIEN UNDER SUBDIVISION ONE OF THIS SECTION UPON PERSONAL PROPERTY
MAY BE DISCHARGED AS FOLLOWS:
(A) BY A PAYMENT OF THE AMOUNT DUE THEREON;
(B) BY A FAILURE TO BRING AN ACTION TO ENFORCE THE SAME WITHIN THE
TIME PRESCRIBED IN SUBDIVISION FOUR OF THIS SECTION;
(C) BY THE WRITTEN CONSENT OF THE LIENOR, DULY ACKNOWLEDGED AND FILED
WITH THE PROPER OFFICER TO THE EFFECT THAT SUCH LIEN MAY BE DISCHARGED;
AND
(D) BY THE EMPLOYER FILING WITH THE PROPER OFFICER AN UNDERTAKING IN
AN AMOUNT EQUAL TO TWICE THE SUM SPECIFIED IN THE NOTICE OF LIEN,
EXECUTED BY ONE OR MORE SURETIES WHO SHALL JUSTIFY IN SUCH AMOUNT AND
APPROVED BY THE OFFICER WITH WHOM THE NOTICE OF LIEN IS FILED, CONDI-
TIONED FOR THE PAYMENT OF THE SUM DUE SUCH LIENOR, BY REASON OF SUCH
LIEN, AND THE COST AND EXPENSES OF ENFORCING THE SAME.
S 16. Section 661 of the labor law, as added by chapter 619 of the
laws of 1960, is amended to read as follows:
S 661. Records of employers. [Every] FOR ALL EMPLOYEES COVERED BY
THIS ARTICLE, EVERY employer shall [keep] ESTABLISH, MAINTAIN, AND
PRESERVE FOR NOT LESS THAN SIX YEARS CONTEMPORANEOUS, true, and accurate
PAYROLL records [of] SHOWING FOR EACH WEEK WORKED THE hours worked [by
each employee covered by an hourly minimum wage rate], the [wages paid
to all employees, and] RATE OR RATES OF PAY AND ITS BASIS, WHETHER PAID
BY THE HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER
BASIS; GROSS WAGES; DEDUCTIONS; ALLOWANCES, IF ANY, CLAIMED AS PART OF
THE MINIMUM WAGE; AND NET WAGES FOR EACH EMPLOYEE, PLUS such other
information as the commissioner deems material and necessary[, and
shall, on]. FOR ALL EMPLOYEES WHO ARE NOT EXEMPT FROM OVERTIME COMPEN-
SATION AS ESTABLISHED IN THE COMMISSIONER'S MINIMUM WAGE ORDERS OR
OTHERWISE PROVIDED BY LAW OR REGULATION, THE PAYROLL RECORDS MUST
INCLUDE THE REGULAR HOURLY RATE OR RATES OF PAY, THE OVERTIME RATE OR
RATES OF PAY, THE NUMBER OF REGULAR HOURS WORKED, AND THE NUMBER OF
OVERTIME HOURS WORKED. FOR ALL EMPLOYEES PAID A PIECE RATE, THE PAYROLL
RECORDS SHALL INCLUDE THE APPLICABLE PIECE RATE OR RATES OF PAY AND
NUMBER OF PIECES COMPLETED AT EACH PIECE RATE. FOR ALL EMPLOYEES PAID BY
COMMISSION, THE PAYROLL RECORDS SHALL INCLUDE THE BASIS ON WHICH THE
COMMISSION IS CALCULATED. ON demand, THE EMPLOYER SHALL furnish to the
commissioner or his duly authorized representative a sworn statement of
the [same] HOURS WORKED, RATE OR RATES OF PAY AND ITS BASIS, WHETHER
PAID BY THE HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER
BASIS; GROSS WAGES; DEDUCTIONS; AND ALLOWANCES, IF ANY, CLAIMED AS PART
OF THE MINIMUM WAGE, FOR EACH EMPLOYEE, PLUS SUCH OTHER INFORMATION AS
THE COMMISSIONER DEEMS MATERIAL AND NECESSARY. Every employer shall keep
such records open to inspection by the commissioner or his duly author-
ized representative at any reasonable time. Every employer of an employ-
ee shall keep a digest and summary of this article or applicable wage
order, which shall be prepared by the commissioner, posted in a conspic-
uous place in his establishment and shall also keep posted such addi-
tional copies of said digest and summary as the commissioner prescribes.
Employers shall, on request, be furnished with copies of this article
A. 10163 22
and of orders, and of digests and summaries thereof, without charge.
Employers shall permit the commissioner or his duly authorized represen-
tative to question WITHOUT INTERFERENCE any employee of such employer in
A PRIVATE LOCATION AT the place of employment and during working hours
in respect to the wages paid to and the hours worked by such employee or
other employees.
S 17. Section 662 of the labor law, as amended by chapter 587 of the
laws of 1983 and subdivision 4 as added by chapter 776 of the laws of
1983, is amended to read as follows:
S 662. Penalties. 1. [Discrimination against employee. Any employer
or his agent, or the officer or agent of any corporation, who discharges
or in any other manner discriminates against any employee because such
employee has made a complaint to his employer, or to the commissioner or
his authorized representative, that he has not been paid in accordance
with the provisions of this article, or because such employee has caused
to be instituted a proceeding under or related to this article, or
because such employee has testified or is about to testify in an inves-
tigation or proceeding under this article, shall be guilty of a class B
misdemeanor.
2. Payment of less than minimum wage] FAILURE TO PAY MINIMUM WAGE OR
OVERTIME COMPENSATION. (A) Any employer or his OR HER agent, or the
officer or agent of any corporation, PARTNERSHIP, OR LIMITED LIABILITY
COMPANY, who pays or agrees to pay to any employee less than the wage
applicable under this article shall be guilty of a [class B] misdemeanor
and [each] UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN FIVE
HUNDRED NOR MORE THAN TWENTY THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE
THAN ONE YEAR, AND, IN THE EVENT THAT ANY SECOND OR SUBSEQUENT OFFENSE
OCCURS WITHIN SIX YEARS OF THE DATE OF CONVICTION FOR A PRIOR OFFENSE,
SHALL BE GUILTY OF A FELONY FOR THE SECOND OR SUBSEQUENT OFFENSE, AND
UPON CONVICTION THEREFOR, SHALL BE FINED NOT LESS THAN FIVE HUNDRED NOR
MORE THAN TWENTY THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE THAN ONE
YEAR PLUS ONE DAY, OR PUNISHED BY BOTH SUCH FINE AND IMPRISONMENT, FOR
EACH SUCH OFFENSE. EACH payment to any employee in any week of less than
the wage applicable under this article shall constitute a separate
offense.
(B) EVERY EMPLOYER WHO FAILS TO PAY THE WAGES OF ALL HIS OR HER
EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE, AND THE
OFFICERS AND AGENTS OF ANY CORPORATION, PARTNERSHIP, OR LIMITED LIABIL-
ITY COMPANY WHO KNOWINGLY PERMIT THE CORPORATION, PARTNERSHIP, OR LIMIT-
ED LIABILITY COMPANY TO VIOLATE THIS ARTICLE BY FAILING TO PAY THE WAGES
OF ANY OF ITS EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS THEREOF, AND:
(I) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN TWENTY-FIVE THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS E
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN FOUR YEARS;
(II) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN ONE HUNDRED THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS D
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN SEVEN YEARS;
(III) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED BY SUCH EMPLOYER, RESULTS IN AN AMOUNT
GREATER THAN FIVE HUNDRED THOUSAND DOLLARS, SHALL BE GUILTY OF A CLASS C
A. 10163 23
FELONY AND UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS THAN HALF
THE AMOUNT OF THE TOTAL UNDERPAYMENT NOR MORE THAN TWICE SUCH AMOUNT, OR
IMPRISONED FOR NOT MORE THAN FIFTEEN YEARS.
[3.] 2. Failure to keep records. Any employer or his OR HER agent, or
the officer or agent of any corporation, PARTNERSHIP, OR LIMITED LIABIL-
ITY COMPANY, who fails to keep the records required under this article
or to furnish such records or any information required to be furnished
under this article to the commissioner or his OR HER authorized repre-
sentative upon request, or who hinders or delays the commissioner or his
OR HER authorized representative in the performance of his OR HER duties
in the enforcement of this article, or refuses to admit the commissioner
or his OR HER authorized representative to any place of employment, or
falsifies any such records or refuses to make such records accessible to
the commissioner or his OR HER authorized representative, or refuses to
furnish a sworn statement of such records or any other information
required for the proper enforcement of this article to the commissioner
or his OR HER authorized representative, shall be guilty of a [class B]
misdemeanor and [each] UPON CONVICTION THEREFOR SHALL BE FINED NOT LESS
THAN FIVE HUNDRED NOR MORE THAN FIVE THOUSAND DOLLARS OR IMPRISONED FOR
NOT MORE THAN ONE YEAR, AND, IN THE EVENT THAT ANY SECOND OR SUBSEQUENT
OFFENSE OCCURS WITHIN SIX YEARS OF THE DATE OF CONVICTION FOR A PRIOR
OFFENSE, SHALL BE GUILTY OF A FELONY FOR THE SECOND OR SUBSEQUENT
OFFENSE, AND UPON CONVICTION THEREFOR, SHALL BE FINED NOT LESS THAN FIVE
HUNDRED NOR MORE THAN TWENTY THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE
THAN ONE YEAR PLUS ONE DAY, OR PUNISHED BY BOTH SUCH FINE AND IMPRISON-
MENT, FOR EACH SUCH OFFENSE. EACH day's failure to keep the records
requested under this article or to furnish such records or information
to the commissioner or his OR HER authorized representative shall
constitute a separate offense.
[4. Where any person has previously been convicted of a violation of
this section within the preceding five years, upon conviction for a
second or subsequent violation such person may be fined up to ten thou-
sand dollars in addition to any other penalties including fines other-
wise provided by law; provided, however, that the total additional fine
that may be imposed pursuant to this subdivision for separate offenses
committed in any consecutive twelve month period may not exceed ten
thousand dollars.]
S 18. Section 663 of the labor law, as added by chapter 619 of the
laws of 1960, subdivisions 1 and 2 as amended by chapter 372 of the laws
of 2009 and subdivision 3 as added by chapter 497 of the laws of 1966,
is amended to read as follows:
S 663. Civil action. 1. By employee. If any employee is paid by his or
her employer less than the wage to which he or she is entitled under the
provisions of this article, he or she [may] SHALL recover in a civil
action the amount of any such underpayments, together with costs [and
such] ALL reasonable attorney's fees [as may be allowed by the court],
PREJUDGMENT INTEREST AS REQUIRED UNDER THE CIVIL PRACTICE LAW AND RULES,
and unless the employer proves a good faith basis to believe that its
underpayment of wages was in compliance with the law, an additional
amount as liquidated damages equal to [twenty-five] TWO HUNDRED percent
of the total of such underpayments found to be due [the employee and
any]. ANY agreement between the employee, and the employer to work for
less than such wage shall be no defense to such action.
2. By commissioner. On behalf of any employee paid less than the wage
to which the employee is entitled under the provisions of this article,
the commissioner may bring any legal action necessary, including admin-
A. 10163 24
istrative action, to collect such claim, and the employer shall be
required to pay the FULL AMOUNT OF THE UNDERPAYMENT, PLUS costs, and
unless the employer proves a good faith basis to believe that its under-
payment was in compliance with the law, an additional amount as liqui-
dated damages [equal to twenty-five percent of the total of such under-
payments found to be due the employee]. LIQUIDATED DAMAGES SHALL BE
CALCULATED BY THE COMMISSIONER AS NO LESS THAN FIFTY PERCENT AND NO MORE
THAN TWO HUNDRED PERCENT OF THE TOTAL AMOUNT OF UNDERPAYMENTS FOUND TO
BE DUE THE EMPLOYEE. IN ANY ACTION BROUGHT BY THE COMMISSIONER IN A
COURT OF COMPETENT JURISDICTION, LIQUIDATED DAMAGES SHALL BE CALCULATED
AS AN AMOUNT EQUAL TO TWO HUNDRED PERCENT OF UNDERPAYMENTS FOUND TO BE
DUE THE EMPLOYEE.
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 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 ARTI-
CLE.
4. CLASS ACTION. ANY DAMAGES RECOVERABLE PURSUANT TO THIS SECTION MAY
BE RECOVERED IN ANY ACTION THAT A COURT MAY AUTHORIZE TO BE BROUGHT AS A
CLASS ACTION. SUBDIVISION B OF SECTION NINE HUNDRED ONE OF THE CIVIL
PRACTICE LAW AND RULES SHALL NOT PRECLUDE AN AWARD OF LIQUIDATED DAMAGES
UNDER THIS ARTICLE ON A CLASSWIDE BASIS.
5. NO WAIVER. NO RIGHTS OR REMEDIES UNDER THIS ARTICLE MAY BE WAIVED
OR RELEASED EXCEPT BY COURT ORDER. A COURT OF COMPETENT JURISDICTION
SHALL NOT APPROVE SUCH WAIVER OR RELEASE UNLESS IT REPRESENTS A FAIR AND
EQUITABLE SETTLEMENT OF A BONA FIDE DISPUTE.
6. FAILURE TO PROVIDE NOTICE. WHERE AN EMPLOYER FAILS TO PROVIDE
NOTICE TO AN EMPLOYEE OF ALLOWANCES, IF ANY, TO BE CLAIMED AS PART OF
THE MINIMUM WAGE; MAINTAIN CONTEMPORANEOUS RECORDS OF ALLOWANCES CLAIMED
AS PART OF THE MINIMUM WAGE; OR PROVIDE STATEMENTS OF WAGES TO AN
EMPLOYEE REFLECTING ALLOWANCES CLAIMED AS PART OF THE MINIMUM WAGE, WHEN
AND AS REQUIRED UNDER THIS ARTICLE OR ARTICLE SIX OF THIS CHAPTER, SUCH
EMPLOYER SHALL BE BARRED FROM TAKING ANY ALLOWANCES OTHERWISE PERMITTED
BY THIS CHAPTER, INCLUDING TIP, MEAL, OR LODGING ALLOWANCES.
WHERE AN EMPLOYER FAILS TO PROVIDE NOTICE TO AN EMPLOYEE OF HIS OR HER
REGULAR OR OVERTIME RATE OR RATES OF PAY; MAINTAIN CONTEMPORANEOUS
RECORDS OF AN EMPLOYEE'S REGULAR OR OVERTIME RATE OR RATES OF PAY; OR
PROVIDE STATEMENTS OF WAGES TO AN EMPLOYEE OF HIS OR HER REGULAR OR
OVERTIME RATE OR RATES OF PAY, WHEN AND AS REQUIRED UNDER THIS ARTICLE
OR ARTICLE SIX OF THIS CHAPTER, SUCH EMPLOYEE'S REGULAR HOURLY RATE OF
PAY SHALL BE CALCULATED BY DIVIDING THE EMPLOYEE'S TOTAL WEEKLY WAGES BY
THE LESSER OF FORTY HOURS OR THE ACTUAL NUMBER OF HOURS WORKED BY SUCH
EMPLOYEE DURING THE WORK WEEK.
WHERE AN EMPLOYER HAS FAILED TO MAINTAIN ACCURATE, COMPLETE AND
CONTEMPORANEOUS RECORDS WHEN AND AS REQUIRED UNDER THIS ARTICLE OR ARTI-
CLE SIX OF THIS CHAPTER OF HOURS WORKED BY AN EMPLOYEE, WAGES PAID TO AN
EMPLOYEE, OR ALLOWANCES CLAIMED BY SUCH EMPLOYER AS PART OF THE MINIMUM
WAGE, THE EMPLOYEE'S CREDIBLE TESTIMONY OF SAME SHALL FORM THE PROPER
BASIS OF THE CALCULATION OF UNPAID WAGES OWED SUCH EMPLOYEE ABSENT
SPECIFIC, DETAILED AND CREDIBLE REBUTTAL EVIDENCE PROFFERED BY THE
EMPLOYER.
A. 10163 25
7. COURT AUTHORITY. ANY COURT WITH COMPETENT JURISDICTION OVER A
CIVIL ACTION BROUGHT UNDER THIS SECTION, IN ADDITION TO ALL OTHER
AUTHORITY, SHALL ALSO HAVE THE DISCRETION AND AUTHORITY TO TAKE ALL
REASONABLE MEASURES, PRIOR TO THE GRANTING OF A JUDGMENT, TO IDENTIFY
AND PRESERVE THE EMPLOYER'S ASSETS THAT MAY BE NECESSARY TO SATISFY THE
POTENTIAL JUDGMENT IN SUCH ACTION, INCLUDING SUCH AMOUNT TO SATISFY AN
AWARD OF REASONABLE ATTORNEYS' FEES AND COSTS.
(A) SUCH REASONABLE MEASURES MAY INCLUDE: (I) REQUIRING THE EMPLOYER
TO GIVE AN ACCOUNTING OF ITS ASSETS TO THE COURT; (II) ENJOINING THE
CONVEYANCE OF ASSETS; (III) PLACING ASSETS IN ESCROW; (IV) ATTACHING
ASSETS; (V) PLACING ASSETS IN RECEIVERSHIP; AND (VI) ALL OTHER RELIEF AS
MAY REASONABLY BE NECESSARY TO EFFECTUATE THE PURPOSES OF THIS CHAPTER.
(B) A COURT EXERCISING ITS AUTHORITY UNDER THIS SECTION SHALL HAVE
DISCRETION TO: (I) BALANCE THE LIKELIHOOD OF SUCCESS ON THE MERITS WITH
THE POTENTIAL HARM TO DEFENDANTS IF SUCH EQUITABLE RELIEF IS GRANTED;
AND (II) WAIVE ANY OTHERWISE-APPLICABLE REQUIREMENTS TO POST A BOND IF
SUCH BOND WOULD CAUSE UNDUE HARDSHIP ON THE PARTY SEEKING TO INVOKE THE
COURT'S EQUITABLE POWERS UNDER THIS SECTION.
8. ATTORNEYS' FEE. IN ANY CIVIL ACTION BY AN EMPLOYEE OR BY THE
COMMISSIONER, THE EMPLOYEE OR COMMISSIONER SHALL HAVE THE RIGHT TO
COLLECT ATTORNEYS' FEES AND COSTS INCURRED IN ENFORCING ANY COURT JUDG-
MENT IN ADDITION TO AN ADDITIONAL THIRTY PERCENT DAMAGES UPON ANY
AMOUNTS FOUND DUE AND OWING AT THE EXPIRATION OF NINETY DAYS AFTER A
COURT JUDGMENT BECOMES FINAL AND INELIGIBLE FOR APPEAL.
S 19. This act shall take effect immediately.