S T A T E   O F   N E W   Y O R K
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                                  6455

                            I N  S E N A T E

                            January 24, 2014
                               ___________

Introduced  by Sen. SQUADRON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to establishing a living wage
  rate

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

  Section  1.  The  labor law is amended by adding a new article 19-D to
read as follows:
                              ARTICLE 19-D
                             FAIR WAGES ACT
SECTION 696.   DEFINITIONS.
        696-A. LIVING WAGE RATE.
        696-B. PAYMENT OF LIVING WAGE.
        696-C. IMPLEMENTATION.
        696-D. COMMISSIONER'S POWERS OF INVESTIGATION.
        696-E. CIVIL ACTION.
  S 696. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE TERM:
  1. "EMPLOYER" MEANS A FORMULA RETAIL STORE, LARGE EMPLOYER,  TRANSPOR-
TATION  BUSINESS, OR FRANCHISEE OR SUBCONTRACTOR, AND INCLUDES ANY INDI-
VIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION, LIMITED LIABILITY  COMPA-
NY,  BUSINESS  TRUST,  LEGAL  REPRESENTATIVE,  OR ANY ORGANIZED GROUP OF
PERSONS ACTING AS EMPLOYER.
  2. "FORMULA RETAIL STORE" MEANS ANY EMPLOYER THAT  OPERATES  A  RETAIL
SALES OR RESTAURANT ESTABLISHMENT EITHER DIRECTLY OR THROUGH FRANCHISEES
AND  THAT,  ALONG  WITH  ELEVEN OR MORE OTHER RETAIL SALES OR RESTAURANT
ESTABLISHMENTS LOCATED IN THE UNITED STATES, MAINTAINS TWO  OR  MORE  OF
THE  FOLLOWING  FEATURES:  (A)  A  STANDARDIZED  ARRAY OF MERCHANDISE, A
STANDARDIZED FACADE, A STANDARDIZED DECOR AND COLOR  SCHEME,  A  UNIFORM
APPAREL, STANDARDIZED SIGNAGE, A TRADEMARK; OR (B) A SERVICEMARK.
  3.  "LARGE  EMPLOYER" MEANS ANY EMPLOYER THAT HAS ANNUAL GROSS REVENUE
OF FIFTY MILLION DOLLARS OR MORE, BUT SHALL NOT INCLUDE (A) AN  EMPLOYER
WHOSE  PRINCIPAL  INDUSTRY  IS  MANUFACTURING;  OR  (B) A NOT-FOR-PROFIT
ORGANIZATION.  AN EMPLOYER SHALL BE DEEMED TO HAVE ANNUAL GROSS  REVENUE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13688-03-4
              

S. 6455                             2

OF  FIFTY MILLION DOLLARS OR MORE IF IT HAD REVENUE AT OR EXCEEDING THAT
LEVEL IN ANY OF THE PAST THREE FISCAL OR CALENDAR YEARS.
  4.  "MANUFACTURING"  MEANS  THE  PROCESS OF WORKING RAW MATERIALS INTO
PRODUCTS SUITABLE FOR USE OR WHICH GIVES NEW SHAPES, NEW QUALITY OR  NEW
COMBINATIONS  TO  MATTER  WHICH HAS ALREADY GONE THROUGH SOME ARTIFICIAL
PROCESS BY THE USE OF MACHINERY, TOOLS,  APPLIANCES,  OR  OTHER  SIMILAR
EQUIPMENT.
  5.  "NOT-FOR-PROFIT ORGANIZATION" MEANS AN ENTITY EXEMPT FROM TAXATION
UNDER SECTION 501(C)(3) OF THE FEDERAL INTERNAL REVENUE CODE.
  6. "TRANSPORTATION BUSINESS" MEANS ANY INDUSTRY, BUSINESS,  OR  ESTAB-
LISHMENT  OPERATED FOR THE PURPOSE OF CONVEYING PERSONS OR PROPERTY FROM
ONE PLACE TO ANOTHER WHETHER BY RAIL, HIGHWAY, AIR, OR  WATER,  AND  ALL
OPERATIONS AND SERVICES IN CONNECTION THEREWITH.
  7.  "FRANCHISEE  OR  SUBCONTRACTOR"  MEANS  ANY EMPLOYER THAT OPERATES
UNDER A FRANCHISE AGREEMENT WITH A FORMULA RETAIL STORE OR LARGE EMPLOY-
ER, OR THAT PROVIDES SERVICES, INCLUDING BUT NOT LIMITED TO  JANITORIAL,
MAINTENANCE,  SECURITY,  STAFFING, PASSENGER SERVICES, FOOD SERVICES, OR
TEMPORARY SERVICES TO A FORMULA RETAIL STORE, LARGE EMPLOYER, OR  TRANS-
PORTATION BUSINESS.
  8.  "EMPLOYEE" HAS THE MEANING PROVIDED IN SUBDIVISION FIVE OF SECTION
SIX HUNDRED FIFTY-ONE OF THIS CHAPTER.
  9. "LIVING WAGE RATE" SHALL HAVE THE MEANING SET FORTH IN SECTION  SIX
HUNDRED NINETY-SIX-A OF THIS TITLE.
  S  696-A. LIVING WAGE RATE. 1. BEGINNING ON THE EFFECTIVE DATE OF THIS
ARTICLE, THE LIVING WAGE  RATE  SHALL  BE  AN  HOURLY  RATE  OF  FIFTEEN
DOLLARS.
  2.  NO  LATER  THAN JANUARY FIRST OF EACH SUCCESSIVE YEAR, THE COMMIS-
SIONER SHALL CALCULATE AND ESTABLISH AN ADJUSTED  LIVING  WAGE  RATE  BY
INCREASING  THE  THEN  CURRENT LIVING WAGE RATE BY THE RATE OF INFLATION
FOR THE MOST RECENT TWELVE MONTH PERIOD AVAILABLE PRIOR TO EACH  JANUARY
FIRST  USING  THE  CONSUMER PRICE INDEX-ALL URBAN CONSUMERS, CPI-U, OR A
SUCCESSOR INDEX AS CALCULATED BY THE UNITED STATES DEPARTMENT OF  LABOR,
IF  SUCH RATE OF INFLATION IS GREATER THAN ZERO PERCENT, OR, IF GREATER,
SUCH OTHER WAGE AS MAY BE ESTABLISHED BY  FEDERAL  LAW  PURSUANT  TO  29
U.S.C. SECTION 206 OR ITS SUCCESSORS OR SUCH OTHER WAGE AS MAY BE ESTAB-
LISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
  S 696-B. PAYMENT OF LIVING WAGE. 1. AN EMPLOYER SHALL PAY EMPLOYEES AN
HOURLY  WAGE OF NO LESS THAN THE LIVING WAGE RATE FOR EACH HOUR THAT THE
EMPLOYEE WORKS WITHIN THE GEOGRAPHIC BOUNDARIES OF THE STATE.
  2. NOTWITHSTANDING SUBDIVISION ONE OF THIS  SECTION,  EMPLOYERS  SHALL
PAY  EMPLOYEES  WHO  CUSTOMARILY AND REGULARLY RECEIVE TIPS NO LESS THAN
SEVENTY PERCENT OF THE LIVING WAGE RATE, ROUNDED  TO  THE  NEAREST  FIVE
CENTS,  PROVIDED THAT AT ALL TIMES THE COMBINATION OF THE CASH WAGE PAID
BY THE EMPLOYER AND THE TIPS RECEIVED BY THE  EMPLOYEE  TOTALS  NO  LESS
THAN  THE  LIVING  WAGE  RATE FOR EACH HOUR WORKED WITHIN THE GEOGRAPHIC
BOUNDARIES OF THE STATE.   SUCH CALCULATION MAY BE  MADE  BASED  ON  THE
TOTAL  WAGES AND TIPS RECEIVED BY THE EMPLOYEE OVER THE COURSE OF HIS OR
HER SHIFT.
  3. FORMULA RETAIL STORES, LARGE EMPLOYERS,  AND  TRANSPORTATION  BUSI-
NESSES  SHALL  BE JOINTLY AND SEVERALLY RESPONSIBLE FOR ANY VIOLATION OF
THIS ARTICLE BY A FRANCHISEE OR  SUBCONTRACTOR  OF  THE  FORMULA  RETAIL
STORE, LARGE EMPLOYER OR TRANSPORTATION BUSINESS.
  4.  THE  PROVISIONS OF THIS SECTION MAY BE WAIVED BY THE WRITTEN TERMS
OF A BONA FIDE COLLECTIVE BARGAINING AGREEMENT.
  S 696-C. IMPLEMENTATION. 1. BY DECEMBER FIRST OF EACH YEAR, THE  STATE
SHALL  PUBLISH AND MAKE AVAILABLE TO EMPLOYERS A BULLETIN ANNOUNCING THE

S. 6455                             3

ADJUSTED LIVING WAGE AND BENEFITS RATE  FOR  THE  UPCOMING  YEAR,  WHICH
SHALL TAKE EFFECT ON JANUARY FIRST.
  2.  BY  DECEMBER  FIRST OF EACH YEAR, THE STATE SHALL PUBLISH AND MAKE
AVAILABLE TO EMPLOYERS, IN ENGLISH AND SPANISH, AND  ON-LINE,  A  NOTICE
SUITABLE FOR POSTING IN THE WORKPLACE INFORMING EMPLOYEES OF THE CURRENT
LIVING WAGE AND OF THEIR RIGHTS UNDER THIS ARTICLE.
  3.  EVERY  EMPLOYER SHALL POST IN A CONSPICUOUS PLACE AT ANY WORKPLACE
OR JOB SITE WHERE AN EMPLOYEE WORKS THE NOTICE PUBLISHED  EACH  YEAR  BY
THE  AGENCY  INFORMING EMPLOYEES OF THE CURRENT LIVING WAGE AND OF THEIR
RIGHTS UNDER THIS ARTICLE. EVERY LARGE EMPLOYER SHALL POST SUCH  NOTICES
IN ENGLISH AND SPANISH.
  4.  EMPLOYERS SHALL RETAIN PAYROLL RECORDS PERTAINING TO EMPLOYEES FOR
A PERIOD OF FOUR YEARS.   EMPLOYERS  SHALL  PERMIT  AN  EMPLOYEE  OR  AN
EMPLOYEE'S  DESIGNATED  REPRESENTATIVE TO INSPECT THE EMPLOYER'S PAYROLL
PERTAINING TO THE EMPLOYEE.
  S 696-D. COMMISSIONER'S POWERS OF INVESTIGATION. THE  COMMISSIONER  OR
HIS OR HER AUTHORIZED REPRESENTATIVE SHALL HAVE POWER:
  1. TO INVESTIGATE THE WAGES OF PERSONS IN ANY OCCUPATION IN THE STATE;
  2.  TO  ENTER  THE PLACE OF BUSINESS OR EMPLOYMENT OF ANY EMPLOYER FOR
THE PURPOSE OF: (A) EXAMINING AND INSPECTING ANY AND ALL  BOOKS,  REGIS-
TERS,  PAYROLLS  AND  OTHER  RECORDS THAT IN ANY WAY RELATE TO OR HAVE A
BEARING UPON THE WAGES PAID TO, OR THE HOURS WORKED  BY  ANY  EMPLOYEES;
(B)  ASCERTAINING  WHETHER THE PROVISIONS OF THIS ARTICLE AND THE ORDERS
AND REGULATIONS PROMULGATED HEREUNDER ARE BEING COMPLIED WITH; AND
  3. TO REQUIRE FROM  ANY  EMPLOYER  FULL  AND  CORRECT  STATEMENTS  AND
REPORTS  IN  WRITING,  AT SUCH TIMES AS THE COMMISSIONER MAY DEEM NECES-
SARY, OF THE WAGES PAID TO AND THE HOURS WORKED BY HIS OR HER EMPLOYEES.
  S 696-E. CIVIL ACTION. 1. 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 SHALL RECOVER IN  A  CIVIL  ACTION
THE  AMOUNT  OF ANY SUCH UNDERPAYMENTS, TOGETHER WITH COSTS, ALL REASON-
ABLE ATTORNEY'S FEES, 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 ONE HUNDRED
PERCENT  OF  THE TOTAL OF SUCH UNDERPAYMENTS FOUND TO BE DUE. ANY AGREE-
MENT BETWEEN THE EMPLOYEE, AND THE EMPLOYER TO WORK FOR LESS  THAN  SUCH
WAGE SHALL BE NO DEFENSE TO SUCH ACTION.
  2.  ON  BEHALF  OF  ANY  EMPLOYEE PAID LESS THAN THE WAGE TO WHICH THE
EMPLOYEE IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE,  THE  COMMIS-
SIONER  MAY  BRING  ANY LEGAL ACTION NECESSARY, INCLUDING ADMINISTRATIVE
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  UNDERPAYMENT  WAS  IN
COMPLIANCE  WITH  THE  LAW,  AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES.
LIQUIDATED DAMAGES SHALL BE CALCULATED BY THE COMMISSIONER  AS  NO  MORE
THAN  ONE  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 ONE HUNDRED PERCENT OF UNDERPAYMENTS FOUND  TO  BE
DUE THE EMPLOYEE.
  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

S. 6455                             4

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 ARTICLE.
  4. 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 JUDGMENT. ANY JUDGMENT OR
COURT ORDER AWARDING REMEDIES UNDER THIS SECTION SHALL PROVIDE  THAT  IF
ANY  AMOUNTS  REMAIN UNPAID UPON THE EXPIRATION OF NINETY DAYS FOLLOWING
ISSUANCE OF JUDGMENT, OR NINETY DAYS AFTER EXPIRATION  OF  THE  TIME  TO
APPEAL  AND NO APPEAL THEREFROM IS THEN PENDING, WHICHEVER IS LATER, THE
TOTAL  AMOUNT  OF  JUDGMENT  SHALL  AUTOMATICALLY  INCREASE  BY  FIFTEEN
PERCENT.
  S 2. Severability. If any clause, sentence, paragraph, section or part
of  this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of  all  further  judicial  review,  the
judgment  shall  not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the  clause,  sentence,  para-
graph,  section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.