senate Bill S7742

2013-2014 Legislative Session

Relates to employment agencies, including application for license; procedures; granting of licenses and enforcement of provisions relating thereto

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Senate Actions - UPPERCASE
Jun 03, 2014 referred to consumer protection

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S7742 - Bill Details

See Assembly Version of this Bill:
A9742
Current Committee:
Law Section:
General Business Law
Laws Affected:
Amd §§171, 173, 174, 179, 181, 185, 186, 187, 189 & 190, add §195, Gen Bus L

S7742 - Bill Texts

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Relates to employment agencies, including application for license; procedures; granting of licenses and enforcement of provisions relating thereto.

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BILL NUMBER:S7742

TITLE OF BILL: An act to amend the general business law, in relation
to employment agencies

PURPOSE OR GENERAL IDEA OF BILL: To provide new provisions to prevent
fraud in employment agencies by modifying license procedures, general
practice procedures, and enforcement.

SUMMARY OF SPECIFIC PROVISIONS: Section 1- amends Section 171 of the
general business law to add a new subdivision 12 to require a "bona
fide order", as defined in the bill, be maintained on a 45 day basis
between an employer and an employment agency that clearly defines the
details of the position available and other criteria.

Section 2- Paragraph b of subdivision 2 of section 173 of the general
business law is amended to include a contract, statement of terms and
conditions, and receipt be approved by the commissioner before a
license is granted.

Section 3- Subdivisions 1 and 2 of section 174 of the general business
law are amended to require that certain license information be posted
on the commissioner's website and that any criminal history be
disclosed to the applicant.

Section 4- Section 179 of the general business law is amended to add
bona fide order to documents that agencies are required to keep on
file.

Section 5- Section 181 of the general business law is amended to
require statements of terms and conditions be given to each applicant
for employment, clarifies required information to be included in
contracts with employment applicants, requires the commissioner to
prepare templates that comply with those requirements in dual
languages, requires contracts and receipts be kept on file for three
years, and provide that receipts must state that job applicants cannot
be charged a fee prior to being referred to a job they accept.

Section 6- Subdivisions 1 and 3 of section 185 of the general business
law are amended and a new subdivision 1-a is added to change advance
fee charges and to require reimbursement of past advanced fees charged
to class A and A-1 workers who were not hired by the agency.

Section 7- Subdivision 2 of section 186 of the general business law is
amended to cap fees when a job applicant fails to report to work.

Section 8- Subdivision 3 of section 187 of the general business law is
amended to require employment agencies include their license number in
any advertisements.

Section 9- Section 189 of the general business law is amended to grant
the commissioner and the attorney general the power to enforce this
article, explains what inspections can be made to ensure compliance
with this article, allows charges to be made against licensed and
unlicensed agencies. This section also explains the penalties for
violating the article and allows for aggrieved persons to pursue civil
action.


Section 10- Section 190 of the general business law is amended to
explain the criminal penalties for violating the article.

Section 11- Adds a new section 195 to the general business law to
provide job applicants protection from retaliation from employment
agencies.

JUSTIFICATION: This legislation brings existing provisions regulating
employment agencies up-to-date and strengthens protections for job
seekers. In order to accomplish these goals, the legislation: 1)
amends the General Business Law to more effectively deter employment
agency abuse; 2) facilitates enforcement of the General Business Law;
3) empowers job seekers to hold employment agencies accountable; and
4) improves the job market for low-wage workers.

The current employment agency laws offer insufficient protection for
job seekers, especially low-wage workers. For example, the current law
contains an advance fee exception that exposes the most vulnerable job
seekers to employment agency fraud. Under Section 185 of Article 11 of
the General Business Law, employment agencies may charge fees to
low-wage workers (i.e. domestic workers and manual workers) before
placing workers in a job. All other classes of worker pay agencies
only after securing a job. Agencies routinely profit from the advance
fee exception by accepting fees from low-wage workers and failing to
provide a service in return. In addition, inadequate penalties under
the current General Business Law fail to deter employment agency
abuse. Article 11 allows the New York City Department of Consumer
Affairs or the New York State Department of Labor to impose a penalty
of no more than $500 for each violation of the employment agency laws.
This small and optional penalty has proved ineffective.

The existing General Business Law also makes it exceedingly difficult
for job seekers to hold employment agencies accountable. Job seekers
cannot defend their rights if they do not understand them. This
legislation requires employment agencies to provide basic and
important information to job seekers about their rights. In addition,
under the current law, job seekers cannot hold employment agencies
accountable through civil actions. Workers must rely on overburdened
government agencies to address all abuse. This legislation will permit
job seekers to bring civil actions against employment agencies that
violate the law.

A recent study in Queens, New York conducted by New Immigrant
Community Empowerment (NICE) and the Urban Justice Center (UJC) found
that: 1) 81% of survey respondents who did not find a job through an
agency were still charged a fee (average, $122); 2) Agencies do not
inform job seekers that fees are refundable and, in violation of
existing provisions, refuse to refund excess fees; 3) One third of
survey respondents were offered jobs paying below the state minimum
wage by agencies in violation of the New York Labor Law and the
General Business Law; and 4) Job seekers who receive written contracts
from agencies are more likely to secure jobs and less likely to
experience fraud. However, among immigrant job seekers surveyed, two
thirds were not given a written contract.

Employment agency abuse affects job seekers throughout the entire
state. There exist approximately 300 licensed employment agencies in


New York City. Approximately 100 licensed employment agencies operate
outside of the five boroughs, with many of those concentrated on Long
Island and in Westchester. However, as the study cited above noted,
many more unlicensed agencies operate throughout the state. It is time
to provide adequate and meaningful protections to low-wage workers as
they look for work across the state of New York.

PRIOR LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: Immediately

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

                                  7742

                            I N  S E N A T E

                              June 3, 2014
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business  law,  in  relation  to  employment
  agencies

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

  Section 1. Section 171 of the  general  business  law  is  amended  by
adding a new subdivision 12 to read as follows:
  12.  "BONA FIDE ORDER" MEANS A WRITTEN ORDER FROM AN EMPLOYER DIRECTED
TO AN EMPLOYMENT AGENCY STATING THAT  THE  EMPLOYER  REQUESTS  THAT  THE
EMPLOYMENT  AGENCY REFER ONE OR MORE JOB APPLICANTS FOR A SPECIFIC POSI-
TION OR POSITIONS WITHIN A SPECIFIED AND LIMITED APPLICATION PERIOD.  AN
EMPLOYMENT AGENCY MUST RENEW A BONA FIDE ORDER AFTER FORTY-FIVE DAYS  IF
IT INTENDS TO REFER AN APPLICANT FOR THE POSITION DESCRIBED IN SUCH BONA
FIDE  ORDER,  AND  THE  EMPLOYMENT  AGENCY MUST SPECIFY ON THE BONA FIDE
ORDER THE NAME OF THE REPRESENTATIVE OF  THE  PROSPECTIVE  EMPLOYER  WHO
AUTHORIZED THE RENEWAL AND THE DATE ON WHICH THE RENEWAL WAS AUTHORIZED.
THE BONA FIDE ORDER SHALL ALSO INCLUDE A WRITTEN STATEMENT SETTING FORTH
THE TERMS AND CONDITIONS OF EMPLOYMENT FOR THE POSITION DESCRIBED IN THE
ORDER; SUCH WRITTEN STATEMENT SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
INFORMATION:
  A. THE NAME OF THE EMPLOYER, ANY "DOING BUSINESS AS" NAMES USED BY THE
EMPLOYER,  THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR PRINCI-
PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
NUMBER OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE  COMMISSIONER
DEEMS MATERIAL AND NECESSARY;
  B. THE PLACE OR PLACES OF EMPLOYMENT;
  C. THE HOURS OF WORK PER DAY AND NUMBER OF DAYS PER WEEK TO BE WORKED;
  D.  THE  RATE  OR  RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY THE
HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOWANCES,
IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE,  INCLUDING  TIP,  MEAL,  OR
LODGING ALLOWANCES;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13485-05-4

S. 7742                             2

  E.  THE  CIRCUMSTANCES UNDER WHICH THE EMPLOYEE WILL BE PAID A PREMIUM
FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF HOURS PER  DAY,  WEEK,
OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS, WEEKENDS, OR HOLIDAYS;
  F. THE ANTICIPATED PERIOD OF EMPLOYMENT;
  G.  ANY  PROVISION TO THE EMPLOYEE, AND HOW LONG THE PROVISION WILL BE
PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED  WITH
THE  PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
WORK, HOUSING, HEALTH INSURANCE OR HEALTH  CARE,  PAID  SICK  OR  ANNUAL
LEAVE  AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
DENTS OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND
  H. THE NATURE OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
  S 2. Paragraph b of subdivision 2 of section 173 of the general  busi-
ness  law,  as  added  by chapter 632 of the laws of 1975, is amended to
read as follows:
  b. The application for a license shall be accompanied  by  samples  or
accurate  facsimiles  of  each and every form [which the applicant for a
license will require applicants for employment  to  execute],  CONTRACT,
STATEMENT  OF  TERMS  AND  CONDITIONS,  AND  RECEIPT,  AS REQUIRED UNDER
SECTION  ONE  HUNDRED  EIGHTY-ONE  OF  THIS  ARTICLE,  and  such  forms,
CONTRACTS,  STATEMENTS  OF  TERMS  AND  CONDITIONS, AND RECEIPTS must be
approved by the commissioner before a license may be issued. The commis-
sioner shall approve any such forms which fairly and  clearly  represent
contractual  terms and conditions between the proposed employment agency
and applicants for employment, such as are permitted by this article.
  S 3. Subdivisions 1 and 2 of section 174 of the general business  law,
subdivision 1 as amended by chapter 164 of the laws of 2003, subdivision
2  as amended by chapter 632 of the laws of 1975, are amended to read as
follows:
  1. Upon the receipt of an application for a license, the  commissioner
shall  cause the name and address of the applicant, the name under which
the employment agency is to be conducted, and the street and  number  of
the  place  where  the  agency  is  to be conducted, to be posted ON THE
COMMISSIONER'S WEBSITE, AS WELL AS in a conspicuous place in his  public
office.  Such  agency  shall be used exclusively as an employment agency
and for no other purpose, except as hereinafter  provided.  The  commis-
sioner  shall  investigate or cause to be investigated the character and
responsibility of the applicant and agency manager and shall examine  or
cause  to be examined the premises designated in such application as the
place in which it is proposed to conduct such agency.
  The commissioner shall require all applicants for licenses and  agency
managers  to  be  fingerprinted. Such fingerprints shall be submitted to
the division of criminal justice services for a state  criminal  history
record  check,  as  defined in subdivision one of section three thousand
thirty-five of the education law, and may be submitted  to  the  federal
bureau  of  investigation  for a national criminal history record check.
THE CRIMINAL HISTORY INFORMATION, IF ANY, RECEIVED BY THE DEPARTMENT  OF
LABOR  SHALL  BE CONSIDERED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
TWENTY-THREE-A OF  THE  CORRECTION  LAW  AND  SUBDIVISIONS  FIFTEEN  AND
SIXTEEN  OF  SECTION  TWO  HUNDRED  NINETY-SIX  OF  THE EXECUTIVE LAW. A
REASONABLE TIME BEFORE MAKING A DETERMINATION ON THE APPLICATION  PURSU-
ANT  TO  THIS  SUBDIVISION,  THE  DEPARTMENT SHALL PROVIDE THE APPLICANT
CRIMINAL HISTORY INFORMATION, IF ANY. WHERE SUCH CRIMINAL HISTORY INFOR-
MATION IS PROVIDED, THE DEPARTMENT SHALL ALSO PROVIDE A COPY OF  ARTICLE
TWENTY-THREE-A  OF  THE CORRECTION LAW, AND INFORM SUCH APPLICANT OF HIS

S. 7742                             3

OR HER RIGHT TO SEEK CORRECTION OF ANY INCORRECT  INFORMATION  CONTAINED
IN  SUCH  CRIMINAL  HISTORY  INFORMATION PURSUANT TO THE REGULATIONS AND
PROCEDURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  2.  Any  person may file, within one week after such application is so
posted [in the said office], a written protest against the  issuance  of
such  license. Such protest shall be in writing and signed by the person
filing the same or his authorized agent or  attorney,  and  shall  state
reasons  why  the said license should not be granted. Upon the filing of
such protest the commissioner shall appoint a time  and  place  for  the
hearing  of  such application, and shall give at least five days' notice
of such time and place to the  applicant  and  the  person  filing  such
protest.  The  commissioner may administer oaths, subpoena witnesses and
take testimony in respect to the matters contained in  such  application
and  protests or complaints of any character for violation of this arti-
cle, and may receive evidence in the form of  affidavits  pertaining  to
such  matters.  If  it  shall  appear  upon  such  hearing  or  from the
inspection, examination or investigation made by the  commissioner  that
the  applicant  or  agency  manager is not a person of good character or
responsibility; or that he or the agency manager has not  had  at  least
two  years  experience as a placement employee, vocational counsellor or
in related activities, or other satisfactory business  experience  which
similarly  tend to establish the competence of such individual to direct
and operate the placement activities of the agency; or  that  the  place
where  such  agency is to be conducted is not a suitable place therefor;
or that the applicant has not complied with the provisions of this arti-
cle; the said application shall be denied and a  license  shall  not  be
granted.  Each  application  should  be granted or refused within thirty
days from the date of its filing.
  S 4. Section 179 of the general business law, as  amended  by  chapter
632 of the laws of 1975, is amended to read as follows:
  S 179. Registers and other records to be kept. It shall be the duty of
every  licensed person to keep a register, approved by the commissioner,
in which shall be entered, in the English  language,  the  date  of  the
application  for employment, the date the applicant started work and the
name and address of every applicant  from  whom  a  fee  or  deposit  is
charged,  the  amount of the fee or deposit and the service for which it
is received or charged. Such licensed person shall  also  enter  in  the
same  or  in  a  separate register, approved by the commissioner, in the
English language, the name and address of every employer from whom a fee
is received or charged or to whom the licensed person refers  an  appli-
cant  who  has  paid  or  is  charged a fee, the date of such employer's
request or assent that applicants be furnished, the kind of position for
which applicants are requested, the names of the  applicants  sent  from
whom a fee or deposit is received or charged with the designation of the
one  employed, the amount of the fee or deposit charged, and the rate of
salary or wages agreed upon. It shall also be the duty of every licensed
person to keep complete and accurate  written  records  in  the  English
language  of  all  receipts and income received or derived directly from
the operation of his employment agency, and to keep  records  concerning
[job] BONA FIDE orders. No such licensed person, his agent or employees,
shall  make  any  false  entry  in such records. It shall be the duty of
every licensed person to communicate orally or in writing with at  least
one  of the persons mentioned as references for every applicant for work
in private families, or employed in a fiduciary capacity, and the result
of such investigation shall be kept on file in such agency for a  period
of  at least three years. Every register and all records, INCLUDING BONA

S. 7742                             4

FIDE ORDERS, kept pursuant to the requirements of this article shall  be
retained on the premises of the agency concerned for three years follow-
ing  the  date  on  which  the last entry thereon was made [except a job
order  which  shall be retained for one year following the date on which
it was received].
  S 5. Section 181 of the general business law, as added by chapter  893
of the laws of 1958, subdivision 1 as added and subdivision 2 as amended
by  chapter 632 of the laws of 1975, subdivision 3 as separately amended
by chapters 1010 and 1083 of the laws of  1960,  and  subdivision  4  as
amended  by  chapter  479  of  the  laws  of 1963, is amended to read as
follows:
  S 181. Contracts, STATEMENTS OF TERMS AND CONDITIONS, AND receipts. It
shall be the duty of every employment agency to give to  each  applicant
for employment:
  1. A true copy of every contract executed between such agency and such
applicant,  which shall have printed on it or attached to it a statement
setting forth in a clear and concise manner the provisions  of  sections
one hundred eighty-five, and one hundred eighty-six of this article.
  2.  [Information  as to the name and address of the person to whom the
applicant is to apply for such employment, the kind  of  service  to  be
performed,  the  anticipated rate of wages or compensation, the agency's
fee for the applicant based on such anticipated wages  or  compensation,
whether  such employment is permanent or temporary, the name and address
of the person authorizing the hiring of such applicant, and the cost  of
transportation if the services are required outside of the city, town or
village  where  such  agency  is  located. If the job is a conditionally
fee-paid job, the conditions under which the applicant will be  required
to  pay a fee shall be clearly set forth in a separate agreement in ten-
point type signed by the job applicant.] (A) AN EMPLOYMENT AGENCY  SHALL
ISSUE  A WRITTEN STATEMENT OF TERMS AND CONDITIONS TO EACH JOB APPLICANT
ON EACH OCCASION THAT THE AGENCY REFERS THE  APPLICANT  TO  A  POTENTIAL
EMPLOYER.  THE  WRITTEN  STATEMENT  OF  TERMS AND CONDITIONS SHALL BE IN
ENGLISH AND IN THE LANGUAGE IDENTIFIED BY THE APPLICANT AS  THE  PRIMARY
LANGUAGE  OF  SUCH APPLICANT. EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE
IN ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A COPY OF
EACH WRITTEN STATEMENT OF TERMS AND CONDITIONS ISSUED TO EACH  APPLICANT
THAT  IS  SIGNED  AND DATED BY THE APPLICANT. THE STATEMENT OF TERMS AND
CONDITIONS SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING  INFORMATION:  (I)
THE  NAME  OF  THE  EMPLOYER,  ANY "DOING BUSINESS AS" NAMES USED BY THE
EMPLOYER, THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR  PRINCI-
PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
NUMBER  OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE COMMISSIONER
DEEMS MATERIAL AND NECESSARY; (II) THE PLACE OR  PLACES  OF  EMPLOYMENT;
(III)  THE  HOURS  OF  WORK  PER  DAY  AND NUMBER OF DAYS PER WEEK TO BE
WORKED; (IV) THE RATE OR RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY
THE HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER,  ALLOW-
ANCES, IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE, INCLUDING TIP, MEAL,
OR  LODGING  ALLOWANCES;  (V) THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE
WILL BE PAID A PREMIUM FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF
HOURS PER DAY, WEEK, OR MONTH, OR  FOR  WORKING  ON  DESIGNATED  NIGHTS,
WEEKENDS,  OR HOLIDAYS; (VI) THE ANTICIPATED PERIOD OF EMPLOYMENT; (VII)
ANY PROVISION TO THE EMPLOYEE,  AND  HOW  LONG  THE  PROVISION  WILL  BE
PROVIDED  BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED WITH
THE PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND  FROM
WORK,  HOUSING,  HEALTH  INSURANCE  OR  HEALTH CARE, PAID SICK OR ANNUAL
LEAVE AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS,  PERSONAL

S. 7742                             5

PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
DENTS  OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND (VIII) THE NATURE
OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
  (B)  THE  COMMISSIONER  SHALL  PREPARE  TEMPLATES THAT COMPLY WITH THE
REQUIREMENTS OF PARAGRAPH (A) OF THIS SUBDIVISION.  EACH  SUCH  TEMPLATE
SHALL  BE  DUAL-LANGUAGE, INCLUDING ENGLISH AND ONE ADDITIONAL LANGUAGE.
THE COMMISSIONER SHALL  DETERMINE,  IN  HIS  OR  HER  DISCRETION,  WHICH
LANGUAGES  TO  PROVIDE  IN ADDITION TO ENGLISH, BASED ON THE SIZE OF THE
NEW YORK STATE POPULATION THAT SPEAKS EACH LANGUAGE AND ANY OTHER FACTOR
THAT THE COMMISSIONER SHALL DEEM RELEVANT. ALL SUCH TEMPLATES  SHALL  BE
MADE  AVAILABLE  TO  EMPLOYMENT AGENCIES IN SUCH MANNER AS DETERMINED BY
THE COMMISSIONER.
  (C) WHEN A JOB APPLICANT IDENTIFIES AS HIS OR HER PRIMARY  LANGUAGE  A
LANGUAGE  FOR  WHICH  A TEMPLATE IS NOT AVAILABLE FROM THE COMMISSIONER,
THE EMPLOYMENT AGENCY SHALL COMPLY WITH THIS  SUBDIVISION  BY  PROVIDING
THAT EMPLOYEE AN ENGLISH-LANGUAGE STATEMENT.
  (D)  AN  EMPLOYMENT  AGENCY SHALL NOT BE PENALIZED FOR ERRORS OR OMIS-
SIONS IN THE NON-ENGLISH PORTIONS OF ANY NOTICE PROVIDED BY THE  COMMIS-
SIONER.
  3.  [A  receipt  for any fee, deposit, consideration, or payment which
such agency receives from such applicant, which shall  have  printed  or
written  on  it  the  name of the applicant, the name and address of the
employment agency, the date and amount of such fee,  deposit,  consider-
ation  or payment or portion thereof for which the receipt is given, the
purpose for which it was paid, and the signature of the person receiving
such payment. If the applicant for employment has  been  recruited  from
outside the state for domestic or household employment the receipt shall
have  printed  on  it,  or attached to it, a copy of section one hundred
eighty-four of this article.] EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE
IN ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A  STATE-
MENT,  SIGNED  BY  THE  EMPLOYER  OF EVERY APPLICANT WHOM THE EMPLOYMENT
AGENCY HAS PLACED, INDICATING THAT THE EMPLOYER HAS READ AND  UNDERSTOOD
THE  STATEMENT  OF  TERMS  AND CONDITIONS REQUIRED BY SUBDIVISION TWO OF
THIS SECTION AND THAT THE EMPLOYER HAS RECEIVED A COPY  OF  THAT  STATE-
MENT.
  4.  [The original or duplicate-original copy of each such contract and
receipt shall be retained by every employment  agency  for  three  years
following  the  date on which the contract is executed or the payment is
made, and shall be made available for inspection by the commissioner  or
his duly authorized agent or inspector, upon his request.  Notwithstand-
ing  the  other provisions of such contracts, the monetary consideration
to be paid by the applicant shall not exceed the fee ceiling provided in
subdivision eight of section one hundred eighty-five.] A RECEIPT FOR ANY
FEE, CONSIDERATION, OR PAYMENT WHICH AN AGENCY RECEIVES FROM  AN  APPLI-
CANT.  THE  RECEIPT  SHALL HAVE PRINTED OR WRITTEN ON IT THE NAME OF THE
APPLICANT, THE NAME AND ADDRESS OF THE EMPLOYMENT AGENCY, THE  DATE  AND
AMOUNT  OF  SUCH  FEE,  CONSIDERATION  OR PAYMENT OR PORTION THEREOF FOR
WHICH THE RECEIPT IS GIVEN, THE PURPOSE FOR WHICH IT WAS PAID,  AND  THE
SIGNATURE  OF  THE PERSON RECEIVING SUCH PAYMENT. THE RECEIPT SHALL ALSO
INCLUDE IMMEDIATELY ABOVE THE PLACE FOR SIGNATURE OF THE PERSON  RECEIV-
ING  PAYMENT,  SET  OFF  IN  A  BOX AND PRINTED IN BOLD AND IN CAPS, THE
FOLLOWING STATEMENT: "AN EMPLOYMENT AGENCY MAY NOT CHARGE YOU,  THE  JOB
APPLICANT,  A  FEE BEFORE REFERRING YOU TO A JOB THAT YOU ACCEPT. IF YOU
PAY A FEE BEFORE ACCEPTING A JOB OR PAY A FEE  THAT  OTHERWISE  VIOLATES
THE LAW, YOU MAY DEMAND A REFUND, WHICH SHALL BE REPAID WITHIN SEVEN (7)

S. 7742                             6

DAYS."  THE  TEXT  CONTAINED IN THIS BOX SHALL ALSO BE IN ENGLISH AND IN
THE LANGUAGE IDENTIFIED BY EACH APPLICANT AS  THE  PRIMARY  LANGUAGE  OF
SUCH APPLICANT.
  5.  THE  ORIGINAL OR DUPLICATE-ORIGINAL COPY OF EACH WRITTEN CONTRACT,
EACH STATEMENT OF TERMS AND CONDITIONS REQUIRED BY  SUBDIVISION  TWO  OF
THIS  SECTION,  AND  EACH  RECEIPT  REQUIRED BY SUBDIVISION FOUR OF THIS
SECTION SHALL BE RETAINED BY EVERY EMPLOYMENT  AGENCY  FOR  THREE  YEARS
FOLLOWING  THE  DATE  ON  WHICH  THE CONTRACT IS EXECUTED.   THE RECORDS
REQUIRED UNDER THIS SUBDIVISION SHALL BE MADE AVAILABLE  FOR  INSPECTION
BY  THE  COMMISSIONER  OR HIS OR HER DULY AUTHORIZED AGENT OR INSPECTOR,
UPON SUCH REQUEST.
  S 6. Subdivisions 1 and 3 of section 185 of the general business  law,
subdivision 1 as amended by chapter 460 of the laws of 2012 and subdivi-
sion 3 as amended by chapter 1010 of the laws of 1960, are amended and a
new subdivision 1-a is added to read as follows:
  1. Circumstances permitting fee. An employment agency shall not charge
or  accept  a  fee  or other consideration unless in accordance with the
terms of a written contract with a job applicant[, except:
  (a) for class "A" and "A-1" employment, and  except]  AND  after  such
agency  has  been  responsible  for  referring  such job applicant to an
employer or such employer to a job applicant and where as a result ther-
eof such job applicant has been employed by such employer[; and
  (b)], EXCEPT for class "C" employment: [(i)] (A) after an  agency  has
been responsible for referring an artist to an employer or such employer
to an artist and where as a result thereof such artist has been employed
by  such employer; or [(ii)] (B) after an agency represents an artist in
the negotiation or renegotiation of an original or pre-existing  employ-
ment  contract  and  where  as a result thereof the artist enters into a
negotiated or renegotiated employment contract. For class "C" employment
pursuant to this paragraph, an employment agency shall provide an artist
with a statement setting  forth  in  a  clear  and  concise  manner  the
provisions  of  this  section and section one hundred eighty-six of this
article.
  The maximum fees provided for herein for all types  of  placements  or
employment  may be charged to the job applicant and a similar fee may be
charged to the employer provided, however, that with  regard  to  place-
ments in class "B" employment, a fee of up to one and one-half times the
fee  charged  to  the  job  applicant may be charged to the employer. By
agreement with an employment agency, the employer may voluntarily assume
payment of the job applicant's fee. The fees charged to employers by any
licensed person conducting an employment agency for  rendering  services
in  connection  with,  or for providing employment in classes "A", "A-1"
and "B", as hereinafter defined in  subdivision  four  of  this  section
where  the  applicant is not charged a fee shall be determined by agree-
ment between the employer and the employment agency.   No fee  shall  be
charged  or accepted for the registration of applicants for employees or
employment.
  1-A. FEE REFUND. AN EMPLOYMENT AGENCY WHO HAS CHARGED  OR  ACCEPTED  A
FEE  OR OTHER CONSIDERATION FOR CLASSES "A" AND "A-1" EMPLOYMENT WITHOUT
A CONTRACT PRIOR TO OCTOBER FIRST, TWO THOUSAND FOURTEEN,  SHALL  REFUND
THE  FULL  AMOUNT  TO  THE JOB APPLICANT BY NOVEMBER FIRST, TWO THOUSAND
FIFTEEN, IF: (A) SUCH FEE OR CONSIDERATION  DID  NOT  LEAD  TO  THE  JOB
APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT AGENCY; OR (B) THE
FEE  OR CONSIDERATION WAS NOT APPLIED TO THE JOB APPLICANT'S ACCOUNT FOR
SERVICES RENDERED BY THE EMPLOYMENT AGENCY.

S. 7742                             7

  3. Deposits, advance fees. Notwithstanding  any  other  provisions  of
this  section,  an employment agency [may] SHALL not require OR ACCEPT a
deposit or advance fee from any applicant [except an applicant for class
"A" or class "A1" employment, and only to the extent of the maximum fees
hereinafter  provided.  Such  deposit  or  advance  fee  shall be offset
against any fee charged or accepted when such  employment  is  obtained.
Any  excess above the lawful fee shall be returned without demand there-
for, immediately after the employment agency has been notified that such
employment has been obtained; and all of such  deposit  or  advance  fee
shall  be  returned  immediately upon demand therefor, if at the time of
the demand such employment has not  been  obtained].    ANY  DEPOSIT  OR
ADVANCE  FEE  COLLECTED  BY AN EMPLOYMENT AGENCY PRIOR TO OCTOBER FIRST,
TWO THOUSAND FOURTEEN, MUST BE REFUNDED TO  THE  APPLICANT  BY  NOVEMBER
FIRST, TWO THOUSAND FIFTEEN, IF: (A) SUCH DEPOSIT OR ADVANCE FEE DID NOT
LEAD  TO  THE  JOB APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT
AGENCY OR (B) THE DEPOSIT OR ADVANCE FEE WAS  NOT  APPLIED  TO  THE  JOB
APPLICANT'S ACCOUNT FOR SERVICES RENDERED BY THE EMPLOYMENT AGENCY.
  S  7.  Subdivision  2  of  section 186 of the general business law, as
amended by chapter 1010 of the laws of  1960,  is  amended  to  read  as
follows:
  2. Failure to report: If a job applicant accepts employment and there-
after  fails to report for work, the gross fee charged to such applicant
shall not exceed twenty-five per cent of  the  maximum  fee  allowed  by
section  one  hundred eighty-five of this article[, provided however, if
the applicant remains with his same employer, the fee shall  not  exceed
fifty  per  cent].  If  a  job applicant accepts employment and fails to
report for work, no fee shall be charged to the employer.
  S 8. Subdivision 3 of section 187 of  the  general  business  law,  as
added by chapter 893 of the laws of 1958, is amended to read as follows:
  (3)  Advertise  in  newspapers  or  otherwise,  or  use letterheads or
receipts or other written or printed matter, unless such advertising  or
other  matter  contains  the  name  and address of the employment agency
[and] the word "agency", AND THE AGENCY'S LICENSE NUMBER.
  S 9. Section 189 of the general business law, as  amended  by  chapter
479  of the laws of 1963, subdivisions 1 and 2 as amended by chapter 721
of the laws of 2004, subdivisions 4 and 5 as amended by chapter  632  of
the laws of 1975, is amended to read as follows:
  S  189.  Enforcement  of  provisions of this article. 1. This article,
article nineteen-B of the labor law and sections 37.01, 37.03 and  37.05
of  the  arts  and cultural affairs law shall be enforced by the commis-
sioner of labor, except that in the city of New York  this  article  and
such  sections shall be enforced by the commissioner of consumer affairs
of such city.  IN ADDITION TO THE POWERS OF THE COMMISSIONER, THE ATTOR-
NEY GENERAL SHALL HAVE THE POWER TO ENFORCE THIS  ARTICLE;  SUCH  POWERS
INCLUDE,  BUT  ARE  NOT  LIMITED  TO, ACTIONS TO RESTRAIN OR ENJOIN SUCH
VIOLATION.  NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR
REMEDIES WHICH ARE OTHERWISE AVAILABLE TO A PERSON UNDER ANY OTHER LAW.
  2. To effectuate the purposes of this article, article  nineteen-B  of
the  labor  law  and  sections  37.01,  37.03  and 37.05 of the arts and
cultural affairs law, the commissioner or any duly authorized  agent  or
inspector  designated  by  such  commissioner,  shall  have authority to
inspect [the premises, registers, contract forms, receipt books,  appli-
cation  forms,  referral  forms,  reference forms, reference reports and
financial records of fees charged and refunds made  of  each  employment
agency, which are essential to the operation of such agency, and of each
applicant  for  an employment agency license, as frequently as necessary

S. 7742                             8

to ensure compliance with  this  article  and  such  sections;  but  in]
EMPLOYMENT  AGENCIES  AND APPLICANTS FOR AN EMPLOYMENT AGENCY LICENSE AS
FREQUENTLY AS NECESSARY TO ENSURE  COMPLIANCE  WITH  THIS  ARTICLE.  THE
FOLLOWING  SHALL  BE  SUBJECT  TO  INSPECTION:  THE PREMISES; REGISTERS;
CONTRACTS SIGNED BY JOB APPLICANTS; STATEMENTS OF TERMS AND  CONDITIONS;
RECEIPTS;  APPLICATION  FORMS;  REFERRAL  FORMS;  BONA  FIDE ORDERS FROM
PROSPECTIVE EMPLOYERS; WRITTEN NOTIFICATIONS FROM EMPLOYERS REQUIRED  BY
SECTION  ONE  HUNDRED  EIGHTY-SEVEN  OF  THIS  ARTICLE; REFERENCE FORMS;
REFERENCE REPORTS; RECORDS OF FEES CHARGED; RECORDS OF REFUNDS MADE; AND
ANY OTHER RECORD THAT AN EMPLOYMENT AGENCY  MUST  MAINTAIN  PURSUANT  TO
THIS  ARTICLE. IN no event shall any employment agency be inspected less
frequently than once every eighteen months.  INSPECTIONS MAY CONSIST  OF
IN-PERSON  VISITS  TO  EMPLOYMENT  AGENCIES. The commissioner shall also
have authority to subpoena records and witnesses or otherwise to conduct
investigations of any employer or other  person  where  he  or  she  has
reasonable grounds for believing that such employer or person is violat-
ing  or  has  conspired  or  is  conspiring with an employment agency to
violate this article or such sections.
  3. To effectuate the purposes of this article,  the  commissioner  may
make  reasonable  administrative  rules within the standards set in this
article. Before such rules  shall  be  issued,  the  commissioner  shall
conduct  a  public  hearing, giving due notice thereof to all interested
parties. No rule shall become effective until fifteen days after it  has
been  filed in the office of the department of state, if it is a rule of
the industrial commissioner, or in the office of the clerk of  the  city
of  New  York,  if  it is a rule of the commissioner of licenses of such
city, and copies thereof shall be furnished to all  employment  agencies
affected at least fifteen days prior to the effective date of such rule.
  4.  Complaints  against any such licensed OR UNLICENSED person [shall]
MAY be made orally or in writing to the commissioner, or be sent  in  an
affidavit  form  without  appearing in person, and may be made by recog-
nized employment agencies, trade associations, or  others.  The  commis-
sioner  may  hold  a  hearing on a complaint with the powers provided by
section one hundred seventy-four of this article. If a hearing is  held,
reasonable  notice  thereof,  not less than five days, shall be given in
writing to said [licensed] person by serving upon the [licensed]  person
either  personally,  by  mail, or by leaving the same with the person in
charge of his office, a concise statement of the facts constituting  the
complaint,  and  the hearing shall commence before the commissioner with
reasonable speed but in no event later than two weeks from the  date  of
the  filing  of  the  complaint. The commissioner when investigating any
matters pertaining to the  granting,  issuing,  transferring,  renewing,
revoking,  suspending  or cancelling of any license is authorized in his
discretion to take such testimony as may be necessary on which  to  base
official  action.  When  taking such testimony he may subpoena witnesses
and also direct the production before  him  of  necessary  and  material
books  and papers. A daily calendar of all hearings shall be kept by the
commissioner and shall be posted in a conspicuous place  in  his  public
office  for  at  least  one  day  before  the date of such hearings. The
commissioner shall render his decision within thirty days from the  time
the  matter  is  finally submitted to him. The commissioner shall keep a
record of all such complaints and hearings.  IN ADDITION TO  THE  POWERS
OF  THE  COMMISSIONER,  THE ATTORNEY GENERAL MAY BRING AN ACTION AGAINST
ANYONE WHO IS ALLEGED TO HAVE VIOLATED THIS ARTICLE.
  5. [Following such hearing if it has been shown] UPON A  FINDING  that
the  licensed  person  or  his  agent,  employee or anyone acting on his

S. 7742                             9

behalf is guilty of violating any provision of this article or is not  a
person  of  good  character  and  responsibility,  the  commissioner may
suspend or revoke the license of such licensed  person  [and/or  levy  a
fine  against such licensed person for each violation not to exceed five
hundred dollars]. ANY EMPLOYMENT  AGENCY  FOUND  TO  HAVE  VIOLATED  ANY
PROVISION  OF THIS ARTICLE SHALL BE SUBJECT, FOR THE FIRST OFFENSE, TO A
CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS PER VIOLATION, AND, FOR
EACH SUBSEQUENT OFFENSE WITHIN SIX YEARS OF SUCH PREVIOUS OFFENSE, TO  A
CIVIL PENALTY, NOT TO EXCEED FIVE THOUSAND DOLLARS PER VIOLATION. IF THE
PERSON  SUBJECT  TO THIS ARTICLE FAILS TO PAY THE DAMAGES, FINES, ATTOR-
NEY'S FEES, COSTS, OR PENALTIES  AWARDED,  THE  AMOUNT  AWARDED  MAY  BE
SATISFIED OUT OF THE BOND AMOUNT REQUIRED BY THIS ARTICLE. Whenever such
commissioner shall suspend or revoke the license of any employment agen-
cy,  or  shall levy a fine against [such] ANY agency, said determination
shall be subject to judicial review in proceedings brought  pursuant  to
article  seventy-eight  of  the  civil  practice law and rules. Whenever
[such] AN EMPLOYMENT AGENCY'S license is  revoked,  another  license  or
agency  manager  permit  shall not be issued within three years from the
date of such revocation to said licensed person or his agency manager or
to any person with whom the licensee has been associated in the business
of furnishing employment or engagements. Deputy commissioners, or  other
officials  designated  to act on behalf of the commissioner, may conduct
hearings and act upon applications for licenses, and revoke  or  suspend
such licenses, or levy fines AGAINST AN EMPLOYMENT AGENCY.
  6. IF ANY PERSON USES ANY UNTRUE OR MISLEADING STATEMENT, INFORMATION,
OR  ADVERTISEMENT  TO  SELL  ITS  EMPLOYMENT AGENCY SERVICES OR FAILS TO
COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, OR  THE  CONTRACT
DOES NOT COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, THEN THE
CONTRACT SHALL BE VOID AND UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY.
  7.  ANY  PERSON  AGGRIEVED  BY A VIOLATION OF THIS ARTICLE MAY BRING A
CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION AGAINST ANY EMPLOYMENT
AGENCY OR PERSONS ALLEGED TO HAVE VIOLATED THE PROVISIONS OF THIS  ARTI-
CLE.  THE  COURT  SHALL HAVE JURISDICTION TO RESTRAIN VIOLATIONS OF THIS
SECTION AND TO ORDER ALL APPROPRIATE  RELIEF,  INCLUDING  ENJOINING  THE
CONDUCT OF ANY PERSON OR EMPLOYMENT AGENCY; ORDERING PAYMENT OF DAMAGES,
COSTS  AND REASONABLE ATTORNEYS' FEES TO THE AGGRIEVED INDIVIDUAL BY THE
PERSON OR ENTITY FOUND TO BE IN VIOLATION OF THIS ARTICLE.
  8. THE REMEDIES PROVIDED IN THIS ARTICLE ARE NOT EXCLUSIVE  AND  SHALL
BE IN ADDITION TO ANY OTHER REMEDIES OR PROCEDURES PROVIDED IN ANY OTHER
LAW.
  9. IF ANY PROVISIONS OF THIS ARTICLE OR THE APPLICATION THEREOF TO ANY
PERSON  OR  CIRCUMSTANCES IS HELD UNCONSTITUTIONAL, THE REMAINDER OF THE
ARTICLE AND THE APPLICATION OF  THAT  PROVISION  TO  OTHER  PERSONS  AND
CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
  10.  IF  AN  EMPLOYMENT  AGENCY  FAILS TO MAINTAIN RECORDS AS REQUIRED
UNDER THIS ARTICLE, THE CREDIBLE TESTIMONY OF AN  APPLICANT  SHALL  FORM
THE  PROPER  BASIS  FOR  THE CALCULATION OF UNPAID WAGES AND/OR UNLAWFUL
FEES.
  S 10. Section 190 of the general business law, as amended  by  chapter
632 of the laws of 1975, is amended to read as follows:
  S 190. Penalties for violations. Any person who violates and the offi-
cers  of  a  corporation and stockholders holding ten percent or more of
the stock of a corporation which is not publicly traded,  who  knowingly
permit  the corporation to violate sections one hundred seventy-two, one
hundred seventy-three, one hundred seventy-six, one hundred eighty-four,
one hundred eighty-four-a, one hundred eighty-five, one hundred  eighty-

S. 7742                            10

five-a,  one  hundred  eighty-six,  or  one hundred eighty-seven of this
article shall be guilty of a misdemeanor and upon  conviction  shall  be
subject to a fine not to exceed [one thousand] TWO THOUSAND FIVE HUNDRED
dollars  PER  VIOLATION,  or imprisonment for not more than one year, or
both, by any court of competent jurisdiction. The violation of any other
provision of this article shall be punishable by a fine  not  to  exceed
[one]  FIVE  hundred  dollars  or  imprisonment for not more than thirty
days. Criminal proceedings based upon violations of these sections shall
be instituted by the commissioner, THE ATTORNEY GENERAL, OR  A  DISTRICT
ATTORNEY  and  may  be  instituted  by  any  persons  aggrieved  by such
violations.
  S 11. The general business law is amended by adding a new section  195
to read as follows:
  S  195.  PROTECTION  FROM  RETALIATION.   IT SHALL BE UNLAWFUL FOR ANY
EMPLOYMENT AGENCY  TO  RETALIATE  OR  DISCRIMINATE  AGAINST  ANY  PERSON
BECAUSE  HE OR SHE HAS OPPOSED ANY PRACTICE OR PRACTICES FORBIDDEN UNDER
THIS ARTICLE OR BECAUSE THAT PERSON HAS FILED A COMPLAINT, TESTIFIED  OR
ASSISTED IN ANY PROCEEDING UNDER THIS ARTICLE.
  S 12. This act shall take effect immediately.

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