senate Bill S7790

2013-2014 Legislative Session

Authorizes and regulates the use of payroll card accounts

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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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Jun 09, 2014 referred to labor

S7790 - Bill Details

See Assembly Version of this Bill:
A10056
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §§190, 192, 197 & 198, add §§192-a - 192-c, Lab L

S7790 - Bill Texts

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Authorizes and regulates the use of payroll card accounts.

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BILL NUMBER:S7790

TITLE OF BILL: An act to amend the labor law, in relation to authoriz-
ing and regulating the use of payroll cards

PURPOSE OR GENERAL IDEA OF BILL:

The bill would clarify and update New York labor law about the proper
use of payroll cards.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 190 of the Labor Law by adding definitions,
including a definition of "payroll card."

Section 2 amends section 192 of the Labor Law to provide that employers
may pay employee wages in the form of cash, a paper check, direct depos-
it or via payroll cards. But an employer may not pay wages by payroll
card unless the employer also offers the employee the option of paper
check and direct deposit. An employee at any time may withdraw consent
to be paid via direct deposit or payroll card, and an employer must
cease to pay in that manner within two pay periods of the notification.
The employer must maintain written authorizations for a set period.

Section 3 amends the Labor Law by adding sections 192-a, 192-b and
192-c, which provides for the payment of wages using payroll cards.

192-a provides that prior to paying employees using payroll cards,
employers must provide written notice of the terms and conditions,
including all fees that may be assessed, of the payroll card program in
English and other languages. In order to pay wages with payroll cards,
employees must be provided with at least one network of ATMs that
provide no-cost cash withdrawals or balance inquiries; at least two
out-of-network free withdrawals per pay period; a method for an employee
to withdraw his or her entire net pay without a fee; a periodic state-
ment to the employee or a free means for an employee to regular check
his or her balance and transaction history; free customer service; and
one free replacement payroll card per year. The payroll card program may
not be linked to any form of credit. Upon termination, employees must be
told that they can terminate the payroll card at no cost.

192-b provides for confidentiality of employee personal identifying
information, and prohibits employers from accessing any information
regarding transactions made by the employee cardholder.

192-c provides that employers may not intimidate or coerce employees
into accepting payment through a payroll card account; obtain consent
through unfair means; retaliate against an employee who does not choose
to be paid via a payroll card or based on cardholder employee trans-
actions; pay wages to an employee through a payroll card account that
charges certain fees to cardholders, including for inactivity or closing
an account; receive compensation from a payroll card issuer based on the

number of cardholder employers or fees paid by cardholder employees; and
employees may not pay wages to an employee through a payroll card
account that charges any cardholder an overdraft fee.

Section 4 amends section 197 of the Labor Law and states that the Labor
Commissioner may pursue an administrative or legal action against
employers for violations of the above requirements, and that employers
who violate or fail to comply with the above requirements shall forfeit
$500 to the state for each failure. It also permits employees to bring
civil actions for noncompliance.

Section 5 amends section 198 of the Labor Law to permit the Labor
Commissioner to bring any legal action necessary for violations of these
provisions and permits a court to order any appropriate relief, includ-
ing injunctive relief. A court or the Labor Commissioner may enjoin an
employer who has committed repeat or willful violations of these
provisions from paying wages by payroll card for a period of two years.

Section 6 contains a severability clause.

Section 7 sets the effective date (180 days after it shall have become a
law).

JUSTIFICATION:

Payroll cards are an increasingly common method for paying employee
wages, and can be a convenient and efficient tool for employers and
employees alike. However, some payroll cards contain significant
restrictions and charge fees for essential services, often times with
inadequate notice to employees. For low-wage workers, payroll card fees
can bring their earnings below the minimum wage. Although existing
provisions of the New York Labor Law have been applied to the use of
payroll cards by employers, there is no law that directly governs their
use. This legislation is intended to provide clarity and guidance for
employers and protect cardholder employees.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

180 days after it shall have become law.

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

                                  7790

                            I N  S E N A T E

                              June 9, 2014
                               ___________

Introduced  by  Sen. GALLIVAN -- (at request of the Attorney General) --
  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 authorizing and regulating
  the use of payroll cards

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

  Section 1. Section 190 of the labor law is amended by adding eight new
subdivisions 10, 11, 12, 13, 14, 15, 16 and 17 to read as follows:
  10. "ACCOUNT" MEANS A DEMAND DEPOSIT  (CHECKING),  SAVINGS,  OR  OTHER
CONSUMER  ASSET  ACCOUNT  (OTHER THAN AN OCCASIONAL OR INCIDENTAL CREDIT
BALANCE IN A CREDIT PLAN) HELD DIRECTLY OR  INDIRECTLY  BY  A  FINANCIAL
INSTITUTION AND ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD
PURPOSES.
  11.  "ELECTRONIC  FUND  TRANSFER"  MEANS ANY TRANSFER OF FUNDS THAT IS
INITIATED  THROUGH  AN  ELECTRONIC  TERMINAL,  TELEPHONE,  COMPUTER,  OR
MAGNETIC TAPE FOR THE PURPOSE OF ORDERING, INSTRUCTING, OR AUTHORIZING A
FINANCIAL  INSTITUTION  TO  DEBIT  OR  CREDIT AN EMPLOYEE'S PAYROLL CARD
ACCOUNT. ELECTRONIC FUND TRANSFER INCLUDES, BUT IS NOT LIMITED TO:
  A. POINT-OF-SALE TRANSFERS;
  B. AUTOMATED TELLER MACHINE TRANSFERS;
  C. DIRECT DEPOSITS OR WITHDRAWALS OF FUNDS;
  D. TRANSFERS INITIATED BY TELEPHONE; AND
  E. TRANSFERS RESULTING FROM DEBIT CARD TRANSACTIONS,  WHETHER  OR  NOT
INITIATED THROUGH AN ELECTRONIC TERMINAL.
  12.  "PAYROLL CARD ACCOUNT" MEANS AN ACCOUNT THAT IS DIRECTLY OR INDI-
RECTLY ESTABLISHED THROUGH OR BY AN EMPLOYER AND INTO WHICH AN  EMPLOYER
DIRECTLY OR INDIRECTLY DEPOSITS AN EMPLOYEE'S WAGES THROUGH AN ELECTRON-
IC FUNDS TRANSFER.
  13. "PAYROLL CARD ISSUER" MEANS ANY EMPLOYER, BANK, FINANCIAL INSTITU-
TION,  THIRD-PARTY PAYROLL PROCESSOR, OR ANY OTHER PERSON OR ENTITY THAT
ISSUES A PAYROLL CARD TO AN EMPLOYEE ON BEHALF OF AN EMPLOYER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14104-05-4

S. 7790                             2

  14. "PAYROLL CARD" MEANS A CARD ISSUED TO AN EMPLOYEE BY  AN  EMPLOYER
OR  OTHER  PAYROLL  CARD  ISSUER  AS A MEANS OF ACCESSING THE EMPLOYEE'S
PAYROLL CARD ACCOUNT.
  15.  "CARDHOLDER EMPLOYEE" MEANS ANY EMPLOYEE THAT HAS PROVIDED HIS OR
HER EMPLOYER WITH ADVANCE WRITTEN CONSENT AND HAS ELECTED TO RECEIVE HIS
OR HER WAGES THROUGH A PAYROLL CARD ACCOUNT.
  16. "PAYMENT OF WAGES THROUGH A PAYROLL CARD ACCOUNT" MEANS PAYMENT OF
WAGES BY MEANS OF ELECTRONIC  FUND  TRANSFER,  OR  DEPOSIT  OR  TRANSFER
THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
  17.  "RECEIPT  OF  WAGES  THROUGH  A  PAYROLL  CARD ACCOUNT" MEANS THE
RECEIPT OF WAGES BY MEANS OF ELECTRONIC FUND  TRANSFER,  OR  DEPOSIT  OR
TRANSFER THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
  S  2.  Section  192 of the labor law, as amended by chapter 301 of the
laws of 1974, subdivision 1 as added by chapter 475 of the laws of  1981
and  as  renumbered by chapter 170 of the laws of 1994 and subdivision 2
as amended by chapter 304 of the laws of 2007, is  amended  to  read  as
follows:
  S 192. [Cash payment] PAYMENT of wages. 1. [No] AN EMPLOYER MAY PAY OR
TRANSFER  THE  NET  WAGE OR SALARY OF AN EMPLOYEE IN THE FORM OF CASH, A
PAPER CHECK, A DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL  INSTITUTION,
OR  A  DIRECT  DEPOSIT  TO A PAYROLL CARD ACCOUNT, PROVIDED, HOWEVER, NO
employer shall, without the advance  written  consent  of  any  employee
[directly],  pay  or  [deposit]  TRANSFER the net wage or salary of such
employee in THE FORM OF A DIRECT DEPOSIT TO a bank  or  other  financial
institution OR TO A PAYROLL CARD ACCOUNT.
  2.  AN EMPLOYER SHALL NOT INITIATE PAYMENT OF WAGES TO THE EMPLOYEE BY
ELECTRONIC FUNDS TRANSFER TO A PAYROLL CARD ACCOUNT UNLESS THE  EMPLOYER
ALSO  OFFERS  THE  EMPLOYEE THE OPTIONS OF PAYMENT BY PAPER CHECK AND BY
DIRECT DEPOSIT TO A DEPOSITORY ACCOUNT DESIGNATED BY THE  EMPLOYEE.  FOR
PURPOSES  OF THIS ARTICLE, A PAPER CHECK SHALL NOT INCLUDE A CONVENIENCE
CHECK OR ANY OTHER CHECK DRAWN UPON AN EMPLOYEE'S PAYROLL  CARD  ACCOUNT
AND WHICH MUST BE COMPLETED BY THE EMPLOYEE.
  3.    AT  ANY  TIME,  AN EMPLOYEE MAY, IN WRITING, WITHDRAW PREVIOUSLY
GRANTED WRITTEN CONSENT TO BE PAID HIS OR HER WAGES IN  THE  FORM  OF  A
DIRECT  DEPOSIT TO A BANK OR OTHER FINANCIAL INSTITUTION OR TO A PAYROLL
CARD ACCOUNT. AN EMPLOYER SHALL, WITHIN TWO PAY PERIODS OF SUCH  EMPLOY-
EE'S WRITTEN NOTIFICATION, CEASE PAYING THE EMPLOYEE'S WAGES IN THE FORM
OF  A  DIRECT  DEPOSIT  TO A BANK OR OTHER FINANCIAL INSTITUTION OR TO A
PAYROLL CARD ACCOUNT.
  4. AN EMPLOYER SHALL  MAINTAIN  AND  PRESERVE,  FOR  THE  TIME  PERIOD
PRESCRIBED  FOR  PAYROLL  RECORDS  UNDER SUBDIVISION FOUR OF SECTION ONE
HUNDRED NINETY-FIVE OF THIS ARTICLE, A COPY OF ANY WRITTEN AUTHORIZATION
OBTAINED UNDER THIS SECTION.
  5. This section shall not apply to any person employed in a bona  fide
executive,  administrative,  or professional capacity whose earnings are
in excess of nine hundred dollars a week[, nor to employees working on a
farm not connected with a factory].
  S 3. The labor law is amended by  adding  three  new  sections  192-a,
192-b and 192-c to read as follows:
  S 192-A. PAYMENT OF WAGES TO A PAYROLL CARD ACCOUNT. 1.  EVEN WHERE AN
EMPLOYER  MEETS  THE  REQUIREMENTS  OF SECTION ONE HUNDRED NINETY-TWO OF
THIS ARTICLE, AN EMPLOYER MUST, PRIOR TO OBTAINING AN EMPLOYEE'S WRITTEN
CONSENT AS REQUIRED BY SECTION ONE HUNDRED NINETY-TWO OF  THIS  ARTICLE,
PROVIDE SUCH EMPLOYEE WITH WRITTEN NOTICE OF THE TERMS AND CONDITIONS OF
THE  PAYROLL  CARD  PROGRAM  IN  ENGLISH  AND  IN THE LANGUAGES THAT THE

S. 7790                             3

EMPLOYER PRIMARILY USES TO COMMUNICATE EMPLOYMENT  RELATED  POLICIES  TO
ITS EMPLOYEES. SUCH NOTICE MUST INCLUDE, BUT IS NOT LIMITED TO:
  A.  A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 14 POINT FONT,
OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THE PAYROLL CARD ISSUER;
  B.  A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 14 POINT FONT,
OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THIRD PARTIES;
  C.  A  PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE TO A
CARDHOLDER EMPLOYEE TO ACCESS HIS OR HER WAGES WITHOUT INCURRING A FEE;
  D. A PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE  TO  A
CARDHOLDER  EMPLOYEE  TO  CHECK  THE  BALANCE OF HIS OR HER PAYROLL CARD
ACCOUNT WITHOUT INCURRING A FEE;
  E. A LIST OF LOCATIONS WITHIN TEN MILES OF  THE  PLACE  OF  EMPLOYMENT
WHERE  A  CARDHOLDER EMPLOYEE MAY ACCESS HIS OR HER WAGES WITHOUT INCUR-
RING A FEE;
  F. TIME LIMITATIONS TO DISPUTE A CHARGE OR EXPENDITURE TO  AN  EMPLOY-
EE'S PAYROLL CARD ACCOUNT; AND
  G.    A PLAIN LANGUAGE DESCRIPTION OF THE METHODS AVAILABLE TO A CARD-
HOLDER EMPLOYEE TO CLOSE HIS OR HER PAYROLL CARD ACCOUNT AND OBTAIN  ALL
FUNDS AT NO CHARGE.
  2. AN EMPLOYER SHALL PROVIDE A CARDHOLDER EMPLOYEE WITH THIRTY DAYS OF
WRITTEN NOTICE PRIOR TO ANY CHANGES IN THE TERMS AND CONDITIONS, INCLUD-
ING ANY CHANGES IN FEES, TO HIS OR HER PAYROLL CARD ACCOUNT. SUCH NOTICE
SHALL BE IN ADDITION TO ANY OTHER NOTICE REQUIREMENT IN THIS ARTICLE AND
SHALL  INCLUDE  ALL  INFORMATION  PROVIDED  IN  SUBDIVISION  ONE OF THIS
SECTION.
  3. AN EMPLOYER SHALL NOT PAY ITS  EMPLOYEES  THROUGH  A  PAYROLL  CARD
ACCOUNT UNLESS CARDHOLDER EMPLOYEES ARE PROVIDED WITH:
  A.  AT  LEAST  ONE NETWORK OF ATMS, LOCATED IN REASONABLE PROXIMITY TO
THE CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT  OR  PLACE  OF  RESIDENCE.
FOR CARDHOLDER EMPLOYEES WHOSE PLACE OF EMPLOYMENT IS LOCATED OUTSIDE OF
A  CITY  WITH  A  POPULATION  IN EXCESS OF ONE MILLION, AT LEAST ONE ATM
WITHIN THE NETWORK OF ATMS MUST BE LOCATED NO MORE THAN TEN  MILES  FROM
THE CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR PLACE OF RESIDENCE. FOR
CARDHOLDER  EMPLOYEES  WHOSE  PLACE OF EMPLOYMENT IS LOCATED INSIDE OF A
CITY WITH A POPULATION IN EXCESS OF ONE MILLION, AT LEAST ONE ATM WITHIN
THE NETWORK OF ATMS MUST BE LOCATED NO MORE THAN ONE MILE FROM THE CARD-
HOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR  PLACE  OF  RESIDENCE.  SUCH  A
NETWORK OF ATMS MUST PERMIT:
  (I)  UNLIMITED CASH WITHDRAWALS AT NO COST TO THE CARDHOLDER EMPLOYEE;
AND
  (II) UNLIMITED BALANCE INQUIRIES AT NO COST TO THE CARDHOLDER  EMPLOY-
EE.
  B. AT LEAST TWO ATM WITHDRAWALS PER PAY PERIOD OUTSIDE OF A NETWORK OF
ATMS,  AS REQUIRED BY PARAGRAPH A OF THIS SUBDIVISION, AT NO COST TO THE
CARDHOLDER EMPLOYEE; HOWEVER, THIS PROHIBITION ON COSTS DOES  NOT  APPLY
TO ANY COSTS INDEPENDENTLY IMPOSED BY NON-NETWORK ATMS;
  C.  AT  LEAST  ONE  REASONABLY  CONVENIENT  METHOD, IN ADDITION TO THE
REQUIREMENT OF PARAGRAPH A OF THIS SUBDIVISION, FOR A CARDHOLDER EMPLOY-
EE TO WITHDRAW HIS OR HER ENTIRE NET PAY, AS  STATED  ON  AN  EMPLOYEE'S
EARNING  STATEMENT,  FOR  EACH  PAY PERIOD WITHOUT INCURRING A FEE. SUCH
METHOD SHALL BE AVAILABLE TO THE CARDHOLDER EMPLOYEE ON AND  AFTER  SUCH
EMPLOYEE'S  REGULAR  PAYDAY  AND  LOCATED IN REASONABLE PROXIMITY TO THE
CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR PLACE OF RESIDENCE;
  D. A HARD COPY PERIODIC STATEMENT, FREE OF CHARGE,  FOR  EACH  MONTHLY
CYCLE  IN  WHICH  ELECTRONIC FUNDS TRANSFER HAS OCCURRED; AND A PERIODIC
STATEMENT FREE  OF  CHARGE,  AT  LEAST  QUARTERLY  IF  NO  TRANSFER  HAS

S. 7790                             4

OCCURRED.  IN  THE ALTERNATIVE, AN EMPLOYER MAY COMPLY WITH THIS SECTION
IF THE PAYROLL CARD ISSUED MAKES ACCOUNT INFORMATION AVAILABLE TO  CARD-
HOLDER EMPLOYEES FREE OF CHARGE THROUGH THE FOLLOWING MEANS:
  (I)  A READILY AVAILABLE TELEPHONE LINE OPERATED TWENTY-FOUR HOURS PER
DAY, SEVEN DAYS PER WEEK. SUCH LINE MAY BE AUTOMATED, PROVIDED, HOWEVER;
SUCH AUTOMATION SHALL BE AVAILABLE IN  THE  LANGUAGE  OR  LANGUAGES  THE
EMPLOYER NORMALLY COMMUNICATES HIS OR HER EMPLOYMENT-RELATED POLICIES TO
HIS OR HER EMPLOYEES;
  (II)  AN  ELECTRONIC  HISTORY  OF  A CARDHOLDER'S PAYROLL CARD ACCOUNT
TRANSACTIONS, SUCH AS THROUGH AN INTERNET WEBSITE, THAT COVERS AT  LEAST
TWENTY-FOUR MONTHS PRECEDING THE DATE OF A CARDHOLDER'S ACCESS TO HIS OR
HER PAYROLL CARD ACCOUNT ELECTRONIC HISTORY; AND
  (III)  A  NON-ELECTRONIC, WRITTEN HISTORY OF A CARDHOLDER PAYROLL CARD
ACCOUNT TRANSACTIONS THAT IS PROVIDED PROMPTLY IN RESPONSE TO AN ORAL OR
WRITTEN REQUEST AND THAT COVERS AT LEAST SIXTY DAYS PRECEDING  THE  DATE
THAT A PAYROLL CARD ISSUER RECEIVES THE CARDHOLDER EMPLOYEE'S REQUEST;
  E. FREE CUSTOMER SERVICE, VIA A LIVE AGENT;
  F.  ONE  FREE  REPLACEMENT  PAYROLL  CARD PER YEAR UPON REQUEST OF THE
CARDHOLDER EMPLOYEE, PROVIDED, HOWEVER; A FEE MAY  BE  CHARGED  FOR  THE
ACTUAL COST OF AN EXPEDITED DELIVERY OF A REPLACEMENT PAYROLL CARD, IF A
CARDHOLDER EMPLOYEE REQUESTS SUCH DELIVERY.
  4.    AN EMPLOYER MAY PAY WAGES THROUGH A PAYROLL CARD ACCOUNT ONLY IF
THE PAYROLL CARD ACCOUNT IS:
  A. FULLY INSURED BY THE FEDERAL  DEPOSIT  INSURANCE  CORPORATION,  THE
NATIONAL CREDIT UNION ADMINISTRATION, OR ANY OTHER INSURER RECOGNIZED BY
THE  DEPARTMENT  OF  FINANCIAL  SERVICES, ON A PASS THROUGH BASIS TO THE
EMPLOYEE;
  B. HELD AT A DEPOSITORY INSTITUTION OR OTHER ENTITY WHICH HAS IN PLACE
A WRITTEN IDENTITY THEFT PROGRAM TO DETECT, PREVENT, AND MITIGATE  IDEN-
TITY  THEFT  IN CONNECTION WITH PAYROLL CARD ACCOUNTS, AS REQUIRED BY 12
C.F.R. S 41.90; AND
  C. IN COMPLIANCE WITH THE REQUIREMENTS OF FEDERAL  RESERVE  REGULATION
E, 12 C.F.R. PARTS 205 AND 1005, TO THE EXTENT REQUIRED FOR PAYROLL CARD
ACCOUNTS AS SET FORTH IN 12 C.F.R. SS 205.18 AND 1005.18.
  5. AN EMPLOYER MAY NOT USE A PAYROLL CARD PROGRAM IN WHICH THE PAYROLL
CARD  OR PAYROLL CARD ACCOUNT IS LINKED TO ANY FORM OF CREDIT INCLUDING,
BUT NOT LIMITED TO, A LOAN AGAINST FUTURE  PAY  OR  A  CASH  ADVANCE  ON
FUTURE PAY.
  6.  AN  EMPLOYER  MAY  USE  A PAYROLL CARD PROGRAM THAT ALLOWS FOR THE
PROVISION OF A SECOND, ADDITIONAL PAYROLL CARD TO A CARDHOLDER  EMPLOYEE
UPON  THE CARDHOLDER EMPLOYEE'S WRITTEN REQUEST. A SINGLE, ONE-TIME FEE,
NOT TO EXCEED FIVE DOLLARS, MAY BE CHARGED FOR ISSUANCE AND  MAINTENANCE
OF A SECONDARY CARD.
  7.  UPON  TERMINATION  OF  A CARDHOLDER EMPLOYEE'S EMPLOYMENT, OR UPON
RECEIVING NOTICE OF THE CARDHOLDER EMPLOYEE'S  SEPARATION  FROM  EMPLOY-
MENT,  THE  EMPLOYER  SHALL  PROVIDE  THE EMPLOYEE WITH A WRITTEN NOTICE
ADVISING THE EMPLOYEE THAT HE OR SHE MAY,  AT  NO  COST,  TERMINATE  THE
PAYROLL  CARD  AND RECEIVE THE FULL BALANCE PAYABLE BY CHECK WITHIN FIVE
BUSINESS DAYS. THE EMPLOYER SHALL DISCLOSE, IN THE  MANNER  PROVIDED  BY
THIS  SECTION,  THE TERMS AND CONDITIONS, INCLUDING ANY AND ALL FEES AND
COSTS, RELATED TO MAINTAINING A PAYROLL CARD ACCOUNT THE UPON THE TERMI-
NATION OF THE EMPLOYMENT RELATIONSHIP.
  S 192-B. CONFIDENTIALITY OF EMPLOYEE INFORMATION. 1. AN EMPLOYER SHALL
NOT DISCLOSE AN EMPLOYEE'S PERSONAL IDENTIFYING INFORMATION TO A PAYROLL
CARD ISSUER UNLESS SUCH EMPLOYER HAS RECEIVED  ADVANCE  WRITTEN  CONSENT
FROM  SUCH  EMPLOYEE.    FOR THE PURPOSES OF THIS SUBDIVISION, "PERSONAL

S. 7790                             5

IDENTIFYING INFORMATION" SHALL INCLUDE THE EMPLOYEE'S NAME, SOCIAL SECU-
RITY NUMBER, HOME ADDRESS, TELEPHONE NUMBER (HOME,  MOBILE,  OR  OTHER),
PERSONAL  ELECTRONIC MAIL ADDRESS, INTERNET IDENTIFICATION NAME OR PASS-
WORD,  EMPLOYEE'S  OR  PARENT'S  SURNAME  PRIOR TO MARRIAGE, OR DRIVER'S
LICENSE NUMBER.
  2. NO EMPLOYER SHALL RECEIVE, ACCEPT, MAINTAIN, OR POSSESS ANY  INFOR-
MATION  OBTAINED  BY  THE  PAYROLL CARD ISSUER REGARDING ANY TRANSACTION
MADE BY AN EMPLOYEE CARDHOLDER INCLUDING, BUT NOT LIMITED TO:
  A. SERVICES OR GOODS PURCHASED;
  B. THE NAME OR TYPE OF THE BUSINESS IN WHICH  A  SERVICE  OR  GOOD  IS
PURCHASED;
  C.  TIME,  DATE  OR  LOCATION OF ANY AND ALL PURCHASES, WITHDRAWALS OR
BALANCE INQUIRIES; AND
  D. FEES OR PENALTIES ASSESSED BY THE PAYROLL CARD  ISSUER.    HOWEVER,
THIS  INFORMATION  MAY  BE  PROVIDED IN THE AGGREGATE OR SUMMARIZED FORM
WITHOUT IDENTIFYING INDIVIDUAL EMPLOYEES.
  3. EACH CARDHOLDER EMPLOYEE SHALL BE PROVIDED WITH A COPY OF  ANY  AND
ALL  "CONSUMER  PRIVACY" POLICIES AND/OR NOTICES REQUIRED BY LAW.  CARD-
HOLDER EMPLOYEES MAY NOT BE  AUTOMATICALLY  SENT  ANY  DIRECT  MARKETING
MATERIALS  OR  ENROLLED  IN ANY MARKETING PROGRAMS, ALTHOUGH THEY MAY BE
GIVEN THE OPTION TO "OPT IN" TO RECEIVING DIRECT MARKETING MATERIALS.
  4. A PAYROLL CARD ISSUER SHALL DISCLOSE ANY BREACH OF SECURITY TO  ALL
AFFECTED  CARDHOLDER EMPLOYEES AND THE EMPLOYER OF SUCH EMPLOYEES WITHIN
TWENTY-FOUR HOURS OF SUCH BREACH.
  S 192-C. PROHIBITED ACTS. NO EMPLOYER SHALL:
  1. INTIMIDATE, THREATEN, COERCE, OR  OTHERWISE  PRESSURE  AN  EMPLOYEE
INTO CONSENTING TO BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
  2.  OBTAIN  AN  EMPLOYEE'S  CONSENT  TO BE PAID THROUGH A PAYROLL CARD
ACCOUNT THROUGH MEANS THAT ARE UNFAIR, DECEPTIVE, OR ABUSIVE;
  3. REQUIRE AS A CONDITION OF ANY EMPLOYEE'S HIRE OR CONTINUED  EMPLOY-
MENT THAT SUCH EMPLOYEE BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
  4.  RETALIATE  OR  TAKE ADVERSE EMPLOYMENT ACTION AGAINST ANY EMPLOYEE
WHO DOES NOT CHOOSE TO BE PAID THROUGH A PAYROLL CARD ACCOUNT;
  5. RETALIATE OR TAKE ADVERSE EMPLOYMENT ACTION AGAINST ANY  CARDHOLDER
EMPLOYEE BASED UPON ANY CARDHOLDER EMPLOYEE TRANSACTIONS MADE THROUGH OR
ANY INFORMATION GENERATED BY THE CARDHOLDER EMPLOYEE'S POSSESSION OR USE
OF A PAYROLL CARD;
  6. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
ES A FEE TO A CARDHOLDER EMPLOYEE FOR ANY OF THE FOLLOWING:
  A.  INITIATION, PARTICIPATION, LOADING, OR OTHER FEES TO RECEIVE WAGES
PAYABLE IN AN ELECTRONIC FUND TRANSFER TO A PAYROLL CARD ACCOUNT;
  B. INACTIVITY, DORMANCY, OR OTHER  FEE  RESULTING  FROM  A  CARDHOLDER
EMPLOYEE'S NON-USE OF HIS OR HER PAYROLL CARD ACCOUNT;
  C. ACCOUNT MAINTENANCE OR MONTHLY MAINTENANCE;
  D. ANY POINT OF SALE DEBIT OR SIGNATURE TRANSACTION;
  E. DECLINED SALES OR ATM TRANSACTIONS;
  F. CLOSING AN ACCOUNT;
  G.  THE  ISSUANCE OF A REPLACEMENT CARD IN ACCORDANCE WITH PARAGRAPH F
OF SUBDIVISION THREE OF SECTION ONE HUNDRED NINETY-TWO-A OF  THIS  ARTI-
CLE; OR
  H.  UNDISCLOSED  FEES  IMPOSED  BY THE EMPLOYER OR PAYROLL CARD ISSUER
THAT WERE NOT PREVIOUSLY DISCLOSED TO THE CARDHOLDER EMPLOYEE;
  7. RECEIVE ANY CONSIDERATION FROM A PAYROLL CARD ISSUER INCLUDING, BUT
NOT LIMITED TO COMPENSATION, BONUS, OR REWARD BASED UPON:
  A. A PORTION OF ANY PAYROLL CARD-RELATED FEES PAID BY SUCH  EMPLOYER'S
CARDHOLDER EMPLOYEES, OR

S. 7790                             6

  B.  THE  NUMBER OF EMPLOYEES WHO ARE PAID WAGES THROUGH A PAYROLL CARD
ACCOUNT.  NOTHING IN THIS SECTION SHALL PRECLUDE EMPLOYERS FROM  RECEIV-
ING A BULK RATE OR VOLUME DISCOUNT BASED ON THE NUMBER OF EMPLOYEES THAT
CHOOSE TO RECEIVE WAGES THROUGH A PAYROLL CARD ACCOUNT;
  8. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
ES ANY CARDHOLDER EMPLOYEE AN OVERDRAFT FEE UNDER ANY CIRCUMSTANCES.
  S  4.  Section  197 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
  S 197. Civil penalty. 1. 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
the commissioner in any legal action necessary, including administrative
action or a civil action.
  2. ANY EMPLOYER WHO VIOLATES OR FAILS TO COMPLY WITH THE  REQUIREMENTS
OF  SECTION  ONE  HUNDRED NINETY-TWO-A, ONE HUNDRED NINETY-TWO-B, OR ONE
HUNDRED NINETY-TWO-C OF THIS ARTICLE, SHALL FORFEIT TO THE PEOPLE OF THE
STATE THE SUM OF FIVE HUNDRED DOLLARS  FOR  EACH  SUCH  FAILURE,  TO  BE
RECOVERED  BY  THE COMMISSIONER IN ANY LEGAL ACTION NECESSARY, INCLUDING
ADMINISTRATIVE ACTION OR A CIVIL ACTION, OR BY AN EMPLOYEE  IN  A  CIVIL
ACTION.
  S  5.  Subdivisions  1-a  and  3  of  section 198 of the labor law, as
amended by chapter 564 of the laws of 2010, are amended and a new subdi-
vision 5 is added to read as follows:
  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, OR ALLEGING ANY
OTHER VIOLATION 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 the full amount of  any  such  underpayment,
and  an  additional  amount  as  liquidated damages, 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 more than one 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 FOR  A  VIOLATION
OF  THIS  ARTICLE  in which the employee prevails, the court shall allow
such employee to recover the full amount of any underpayment, ANY  OTHER
APPROPRIATE  RELIEF,  INCLUDING INJUNCTIVE RELIEF, all reasonable attor-
ney'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 amount of the wages found to be due.
  3. Notwithstanding any other provision of law, an  action  to  recover
upon  a  liability  imposed by this article must be commenced within six
years.  The statute of limitations shall be  tolled  from  the  date  an
employee  files  a  complaint  with the commissioner or the commissioner
commences an investigation, whichever is  earlier,  until  an  order  to
comply  issued  by  the commissioner becomes final, or where the commis-
sioner does not issue an order, until the date on which the commissioner
notifies the complainant that the investigation has concluded.  Investi-
gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
against a person bringing a civil action under this section. All employ-
ees shall have the right to recover full wages,  DAMAGES,  benefits  and

S. 7790                             7

wage  supplements  and  liquidated  damages accrued during the six years
previous to the commencing of such action, whether such action is insti-
tuted by the employee or by the commissioner.
  5.  A  COURT  OF COMPETENT JURISDICTION MAY ENJOIN AN EMPLOYER WHO HAS
COMMITTED REPEAT OR WILLFUL VIOLATIONS OF ANY PROVISION OF  SECTION  ONE
HUNDRED   NINETY-TWO-A,   ONE   HUNDRED   NINETY-TWO-B  OR  ONE  HUNDRED
NINETY-TWO-C OF THIS ARTICLE FROM PAYING  EMPLOYEES'  WAGES  BY  PAYROLL
CARD  FOR  A  PERIOD  OF  TWO YEARS. THE COMMISSIONER MAY ISSUE AN ORDER
PROHIBITING AN EMPLOYER WHO HAS COMMITTED REPEAT OR  WILLFUL  VIOLATIONS
OF  ANY  PROVISIONS  OF  THIS  SECTION  FROM  PAYING EMPLOYEES' WAGES BY
PAYROLL CARD FOR A PERIOD OF TWO YEARS. THE TWO YEAR PERIOD OF  PROHIBI-
TION  SHALL  COMMENCE  SIXTY  DAYS  FROM  THE DATE OF THE COMMISSIONER'S
ORDER, OR SIXTY DAYS AFTER FINAL DISPOSITION OF ANY APPEAL, WHICHEVER IS
LATER.
  S 6. Severability clause. The provisions of this act are severable. If
any phrase, clause, sentence, or provision of this act is declared to be
invalid or preempted in whole or in part by any  federal  law  or  regu-
lation, the validity of the remainder of this act shall not be affected.
  S 7. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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