S T A T E O F N E W Y O R K
________________________________________________________________________
8287
2015-2016 Regular Sessions
I N A S S E M B L Y
June 17, 2015
___________
Introduced by M. of A. MOYA -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to employment
agencies; and to repeal subdivision 1-a of section 185 of the general
business law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The opening paragraph and paragraph b of subdivision 12 of
section 171 of the general business law, as added by a chapter of the
laws of 2015 amending the general business law relating to employment
agencies, as proposed in legislative bills numbers S.3415 and A.3702, is
amended to read as follows:
"Bona fide order" means a written order from an employer directed to
an employment agency stating that the employer requests that the employ-
ment agency refer one or more job applicants for a specific position 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:
b. [the place or places] ADDRESSES of employment;
S 2. Subdivisions 2, 3, 4 and 5 of section 181 of the general business
law, as amended by a chapter of the laws of 2015 amending the general
business law relating to employment agencies, as proposed in legislative
bills numbers S.3415 and A.3702, are amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06774-07-5
A. 8287 2
2. (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 principal 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] ADDRESSES 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, allowances, 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 work-
ing 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 protective equipment required
for work, workers' compensation and information about the insurance
policy and rules regarding reporting of accidents or injuries, and unem-
ployment 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,] PROVIDED IN ENGLISH AND IN
THE DISCRETION OF THE COMMISSIONER, OTHER LANGUAGES 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 agen-
cies 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. [Every employment agency shall keep on file in its principal place
of business for a period of three years a statement, signed by the
employer of every applicant whom the employment agency has placed, indi-
cating 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 statement.
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4.] A receipt for any fee, consideration, or payment which an agency
receives from an applicant. 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 receiving 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 other-
wise violates the law, you may demand a refund, which shall be repaid
within seven (7) 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.] 4. 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]
THREE 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 3. Subdivision 1-a of section 185 of the general business law is
REPEALED.
S 4. Subdivision 3 of section 185 of the general business law, as
amended by a chapter of the laws of 2015 amending the general business
law relating to employment agencies, as proposed in legislative bills
numbers S.3415 and A.3702, is amended to read as follows:
3. Deposits, advance fees. Notwithstanding any other provisions of
this section, an employment agency shall not require or accept a deposit
or advance fee from any applicant. [Any deposit or advance fee
collected by an employment agency prior to October first, two thousand
fifteen, must be refunded to the applicant by November first, two thou-
sand sixteen, 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 5. Subdivision 3 of section 187 of the general business law, as
amended by a chapter of the laws of 2015 amending the general business
law relating to employment agencies, as proposed in legislative bills
numbers S.3415 and A.3702, 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, the
word "agency"[,] and the agency's license number.
S 6. Subdivision 4 of section 189 of the general business law, as
amended by a chapter of the laws of 2015 amending the general business
law relating to employment agencies, as proposed in legislative bills
numbers S.3415 and A.3702, is amended to read as follows:
4. Complaints against any such licensed or unlicensed person [may]
SHALL 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,
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reasonable notice thereof, not less than five days, shall be given in
writing to said person by serving upon the 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 hear-
ing 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.
S 7. Subdivisions 7, 8, 9 and 10 of section 189 of the general busi-
ness law, as added by a chapter of the laws of 2015 amending the general
business law relating to employment agencies, as proposed in legislative
bills numbers S.3415 and A.3702, are amended to read as follows:
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.] 8. 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.] 9. 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 8. This act shall take effect on the same date and in the same
manner as a chapter of the laws of 2015 amending the general business
law relating to employment agencies, as proposed in legislative bills
numbers S.3415 and A.3702, takes effect.