S T A T E O F N E W Y O R K
________________________________________________________________________
6027--A
2015-2016 Regular Sessions
I N S E N A T E
August 7, 2015
___________
Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules -- recommitted
to the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the labor law, in relation to certain affirmative
defenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (b) of subdivision 1 of section 195 of the labor
law, as added by chapter 564 of the laws of 2010, is amended to read as
follows:
(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 employers in such manner as determined by the commis-
sioner. EMPLOYERS MAY RELY UPON THESE TEMPLATES AND SHALL NOT BE LIABLE
FOR THEIR GOOD FAITH RELIANCE UPON THE TEMPLATES PROVIDED BY THE COMMIS-
SIONER;
S 2. Section 196-d of the labor law, as added by chapter 1007 of the
laws of 1968, is amended to read as follows:
S 196-d. Gratuities. No employer or his agent or an officer or agent
of any corporation, or any other person shall demand or accept, directly
or indirectly, any part of the gratuities, received by an employee, or
retain any part of a gratuity or of any charge purported to be a gratui-
ty for an employee. This provision shall not apply to the checking of
hats, coats or other apparel. Nothing in this subdivision shall be
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11769-03-6
S. 6027--A 2
construed as affecting the allowances from the minimum wage for gratui-
ties in the amount determined in accordance with the provisions of arti-
cle nineteen of this chapter nor as affecting ANY AFFIRMATIVE DEFENSES
MADE AVAILABLE UNDER THIS CHAPTER, OR ANY practices in connection with
banquets and other special functions where a fixed percentage of the
patron's bill is added for gratuities which are distributed to employ-
ees, nor to the sharing of tips by a waiter with a busboy or similar
employee.
S 3. Subdivision 1-a, the closing paragraph of subdivision 1-b and the
closing paragraph of subdivision 1-d of section 198 of the labor law,
subdivision 1-a as amended by chapter 362 of the laws of 2015, the clos-
ing paragraph of subdivision 1-b and the closing paragraph of subdivi-
sion 1-d as amended by chapter 537 of the laws of 2014, are amended 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, 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, WHICH MAY INCLUDE,
BUT IS NOT LIMITED TO, RELIANCE BY THE EMPLOYER ON ANY TEMPLATE PROVIDED
BY THE COMMISSIONER PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED NINETY-FIVE OF THIS ARTICLE. 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, except such liqui-
dated damages may be up to three hundred percent of the total amount of
the wages found to be due for a willful violation of section one hundred
ninety-four of this article. In any action instituted in the courts upon
a wage claim by an employee or the commissioner in which the employee
prevails, the court shall allow such employee to recover the full amount
of any underpayment, all reasonable attorney's fees, prejudgment inter-
est as required under the civil practice law and rules, and, unless the
employer proves a good faith basis to believe that its underpayment of
wages was in compliance with the law, WHICH MAY INCLUDE, BUT IS NOT
LIMITED TO, RELIANCE BY EMPLOYER ON ANY TEMPLATE PROVIDED BY THE COMMIS-
SIONER PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE
HUNDRED NINETY-FIVE OF THIS ARTICLE, an additional amount as liquidated
damages equal to one hundred percent of the total amount of the wages
found to be due, except such liquidated damages may be up to three
hundred percent of the total amount of the wages found to be due for a
willful violation of section one hundred ninety-four of this article.
On behalf of any employee not provided a notice as required by subdi-
vision one of section one hundred ninety-five of this article, the
commissioner may bring any legal action necessary, including administra-
tive action, to collect such claim, and as part of such legal action, in
addition to any other remedies and penalties otherwise available under
this article, the commissioner may assess against the employer damages
of fifty dollars for each work day that the violations occurred or
continue to occur, but not to exceed a total of five thousand dollars.
In any action or administrative proceeding to recover damages for
violation of paragraph (a) of subdivision one of section one hundred
ninety-five of this article, it shall be an affirmative defense that (i)
the employer made complete and timely payment of all wages due pursuant
S. 6027--A 3
to this article or article nineteen or article nineteen-A of this chap-
ter to the employee who was not provided notice as required by subdivi-
sion one of section one hundred ninety-five of this article [or]; (ii)
the employer reasonably believed in good faith that it was not required
to provide the employee with notice pursuant to subdivision one of
section one hundred ninety-five of this article; (III) THE EMPLOYER
RELIED IN GOOD FAITH UPON THE TEMPLATES PROVIDED BY THE COMMISSIONER
PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED
NINETY-FIVE OF THIS ARTICLE; OR (IV) THE EMPLOYEE RECEIVED SUFFICIENT
TIPS TO EQUAL OR EXCEED THE AMOUNT OF ANY ALLOWANCES CLAIMED BY THE
EMPLOYER AS ANY PART OF THE MINIMUM WAGE, INCLUDING ANY AND ALL AVAIL-
ABLE TIP ALLOWANCES. IN SUCH CIRCUMSTANCES WHERE THE EMPLOYER ESTAB-
LISHES ANY OF THE AFFIRMATIVE DEFENSES DESCRIBED IN SUBPARAGRAPHS (I)
THROUGH (IV) OF THIS PARAGRAPH, THE EMPLOYER SHALL NOT FORFEIT ANY TIP
ALLOWANCES AVAILABLE UNDER LAW. THESE AFFIRMATIVE DEFENSES SHALL BE
AVAILABLE TO EMPLOYERS IN DEFENSE OF ACTIONS BROUGHT BY THE COMMISSIONER
AND/OR BY THE EMPLOYEE.
On behalf of any employee not provided a statement as required by
subdivision three of section one hundred ninety-five of this article,
the commissioner may bring any legal action necessary, including admin-
istrative action, to collect such claim, and as part of such legal
action, in addition to any other remedies and penalties otherwise avail-
able under this article, the commissioner may assess against the employ-
er damages of two hundred fifty dollars for each work day that the
violations occurred or continue to occur, but not to exceed a total of
five thousand dollars. In any action or administrative proceeding to
recover damages for violation of subdivision three of section one
hundred ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages due
pursuant to this article or articles nineteen or nineteen-A of this
chapter to the employee who was not provided statements as required by
subdivision three of section one hundred ninety-five of this article
[or]; (ii) the employer reasonably believed in good faith that it was
not required to provide the employee with statements pursuant to para-
graph (e) of subdivision one of section one hundred ninety-five of this
article; (III) THE EMPLOYER RELIED IN GOOD FAITH UPON THE TEMPLATES
PROVIDED BY THE COMMISSIONER PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION ONE HUNDRED NINETY-FIVE OF THIS ARTICLE; OR (IV) THE
EMPLOYEE RECEIVED SUFFICIENT TIPS TO EQUAL OR EXCEED THE AMOUNT OF ANY
ALLOWANCES CLAIMED BY THE EMPLOYER AS ANY PART OF THE MINIMUM WAGE
INCLUDING ANY AND ALL AVAILABLE TIP ALLOWANCES. IN SUCH CIRCUMSTANCES
WHERE THE EMPLOYER ESTABLISHES ANY OF THE AFFIRMATIVE DEFENSES DESCRIBED
IN SUBPARAGRAPHS (I) THROUGH (IV) OF THIS PARAGRAPH THE EMPLOYER SHALL
NOT FORFEIT ANY TIP ALLOWANCES AVAILABLE UNDER LAW. THESE AFFIRMATIVE
DEFENSES SHALL BE AVAILABLE TO EMPLOYERS IN DEFENSE OF ACTIONS BROUGHT
BY THE COMMISSIONER AND/OR BY THE EMPLOYEE.
S 4. Section 199 of the labor law, as added by chapter 548 of the laws
of 1966, is amended to read as follows:
S 199. Rules and regulations. The commissioner may issue such rules
and regulations as he determines necessary for the purposes of carrying
out the provisions of this article, WHICH SHALL BE CONSISTENT WITH AND
SHALL NOT ALTER THE TERMS AND CONDITIONS SET FORTH IN THIS ARTICLE.
S 5. This act shall take effect immediately and shall apply to affir-
mative defenses that became available before, on, or after such effec-
tive date.
