S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2035
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 11, 2017
                                ___________
 
 Introduced by Sens. SQUADRON, HOYLMAN, PARKER, PERKINS, STAVISKY -- read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Labor
 
 AN ACT to amend the labor law, in relation to establishing a living wage
   rate
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  labor law is amended by adding a new article 19-D to
 read as follows:
                               ARTICLE 19-D
                              FAIR WAGES ACT
 SECTION 696.   DEFINITIONS.
         696-A. LIVING WAGE RATE.
         696-B. PAYMENT OF LIVING WAGE.
         696-C. IMPLEMENTATION.
         696-D. COMMISSIONER'S POWERS OF INVESTIGATION.
         696-E. CIVIL ACTION.
   § 696. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE TERM:
   1. "EMPLOYER" MEANS A FORMULA RETAIL STORE, LARGE EMPLOYER,  TRANSPOR-
 TATION  BUSINESS, OR FRANCHISEE OR SUBCONTRACTOR, AND INCLUDES ANY INDI-
 VIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION, LIMITED LIABILITY  COMPA-
 NY,  BUSINESS  TRUST,  LEGAL  REPRESENTATIVE,  OR ANY ORGANIZED GROUP OF
 PERSONS ACTING AS EMPLOYER.
   2. "FORMULA RETAIL STORE" MEANS ANY EMPLOYER THAT  OPERATES  A  RETAIL
 SALES OR RESTAURANT ESTABLISHMENT EITHER DIRECTLY OR THROUGH FRANCHISEES
 AND  THAT,  ALONG  WITH  ELEVEN OR MORE OTHER RETAIL SALES OR RESTAURANT
 ESTABLISHMENTS LOCATED IN THE UNITED STATES, MAINTAINS TWO  OR  MORE  OF
 THE  FOLLOWING  FEATURES:  (A)  A  STANDARDIZED  ARRAY OF MERCHANDISE, A
 STANDARDIZED FACADE, A STANDARDIZED DECOR AND COLOR  SCHEME,  A  UNIFORM
 APPAREL, STANDARDIZED SIGNAGE, A TRADEMARK; OR (B) A SERVICEMARK.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00453-01-7
              

 S. 2035                             2
 
   3.  "LARGE  EMPLOYER" MEANS ANY EMPLOYER THAT HAS ANNUAL GROSS REVENUE
 OF FIFTY MILLION DOLLARS OR MORE, BUT SHALL NOT INCLUDE (A) AN  EMPLOYER
 WHOSE  PRINCIPAL  INDUSTRY  IS  MANUFACTURING;  OR  (B) A NOT-FOR-PROFIT
 ORGANIZATION.  AN EMPLOYER SHALL BE DEEMED TO HAVE ANNUAL GROSS  REVENUE
 OF  FIFTY MILLION DOLLARS OR MORE IF IT HAD REVENUE AT OR EXCEEDING THAT
 LEVEL IN ANY OF THE PAST THREE FISCAL OR CALENDAR YEARS.
   4. "MANUFACTURING" MEANS THE PROCESS OF  WORKING  RAW  MATERIALS  INTO
 PRODUCTS  SUITABLE FOR USE OR WHICH GIVES NEW SHAPES, NEW QUALITY OR NEW
 COMBINATIONS TO MATTER WHICH HAS ALREADY GONE  THROUGH  SOME  ARTIFICIAL
 PROCESS  BY  THE  USE  OF MACHINERY, TOOLS, APPLIANCES, OR OTHER SIMILAR
 EQUIPMENT.
   5. "NOT-FOR-PROFIT ORGANIZATION" MEANS AN ENTITY EXEMPT FROM  TAXATION
 UNDER SECTION 501(C)(3) OF THE FEDERAL INTERNAL REVENUE CODE.
   6.  "TRANSPORTATION  BUSINESS" MEANS ANY INDUSTRY, BUSINESS, OR ESTAB-
 LISHMENT OPERATED FOR THE PURPOSE OF CONVEYING PERSONS OR PROPERTY  FROM
 ONE  PLACE  TO  ANOTHER WHETHER BY RAIL, HIGHWAY, AIR, OR WATER, AND ALL
 OPERATIONS AND SERVICES IN CONNECTION THEREWITH.
   7. "FRANCHISEE OR SUBCONTRACTOR"  MEANS  ANY  EMPLOYER  THAT  OPERATES
 UNDER A FRANCHISE AGREEMENT WITH A FORMULA RETAIL STORE OR LARGE EMPLOY-
 ER,  OR THAT PROVIDES SERVICES, INCLUDING BUT NOT LIMITED TO JANITORIAL,
 MAINTENANCE, SECURITY, STAFFING, PASSENGER SERVICES, FOOD  SERVICES,  OR
 TEMPORARY  SERVICES TO A FORMULA RETAIL STORE, LARGE EMPLOYER, OR TRANS-
 PORTATION BUSINESS.
   8. "EMPLOYEE" HAS THE MEANING PROVIDED IN SUBDIVISION FIVE OF  SECTION
 SIX HUNDRED FIFTY-ONE OF THIS CHAPTER.
   9.  "LIVING WAGE RATE" SHALL HAVE THE MEANING SET FORTH IN SECTION SIX
 HUNDRED NINETY-SIX-A OF THIS TITLE.
   § 696-A. LIVING WAGE RATE. 1. BEGINNING ON DECEMBER FIRST,  TWO  THOU-
 SAND TWENTY-ONE, THE LIVING WAGE RATE SHALL BE AN HOURLY RATE OF FIFTEEN
 DOLLARS.
   2.  NO  LATER  THAN JANUARY FIRST OF EACH SUCCESSIVE YEAR, THE COMMIS-
 SIONER SHALL CALCULATE AND ESTABLISH AN ADJUSTED  LIVING  WAGE  RATE  BY
 INCREASING  THE  THEN  CURRENT LIVING WAGE RATE BY THE RATE OF INFLATION
 FOR THE MOST RECENT TWELVE MONTH PERIOD AVAILABLE PRIOR TO EACH  JANUARY
 FIRST  USING  THE  CONSUMER PRICE INDEX-ALL URBAN CONSUMERS, CPI-U, OR A
 SUCCESSOR INDEX AS CALCULATED BY THE UNITED STATES DEPARTMENT OF  LABOR,
 IF  SUCH RATE OF INFLATION IS GREATER THAN ZERO PERCENT, OR, IF GREATER,
 SUCH OTHER WAGE AS MAY BE ESTABLISHED BY  FEDERAL  LAW  PURSUANT  TO  29
 U.S.C. SECTION 206 OR ITS SUCCESSORS OR SUCH OTHER WAGE AS MAY BE ESTAB-
 LISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
   § 696-B. PAYMENT OF LIVING WAGE. 1. AN EMPLOYER SHALL PAY EMPLOYEES AN
 HOURLY  WAGE OF NO LESS THAN THE LIVING WAGE RATE FOR EACH HOUR THAT THE
 EMPLOYEE WORKS WITHIN THE GEOGRAPHIC BOUNDARIES OF THE STATE.
   2. NOTWITHSTANDING SUBDIVISION ONE OF THIS  SECTION,  EMPLOYERS  SHALL
 PAY  EMPLOYEES  WHO  CUSTOMARILY AND REGULARLY RECEIVE TIPS NO LESS THAN
 SEVENTY PERCENT OF THE LIVING WAGE RATE, ROUNDED  TO  THE  NEAREST  FIVE
 CENTS,  PROVIDED THAT AT ALL TIMES THE COMBINATION OF THE CASH WAGE PAID
 BY THE EMPLOYER AND THE TIPS RECEIVED BY THE  EMPLOYEE  TOTALS  NO  LESS
 THAN  THE  LIVING  WAGE  RATE FOR EACH HOUR WORKED WITHIN THE GEOGRAPHIC
 BOUNDARIES OF THE STATE.   SUCH CALCULATION MAY BE  MADE  BASED  ON  THE
 TOTAL  WAGES AND TIPS RECEIVED BY THE EMPLOYEE OVER THE COURSE OF HIS OR
 HER SHIFT.
   3. FORMULA RETAIL STORES, LARGE EMPLOYERS,  AND  TRANSPORTATION  BUSI-
 NESSES  SHALL  BE JOINTLY AND SEVERALLY RESPONSIBLE FOR ANY VIOLATION OF
 THIS ARTICLE BY A FRANCHISEE OR  SUBCONTRACTOR  OF  THE  FORMULA  RETAIL
 STORE, LARGE EMPLOYER OR TRANSPORTATION BUSINESS.

 S. 2035                             3
 
   4.  THE  PROVISIONS OF THIS SECTION MAY BE WAIVED BY THE WRITTEN TERMS
 OF A BONA FIDE COLLECTIVE BARGAINING AGREEMENT.
   §  696-C. IMPLEMENTATION. 1. BY DECEMBER FIRST OF EACH YEAR, THE STATE
 SHALL PUBLISH AND MAKE AVAILABLE TO EMPLOYERS A BULLETIN ANNOUNCING  THE
 ADJUSTED  LIVING  WAGE  AND  BENEFITS  RATE FOR THE UPCOMING YEAR, WHICH
 SHALL TAKE EFFECT ON JANUARY FIRST.
   2. BY DECEMBER FIRST OF EACH YEAR, THE STATE SHALL  PUBLISH  AND  MAKE
 AVAILABLE  TO  EMPLOYERS,  IN ENGLISH AND SPANISH, AND ON-LINE, A NOTICE
 SUITABLE FOR POSTING IN THE WORKPLACE INFORMING EMPLOYEES OF THE CURRENT
 LIVING WAGE AND OF THEIR RIGHTS UNDER THIS ARTICLE.
   3. EVERY EMPLOYER SHALL POST IN A CONSPICUOUS PLACE AT  ANY  WORKPLACE
 OR  JOB  SITE  WHERE AN EMPLOYEE WORKS THE NOTICE PUBLISHED EACH YEAR BY
 THE AGENCY INFORMING EMPLOYEES OF THE CURRENT LIVING WAGE AND  OF  THEIR
 RIGHTS  UNDER THIS ARTICLE. EVERY LARGE EMPLOYER SHALL POST SUCH NOTICES
 IN ENGLISH AND SPANISH.
   4. EMPLOYERS SHALL RETAIN PAYROLL RECORDS PERTAINING TO EMPLOYEES  FOR
 A  PERIOD  OF  FOUR  YEARS.    EMPLOYERS  SHALL PERMIT AN EMPLOYEE OR AN
 EMPLOYEE'S DESIGNATED REPRESENTATIVE TO INSPECT THE  EMPLOYER'S  PAYROLL
 PERTAINING TO THE EMPLOYEE.
   §  696-D.  COMMISSIONER'S POWERS OF INVESTIGATION. THE COMMISSIONER OR
 HIS OR HER AUTHORIZED REPRESENTATIVE SHALL HAVE POWER:
   1. TO INVESTIGATE THE WAGES OF PERSONS IN ANY OCCUPATION IN THE STATE;
   2. TO ENTER THE PLACE OF BUSINESS OR EMPLOYMENT OF  ANY  EMPLOYER  FOR
 THE  PURPOSE  OF: (A) EXAMINING AND INSPECTING ANY AND ALL BOOKS, REGIS-
 TERS, PAYROLLS AND OTHER RECORDS THAT IN ANY WAY RELATE  TO  OR  HAVE  A
 BEARING  UPON  THE  WAGES PAID TO, OR THE HOURS WORKED BY ANY EMPLOYEES;
 (B) ASCERTAINING WHETHER THE PROVISIONS OF THIS ARTICLE AND  THE  ORDERS
 AND REGULATIONS PROMULGATED HEREUNDER ARE BEING COMPLIED WITH; AND
   3.  TO  REQUIRE  FROM  ANY  EMPLOYER  FULL  AND CORRECT STATEMENTS AND
 REPORTS IN WRITING, AT SUCH TIMES AS THE COMMISSIONER  MAY  DEEM  NECES-
 SARY, OF THE WAGES PAID TO AND THE HOURS WORKED BY HIS OR HER EMPLOYEES.
   §  696-E.  CIVIL  ACTION.  1.  IF  ANY  EMPLOYEE IS PAID BY HIS OR HER
 EMPLOYER LESS THAN THE WAGE TO WHICH HE OR SHE  IS  ENTITLED  UNDER  THE
 PROVISIONS  OF  THIS  ARTICLE, HE OR SHE SHALL RECOVER IN A CIVIL ACTION
 THE AMOUNT OF ANY SUCH UNDERPAYMENTS, TOGETHER WITH COSTS,  ALL  REASON-
 ABLE  ATTORNEY'S  FEES, PREJUDGMENT INTEREST AS REQUIRED UNDER THE CIVIL
 PRACTICE LAW AND RULES, AND UNLESS THE  EMPLOYER  PROVES  A  GOOD  FAITH
 BASIS  TO  BELIEVE THAT ITS UNDERPAYMENT OF WAGES WAS IN COMPLIANCE WITH
 THE LAW, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO ONE HUNDRED
 PERCENT OF THE TOTAL OF SUCH UNDERPAYMENTS FOUND TO BE DUE.  ANY  AGREE-
 MENT  BETWEEN  THE EMPLOYEE, AND THE EMPLOYER TO WORK FOR LESS THAN SUCH
 WAGE SHALL BE NO DEFENSE TO SUCH ACTION.
   2. ON BEHALF OF ANY EMPLOYEE PAID LESS THAN  THE  WAGE  TO  WHICH  THE
 EMPLOYEE  IS  ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, THE COMMIS-
 SIONER MAY BRING ANY LEGAL ACTION  NECESSARY,  INCLUDING  ADMINISTRATIVE
 ACTION, TO COLLECT SUCH CLAIM, AND THE EMPLOYER SHALL BE REQUIRED TO PAY
 THE FULL AMOUNT OF THE UNDERPAYMENT, PLUS COSTS, AND UNLESS THE EMPLOYER
 PROVES  A  GOOD  FAITH  BASIS  TO  BELIEVE  THAT ITS UNDERPAYMENT WAS IN
 COMPLIANCE WITH THE LAW, AN ADDITIONAL  AMOUNT  AS  LIQUIDATED  DAMAGES.
 LIQUIDATED  DAMAGES  SHALL  BE CALCULATED BY THE COMMISSIONER AS NO MORE
 THAN ONE HUNDRED PERCENT OF THE TOTAL AMOUNT OF UNDERPAYMENTS  FOUND  TO
 BE  DUE  THE  EMPLOYEE.  IN  ANY ACTION BROUGHT BY THE COMMISSIONER IN A
 COURT OF COMPETENT JURISDICTION, LIQUIDATED DAMAGES SHALL BE  CALCULATED
 AS  AN  AMOUNT EQUAL TO ONE HUNDRED PERCENT OF UNDERPAYMENTS FOUND TO BE
 DUE THE EMPLOYEE.

 S. 2035                             4
 
   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 ARTICLE.
   4. IN ANY CIVIL ACTION BY AN EMPLOYEE  OR  BY  THE  COMMISSIONER,  THE
 EMPLOYEE OR COMMISSIONER SHALL HAVE THE RIGHT TO COLLECT ATTORNEYS' FEES
 AND  COSTS  INCURRED  IN  ENFORCING  ANY COURT JUDGMENT. ANY JUDGMENT OR
 COURT ORDER AWARDING REMEDIES UNDER THIS SECTION SHALL PROVIDE  THAT  IF
 ANY  AMOUNTS  REMAIN UNPAID UPON THE EXPIRATION OF NINETY DAYS FOLLOWING
 ISSUANCE OF JUDGMENT, OR NINETY DAYS AFTER EXPIRATION  OF  THE  TIME  TO
 APPEAL  AND NO APPEAL THEREFROM IS THEN PENDING, WHICHEVER IS LATER, THE
 TOTAL  AMOUNT  OF  JUDGMENT  SHALL  AUTOMATICALLY  INCREASE  BY  FIFTEEN
 PERCENT.
   § 2. Severability. If any clause, sentence, paragraph, section or part
 of  this act shall be adjudged by any court of competent jurisdiction to
 be invalid and after exhaustion of  all  further  judicial  review,  the
 judgment  shall  not affect, impair or invalidate the remainder thereof,
 but shall be confined in its operation to the  clause,  sentence,  para-
 graph,  section or part of this act directly involved in the controversy
 in which the judgment shall have been rendered.
   § 3. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.