S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7015
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 3, 2018
                                ___________
 
 Introduced  by  Sen.  RIVERA -- 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.
   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
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00453-01-7

 S. 7015                             2
 
 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.
   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

 S. 7015                             3
 
 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.
   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

 S. 7015                             4
 
 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.