LBD06569-01-9
A. 4645 2
[include an affirmation by the employee that the employee accurately
identified his or her primary language to the employer, and that the
notice provided by the employer to such employee pursuant to this subdi-
vision was in the language so identified or otherwise complied with
paragraph (c) of this subdivision, and shall] conform to any [addi-
tional] requirements established by the commissioner with regard to
content and form. For all employees who are [not exempt from] ELIGIBLE
FOR overtime compensation as established in the commissioner's minimum
wage orders or otherwise provided by [New York state] law or regulation,
the notice must state the regular hourly rate and overtime rate of pay;
[(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;
(c) When an employee identifies as his or her primary language a
language for which a template is not available from the commissioner,
the employer shall comply with this subdivision by providing that
employee an English-language notice or acknowledgment;
(d) An employer shall not be penalized for errors or omissions in the
non-English portions of any notice provided by the commissioner;
(e) The commissioner shall have discretion to waive or alter require-
ments of paragraph (a) of this subdivision for temporary help firms as
defined in section nine hundred sixteen of this chapter.]
3. furnish each employee with a statement with every payment of wages,
listing [the following: the dates of work covered by that payment of
wages; name of employee; name of employer; address and phone number of
employer; rate or rates of pay and basis thereof, whether paid by the
hour, shift, day, week, salary, piece, commission, or other;] gross
wages[;], deductions[; allowances, if any, claimed as part of the mini-
mum wage;] and net wages[. For all employees who are not exempt from
overtime compensation as established in the commissioner's minimum wage
orders or otherwise provided by New York state law or regulation, the
statement shall include the regular hourly rate or rates of pay; the
overtime rate or rates of pay; the number of regular hours worked, and
the number of overtime hours worked. For all employees paid a piece
rate, the statement shall include the applicable piece rate or rates of
pay and number of pieces completed at each piece rate. Upon], AND UPON
the request of an employee[, an employer shall] furnish an explanation
[in writing] of how such wages were computed;
4. establish, maintain and preserve for not less than [six] THREE
years [contemporaneous, true, and accurate] payroll records showing [for
each week worked] the hours worked[; the rate or rates of pay and basis
thereof, whether paid by the hour, shift, day, week, salary, piece,
commission, or other;], gross wages[;], deductions[; allowances, if any,
claimed as part of the minimum wage;] and net wages for each employee[.
For all employees who are not exempt from overtime compensation as
established in the commissioner's minimum wage orders or otherwise
provided by New York state law or regulation, the payroll records shall
include the regular hourly rate or rates of pay, the overtime rate or
rates of pay, the number of regular hours worked, and the number of
overtime hours worked. For all employees paid a piece rate, the payroll
A. 4645 3
records shall include the applicable piece rate or rates of pay and
number of pieces completed at each piece rate];
§ 3. Section 196 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 196. Powers of commissioner. 1. In addition to the powers of the
commissioner specified in other sections of this chapter, the commis-
sioner shall have the following duties, powers and authority:
a. He or she shall investigate and attempt to adjust equitably contro-
versies between employers and employees relating to [this article, or
article five, seven, nineteen or nineteen-A of] this [chapter] ARTICLE.
b. He or she may take assignments of claims for wages [under] AS
DEFINED IN this [chapter] ARTICLE from employees or third parties in
trust for such employees or for the benefit of various funds for such
employees. All such assignments shall run to the commissioner and his or
her successor in office. The commissioner may sue employers on wage
claims thus assigned, with the benefits and subject to the provisions of
existing law applying to actions by employees for collection of wages.
He or she may join in a single action any number of wage claims against
the same employer.
c. He or she may institute proceedings on account of any criminal
violation of any provision of [this article, or article five, seven,
nineteen or nineteen-A of] this [chapter] ARTICLE.
d. If it shall appear to him or her that any employer has been
convicted of a violation of any provision of this article [or article
nineteen or nineteen-A of this chapter] or that any [order to comply
issued] JUDGMENT against an employer [under this chapter] FOR NON-PAY-
MENT OF WAGES remains unsatisfied for a period of ten days after the
time to appeal therefrom has expired, and that no appeal therefrom is
then pending, the commissioner may require such employer to deposit with
him or her a bond in such sum as he or she may deem sufficient and
adequate in the circumstances, together with two or more sureties or a
duly authorized surety company, to be approved by the commissioner. The
bond shall be payable to the commissioner and shall be conditioned that
the employer will, for a definite future period, not exceeding two
years, pay his or her employees in accordance with the provisions of
this article [or article nineteen or nineteen-A of this chapter], and
shall be further conditioned upon the payment by the employer of any
[amounts due pursuant to an order to comply or] judgment WHICH MAY BE
RECOVERED against such employer pursuant to the provisions of this arti-
cle [or article nineteen or nineteen-A of this chapter].
If within ten days after demand for such bond, which demand may be
made by certified or registered mail, such employer shall fail to depos-
it the same, the commissioner may bring an action in the name and on
behalf of the people of the state of New York against such employer in
the supreme court to compel such employer to furnish such a bond or to
cease doing business until he or she has done so. The employer shall
have the burden of proving that either such a bond is unnecessary or
that the amount demanded is excessive. If the court finds that there is
just cause for requiring the bond and that same is reasonably necessary
or proper to secure prompt payment of the wages of the employees of such
employer and his or her compliance with the provisions of this article
[or article nineteen or nineteen-A of this chapter], the court may
enjoin such employer and such other person or persons as may have been
or may be concerned with or in any way participating in the failure to
pay the wages resulting in the conviction or [order to comply] IN THE
JUDGMENT as aforesaid, from doing business until the requirement is met
A. 4645 4
and make other and further orders appropriate to compel compliance with
the requirement.
[If any order to comply issued against an employer under this article
or article nineteen or nineteen-A of this chapter remains unsatisfied
for a period of ten days after the time to appeal therefrom has expired,
and that no appeal therefrom is then pending, the commissioner may
require the employer to provide an accounting of assets of the employer,
including but not limited to, a list of all bank accounts, accounts
receivable, personal property, real property, automobiles or other vehi-
cles, and any other assets, in a form and manner as prescribed by the
commissioner. An employer shall provide such amended accountings of
assets as the commissioner shall order. If within ten days after demand
for such an accounting of assets, which demand may be made by certified
or registered mail, such employer shall fail to provide same, or if the
employer fails to provide an amended accounting as required under this
section, the commissioner may bring an action in the name and on behalf
of the people of the state of New York against such employer in the
supreme court to compel such employer to furnish the accounting and pay
a civil penalty of no more than ten thousand dollars.]
e. He or she is hereby authorized and empowered to enter into recipro-
cal agreements with the labor department or corresponding agency of any
other state or with the person, board, officer, or commission authorized
to act on behalf of such department or agency, for the collection in
such other states of claims and judgments for wages based upon claims
assigned to the commissioner.
The commissioner may, to the extent provided for by any reciprocal
agreement entered into by law or with any agency of another state as
herein provided, maintain actions in the courts of such other state for
the collection of claims and judgments for wages and may assign such
claims and judgments to the labor department or agency of such other
state for collection to the extent that such an assignment may be
permitted or provided for by the law of such state or by reciprocal
agreement.
The commissioner may, upon the written consent of the labor department
or other corresponding agency of any other state or of any person,
board, officer or commission of such state authorized to act on behalf
of such labor department or corresponding agency, maintain actions in
the courts of this state upon assigned claims and judgments for wages
arising in such other state in the same manner and to the same extent
that such actions by the commissioner are authorized when arising in
this state. However, such actions may be maintained only in cases where
such other state by law or reciprocal agreement extends a like comity to
cases arising in this state.
2. Nothing in this section shall be construed as requiring the commis-
sioner in every instance to investigate and attempt to adjust controver-
sies, or to take assignments of wage claims, or to institute criminal
prosecutions for any violation under this article [or article five,
seven, nineteen or nineteen-A of this chapter], but he or she shall be
deemed vested with discretion in such matters.
§ 4. Paragraph (a) of section 196-a of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
(a) Any employee[; person or organization acting on the employee's
behalf;], or the recognized and certified collective bargaining agent
acting on the employee's behalf, may file with the commissioner a
complaint regarding a violation of this article, article [five, seven,]
nineteen, or ARTICLE nineteen-A of this chapter for an investigation of
A. 4645 5
such complaint and statement setting the appropriate remedy, if any.
[The commissioner shall keep the names of employees that are the subject
of an investigation confidential until such time that disclosure is
necessary for resolution of an investigation or a complaint.] Failure of
an employer to keep adequate records or provide statements of wages to
employees as required under this chapter, in addition to exposing such
employer to penalties authorized under subdivision one of section two
hundred eighteen of this chapter, shall not operate as a bar to filing
of a complaint by an employee. In such a case the employer in violation
shall bear the burden of proving that the complaining employee was paid
wages, benefits and wage supplements.
§ 5. Section 197 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 197. Civil penalty. 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 administra-
tive action or] a civil action.
§ 6. Section 198 of the labor law, as amended by chapter 564 of the
laws of 2010, subdivision 1-a as amended by chapter 362 of the laws of
2015, subdivisions 1-b and 1-d as amended by chapter 537 of the laws of
2014 and subdivision 3 as amended by chapter 2 of the laws of 2015, is
amended to read as follows:
§ 198. Costs, remedies. 1. In any action instituted upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court may allow such employee in addition to ordinary costs, a reason-
able sum, not exceeding fifty dollars for expenses which may be taxed as
costs. No assignee of a wage claim, except the commissioner, shall be
benefited by this provision.
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] MAY assess against the employer [the full
amount of any such underpayment, and] an additional amount as liquidated
damages EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL AMOUNT OF WAGES FOUND
TO BE DUE, unless the employer proves a good faith basis for believing
that its underpayment of wages was in compliance with the law. [Liqui-
dated 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 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.] 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 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 addi-
tional amount as liquidated damages equal to [one hundred] TWENTY-FIVE
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].
A. 4645 6
[1-b. If any employee is not provided within ten business days of his
or her first day of employment a notice as required by subdivision one
of section one hundred ninety-five of this article, he or she may
recover in a civil action 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, together with costs and reasonable
attorney's fees. The court may also award other relief, including
injunctive and declaratory relief, that the court in its discretion
deems necessary or appropriate.
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
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.
1-d. If any employee is not provided a statement or statements as
required by subdivision three of section one hundred ninety-five of this
article, he or she shall recover in a civil action 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,
together with costs and reasonable attorney's fees. The court may also
award other relief, including injunctive and declaratory relief, that
the court in its discretion deems necessary or appropriate.
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 paragraph
(e) of subdivision one of section one hundred ninety-five of this arti-
cle.]
2. The remedies provided by this article may be enforced simultaneous-
ly or consecutively so far as not inconsistent with each other.
A. 4645 7
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
employees shall have the right to recover full wages, benefits and wage
supplements [and liquidated damages] accrued during the six years previ-
ous to the commencing of such action, whether such action is instituted
by the employee or by the commissioner.
[4. In any civil action by an employee or by the commissioner, the
employee or commissioner shall have the right to collect attorney's 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 is then pending, whichever is later, the total
amount of judgment shall automatically increase by fifteen percent.]
§ 7. Section 198-a of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 198-a. Criminal penalties. 1. Every employer who does not pay the
wages of all of his employees in accordance with the provisions of this
chapter, and the officers and agents of any corporation[, partnership,
or limited liability company] who knowingly permit the corporation[,
partnership, or limited liability company] to violate this chapter by
failing to pay the wages of any of its employees in accordance with the
provisions thereof, shall be guilty of a misdemeanor for the first
offense and upon conviction therefor shall be fined not less than five
hundred nor more than twenty thousand dollars or imprisoned for not more
than one year, and, in the event that any second or subsequent offense
occurs within six years of the date of conviction for a prior offense,
shall be guilty of a felony for the second or subsequent offense, and
upon conviction therefor, shall be fined not less than five hundred nor
more than twenty thousand dollars or imprisoned for not more than one
year plus one day, or punished by both such fine and imprisonment, for
each such offense. An indictment of a person or corporation operating a
steam surface railroad for an offense specified in this section may be
found and tried in any county within the state in which such railroad
ran at the time of such offense.
2. Every employer who violates or fails to comply with the require-
ments of subdivision four of section one hundred ninety-five of this
article, and the officers and agents of any corporation[, partnership,
or limited liability company] who knowingly permit the corporation[,
partnership, or limited liability company] to violate or fail to comply
therewith, shall be guilty of a misdemeanor and upon conviction therefor
shall be fined not less than five hundred nor more than five thousand
dollars or imprisoned for not more than one year.
3. Every employer who knowingly violates or fails to comply with the
requirements of subdivision four of section one hundred ninety-five of
this article, and the officers and agents of any corporation[, partner-
ship, or limited liability company] who knowingly permit the corpo-
ration[, partnership, or limited liability company] to violate or fail
A. 4645 8
to comply therewith, shall be guilty of a felony where such employer,
officer or agent has been convicted of a violation of such subdivision
within the previous six years, and upon conviction therefor shall be
fined not less than five hundred nor more than twenty thousand dollars
or imprisoned for not more than one year plus one day, or punished by
both such fine and imprisonment, for each such offense. In determining
the penalty, the court shall consider the severity of the violation, the
size of the employer, and the employer's good faith effort to comply
with the requirements of subdivision four of section one hundred nine-
ty-five of this article.
§ 8. Section 199-a of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 199-a. Notification of process. 1. Each employee who files a
complaint regarding a violation of a provision of [this] article SIX
(payment of wages), article nineteen (minimum wage act), or article
nineteen-A [(minimum wage standards and protective labor practices for
farm workers), section one hundred sixty-one, section one hundred
sixty-two], section two hundred twelve-a, OR section two hundred
twelve-b[, or section two hundred fifteen] of this chapter, or a rule or
regulation promulgated thereunder, shall be provided with a written
description of the anticipated processing of the complaint, including
investigation, case conference, potential civil and criminal penalties,
and collection procedures.
2. Each employee and his or her [authorized] representative shall be
notified in writing of any case conference before it is held and given
the opportunity to attend.
3. Each employee and his or her [authorized] representative shall be
notified in writing of any award and collection of back wages and civil
penalties, and of any intent to seek criminal penalties. In the event
that criminal penalties are sought the employee and his or her [author-
ized] representative shall be notified of the outcome of prosecution.
§ 9. Section 215 of the labor law, as amended by chapter 564 of the
laws of 2010, paragraph (b) of subdivision 1 and paragraph (a) of subdi-
vision 2 as amended by chapter 537 of the laws of 2014, is amended to
read as follows:
§ 215. Penalties and civil action; [prohibited retaliation] EMPLOYER
WHO PENALIZES EMPLOYEES BECAUSE OF COMPLAINT OF EMPLOYER VIOLATIONS. 1.
(a) No employer or his or her agent, or the officer or agent of any
corporation, partnership, or limited liability company[, or any other
person,] shall discharge, [threaten,] penalize, or in any other manner
discriminate or retaliate against any employee (i) because such employee
has made a complaint to his or her employer, or to the commissioner or
his or her authorized representative, [or to the attorney general or any
other person,] that the employer has [engaged in conduct that the
employee, reasonably and in good faith, believes violates any provision
of] VIOLATED ANY PROVISION OF this chapter, or [any order issued by the
commissioner] (ii) [because such employer or person believes that such
employee has made a complaint to his or her employer, or to the commis-
sioner or his or her authorized representative, or to the attorney
general, or to any other person that the employer has violated any
provision of this chapter, or any order issued by the commissioner
(iii)] because such employee has caused to be instituted [or is about to
institute] a proceeding under or related to this chapter, or [(iv)](III)
because such employee has provided information to the commissioner or
his or her authorized representative [or the attorney general], or
[(v)](IV) because such employee has testified or is about to testify in
A. 4645 9
an investigation or proceeding under this chapter, or [(vi)](V) because
such employee has otherwise exercised rights protected under this chap-
ter, or [(vii)](VI) because the employer has received an adverse deter-
mination from the commissioner involving the employee.
[An employee complaint or other communication need not make explicit
reference to any section or provision of this chapter to trigger the
protections of this section.]
(b) If after investigation the commissioner finds that an employer [or
person] has violated any provision of this section, the commissioner
may, by an order which shall describe particularly the nature of the
violation, assess the employer [or person] a civil penalty of not less
than one thousand nor more than ten thousand dollars provided, however,
that if the commissioner finds that the employer has violated the
provisions of this section in the preceding six years, he or she may
assess a civil penalty of not less than one thousand nor more than twen-
ty thousand dollars[. The commissioner may also], AND order [all appro-
priate relief including enjoining the conduct of any person or employer;
ordering payment of liquidated damages to the employee by the person or
entity in violation; and, where the person or entity in violation is an
employer ordering rehiring or reinstatement of the employee to his or
her former position or an equivalent position, and an award of lost
compensation or an award of front pay in lieu of reinstatement and an
award of lost compensation. Liquidated damages shall be calculated as an
amount not more than twenty thousand dollars. The commissioner may
assess liquidated damages on behalf of every employee aggrieved under
this section, in addition to any other remedies permitted by this
section] THE EMPLOYER TO PAY LOST COMPENSATION.
(c) NOTWITHSTANDING THE PROVISIONS OF SECTION TWO HUNDRED THIRTEEN OF
THIS ARTICLE, THE PENALTIES SET FORTH IN THIS SECTION SHALL BE THE
EXCLUSIVE REMEDIES AVAILABLE FOR VIOLATIONS OF THIS SECTION.
(D) This section shall not apply to employees of the state or any
municipal subdivisions or departments thereof.
2. [(a)] An employee may bring a civil action in a court of competent
jurisdiction against any employer or persons alleged to have violated
the provisions of this section. The court shall have jurisdiction to
restrain violations of this section, within two years after such
violation, [regardless of the dates of employment of the employee,] and
to order all appropriate relief, including [enjoining the conduct of any
person or employer; ordering payment of liquidated damages, costs and
reasonable attorneys' fees to the employee by the person or entity in
violation; and, where the person or entity in violation is an employer,
ordering] rehiring or reinstatement of the employee to his or her former
position with restoration of seniority [or an award of front pay in lieu
of reinstatement], PAYMENT [and an award] of lost compensation [and],
damages, [costs] and reasonable attorneys' fees. [Liquidated damages
shall be calculated as an amount not more than twenty thousand dollars.
The court shall award liquidated damages to every employee aggrieved
under this section, in addition to any other remedies permitted by this
section. 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.
A. 4645 10
(b)] At or before the commencement of any action under this section,
notice thereof shall be served upon the attorney general by the employ-
ee.
[3. Any employer or his or her agent, or the officer or agent of any
corporation, partnership, or limited liability company, or any other
person who violates subdivision one of this section shall be guilty of a
class B misdemeanor.]
§ 10. Subdivisions 1 and 3 of section 218 of the labor law, as amended
by chapter 2 of the laws of 2015, are amended to read as follows:
1. If the commissioner determines that an employer has violated a
provision of article six (payment of wages), article nineteen (minimum
wage act), article nineteen-A [(minimum wage standards and protective
labor practices for farm workers)], section two hundred twelve-a,
section two hundred twelve-b, section one hundred sixty-one (day of
rest) or section one hundred sixty-two (meal periods) of this chapter,
or a rule or regulation promulgated thereunder, the commissioner shall
issue to the employer an order directing compliance therewith, which
shall describe particularly the nature of the alleged violation. [A copy
of such order shall be provided to any employee who has filed a
complaint and any authorized representative of him or her.] In addition
to directing payment of wages, benefits or wage supplements found to be
due, [and liquidated damages in the amount of one hundred percent of
unpaid wages,] such order, if issued to an employer who previously has
been found in violation of those provisions, rules or regulations, or to
an employer whose violation is willful or egregious, shall direct
payment to the commissioner of an additional sum as a civil penalty in
an amount [not to exceed] EQUAL TO double the total amount [of wages,
benefits, or wage supplements] found to be due. In no case shall the
order direct payment of an amount less than the total wages, benefits or
wage supplements found by the commissioner to be due, plus the [liqui-
dated damages in the amount of one hundred percent of unpaid wages, the]
appropriate civil penalty[, and interest at the rate of interest then in
effect, as prescribed by the superintendent of financial services pursu-
ant to section fourteen-a of the banking law per annum from the date of
the underpayment to the date of the payment.] Where the violation is for
a reason other than the employer's failure to pay wages, benefits or
wage supplements found to be due, the order shall direct payment to the
commissioner of a civil penalty in an amount not to exceed one thousand
dollars for a first violation, two thousand dollars for a second
violation or three thousand dollars for a third or subsequent violation.
In assessing the amount of the penalty, the commissioner shall give due
consideration to the size of the employer's business, the good faith
[basis] of the employer [to believe that its conduct was in compliance
with the law], the gravity of the violation, the history of previous
violations and, in the case of wages, benefits or supplements
violations, the failure to comply with recordkeeping or other non-wage
requirements.
Where there is a violation of section one hundred ninety-eight-b of
this chapter, the order shall direct payment back to the employee of the
amount of wages, supplements or other thing of value unlawfully received
plus [liquidated damages in the amount of one hundred percent of unpaid
wages, and] interest at the rate of interest then in effect, as
prescribed by the superintendent of financial services pursuant to
section fourteen-a of the banking law per annum from the date of the
payback, return, donation or contribution to the date of payment, and
shall include such other relief as may be appropriate, including rehir-
A. 4645 11
ing or reinstatement of the employee to his or her former position, back
wages, and restoration of seniority. In addition, the commissioner shall
order payment of a civil penalty of at least twenty-five hundred dollars
but not more than five thousand dollars per violation. In assessing the
amount of the penalty, the commissioner shall give due consideration to
the size of the employer's business, the good faith [basis] of the
employer [to believe that its conduct was in compliance with the law],
the gravity of the violation, and the history of previous violations.
[At the discretion of the commissioner, the commissioner shall have
full authority to provide for inclusion of an automatic fifteen percent
additional amount of damages to come due and owing upon expiration of
ninety days from an order to comply becoming final. The commissioner
shall provide written notice to the employer in the order to comply of
this additional damage.]
3. Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
initiation of such proceeding shall have expired, the commissioner may
file with the county clerk of the county where the employer resides or
has a place of business the order of the commissioner, or the decision
of the industrial board of appeals containing the amount found to be due
including the civil penalty, if any[, and at the commissioner's
discretion, an additional fifteen percent damages upon any outstanding
monies owed. At the request of an employee, the commissioner shall
assign, without consideration or liability, that portion of the filed
order that constitutes wages, wage supplements, interest on wages or
wage supplements, or liquidated damages due that employee, to that
employee and may file an assignment or order in that amount in the name
of that employee with the county clerk of the county where the employer
resides or has a place of business]. The filing of such assignment,
order or decision shall have the full force and effect of a judgment
duly docketed in the office of such clerk. The assignment, order or
decision may be enforced by and in the name of the commissioner, or by
the employee, in the same manner, and with like effect, as that
prescribed by the civil practice law and rules for the enforcement of a
money judgment.
§ 11. Section 219 of the labor law, as amended by chapter 564 of the
laws of 2010, the opening paragraph of subdivision 1 as further amended
by section 104 of part A of chapter 62 of the laws of 2011, subdivision
3 as amended by chapter 2 of the laws of 2015, subdivision 4 as added by
chapter 537 of the laws of 2014, is amended to read as follows:
§ 219. Violations of certain wage payment provisions; interest, filing
of order as judgment. 1. If the commissioner determines that an employer
has failed to pay wages, benefits or wage supplements required pursuant
to article six (payment of wages), article nineteen (minimum wage act)
or article [nineteen-A (minimum wage standards and protective labor
practices for farm workers)] NINETEEN-A of this chapter, or a rule or
regulation promulgated thereunder, the commissioner shall issue to the
employer an order directing compliance therewith, which shall describe
particularly the nature of the alleged violation. [A copy of such order
shall be provided to any employee who has filed a complaint and to his
or her authorized representative.] Such order shall direct payment of
wages or supplements found to be due, [liquidated damages in the amount
of one hundred percent of unpaid wages, and] INCLUDING interest at the
rate of interest then in effect as prescribed by the superintendent of
financial services pursuant to section fourteen-a of the banking law per
annum from the date of the underpayment to the date of the payment.
A. 4645 12
[At the discretion of the commissioner, the commissioner shall have
full authority to provide for inclusion of an automatic fifteen percent
additional amount of damages to come due and owing upon expiration of
ninety days from an order to comply becoming final. The commissioner
shall provide written notice to the employer in the order to comply of
this additional damage.]
2. An order issued under subdivision one of this section shall be
final and not subject to review by any court or agency unless review is
had pursuant to section one hundred one of this chapter.
3. Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
initiation of such proceeding shall have expired, the commissioner may
file with the county clerk of the county where the employer resides or
has a place of business the order of the commissioner or the decision of
the industrial board of appeals containing the amount found to be due[,
including, at the commissioner's discretion, an additional fifteen
percent damages upon any outstanding monies owed. At the request of an
employee, the commissioner shall assign, without consideration or
liability, that portion of the filed order that constitutes wages, wage
supplements, interest on wages or wage supplements, or liquidated
damages due the employee, to that employee and may file an assignment or
order in that amount in the name of such employee with the county clerk
of the county where the employer resides or has a place of business].
The filing of such assignment, order or decision shall have the full
force and effect of a judgment duly docketed in the office of such
clerk. The assignment, order or decision may be enforced by and in the
name of the commissioner, or by the employee, in the same manner, and
with like effect, as that prescribed by the civil practice law and rules
for the enforcement of a money judgment.
[4. An employer similar in operation and ownership to a prior employer
found to be in violation of article six, nineteen or nineteen-A of this
chapter, shall be deemed the same employer for the purposes of this
section if the employees of the subsequent employer are engaged in
substantially the same work in substantially the same working conditions
under substantially the same supervisors, or if the new entity has
substantially the same production process, produces substantially the
same products and has substantially the same body of customers. Such a
subsequent employer will continue to be subject to this section and
shall be liable for the acts of the prior employer under this section.]
§ 12. Section 219-c of the labor law is REPEALED.
§ 13. Section 661 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 661. Records of employers. [For all employees covered by this arti-
cle, every] EVERY employer shall [establish, maintain, and preserve for
not less than six years contemporaneous,] KEEP true[,] and accurate
[payroll] records [showing for each week worked the] OF hours worked BY
EACH EMPLOYEE COVERED BY AN HOURLY MINIMUM WAGE RATE, the [rate or rates
of pay and basis thereof, whether paid by the hour, shift, day, week,
salary, piece, commission, or other basis; gross wages; deductions;
allowances, if any, claimed as part of the minimum wage; and net wages
for each employee, plus] WAGES PAID TO ALL EMPLOYEES, AND such other
information as the commissioner deems material and necessary[. For all
employees who are not exempt from overtime compensation as established
in the commissioner's minimum wage orders or otherwise provided by New
York state law or regulation, the payroll records must include the regu-
lar hourly rate or rates of pay, the overtime rate or rates of pay, the
A. 4645 13
number of regular hours worked, and the number of overtime hours worked.
For all employees paid a piece rate, the payroll records shall include
the applicable piece rate or rates of pay and number of pieces completed
at each piece rate. On], AND SHALL ON demand[, the employer shall]
furnish to the commissioner or his duly authorized representative a
sworn statement of the [hours worked, rate or rates of pay and basis
thereof, whether paid by the hour, shift, day, week, salary, piece,
commission, or other basis; gross wages; deductions; and allowances, if
any, claimed as part of the minimum wage, for each employee, plus such
other information as the commissioner deems material and necessary]SAME.
Every employer shall keep such records open to inspection by the commis-
sioner or his duly authorized representative at any reasonable time.
Every employer of an employee shall keep a digest and summary of this
article or applicable wage order, which shall be prepared by the commis-
sioner, posted in a conspicuous place in his establishment and shall
also keep posted such additional copies of said digest and summary as
the commissioner prescribes. Employers shall, on request, be furnished
with copies of this article and of orders, and of digests and summaries
thereof, without charge. Employers shall permit the commissioner or his
duly authorized representative to question [without interference] any
employee of such employer in [a private location at] the place of
employment and during working hours in respect to the wages paid to and
the hours worked by such employee or other employees.
§ 14. Section 662 of the labor law, as amended by chapter 564 of the
laws of 2010, is amended to read as follows:
§ 662. Penalties. 1. [Failure to pay minimum wage or overtime compen-
sation] DISCRIMINATION AGAINST EMPLOYEE. ANY EMPLOYER OR HIS OR HER
AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO DISCHARGES OR IN
ANY OTHER MANNER DISCRIMINATES AGAINST ANY EMPLOYEE BECAUSE SUCH EMPLOY-
EE HAS MADE A COMPLAINT TO HIS EMPLOYER, OR TO THE COMMISSIONER OR HIS
AUTHORIZED REPRESENTATIVE, THAT HE HAS NOT BEEN PAID IN ACCORDANCE WITH
THE PROVISIONS OF THIS ARTICLE, OR BECAUSE SUCH EMPLOYEE HAS CAUSED TO
BE INSTITUTED A PROCEEDING UNDER OR RELATED TO THIS ARTICLE, OR BECAUSE
SUCH EMPLOYEE HAS TESTIFIED OR IS ABOUT TO TESTIFY IN AN INVESTIGATION
OR PROCEEDING UNDER THIS ARTICLE, SHALL BE GUILTY OF A CLASS B MISDEMEA-
NOR.
2. PAYMENT OF LESS THAN MINIMUM WAGE. Any employer or his or her
agent, or the officer or agent of any corporation, [partnership, or
limited liability company,] who pays or agrees to pay to any employee
less than the wage applicable under this article shall be guilty of a
CLASS B misdemeanor and [upon conviction therefor shall be fined not
less than five hundred nor more than twenty thousand dollars or impri-
soned for not more than one year, and, in the event that any second or
subsequent offense occurs within six years of the date of conviction for
a prior offense, shall be guilty of a felony for the second or subse-
quent offense, and upon conviction therefor, shall be fined not less
than five hundred nor more than twenty thousand dollars or imprisoned
for not more than one year plus one day, or punished by both such fine
and imprisonment, for each such offense. Each] EACH payment to any
employee in any week of less than the wage applicable under this article
shall constitute a separate offense.
[2.] 3. Failure to keep records. Any employer or his or her agent, or
the officer or agent of any corporation[, partnership, or limited
liability company], who fails to keep the records required under this
article or to furnish such records or any information required to be
furnished under this article to the commissioner or his or her author-
A. 4645 14
ized representative upon request, or who hinders or delays the commis-
sioner or his or her authorized representative in the performance of his
or her duties in the enforcement of this article, or refuses to admit
the commissioner or his or her authorized representative to any place of
employment, or falsifies any such records or refuses to make such
records accessible to the commissioner or his or her authorized repre-
sentative, or refuses to furnish a sworn statement of such records or
any other information required for the proper enforcement of this arti-
cle to the commissioner or his or her authorized representative, shall
be guilty of a CLASS B misdemeanor and [upon conviction therefor shall
be fined not less than five hundred nor more than five thousand dollars
or imprisoned for not more than one year, and, in the event that any
second or subsequent offense occurs within six years of the date of
conviction for a prior offense, shall be guilty of a felony for the
second or subsequent offense, and upon conviction therefor, shall be
fined not less than five hundred nor more than twenty thousand dollars
or imprisoned for not more than one year plus one day, or punished by
both such fine and imprisonment, for each such offense. Each] EACH day's
failure to keep the records requested under this article or to furnish
such records or information to the commissioner or his or her authorized
representative shall constitute a separate offense.
4. WHERE ANY PERSON HAS PREVIOUSLY BEEN CONVICTED OF A VIOLATION OF
THIS SECTION WITHIN THE PRECEDING FIVE YEARS, UPON CONVICTION FOR A
SECOND OR SUBSEQUENT VIOLATION SUCH PERSON MAY BE FINED UP TO TEN THOU-
SAND DOLLARS IN ADDITION TO ANY OTHER PENALTIES INCLUDING FINES OTHER-
WISE PROVIDED BY LAW; PROVIDED, HOWEVER, THAT THE TOTAL ADDITIONAL FINE
THAT MAY BE IMPOSED PURSUANT TO THIS SUBDIVISION FOR SEPARATE OFFENSES
COMMITTED IN ANY CONSECUTIVE TWELVE MONTH PERIOD MAY NOT EXCEED TEN
THOUSAND DOLLARS.
§ 15. Section 663 of the labor law, as amended by chapter 564 of the
laws of 2010, subdivision 3 as amended by chapter 2 of the laws of 2015,
is amended to read as follows:
§ 663. Civil action. 1. By employee. 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] MAY recover in a civil
action the amount of any such underpayments, together with costs [all]
AND SUCH reasonable attorney's fees, [prejudgment interest as required
under the civil practice law and rules] AS MAY BE ALLOWED BY THE COURT,
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] TWENTY-FIVE percent
of the total of such underpayments found to be due[. Any] THE EMPLOYEE
AND ANY agreement between the employee, and the employer to work for
less than such wage shall be no defense to such action.
2. By commissioner. On behalf of any employee paid less than the wage
to which the employee is entitled under the provisions of this article,
the commissioner may bring any legal action necessary, including admin-
istrative 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 under-
payment was in compliance with the law, an additional amount as liqui-
dated damages EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL OF SUCH UNDER-
PAYMENTS FOUND TO BE DUE THE EMPLOYEE. [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,
A. 4645 15
liquidated damages shall be calculated as an amount equal to one hundred
percent of underpayments found to be due the employee.]
3. Limitation of time. 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
commissioner does not issue an order, until the date on which the
commissioner notifies the complainant that the investigation has
concluded. Investigation by the commissioner shall not be a prerequisite
to nor a bar against a person bringing a civil action under this arti-
cle.
4. Attorneys' fees. 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 judg-
ment. 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 expira-
tion 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.]
§ 16. This act shall take effect immediately.