Legislation
SECTION 218
Violations of certain provisions; civil penalties
Labor (LAB) CHAPTER 31, ARTICLE 7
§ 218. Violations of certain provisions; civil penalties. 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 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 liquidated 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 pursuant 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.
* NB Effective until June 19, 2023
* 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), article twenty-one-A (warehouse
worker protection act), 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 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 liquidated 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 pursuant 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.
* NB Effective June 19, 2023
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
rehiring 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.
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 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.
4. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
5. An employer similar in operation and ownership to a prior employer
which had been found 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 new employer are engaged in
substantially the same work in substantially the same working conditions
under substantially the same supervisors, or if the subsequent employer
has substantially the same production process, produces substantially
the same products and has substantially the same body of customers. Such
subsequent employer shall continue to be subject to this section and
liable for the acts of the prior employer under this section.
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 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 liquidated 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 pursuant 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.
* NB Effective until June 19, 2023
* 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), article twenty-one-A (warehouse
worker protection act), 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 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 liquidated 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 pursuant 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.
* NB Effective June 19, 2023
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
rehiring 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.
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 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.
4. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
5. An employer similar in operation and ownership to a prior employer
which had been found 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 new employer are engaged in
substantially the same work in substantially the same working conditions
under substantially the same supervisors, or if the subsequent employer
has substantially the same production process, produces substantially
the same products and has substantially the same body of customers. Such
subsequent employer shall continue to be subject to this section and
liable for the acts of the prior employer under this section.