§ 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), 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.

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. (a) 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. Notwithstanding any provision to the contrary, in execution
of any order or decision filed by the commissioner pursuant to this
section, the commissioner shall have all the powers conferred upon
sheriffs by article twenty-five of the civil practice law and rules, but
the commissioner shall be entitled to no fee or compensation in excess
of the actual expenses paid in the performance of such duty.
Additionally, 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 may be enforced 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.

(b) In addition and as an alternative to any other remedy provided by
this section and 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 issue a warrant under the commissioner's official seal,
directed to the sheriff of any county, commanding the sheriff to levy
upon and sell the real and personal property that may be found within
the sheriff's county of an employer who has defaulted in the payment of
any sum determined to be due from such employer for the payment of such
sum together with interest, penalties, and the cost of executing the
warrant, and to return such warrant to the commissioner and to pay into
the fund the money collected by virtue thereof within sixty days after
the receipt of such warrant. The sheriff shall, within five days after
the receipt of the warrant, file with the clerk of the county a copy
thereof, and thereupon such clerk shall enter in the judgment docket the
name of the employer mentioned in the warrant and the amount of the
contribution, interest, and penalties for which the warrant is issued
and the date when such copy is filed. Thereupon the amount of such
warrant so docketed shall become a lien upon the title to and interest
in real property and chattels of the employer against whom the warrant
is issued in the same manner as a judgment duly docketed in the office
of such clerk. The sheriff shall then proceed upon the warrant in the
same manner, and with like effect, as that provided by law in respect to
executions issued against property upon judgments of a court of record,
and the sheriff shall be entitled to the same fees, which they may
collect in the same manner, for the sheriff's services in executing the
warrant.

(c) In the discretion of the commissioner, a warrant of like terms,
force, and effect may be issued and directed to any officer or employee
of the department of labor who may file a copy of such warrant with the
clerk of any county in the state, and thereupon each such clerk shall
docket it and it shall become a lien in the same manner and with the
same force and effect as hereinbefore provided with respect to a warrant
issued and directed to and filed by a sheriff; and in the execution
thereof such officer or employee shall have all the powers conferred by
law upon sheriffs, but they shall be entitled to no fee or compensation
in excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in full, the commissioner shall
have the same remedies to enforce the amount thereof as if the
commissioner had recovered judgment for the same.

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.