A6698A-2011 Actions

• Jun 21, 2012: REFERRED TO RULES
• Jun 21, 2012: delivered to senate
• Jun 21, 2012: passed assembly
• Jun 18, 2012: amended on third reading 6698c
• Jun 6, 2012: amended on third reading 6698b
• Jan 4, 2012: ordered to third reading cal.220
• Jan 4, 2012: RETURNED TO ASSEMBLY
• Jan 4, 2012: DIED IN SENATE
• Jun 20, 2011: REFERRED TO RULES
• Jun 20, 2011: delivered to senate
• Jun 20, 2011: passed assembly
• Jun 16, 2011: ordered to third reading rules cal.372
• Jun 16, 2011: rules report cal.372
• Jun 16, 2011: reported
• Jun 16, 2011: reported referred to rules
• Jun 1, 2011: reported referred to ways and means
• May 25, 2011: print number 6698a
• May 25, 2011: amend and recommit to codes
• May 17, 2011: reported referred to codes
• Mar 24, 2011: referred to labor

A6698A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 6698--A
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 March 24, 2011
 
 Introduced  by M. of A. SILVER, WRIGHT, BRENNAN, MILLMAN, LENTOL, GLICK,
 GOTTFRIED, ABBATE, KAVANAGH, LANCMAN, O'DONNELL,  PRETLOW,  ROSENTHAL,
 CASTRO,  SCHIMEL,  JAFFEE,  P. RIVERA,  V. LOPEZ,  HEVESI,  TITONE  -
 Multi-Sponsored by -- M. of A. JACOBS -- read once and referred to the
 Committee on Labor -- reported and referred to the Committee on  Codes
 --  committee  discharged,  bill amended, ordered reprinted as amended
 and recommitted to said committee
 

AN ACT to amend the labor law, in relation to independent contractors
 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 two new sections 196-b
 and 196-c to read as follows:

 

S 196-B. DEFINITIONS. FOR PURPOSES OF THIS  SECTION  AND  SECTION  ONE
 HUNDRED NINETY-SIX-C OF THIS ARTICLE, THE TERM:

 1.  "COMPENSATION"  MEANS  THE  EARNINGS OF AN INDEPENDENT CONTRACTOR.
 THE TERM "COMPENSATION" ALSO INCLUDES REIMBURSEMENT FOR EXPENSES.
 2. "INDEPENDENT CONTRACTOR" MEANS A SOLE  PROPRIETOR  WHO  IS  NOT  AN
 EMPLOYEE AND WHO IS HIRED OR RETAINED BY A CLIENT FOR AN AMOUNT EQUAL TO
 OR GREATER THAN SIX HUNDRED DOLLARS.
 3.  "CLIENT"  INCLUDES A CORPORATION, LIMITED LIABILITY COMPANY, PART
 NERSHIP, ASSOCIATION OR NON-PROFITMAKING ORGANIZATION  CONTRACTING  WITH
 AN  INDEPENDENT  CONTRACTOR IN ANY OCCUPATION, INDUSTRY, TRADE, BUSINESS
 OR SERVICE FOR  COMPENSATION  EQUAL  TO  OR  GREATER  THAN  SIX  HUNDRED
 DOLLARS.    THE  TERM  "CLIENT" SHALL NOT INCLUDE A GOVERNMENTAL ENTITY,
 INCLUDING BUT NOT LIMITED TO, ANY AGENCY, BOARD, DEPARTMENT,  COMMISSION
 OF  THE STATE OR ANY POLITICAL SUBDIVISION THEREOF; AND CLIENT SHALL NOT
 INCLUDE A PERSON.
 

S  196-C.  PAYMENT  OF  INDEPENDENT  CONTRACTORS.  1.  AN  INDEPENDENT
 CONTRACTOR  SHALL BE PAID THE COMPENSATION EARNED IN ACCORDANCE WITH THE
 AGREED WORK TERMS BUT NOT LATER THAN THE LAST DAY OF THE MONTH FOLLOWING
 THE MONTH IN WHICH THE COMPENSATION IS EARNED.  THE  AGREED  WORK  TERMS
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD10169-05-1
 
       A. 6698--A                          2
 SHALL BE REDUCED IN WRITING, SIGNED BY BOTH THE CLIENT AND THE INDEPEND
 ENT CONTRACTOR, KEPT ON FILE BY THE CLIENT FOR A PERIOD OF NOT LESS THAN
 SIX  YEARS  AND  MADE  AVAILABLE  TO THE COMMISSIONER UPON REQUEST. SUCH
 WRITING SHALL INCLUDE A DESCRIPTION OF HOW COMPENSATION EARNED AND PAYA
 BLE SHALL BE CALCULATED. THE FAILURE OF A CLIENT TO PRODUCE SUCH WRITTEN
 WORK  TERMS,  UPON  REQUEST  OF  THE  COMMISSIONER, SHALL GIVE RISE TO A
 PRESUMPTION THAT THE TERMS THAT THE INDEPENDENT CONTRACTOR HAS PRESENTED
 ARE THE AGREED TERMS.
 2. THE COMMISSIONER SHALL INVESTIGATE AND ATTEMPT TO ADJUST  EQUITABLY
 CONTROVERSIES  BETWEEN  CLIENTS  AND INDEPENDENT CONTRACTORS RELATING TO
 THIS SECTION.
 3. THE COMMISSIONER MAY TAKE ASSIGNMENTS OF CLAIMS FOR COMPENSATION AS
 DEFINED IN SECTION ONE HUNDRED NINETY-SIX-B OF THIS ARTICLE  FROM  INDE
 PENDENT  CONTRACTORS  OR  THIRD  PARTIES  IN  TRUST FOR SUCH INDEPENDENT
 CONTRACTORS OR FOR THE VARIOUS FUNDS FOR SUCH  INDEPENDENT  CONTRACTORS.
 ALL  SUCH ASSIGNMENTS SHALL RUN TO THE COMMISSIONER AND HIS SUCCESSOR IN
 OFFICE. THE COMMISSIONER MAY SUE CLIENTS  ON  COMPENSATION  CLAIMS  THUS
 ASSIGNED.  HE  MAY  JOIN  IN  A SINGLE ACTION ANY NUMBER OF COMPENSATION
 CLAIMS AGAINST THE SAME COMPANY.
 4. ANY  INDEPENDENT  CONTRACTOR  MAY  FILE  WITH  THE  COMMISSIONER  A
 COMPLAINT  REGARDING A VIOLATION OF THIS ARTICLE FOR AN INVESTIGATION OF
 SUCH COMPLAINT AND STATEMENT SETTING THE  APPROPRIATE  REMEDY,  IF  ANY.
 FAILURE  OF A CLIENT TO KEEP ADEQUATE RECORDS SHALL NOT OPERATE AS A BAR
 TO FILING OF A COMPLAINT BY AN INDEPENDENT CONTRACTOR.  IN SUCH  A  CASE
 THE  CLIENT  IN  VIOLATION  SHALL  BEAR  THE  BURDEN OF PROVING THAT THE
 COMPLAINING INDEPENDENT CONTRACTOR WAS PAID COMPENSATION.
 5. ON BEHALF OF ANY INDEPENDENT CONTRACTOR PAID LESS THAN THE  COMPEN
 SATION  TO WHICH HE OR SHE IS ENTITLED UNDER THE AGREED WORK TERMS 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
 ASSESS AGAINST THE CLIENT AN ADDITIONAL AMOUNT  AS  LIQUIDATED  DAMAGES,
 UNLESS  THE  CLIENT  PROVES  A  GOOD  FAITH BASIS FOR BELIEVING THAT ITS
 UNDERPAYMENT OF COMPENSATION WAS IN COMPLIANCE WITH THE LAW.  LIQUIDATED
 DAMAGES  SHALL  BE  CALCULATED  BY  THE COMMISSIONER AS NO MORE THAN ONE
 HUNDRED PERCENT OF THE TOTAL AMOUNT OF COMPENSATION FOUND TO BE DUE.  IN
 ANY ACTION  INSTITUTED IN THE COURTS UPON A  COMPENSATION  CLAIM  BY  AN
 INDEPENDENT  CONTRACTOR  OR  THE  COMMISSIONER  IN WHICH THE INDEPENDENT
 CONTRACTOR PREVAILS, THE COURT SHALL ALLOW SUCH  INDEPENDENT  CONTRACTOR
 ALL  REASONABLE  ATTORNEY'S FEES, PREJUDGMENT INTEREST AS REQUIRED UNDER
 THE CIVIL PRACTICE LAW AND RULES, AND, UNLESS THE CLIENT PROVES  A  GOOD
 FAITH  BASIS  TO  BELIEVE  THAT  ITS UNDERPAYMENT OF COMPENSATION WAS IN
 COMPLIANCE WITH THE LAW, AN  ADDITIONAL  AMOUNT  AS  LIQUIDATED  DAMAGES
 EQUAL  TO  ONE HUNDRED PERCENT OF THE TOTAL AMOUNT OF COMPENSATION FOUND
 TO BE DUE. THE REMEDIES PROVIDED BY THIS ARTICLE MAY BE ENFORCED  SIMUL
 TANEOUSLY OR CONSECUTIVELY SO FAR AS NOT INCONSISTENT WITH EACH OTHER.
 6.  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW, AN ACTION TO RECOVER
 UPON A LIABILITY IMPOSED BY THIS ARTICLE MUST BE  COMMENCED  WITHIN  SIX
 YEARS.  ALL INDEPENDENT CONTRACTORS SHALL HAVE THE RIGHT TO RECOVER FULL
 COMPENSATION  ACCRUED DURING THE SIX YEARS PREVIOUS TO THE COMMENCING OF
 SUCH ACTION, WHETHER  SUCH  ACTION  IS  INSTITUTED  BY  THE  INDEPENDENT
 CONTRACTOR OR BY THE COMMISSIONER.
 7.  EACH  INDEPENDENT  CONTRACTOR  WHO  FILES  A COMPLAINT REGARDING A
 VIOLATION OF A PROVISION OF THIS ARTICLE SHALL BE PROVIDED WITH A  WRIT
 TEN  DESCRIPTION OF THE ANTICIPATED PROCESSING OF THE COMPLAINT, INCLUD
 
       A. 6698--A                          3
 ING INVESTIGATION, CASE CONFERENCE, POTENTIAL CIVIL AND CRIMINAL  PENAL
 TIES, AND COLLECTION PROCEDURES.
 8.  EACH INDEPENDENT CONTRACTOR AND HIS OR HER REPRESENTATIVE SHALL BE
 NOTIFIED IN WRITING OF ANY CASE CONFERENCE BEFORE IT IS HELD  AND  GIVEN
 THE OPPORTUNITY TO ATTEND.
 9.  EACH INDEPENDENT CONTRACTOR AND HIS OR HER REPRESENTATIVE SHALL BE
 NOTIFIED IN WRITING OF ANY AWARD AND COLLECTION OF BACK COMPENSATION AND
 CIVIL PENALTIES, AND OF ANY INTENT TO SEEK CRIMINAL  PENALTIES.  IN  THE
 EVENT  THAT CRIMINAL PENALTIES ARE SOUGHT THE INDEPENDENT CONTRACTOR AND
 HIS OR HER REPRESENTATIVE SHALL BE NOTIFIED OF  THE  OUTCOME  OF  PROSE
 CUTION.
 10.  IF  THE  COMMISSIONER  DETERMINES  THAT  A  CLIENT HAS VIOLATED A
 PROVISION OF THIS ARTICLE, OR A RULE OR  REGULATION  PROMULGATED  THERE
 UNDER,  BY FAILING TO PAY THE COMPENSATION OF THEIR INDEPENDENT CONTRAC
 TORS, THE COMMISSIONER SHALL ISSUE TO  THE  CLIENT  AN  ORDER  DIRECTING
 COMPLIANCE  THEREWITH,  WHICH  SHALL DESCRIBE PARTICULARLY THE NATURE OF
 THE ALLEGED VIOLATION, AND ORDER THE PAYMENT OF INTEREST AT THE RATE  OF
 INTEREST  THEN  IN EFFECTED AS PRESCRIBED BY THE SUPERINTENDENT OF BANKS
 PURSUANT TO SECTION FOURTEEN-A OF THE BANKING LAW  PER  ANNUM  FROM  THE
 DATE  OF  THE  UNDERPAYMENT  TO  THE DATE OF THE PAYMENT. IN ADDITION TO
 DIRECTING PAYMENT OF COMPENSATION FOUND TO BE DUE, SUCH ORDER, IF ISSUED
 TO A CLIENT  WHO  PREVIOUSLY  HAS  BEEN  FOUND  IN  VIOLATION  OF  THOSE
 PROVISIONS,  RULES  OR  REGULATIONS,  OR  TO A CLIENT WHOSE VIOLATION IS
 WILLFUL OR EGREGIOUS, SHALL DIRECT PAYMENT TO  THE  COMMISSIONER  OF  AN
 ADDITIONAL SUM AS A CIVIL PENALTY IN AN AMOUNT EQUAL TO DOUBLE THE TOTAL
 AMOUNT FOUND TO BE DUE.
 11. EVERY CLIENT WHO DOES NOT PAY THE COMPENSATION OF ALL OF ITS INDE
 PENDENT  CONTRACTORS  IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER,
 AND THE OFFICERS AND AGENTS OF  ANY  CLIENT  WHO  KNOWINGLY  PERMIT  THE
 CLIENT TO VIOLATE THIS CHAPTER BY FAILING TO PAY THE COMPENSATION OF ANY
 OF  ITS INDEPENDENT CONTRACTORS IN ACCORDANCE WITH THE PROVISIONS THERE
 OF, 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.
 12. THIS SECTION SHALL NOT APPLY TO WORK  PERFORMED  ON  ONE  AND  TWO
 FAMILY DWELLINGS.
 

S 2. This act shall take effect immediately.

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