S T A T E O F N E W Y O R K
________________________________________________________________________
1319
2015-2016 Regular Sessions
I N S E N A T E
January 9, 2015
___________
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the labor law, in relation to penalties for violations
of wage payment provisions and contractor accountability; to amend
chapter 537 of the laws of 2014 amending the labor law and other laws
relating to increased penalties for violations of wage payment
provisions and contractor accountability, in relation to the effective
date of certain provisions thereof; and to repeal section 97-pppp of
the state finance law relating to the wage theft prevention enforce-
ment account
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 218 of the labor law, as amended
by chapter 537 of the laws of 2014, is 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 direct-
ing 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12006-01-5
S. 1319 2
exceed double the total amount of wages, benefits, or wage supplements
found to be due. [Additionally, 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 such employer to report, by location, and for such period
as the commissioner shall determine, (a) the number of permanent full-
time employees, the number of temporary full-time employees, the number
of permanent part-time employees, the number of temporary part-time
employees, and the number of temporary staffing agency employees
performing work for the employer; (b) the hourly rates of such employees
reported in the following brackets: the state minimum wage to $9.99;
$10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c) the number
of employees who regularly worked the following number of hours per week
during the relevant calendar period: at least sixty; at least fifty but
fewer than sixty; at least forty, but fewer than fifty; at least thir-
ty-five but fewer than forty; at least thirty but fewer than thirty-
five; at least twenty-five but fewer than thirty; at least twenty but
fewer than twenty-five; at least ten but fewer than twenty; at least
five but fewer than ten; fewer than five. No individual identifying
information of such employees shall be reported or otherwise disclosed
to the department. The department shall post the data collected on the
department's website. For the purposes of this section, temporary
employees shall be those employees who are hired for a period of sixty
days or less during the relevant calendar year, full-time employees
shall be those regularly working forty hours or more per week during the
relevant calendar year, part-time employees shall be those working less
than forty hours per week during the relevant calendar year.] 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 inter-
est 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 rehir-
ing or reinstatement of the employee to his or her former position, back
S. 1319 3
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 employ-
er to believe that its conduct was in compliance with the law, the grav-
ity 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.
S 2. Section 219-c of the labor law is amended by adding a new subdi-
vision 3 to read as follows:
3. WHERE AN ORDER IS ISSUED UNDER SECTION TWO HUNDRED EIGHTEEN OF THIS
ARTICLE THAT ASSESSES A CIVIL PENALTY AGAINST AN EMPLOYER FOR A
REPEATED, WILLFUL, OR EGREGIOUS VIOLATION, TO DIRECT SUCH EMPLOYER TO
REPORT, BY LOCATION, AND TO POST ON THE DEPARTMENT'S WEBSITE, FOR SUCH
PERIOD AS THE COMMISSIONER SHALL DETERMINE, (A) THE NUMBER OF PERMANENT
FULL-TIME EMPLOYEES, THE NUMBER OF TEMPORARY FULL-TIME EMPLOYEES, THE
NUMBER OF PERMANENT PART-TIME EMPLOYEES, THE NUMBER OF TEMPORARY
PART-TIME EMPLOYEES, AND THE NUMBER OF TEMPORARY STAFFING AGENCY EMPLOY-
EES PERFORMING WORK FOR THE EMPLOYER; (B) THE HOURLY RATES OF SUCH
EMPLOYEES REPORTED IN THE FOLLOWING BRACKETS: THE STATE MINIMUM WAGE TO
$9.99; $10.00 TO $11.99; $12.00 TO $14.99; AND $15.00 OR MORE; (C) THE
NUMBER OF EMPLOYEES WHO REGULARLY WORKED THE FOLLOWING NUMBER OF HOURS
PER WEEK DURING THE RELEVANT CALENDAR PERIOD: AT LEAST SIXTY; AT LEAST
FIFTY BUT FEWER THAN SIXTY; AT LEAST FORTY BUT FEWER THAN FIFTY; AT
LEAST THIRTY-FIVE BUT FEWER THAN FORTY; AT LEAST THIRTY BUT FEWER THAN
THIRTY-FIVE; AT LEAST TWENTY-FIVE BUT FEWER THAN THIRTY; AT LEAST TWENTY
BUT FEWER THAN TWENTY-FIVE; AT LEAST TEN BUT FEWER THAN TWENTY; AT LEAST
FIVE BUT FEWER THAN TEN; FEWER THAN FIVE. NO INDIVIDUAL IDENTIFYING
INFORMATION OF SUCH EMPLOYEES SHALL BE REPORTED OR OTHERWISE DISCLOSED
TO THE DEPARTMENT. FOR THE PURPOSES OF THIS SECTION "TEMPORARY EMPLOY-
EES" SHALL BE THOSE EMPLOYEES WHO ARE HIRED FOR A PERIOD OF SIXTY DAYS
OR LESS DURING THE RELEVANT CALENDAR YEAR, FULL-TIME EMPLOYEES SHALL BE
THOSE REGULARLY WORKING FORTY HOURS OR MORE PER WEEK DURING THE RELEVANT
CALENDAR YEAR, PART-TIME EMPLOYEES SHALL BE THOSE WORKING LESS THAN
FORTY HOURS PER WEEK DURING THE RELEVANT CALENDAR YEAR.
S 3. Subdivision 3 of section 198 of the labor law, as amended by
chapter 537 of the laws of 2014, is amended to read as follows:
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 employ-
ees shall have the right to recover full wages, benefits and wage
supplements and liquidated damages accrued during the six years previous
to the commencing of such action, whether such action is instituted by
the employee or by the commissioner. [The commissioner's investigation
S. 1319 4
shall cover the entire six-year statute of limitations period unless the
commissioner otherwise notifies all affected employees.]
S 4. Subdivision 3 of section 663 of the labor law, as amended by
chapter 537 of the laws of 2014, is amended to read as follows:
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. [The commissioner's investigation shall cover the entire
six-year statute of limitations period unless the commissioner otherwise
notifies all affected employees.] Investigation by the commissioner
shall not be a prerequisite to nor a bar against a person bringing a
civil action under this article.
S 5. Subdivision 3 of section 218 of the labor law, as amended by
chapter 537 of the laws of 2014, is amended to read as follows:
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 [money
due] 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 ASSIGN-
MENT, order or decision shall have the full force and effect of a judg-
ment 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.
S 6. Subdivision 3 of section 219 of the labor law, as amended by
chapter 537 of the laws of 2014, is amended to read as follows:
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 [money due] 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
S. 1319 5
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.
S 7. Section 97-pppp of the state finance law is REPEALED.
S 8. Section 13 of chapter 537 of the laws of 2014, amending the labor
law and other laws relating to increased penalties for violations of
wage payment provisions and contractor accountability, is amended to
read as follows:
S 13. This act shall take effect on the sixtieth day after it shall
have become a law, EXCEPT THAT SECTION ONE OF THIS ACT SHALL TAKE EFFECT
IMMEDIATELY.
S 9. This act shall take effect immediately; provided, however, that
sections one through seven of this act shall take effect on the same
date and in the same manner as chapter 537 of the laws of 2014.
