Bill Text: NY A02265 | 2019-2020 | General Assembly | Amended
Bill Title: Enacts the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"; relates to the delegation of state enforcement authority to private actors; authorizes an aggrieved employee, whistleblower or representative organization to initiate a public enforcement action on behalf of the commissioner for certain provisions of the labor law, or any regulation promulgated thereunder.
Spectrum: Partisan Bill (Democrat 47-1)
Status: (Introduced - Dead) 2020-02-04 - print number 2265a [A02265 Detail]
Download: New_York-2019-A02265-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2265--A 2019-2020 Regular Sessions IN ASSEMBLY January 22, 2019 ___________ Introduced by M. of A. JOYNER, ORTIZ, HEVESI, ROZIC, BRONSON, SIMON, SAYEGH, WILLIAMS, JAFFEE, GOTTFRIED, COLTON, L. ROSENTHAL, TAYLOR, ARROYO, COOK, CRUZ, RICHARDSON, REYES, DE LA ROSA, SEAWRIGHT, STECK, D. ROSENTHAL, WEPRIN, JEAN-PIERRE, BARRON, EPSTEIN, DINOWITZ, DICKENS, GRIFFIN, CARROLL, MOSLEY, OTIS, SIMOTAS -- Multi-Sponsored by -- M. of A. DenDEKKER, LENTOL, NOLAN -- read once and referred to the Committee on Labor -- recommitted to the Committee on Labor in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to enacting the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection 3 Act". 4 § 2. Legislative findings. 1. The legislature finds and declares that 5 violations of the labor law are often systemic, affecting many workers. 6 2. The legislature further finds and declares that despite the labor 7 law's strong protections for workers, limits on the availability of 8 public enforcement resources have deleterious effects on the marketplace 9 by allowing abuses targeting workers to persist unprosecuted. To ensure 10 the robust enforcement of the labor law, while minimizing the outlay of 11 scarce state funds, this act allows private individuals to bring public 12 enforcement actions in certain contexts in which the state does not have 13 the means to fully enforce labor law protections. 14 3. The legislature further finds and declares that the purpose of the 15 EMPIRE Worker Protection Act is to create a means of empowering citizens 16 as private attorneys general to enforce the New York labor law. 17 4. The legislature further finds and declares that the purpose of the 18 EMPIRE Worker Protection Act is to incentivize private parties to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00280-02-0A. 2265--A 2 1 recover civil penalties for the government that otherwise may not have 2 been assessed and collected by overburdened state enforcement agencies. 3 Such representative actions are an efficient mechanism to limit systemic 4 violations, will enforce the rights of more workers, and can benefit the 5 department of labor with enhanced resources. 6 5. The legislature further finds and declares that the purpose of the 7 EMPIRE Worker Protection Act is to benefit those employers who are oper- 8 ating within the labor law, and who, as a result, face unfair competi- 9 tion from individuals and entities shirking the labor law. 10 6. The legislature further finds and declares that the purpose of the 11 EMPIRE Worker Protection Act is to incentivize labor organizations and 12 not-for-profit organizations to aid working people to report violations 13 of the New York labor law. 14 7. The legislature further finds and declares that the purpose of the 15 EMPIRE Worker Protection Act is to facilitate whistleblowers suffering 16 from violations of the New York labor law to report abuses without fear 17 of retaliation and intimidation. 18 8. The legislature further finds and declares that the EMPIRE Worker 19 Protection Act is part of a history both in New York state and in the 20 United States of laws enabling private citizens to aid in public 21 enforcement in the whistleblower and more recently in the labor context. 22 In similar qui tam legislation enabling private citizens to aid in 23 public enforcement, the resulting action is in reality a public enforce- 24 ment action. 25 § 3. The labor law is amended by adding a new article 34 to read as 26 follows: 27 ARTICLE 34 28 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT 29 Section 960. Definitions. 30 961. Representative civil action. 31 962. Procedure. 32 963. Non-application. 33 § 960. Definitions. Whenever used in this article: 34 1. "aggrieved employee" means any employee as defined by section two 35 of article one of this chapter who was employed by the alleged violator 36 employer and against whom one of the alleged violations was committed, 37 or was alleged to have been committed, as well as any person who is not 38 classified by a business as an employee but who claims to be an employee 39 and whose claims against the purported employer relate to this alleged 40 misclassification, whether or not that person has received full or 41 partial relief from harm. 42 2. "relator" means an aggrieved party, whistleblower, or a represen- 43 tative organization that acts as a plaintiff in a public enforcement 44 action under this chapter. 45 3. "whistleblower" means any current or former employee, contractor, 46 subcontractor, or employee of a contractor or subcontractor of the 47 defendant with knowledge of the alleged violations that is independent 48 of and materially adds to any publicly disclosed information about the 49 alleged violations. 50 4. "employer" means any employer as defined by section two of article 51 one of this chapter. The term "employer" shall not include a govern- 52 mental agency. 53 5. "representative organization" means a labor organization as defined 54 by subdivision five of section seven hundred one of article twenty of 55 this chapter or a not-for-profit corporation, as defined by subpara- 56 graphs five and seven of paragraph (a) of section one hundred two ofA. 2265--A 3 1 article one of the not-for-profit corporation law, which not-for-profit 2 corporation regularly assists in enforcement of the provisions of this 3 chapter and which has been selected by an aggrieved employee or whistle- 4 blower to initiate a public enforcement action on the aggrieved employ- 5 ee's or whistleblower's behalf, in written notice in such a manner as 6 the commissioner may prescribe by regulation. Where a representative 7 organization is designated as the relator, the aggrieved employee or 8 whistleblower may elect to have their name and personal identifying 9 information be kept confidential. 10 6. "public enforcement action" means an action brought under this 11 article intended to enforce this chapter's protections enforceable by 12 the commissioner. Nothing in this article shall be interpreted to 13 permit a public enforcement action against a governmental agency. 14 7. "community-based enforcement" means activities conducted by non- 15 profit community-based organizations to assist workers in enforcing 16 their employment rights, including outreach, education, training materi- 17 als, technical assistance, counseling, research and referral services, 18 as further defined by the commissioner. 19 8. "commissioner" shall, for the purposes of this article, include the 20 commissioner, and any division, board, commission, or part of the 21 department authorized to impose or seek penalties or other remedies for 22 violations of this chapter. 23 9. "violation" means an employer's noncompliance with any of the 24 requirements of the following articles of this chapter and with regu- 25 lations and wage orders promulgated by the commissioner in implementing 26 such articles: 27 a. article two except sections ten through twenty-five-c, sections 28 twenty-seven through thirty, and sections thirty-three through forty- 29 three; 30 b. article four except sections one hundred thirty, one hundred thir- 31 ty-seven, one hundred forty, one hundred forty-one, and one hundred 32 forty-five; 33 c. article four-a except sections one hundred fifty and one hundred 34 fifty-three through one hundred fifty-four-a; 35 d. article five except sections one hundred sixty-eight through one 36 hundred sixty-nine-a; 37 e. article six except sections one hundred ninety, one hundred nine- 38 ty-one-a, one hundred ninety-six, one hundred ninety-six-a, one hundred 39 ninety-eight-a, one hundred ninety-nine and one hundred ninety-nine-a; 40 f. article seven except sections two hundred-a, two hundred one, two 41 hundred two-b through two hundred two-g, two hundred four, two hundred 42 four-b, two hundred six, two hundred six-b, two hundred eight through 43 two hundred ten, two hundred eleven, two hundred eleven-a, two hundred 44 twelve-c, two hundred thirteen through two hundred fourteen, two hundred 45 fifteen-a, two hundred fifteen-b, two hundred sixteen, two hundred nine- 46 teen-a, and two hundred nineteen-c; 47 g. article nine except sections two hundred thirty, two hundred thir- 48 ty-four through two hundred thirty-six, and two hundred thirty-eight; 49 h. article ten except section two hundred forty-two; 50 i. article eleven except sections two hundred sixty through two 51 hundred sixty-eight, two hundred seventy-five through two hundred seven- 52 ty-seven, two hundred ninety-seven, and three hundred fifteen; 53 j. article thirteen except sections three hundred fifty through three 54 hundred fifty-three, and three hundred fifty-five through three hundred 55 sixty-three; 56 k. article fourteen;A. 2265--A 4 1 l. article fifteen except sections four hundred, four hundred one, 2 four hundred twenty-five, four hundred thirty-two, four hundred thirty- 3 six and four hundred thirty-seven; 4 m. article sixteen except sections four hundred fifty, four hundred 5 fifty-one, four hundred fifty-six, four hundred fifty-eight through four 6 hundred sixty, four hundred sixty-two, four hundred sixty-three, and 7 four hundred sixty-five; 8 n. article seventeen except sections four hundred seventy-one through 9 four hundred seventy-four-a; 10 o. article nineteen except sections six hundred fifty, six hundred 11 fifty-one, six hundred fifty-three through six hundred sixty, six 12 hundred sixty-two, and six hundred sixty-five; 13 p. article nineteen-a except sections six hundred seventy through six 14 hundred seventy-two, six hundred seventy-four through six hundred seven- 15 ty-eight, six hundred eighty, and six hundred eighty-three; 16 q. article nineteen-b except sections six hundred ninety, six hundred 17 ninety-three, and six hundred ninety-four; 18 r. article twenty-b except sections seven hundred thirty-three, seven 19 hundred thirty-eight, and seven hundred thirty-nine; 20 s. article twenty-c; 21 t. article twenty-five-a except sections eight hundred sixty, eight 22 hundred sixty-a, eight hundred sixty-c through eight hundred sixty-f, 23 and eight hundred sixty-i; 24 u. article twenty-seven except sections eight hundred seventy-a 25 through eight hundred seventy-f and eight hundred seventy-h through 26 eight hundred seventy-o; 27 v. article twenty-eight except sections eight hundred seventy-five, 28 eight hundred seventy-seven, and eight hundred eighty-one through eight 29 hundred eighty-three; and 30 w. article thirty except sections nine hundred, nine hundred one, nine 31 hundred three, and nine hundred five through nine hundred eight. 32 § 961. Representative civil action. 1. A relator may initiate a public 33 enforcement action to collect civil penalties on behalf of the commis- 34 sioner for a violation on behalf of himself or herself and other current 35 or former employees pursuant to the procedures specified in section nine 36 hundred sixty-two of this article. A relator may allege multiple 37 violations that have affected different employees and may seek injunc- 38 tive and declaratory relief that the state would be entitled to seek. 39 2. a. For purposes of this section, whenever the commissioner has 40 discretion to assess a civil penalty, a court is authorized to exercise 41 the same discretion to assess a civil penalty. To the extent that the 42 commissioner is authorized to determine that an employer has violated a 43 provision of this chapter or regulation promulgated thereunder, in a 44 public enforcement action, a court shall be authorized to determine that 45 an employer has committed such a violation. 46 b. For any violation defined in this article, except those for which a 47 civil penalty is specifically provided, there is established a civil 48 penalty of five hundred dollars for each aggrieved employee per pay 49 period per violation. A court may not award a lesser amount, unless, 50 based on the facts and circumstances of the particular case, the employ- 51 er demonstrates that to do otherwise would result in an award that is 52 unjust, arbitrary and oppressive, or confiscatory. 53 c. In any civil action commenced pursuant to this article, the court 54 shall allow a prevailing relator to recover all reasonable attorneys' 55 fees, expert fees and other costs. For the purposes of this article, the 56 term "prevailing" includes a relator whose commencement of litigationA. 2265--A 5 1 has acted as a catalyst to effect policy change on the part of the 2 defendant, regardless of whether that change has been implemented volun- 3 tarily, as a result of a settlement or as a result of a judgment in such 4 relator's favor. 5 d. Nothing in this section shall operate to limit an aggrieved employ- 6 ee's right to pursue or recover other remedies available under state or 7 federal law, either separately or concurrently with an action taken 8 under this section. 9 e. Nothing in this section shall operate to limit the commissioner's 10 right to seek restitution and damages, where available, for aggrieved 11 employees in conjunction with a public enforcement action in which it 12 has intervened. 13 3. a. Civil penalties recovered in public enforcement actions shall 14 be distributed as follows: where the commissioner has not intervened, 15 forty percent to the relator; and sixty percent to the commissioner for 16 enforcement of this chapter and education of employers and employees 17 about their rights and responsibilities under this chapter, to be 18 continuously appropriated to supplement and not supplant the funding to 19 the agency for those purposes; where the commissioner has intervened, 20 thirty percent to the relator; and seventy percent to the commissioner 21 for enforcement of this chapter and education of employers and employees 22 about their rights and responsibilities under this chapter, to be 23 continuously appropriated to supplement and not supplant the funding to 24 the agency for those purposes. 25 b. Twenty-five percent of the commissioner's penalty share shall be 26 reserved for community-based enforcement. 27 c. The relator shall equitably distribute the share of penalties due 28 the relator among aggrieved employees, with due consideration of the 29 burdens and risks assumed by the relator in prosecuting the action. If 30 the relator is a representative organization, it shall distribute all 31 recovered penalties to aggrieved workers but may recover reasonable 32 attorneys' fees and costs incurred in prosecuting the action and ancil- 33 lary costs associated with serving as a relator. The relator, shall 34 submit a distribution summary to the commissioner. 35 4. The right to bring a public enforcement action under this article 36 shall not be subject to private agreements between an aggrieved employee 37 and an employer or alleged employer. 38 5. Notwithstanding any other provision of law, a public enforcement 39 action to recover upon a penalty imposed by this article must be 40 commenced within six years. The statute of limitations for bringing a 41 representative action under this article shall be tolled from the date a 42 relator files a notice pursuant to section nine hundred sixty-two of 43 this article with the commissioner or the commissioner commences an 44 investigation, whichever is earlier. 45 6. The commissioner shall establish a database of public enforcement 46 notices submitted pursuant to this article, including the parties, the 47 disposition and any other information which the commissioner shall by 48 regulation prescribe and shall make such database available to the 49 public online. The commissioner shall also publish an annual report of 50 total penalties recovered under this chapter. 51 7. a. No employer or his or her agent, employee, contractor, subcon- 52 tractor or the officer or agent of any corporation, partnership, or 53 limited liability company, or any other person shall discharge, demote, 54 suspend, threaten, harass, or in any other manner discriminate against 55 any person because of any lawful act done because:A. 2265--A 6 1 (i) the relator or potential relator brought or is perceived to have 2 brought a public enforcement action; 3 (ii) the relator or potential relator has provided information, caused 4 information to be provided, or otherwise assisted in a public enforce- 5 ment action or provided information, or caused information to be 6 provided to a person with supervisory authority over the relator or 7 potential relator regarding conduct that the relator or potential rela- 8 tor reasonably believes constitutes a violation of this section; or 9 (iii) the person believes that the relator or potential relator may 10 bring a public enforcement action or cooperate with one. 11 b. Any person aggrieved by a violation of this subdivision may bring a 12 public enforcement action for all appropriate relief, including enjoin- 13 ing the conduct of any person or employer; ordering payment of civil 14 penalties as provided by section two hundred fifteen of this chapter, 15 costs and reasonable attorneys' fees to the employee by the person or 16 entity in violation; and, where the person or entity in violation is an 17 employer, ordering rehiring or reinstatement of the employee to his or 18 her former position with restoration of seniority. Any person aggrieved 19 by a violation of this subdivision may also bring a civil action in a 20 court of competent jurisdiction against any employer or persons alleged 21 to have violated the provisions of this subdivision pursuant to subdivi- 22 sion two of section two hundred fifteen of this chapter. 23 c. There shall be a rebuttable presumption that any adverse actions 24 taken against a relator within one hundred eighty days after the relator 25 has filed an action under this chapter is retaliatory. Nothing in this 26 subdivision shall be interpreted to prohibit an inference of retaliatory 27 motive after one hundred eighty days after the relator has filed an 28 action under this chapter. 29 § 962. Procedure. 1. No representative civil action by a relator 30 pursuant to section nine hundred sixty-one of this article may be 31 commenced: 32 a. prior to thirty days after written notice has been given by the 33 relator to the commissioner. The relator shall submit a filing fee of 34 seventy-five dollars to the commissioner, and the time periods in this 35 section shall begin when notice and filing fee have been submitted. The 36 fees required by this paragraph are subject to waiver in accordance with 37 rules promulgated by the commissioner. The written notice shall be given 38 in such a manner as the commissioner may prescribe by regulation, shall 39 be construed in a light favorable to the relator, and shall include: 40 (i) the name, address and contact information of the employer. 41 (ii) the name, address, and contact information of the aggrieved 42 employee or whistleblower. 43 (iii) if the action is brought by a representative organization, the 44 name, address and contact information of the representative organiza- 45 tion, it's qualification as a representative organization as defined in 46 this chapter, and the form on which the whistleblower or aggrieved 47 employee has designated the representative organization. 48 (iv) the name, address and contact information of the relator's legal 49 counsel, should one exist. 50 (v) a statement of the underlying claim. 51 (vi) if the relator is a "whistleblower," the relator's knowledge of 52 the alleged violations that is independent of and materially adds to 53 publicly disclosed information. 54 (vii) after searching the database established pursuant to subdivision 55 six of section nine hundred sixty-one of this article for notices alleg- 56 ing the same facts and legal theories, a summary of such notices orA. 2265--A 7 1 statement that no such notices exist, provided that a notice filed by a 2 pro se litigant may not be rejected for failure to conduct such a 3 search. 4 b. if the commissioner, at any time prior to the end of the thirty day 5 notice period prescribed in paragraph a of this subdivision or prior to 6 commencement of such action, whichever is later, and upon written notice 7 to the relator who provided the notice prescribed in paragraph a of this 8 subdivision, has commenced and is actively prosecuting an administrative 9 enforcement proceeding pursuant to this chapter relative to the alleged 10 violation. 11 c. if the commissioner, on the same facts and theories, cites a person 12 within the timeframes set forth in this section for a violation of the 13 same section or sections of this chapter under which the relator is 14 attempting to recover a civil penalty or remedy on behalf of himself or 15 herself or others. 16 d. if the violation is of a posting or agency reporting requirement or 17 agency filing requirement, except where the filing of reporting require- 18 ment involves mandatory payroll or injury reporting. 19 e. if the violation is for minor variations in the legal name or 20 address of the employer in a wage statement or wage notice required 21 under article six of this chapter, provided that the variations do not 22 impair a worker's ability to promptly and easily identify the employer. 23 2. The commissioner may intervene in the public enforcement action and 24 proceed with any and all claims in the action: 25 a. as of right within the thirty day notice period prescribed in para- 26 graph a of subdivision one of this section; or 27 b. for good cause, as determined by the court, after the expiration of 28 the thirty day notice period prescribed in paragraph a of subdivision 29 one of this section. 30 3. a. If the commissioner intervenes in an action, he or she shall 31 have primary responsibility for litigating the action and shall not be 32 bound by an act of the relator bringing the action. In such cases, the 33 relator shall remain a party to the action. The commissioner may dismiss 34 or settle the action after the relator has been notified of the filing 35 of the motion and has been provided with an opportunity to be heard, and 36 the court determines that such dismissal or settlement is fair, 37 adequate, reasonable, and in the public interest. 38 4. Either the commissioner or a federal or state court of competent 39 jurisdiction shall review and approve any settlement of any civil action 40 filed pursuant to this article or of any claim for which a relator has 41 provided notice pursuant to this section. The commissioner or court 42 shall approve the settlement if it is fair, reasonable and adequate, in 43 light of the statutory purpose of the provision of this chapter alleged 44 to have been violated and the purpose of this article. 45 5. a. The relator shall, within ten days following commencement of a 46 civil action pursuant to this article, provide the commissioner with a 47 file-stamped copy of the complaint that includes the case number 48 assigned by the court. 49 b. If the commissioner so requests, he or she shall be served with 50 copies of pleadings filed in the action and shall be supplied with 51 copies of all deposition transcripts. The commissioner shall bear any 52 costs associated with service of such pleadings and depositions if there 53 are such costs. 54 c. A copy of the court's judgment in any civil action filed pursuant 55 to this article and any other order in that action that either provides 56 for or denies an award of civil penalties under this article shall beA. 2265--A 8 1 submitted to the commissioner within ten days after entry of the judg- 2 ment or order. 3 d. Items required to be submitted to the commissioner under this 4 subdivision shall be transmitted in such a manner as the commissioner 5 shall prescribe for the filing of notices under paragraph a of subdivi- 6 sion one of this section. 7 6. Such regulations prescribed pursuant to paragraph a of subdivision 8 one of this section shall provide for the right of the relator to 9 furnish an amended notice, after the notice by the commissioner to the 10 relator that the original notice was not in compliance with this section 11 or the regulations issued thereunder and specifying with particularity 12 what the deficiencies were in the original notice. Such notice and 13 opportunity to amend shall be provided by the commissioner within thirty 14 days of the original notice or the original notice shall be deemed in 15 compliance with this section. The relator shall have thirty days from 16 receiving notice from the commissioner that their original notice was 17 not in compliance with this section to amend the notice. 18 7. A public enforcement action shall be tried promptly, without regard 19 to concurrent adjudication of private claims. 20 8. No public enforcement action brought pursuant to this article shall 21 be required to meet the requirements of Rule 23(a) of the Federal Rules 22 of Civil Procedure or article nine of the civil practice law and rules. 23 9. The rules governing pretrial discovery in a public enforcement 24 action brought pursuant to this article shall be the same as those 25 applicable to other civil actions. No special showing of merit or other 26 additional requirement shall be imposed on a relator's discovery rights 27 in such an action. 28 10. A relator bringing an action pursuant to this article shall be 29 entitled to discovery regarding the alleged violations as to all 30 aggrieved employees as defined in this article. 31 11. When related public enforcement actions are pending, the parties 32 shall immediately notify the courts overseeing such actions of the over- 33 lap and submit a joint statement describing the overlap, which may 34 propose a process to ensure the just, speedy, and efficient determi- 35 nation of the actions. The court may appoint lead enforcement counsel 36 with sole responsibility for asserting the related claims, with consid- 37 eration of the following factors: a. the work that counsel has done in 38 investigating the claims; b. counsel's experience litigating labor law 39 and past performance in similar cases; c. counsel's diligence in advanc- 40 ing the case; d. the resources that counsel has committed and will 41 commit to prosecuting the case, and the relative resources at counsel's 42 disposal; and e. the length of time each action has been pending. 43 § 963. Non-application. 1. This article shall not apply to the recov- 44 ery of administrative and civil penalties in connection with the unem- 45 ployment insurance law as contained in article eighteen of this chapter. 46 2. This article shall not apply to the recovery of administrative and 47 civil penalties in connection with the New York state labor relations 48 act as contained in article twenty of this chapter. 49 3. Severability. If any word, phrase, clause, sentence, paragraph, 50 subdivision, section or part of this article or the application thereof 51 to any person or circumstances shall be adjudged invalid by a court of 52 competent jurisdiction, such order or judgment shall be confined in its 53 operation to the controversy in which it was rendered, and shall not 54 affect or invalidate the remainder of this article, but shall be 55 confined in its operation to the word, phrase, clause, sentence, para-A. 2265--A 9 1 graph, subdivision, section or part thereof directly involved in the 2 controversy in which such judgment shall have been rendered. 3 4. This article shall be construed in light of its remedial purposes 4 to expand the enforcement of this chapter. 5 § 4. This act shall take effect immediately.
