Bill Text: NY S01319 | 2015-2016 | General Assembly | Introduced
Bill Title: Amends the reporting requirements for employers which violate wage payment provisions and eliminates the duty of the commissioner of labor to investigate such employers' records for the previous 6 years; repeals the wage theft prevention enforcement account.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2015-02-23 - SIGNED CHAP.2 [S01319 Detail]
Download: New_York-2015-S01319-Introduced.html
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: 1 Section 1. Subdivision 1 of section 218 of the labor law, as amended 2 by chapter 537 of the laws of 2014, is amended to read as follows: 3 1. If the commissioner determines that an employer has violated a 4 provision of article six (payment of wages), article nineteen (minimum 5 wage act), article nineteen-A (minimum wage standards and protective 6 labor practices for farm workers), section two hundred twelve-a, section 7 two hundred twelve-b, section one hundred sixty-one (day of rest) or 8 section one hundred sixty-two (meal periods) of this chapter, or a rule 9 or regulation promulgated thereunder, the commissioner shall issue to 10 the employer an order directing compliance therewith, which shall 11 describe particularly the nature of the alleged violation. A copy of 12 such order shall be provided to any employee who has filed a complaint 13 and any authorized representative of him or her. In addition to direct- 14 ing payment of wages, benefits or wage supplements found to be due, and 15 liquidated damages in the amount of one hundred percent of unpaid wages, 16 such order, if issued to an employer who previously has been found in 17 violation of those provisions, rules or regulations, or to an employer 18 whose violation is willful or egregious, shall direct payment to the 19 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 1 exceed double the total amount of wages, benefits, or wage supplements 2 found to be due. [Additionally, such order, if issued to an employer who 3 previously has been found in violation of those provisions, rules or 4 regulations, or to an employer whose violation is willful or egregious, 5 shall direct such employer to report, by location, and for such period 6 as the commissioner shall determine, (a) the number of permanent full- 7 time employees, the number of temporary full-time employees, the number 8 of permanent part-time employees, the number of temporary part-time 9 employees, and the number of temporary staffing agency employees 10 performing work for the employer; (b) the hourly rates of such employees 11 reported in the following brackets: the state minimum wage to $9.99; 12 $10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c) the number 13 of employees who regularly worked the following number of hours per week 14 during the relevant calendar period: at least sixty; at least fifty but 15 fewer than sixty; at least forty, but fewer than fifty; at least thir- 16 ty-five but fewer than forty; at least thirty but fewer than thirty- 17 five; at least twenty-five but fewer than thirty; at least twenty but 18 fewer than twenty-five; at least ten but fewer than twenty; at least 19 five but fewer than ten; fewer than five. No individual identifying 20 information of such employees shall be reported or otherwise disclosed 21 to the department. The department shall post the data collected on the 22 department's website. For the purposes of this section, temporary 23 employees shall be those employees who are hired for a period of sixty 24 days or less during the relevant calendar year, full-time employees 25 shall be those regularly working forty hours or more per week during the 26 relevant calendar year, part-time employees shall be those working less 27 than forty hours per week during the relevant calendar year.] In no case 28 shall the order direct payment of an amount less than the total wages, 29 benefits or wage supplements found by the commissioner to be due, plus 30 the liquidated damages in the amount of one hundred percent of unpaid 31 wages, the appropriate civil penalty, and interest at the rate of inter- 32 est then in effect, as prescribed by the superintendent of financial 33 services pursuant to section fourteen-a of the banking law per annum 34 from the date of the underpayment to the date of the payment. Where the 35 violation is for a reason other than the employer's failure to pay 36 wages, benefits or wage supplements found to be due, the order shall 37 direct payment to the commissioner of a civil penalty in an amount not 38 to exceed one thousand dollars for a first violation, two thousand 39 dollars for a second violation or three thousand dollars for a third or 40 subsequent violation. In assessing the amount of the penalty, the 41 commissioner shall give due consideration to the size of the employer's 42 business, the good faith basis of the employer to believe that its 43 conduct was in compliance with the law, the gravity of the violation, 44 the history of previous violations and, in the case of wages, benefits 45 or supplements violations, the failure to comply with recordkeeping or 46 other non-wage requirements. 47 Where there is a violation of section one hundred ninety-eight-b of 48 this chapter, the order shall direct payment back to the employee of the 49 amount of wages, supplements or other thing of value unlawfully received 50 plus liquidated damages in the amount of one hundred percent of unpaid 51 wages, and interest at the rate of interest then in effect, as 52 prescribed by the superintendent of financial services pursuant to 53 section fourteen-a of the banking law per annum from the date of the 54 payback, return, donation or contribution to the date of payment, and 55 shall include such other relief as may be appropriate, including rehir- 56 ing or reinstatement of the employee to his or her former position, back S. 1319 3 1 wages, and restoration of seniority. In addition, the commissioner shall 2 order payment of a civil penalty of at least twenty-five hundred dollars 3 but not more than five thousand dollars per violation. In assessing the 4 amount of the penalty, the commissioner shall give due consideration to 5 the size of the employer's business, the good faith basis of the employ- 6 er to believe that its conduct was in compliance with the law, the grav- 7 ity of the violation, AND the history of previous violations. 8 At the discretion of the commissioner, the commissioner shall have 9 full authority to provide for inclusion of an automatic fifteen percent 10 additional amount of damages to come due and owing upon expiration of 11 ninety days from an order to comply becoming final. The commissioner 12 shall provide written notice to the employer in the order to comply of 13 this additional damage. 14 S 2. Section 219-c of the labor law is amended by adding a new subdi- 15 vision 3 to read as follows: 16 3. WHERE AN ORDER IS ISSUED UNDER SECTION TWO HUNDRED EIGHTEEN OF THIS 17 ARTICLE THAT ASSESSES A CIVIL PENALTY AGAINST AN EMPLOYER FOR A 18 REPEATED, WILLFUL, OR EGREGIOUS VIOLATION, TO DIRECT SUCH EMPLOYER TO 19 REPORT, BY LOCATION, AND TO POST ON THE DEPARTMENT'S WEBSITE, FOR SUCH 20 PERIOD AS THE COMMISSIONER SHALL DETERMINE, (A) THE NUMBER OF PERMANENT 21 FULL-TIME EMPLOYEES, THE NUMBER OF TEMPORARY FULL-TIME EMPLOYEES, THE 22 NUMBER OF PERMANENT PART-TIME EMPLOYEES, THE NUMBER OF TEMPORARY 23 PART-TIME EMPLOYEES, AND THE NUMBER OF TEMPORARY STAFFING AGENCY EMPLOY- 24 EES PERFORMING WORK FOR THE EMPLOYER; (B) THE HOURLY RATES OF SUCH 25 EMPLOYEES REPORTED IN THE FOLLOWING BRACKETS: THE STATE MINIMUM WAGE TO 26 $9.99; $10.00 TO $11.99; $12.00 TO $14.99; AND $15.00 OR MORE; (C) THE 27 NUMBER OF EMPLOYEES WHO REGULARLY WORKED THE FOLLOWING NUMBER OF HOURS 28 PER WEEK DURING THE RELEVANT CALENDAR PERIOD: AT LEAST SIXTY; AT LEAST 29 FIFTY BUT FEWER THAN SIXTY; AT LEAST FORTY BUT FEWER THAN FIFTY; AT 30 LEAST THIRTY-FIVE BUT FEWER THAN FORTY; AT LEAST THIRTY BUT FEWER THAN 31 THIRTY-FIVE; AT LEAST TWENTY-FIVE BUT FEWER THAN THIRTY; AT LEAST TWENTY 32 BUT FEWER THAN TWENTY-FIVE; AT LEAST TEN BUT FEWER THAN TWENTY; AT LEAST 33 FIVE BUT FEWER THAN TEN; FEWER THAN FIVE. NO INDIVIDUAL IDENTIFYING 34 INFORMATION OF SUCH EMPLOYEES SHALL BE REPORTED OR OTHERWISE DISCLOSED 35 TO THE DEPARTMENT. FOR THE PURPOSES OF THIS SECTION "TEMPORARY EMPLOY- 36 EES" SHALL BE THOSE EMPLOYEES WHO ARE HIRED FOR A PERIOD OF SIXTY DAYS 37 OR LESS DURING THE RELEVANT CALENDAR YEAR, FULL-TIME EMPLOYEES SHALL BE 38 THOSE REGULARLY WORKING FORTY HOURS OR MORE PER WEEK DURING THE RELEVANT 39 CALENDAR YEAR, PART-TIME EMPLOYEES SHALL BE THOSE WORKING LESS THAN 40 FORTY HOURS PER WEEK DURING THE RELEVANT CALENDAR YEAR. 41 S 3. Subdivision 3 of section 198 of the labor law, as amended by 42 chapter 537 of the laws of 2014, is amended to read as follows: 43 3. Notwithstanding any other provision of law, an action to recover 44 upon a liability imposed by this article must be commenced within six 45 years. The statute of limitations shall be tolled from the date an 46 employee files a complaint with the commissioner or the commissioner 47 commences an investigation, whichever is earlier, until an order to 48 comply issued by the commissioner becomes final, or where the commis- 49 sioner does not issue an order, until the date on which the commissioner 50 notifies the complainant that the investigation has concluded. Investi- 51 gation by the commissioner shall not be a prerequisite to nor a bar 52 against a person bringing a civil action under this section. All employ- 53 ees shall have the right to recover full wages, benefits and wage 54 supplements and liquidated damages accrued during the six years previous 55 to the commencing of such action, whether such action is instituted by 56 the employee or by the commissioner. [The commissioner's investigation S. 1319 4 1 shall cover the entire six-year statute of limitations period unless the 2 commissioner otherwise notifies all affected employees.] 3 S 4. Subdivision 3 of section 663 of the labor law, as amended by 4 chapter 537 of the laws of 2014, is amended to read as follows: 5 3. Limitation of time. Notwithstanding any other provision of law, an 6 action to recover upon a liability imposed by this article must be 7 commenced within six years. The statute of limitations shall be tolled 8 from the date an employee files a complaint with the commissioner or the 9 commissioner commences an investigation, whichever is earlier, until an 10 order to comply issued by the commissioner becomes final, or where the 11 commissioner does not issue an order, until the date on which the 12 commissioner notifies the complainant that the investigation has 13 concluded. [The commissioner's investigation shall cover the entire 14 six-year statute of limitations period unless the commissioner otherwise 15 notifies all affected employees.] Investigation by the commissioner 16 shall not be a prerequisite to nor a bar against a person bringing a 17 civil action under this article. 18 S 5. Subdivision 3 of section 218 of the labor law, as amended by 19 chapter 537 of the laws of 2014, is amended to read as follows: 20 3. Provided that no proceeding for administrative or judicial review 21 as provided in this chapter shall then be pending and the time for 22 initiation of such proceeding shall have expired, the commissioner may 23 file with the county clerk of the county where the employer resides or 24 has a place of business the order of the commissioner, or the decision 25 of the industrial board of appeals containing the amount found to be due 26 including the civil penalty, if any, and at the commissioner's 27 discretion, an additional fifteen percent damages upon any outstanding 28 monies owed. At the request of an employee, the commissioner shall 29 assign, WITHOUT CONSIDERATION OR LIABILITY, that portion of the [money 30 due] FILED ORDER that constitutes wages, wage supplements, interest on 31 wages or wage supplements, or liquidated damages due that employee, to 32 that employee and MAY file an ASSIGNMENT OR order in that amount in the 33 name of that employee with the county clerk of the county where the 34 employer resides or has a place of business. The filing of such ASSIGN- 35 MENT, order or decision shall have the full force and effect of a judg- 36 ment duly docketed in the office of such clerk. The ASSIGNMENT, order or 37 decision may be enforced by and in the name of the commissioner, or by 38 the employee, in the same manner, and with like effect, as that 39 prescribed by the civil practice law and rules for the enforcement of a 40 money judgment. 41 S 6. Subdivision 3 of section 219 of the labor law, as amended by 42 chapter 537 of the laws of 2014, is amended to read as follows: 43 3. Provided that no proceeding for administrative or judicial review 44 as provided in this chapter shall then be pending and the time for 45 initiation of such proceeding shall have expired, the commissioner may 46 file with the county clerk of the county where the employer resides or 47 has a place of business the order of the commissioner or the decision of 48 the industrial board of appeals containing the amount found to be due, 49 including, at the commissioner's discretion, an additional fifteen 50 percent damages upon any outstanding monies owed. At the request of an 51 employee, the commissioner shall assign, WITHOUT CONSIDERATION OR 52 LIABILITY, that portion of the [money due] FILED ORDER that constitutes 53 wages, wage supplements, interest on wages or wage supplements, or 54 liquidated damages due the employee, to that employee and MAY file an 55 ASSIGNMENT OR order in that amount in the name of such employee with the 56 county clerk of the county where the employer resides or has a place of S. 1319 5 1 business. The filing of such ASSIGNMENT, order or decision shall have 2 the full force and effect of a judgment duly docketed in the office of 3 such clerk. The ASSIGNMENT, order or decision may be enforced by and in 4 the name of the commissioner, or by the employee, in the same manner, 5 and with like effect, as that prescribed by the civil practice law and 6 rules for the enforcement of a money judgment. 7 S 7. Section 97-pppp of the state finance law is REPEALED. 8 S 8. Section 13 of chapter 537 of the laws of 2014, amending the labor 9 law and other laws relating to increased penalties for violations of 10 wage payment provisions and contractor accountability, is amended to 11 read as follows: 12 S 13. This act shall take effect on the sixtieth day after it shall 13 have become a law, EXCEPT THAT SECTION ONE OF THIS ACT SHALL TAKE EFFECT 14 IMMEDIATELY. 15 S 9. This act shall take effect immediately; provided, however, that 16 sections one through seven of this act shall take effect on the same 17 date and in the same manner as chapter 537 of the laws of 2014.