Bill Text: NY S06426 | 2017-2018 | General Assembly | Introduced
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 or employees or a representative organization to initiate a public enforcement action on behalf of the commissioner for any provision of the labor law, or any regulation promulgated thereunder, that provides for a civil penalty to be assessed and collected by the commissioner for a violation of the labor law.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO LABOR [S06426 Detail]
Download: New_York-2017-S06426-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6426 2017-2018 Regular Sessions IN SENATE May 18, 2017 ___________ Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Labor 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 19 recover civil penalties for the government that otherwise may not have 20 been assessed and collected by overburdened state enforcement agencies. 21 Such representative actions are an efficient mechanism to limit systemic 22 violations, will enforce the rights of more workers, and can benefit the 23 department of labor with enhanced resources. 24 5. The legislature further finds and declares that the purpose of the 25 EMPIRE Worker Protection Act is to benefit those employers who are oper- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11483-02-7S. 6426 2 1 ating within the labor law, and who, as a result, face unfair competi- 2 tion from individuals and entities shirking the labor law. 3 6. The legislature further finds and declares that the purpose of the 4 EMPIRE Worker Protection Act is to incentivize labor organizations and 5 not-for-profit organizations to aid working people to report violations 6 of the New York labor law. 7 7. The legislature further finds and declares that the purpose of the 8 EMPIRE Worker Protection Act is to facilitate whistleblowers suffering 9 from violations of the New York labor law to report abuses without fear 10 of retaliation and intimidation. 11 8. The legislature further finds and declares that the EMPIRE Worker 12 Protection Act is part of a history both in New York state and in the 13 United States of laws enabling private citizens to aid in public 14 enforcement in the whistleblower and more recently in the labor context. 15 In similar qui tam legislation enabling private citizens to aid in 16 public enforcement, the resulting action is in reality a public enforce- 17 ment action. 18 9. The legislature further finds and declares that the EMPIRE Worker 19 Protection Act further increases the capacity of the department of labor 20 as almost all of the department of labor's investigatory work is comp- 21 laint-driven rather than agency-driven. Moreover, the EMPIRE Worker 22 Protection Act will help offset the loss of human capital at the depart- 23 ment due to the decrease in senior labor investigators and stagnant 24 numbers of labor investigators employed by the department of labor since 25 2008. 26 10. The legislature further finds and declares that the mandate of the 27 EMPIRE Worker Protection Act is consistent with the legislature's 28 commitment to enhance worker protections, especially for low-wage work- 29 ers, as the majority of wages owed by employers according to department 30 of labor statistics are based on minimum wage violations. 31 § 3. The labor law is amended by adding a new article 33 to read as 32 follows: 33 ARTICLE 33 34 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT 35 Section 960. Definitions. 36 961. Public enforcement action. 37 962. Procedure. 38 963. Construction and non-application. 39 § 960. Definitions. As used in this article, the following terms shall 40 have the following meanings: 41 1. "aggrieved employee" means any employee as defined by section two 42 of article one of this chapter who was employed by the alleged violator 43 employer and against whom one of the alleged violations was committed, 44 as well as any person who is not classified by a business as an employee 45 but who claims to be an employee and whose claims against the purported 46 employer relate to this alleged misclassification. 47 2. "employer" means any employer as defined by section two of article 48 one of this chapter. 49 3. "representative organization" means a labor organization as defined 50 by subdivision five of section seven hundred one of article twenty of 51 this chapter or a not-for-profit corporation, as defined by subpara- 52 graphs five and seven of paragraph (a) of section one hundred two of 53 article one of the not-for-profit corporation law, which not-for-profit 54 corporation regularly advocates on behalf of workers or employees and/or 55 regularly advocates for or assists in enforcement of the provisions of 56 this chapter.S. 6426 3 1 4. "public enforcement action" means an action brought under this 2 article intended to enforce this chapter's protections enforceable by 3 the commissioner. 4 5. "commissioner" shall, for the purposes of this article, include the 5 commissioner, and any division, board, commission, or part of the 6 department authorized to impose or seek penalties or other remedies for 7 violations of this chapter. 8 § 961. Public enforcement action. 1. An aggrieved employee or employ- 9 ees or a representative organization may initiate a public enforcement 10 action on behalf of the commissioner for any provision of this chapter, 11 or any regulation promulgated thereunder, that provides for a civil 12 penalty to be assessed and collected by the commissioner for a violation 13 of this chapter, or any regulation promulgated thereunder, on behalf of 14 himself or herself and other current or former employees pursuant to the 15 procedures specified in section nine hundred sixty-two of this article. 16 An aggrieved employee or a representative organization may allege multi- 17 ple violations that have affected different employees. 18 2. a. For purposes of this section, whenever the commissioner has 19 discretion to assess a civil penalty, a court shall be authorized to 20 exercise the same discretion to assess a civil penalty. To the extent 21 that the commissioner is authorized to determine that an employer has 22 violated a provision of this chapter or regulation promulgated there- 23 under, in a public enforcement action, a court shall be authorized to 24 determine that an employer has committed such a violation. 25 b. For all provisions of this chapter and regulations adopted pursuant 26 to this chapter, except those for which a civil penalty is specifically 27 provided, there is established a civil penalty of five hundred dollars 28 for each aggrieved employee per pay period per violation. A court may 29 not award a lesser amount, unless, based on the facts and circumstances 30 of the particular case, the employer demonstrates that to do otherwise 31 would result in an award that is unjust, arbitrary and oppressive, or 32 confiscatory. 33 c. Any aggrieved employee or a representative organization who 34 prevails in any public enforcement action shall be entitled to an award 35 of reasonable attorney's fees and costs. 36 d. Nothing in this section shall operate to limit an aggrieved employ- 37 ee's right to pursue or recover other remedies available under state or 38 federal law, either separately or concurrently with an action taken 39 under this section. 40 3. Civil penalties recovered by aggrieved employees or a represen- 41 tative organization in public enforcement actions shall be distributed 42 as follows: forty-five percent to the aggrieved employee or employees; 43 and fifty-five percent to the commissioner for enforcement of this chap- 44 ter and education of employers and employees about their rights and 45 responsibilities under this chapter, to be continuously appropriated to 46 supplement and not supplant the funding to the agency for those 47 purposes. If an aggrieved employee or employees elect a representative 48 organization to bring the public enforcement action, civil penalties 49 recovered shall be distributed as follows: thirty percent to the 50 aggrieved employee or employees; fifteen percent to the representative 51 organization; fifty-five percent to the commissioner for enforcement of 52 this chapter and education of employers and employees about their rights 53 and responsibilities under this chapter, to be continuously appropriated 54 to supplement and not supplant the funding to the agency for those 55 purposes.S. 6426 4 1 4. The right to bring a public enforcement action under this article 2 shall not be subject to private agreements between an aggrieved employee 3 and an employer or purported employer. 4 5. Notwithstanding any other provision of law, a public enforcement 5 action to recover upon a penalty imposed by this article must be 6 commenced within six years. The statute of limitations for bringing a 7 representative action under this article shall be tolled from the date 8 an aggrieved employee or a representative organization files a notice 9 pursuant to section nine hundred sixty-two of this article with the 10 commissioner or the commissioner commences an investigation, whichever 11 is earlier. 12 6. Public enforcement actions belong to the state and preclude subse- 13 quent state enforcement efforts, whether brought by the state or an 14 aggrieved employee or representative organization; provided, however, 15 public enforcement actions are not duplicative of private actions 16 related to the same issues or touching the same nucleus of operative 17 facts. Therefore, a public enforcement action brought under this arti- 18 cle does not have any preclusive effect on private actions addressing 19 similar wrongdoing. 20 7. The commissioner shall establish a publicly available database of 21 public enforcement actions brought pursuant to this article, including 22 the parties, the disposition and any other information which the commis- 23 sioner shall by regulation prescribe. 24 § 962. Procedure. 1. No public enforcement action by an aggrieved 25 employee or a representative organization pursuant to section nine 26 hundred sixty-one of this article alleging a violation of any provision 27 of this chapter may be commenced: 28 a. prior to thirty days after written notice has been given by the 29 aggrieved employee or a representative organization to the commissioner. 30 Such written notice shall be given in such a manner as the commissioner 31 may prescribe by regulation, shall be construed in a light favorable to 32 the aggrieved employee or representative organization, and shall 33 include: 34 (i) the name, address and contact information of the employer. 35 (ii) the name, address, occupation and contact information of the 36 aggrieved employee. 37 (iii) the name, address and contact information of the representative 38 organization, if the action is brought by a representative organization. 39 (iv) the name, address and contact information of the aggrieved 40 employee's legal counsel, should one exist. 41 (v) a statement of the underlying claim. 42 (vi) estimated number of employees affected. 43 b. if the commissioner, at any time prior to the end of the thirty day 44 notice period prescribed in paragraph a of this subdivision or prior to 45 commencement of such action, whichever is later, and upon written notice 46 to the aggrieved employee who provided the notice prescribed in para- 47 graph a of this subdivision, has commenced and is actively prosecuting 48 an administrative enforcement proceeding pursuant to this chapter rela- 49 tive to the alleged violation. 50 c. if the commissioner, on the same facts and theories, cites a person 51 within the timeframes set forth in this section for a violation of the 52 same section or sections of this chapter under which the aggrieved 53 employee or representative organization is attempting to recover a civil 54 penalty or remedy on behalf of himself or herself or others. 55 2. The commissioner may intervene in the public enforcement action and 56 proceed with any and all claims in the action:S. 6426 5 1 a. as of right within the thirty day notice period prescribed in para- 2 graph a of subdivision one of this section; or 3 b. for good cause, as determined by the court, after the expiration of 4 the thirty day notice period prescribed in paragraph a of subdivision 5 one of this section. 6 3. a. The aggrieved employee or representative organization shall, 7 within ten days following commencement of a civil action pursuant to 8 this article, provide the commissioner with a file-stamped copy of the 9 complaint that includes the case number assigned by the court. 10 b. Either the commissioner or a federal or state court of competent 11 jurisdiction shall review and approve any settlement of any civil action 12 filed pursuant to this section. The commissioner or court shall approve 13 the settlement if it is fair, reasonable, and adequate, in light of the 14 statutory purpose of the provision of this chapter alleged to have been 15 violated and the purpose of the EMPIRE Worker Protection Act. 16 c. A copy of the court's judgment in any civil action filed pursuant 17 to this article and any other order in that action that either provides 18 for or denies an award of civil penalties under this article shall be 19 submitted to the commissioner within ten days after entry of the judg- 20 ment or order. 21 d. Items required to be submitted to the commissioner under this 22 subdivision shall be transmitted in such a manner as the commissioner 23 shall prescribe for the filing of notices under paragraph a of subdivi- 24 sion one of this section. 25 4. If a representative organization initiates a public enforcement 26 action pursuant to this article, an aggrieved employee must elect the 27 representative organization in writing in a form which the commissioner 28 shall by regulation prescribe. In such cases, the aggrieved employee's 29 name and personal identifying information shall be kept confidential if 30 the aggrieved employee so chooses. 31 5. Such regulations prescribed pursuant to paragraph a of subdivision 32 one of this section shall provide for the right of the aggrieved employ- 33 ee or representative organization to furnish an amended notice, after 34 the notice by the commissioner to the aggrieved employee or represen- 35 tative organization that the original notice was not in compliance with 36 this section or the regulations issued thereunder and specifying with 37 particularity what the deficiencies were in the original notice. Such 38 notice and opportunity to amend shall be provided by the commissioner 39 within thirty days of the original notice or the original notice shall 40 be deemed in compliance with this section. The aggrieved employee or 41 representative organization shall have thirty days from receiving notice 42 from the commissioner that their original notice was not in compliance 43 with this section to amend the notice. 44 6. For the purposes of determining whether the aggrieved employee or 45 representative organization complied with this section, the notice shall 46 be construed in a light favorable to the employee or representative 47 organization. 48 § 963. Construction and non-application. 1. This article shall not 49 apply to the recovery of administrative and civil penalties in 50 connection with the unemployment insurance law as contained in article 51 eighteen of this chapter. 52 2. This article shall not apply to the recovery of administrative and 53 civil penalties in connection with the New York state labor relations 54 act as contained in article twenty of this chapter. 55 3. Severability. If any word, phrase, clause, sentence, paragraph, 56 subdivision, section or part of this article or the application thereofS. 6426 6 1 to any person or circumstances shall be adjudged invalid by a court of 2 competent jurisdiction, such order or judgment shall be confined in its 3 operation to the controversy in which it was rendered, and shall not 4 affect or invalidate the remainder of this article, but shall be 5 confined in its operation to the word, phrase, clause, sentence, para- 6 graph, subdivision, section or part thereof directly involved in the 7 controversy in which such judgment shall have been rendered. 8 4. This article shall be construed in light of its remedial purposes 9 to expand the enforcement of this chapter. 10 § 4. This act shall take effect immediately.