Bill Text: NY A04777 | 2021-2022 | General Assembly | Introduced
Bill Title: Amends various provisions of the labor law relating to the payment of wages.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2022-01-05 - referred to labor [A04777 Detail]
Download: New_York-2021-A04777-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4777 2021-2022 Regular Sessions IN ASSEMBLY February 8, 2021 ___________ Introduced by M. of A. B. MILLER -- read once and referred to the Committee on Labor AN ACT to amend the labor law, in relation to the payment of wages; and to repeal certain provisions of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 16 of section 2 of the labor law is REPEALED. 2 § 2. Subdivisions 1, 3 and 4 of section 195 of the labor law, subdivi- 3 sion 1 as amended by chapter 564 of the laws of 2010, and paragraph (a) 4 of subdivision 1 and subdivisions 3 and 4 as amended by section 2 of 5 part OO and subdivision 4 as separately amended by section 2 of part J 6 of chapter 56 of the laws of 2020, are amended to read as follows: 7 1. [(a) provide] notify his or her employees, in writing [in English8and in the language identified by each employee as the primary language9of such employee], at the time of hiring, [a notice containing the10following information:] of the rate [or rates] of pay and [basis there-11of, whether paid by the hour, shift, day, week, salary, piece, commis-12sion, or other; allowances, if any, claimed as part of the minimum wage,13including tip, meal, or lodging allowances; the benefit portion of the14minimum rate of home care aide total compensation as defined in section15thirty-six hundred fourteen-c of the public health law ("home care aide16benefits"), if applicable; prevailing wage supplements, if any, claimed17as part of any prevailing wage or similar requirement pursuant to arti-18cle eight of this chapter;] of the regular pay day designated by the 19 employer in accordance with section one hundred ninety-one of this arti- 20 cle[; the name of the employer; any "doing business as" names used by21the employer; the physical address of the employer's main office or22principal place of business, and a mailing address if different; the23telephone number of the employer; plus such other information as the24commissioner deems material and necessary. Where such prevailing wage25supplements are claimed, or such home care aide benefits are provided,EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08858-01-1A. 4777 2 1the notice shall identify, for each type of supplement claimed or each2type of home care aide benefits provided: (i) the hourly rate claimed;3(ii) the type of supplement or type of home care aide benefits, includ-4ing when applicable, but not limited to, pension or healthcare; (iii)5the names and addresses of the person or entity providing such supple-6ment or such home care aide benefits; and (iv) the agreement, if any,7requiring or providing for such supplement or such home care aide bene-8fits, together with information on how copies of such agreements or9summaries thereof may be obtained by an employee. Each time the employer10provides such notice to an employee, the employer shall obtain from the11employee a signed and dated written acknowledgement, in English and in12the primary language of the employee, of receipt of this notice, which13the employer shall preserve and maintain for six years], and obtain a 14 written acknowledgement from each employee of receipt of this notice. 15 Such acknowledgement shall [include an affirmation by the employee that16the employee accurately identified his or her primary language to the17employer, and that the notice provided by the employer to such employee18pursuant to this subdivision was in the language so identified or other-19wise complied with paragraph (c) of this subdivision, and shall] conform 20 to any [additional] requirements established by the commissioner with 21 regard to content and form. For all employees who are [not exempt from] 22 eligible for overtime compensation as established in the commissioner's 23 minimum wage orders or otherwise provided by [New York state] law or 24 regulation, the notice must state the regular hourly rate and overtime 25 rate of pay; 26 [(b) The commissioner shall prepare templates that comply with the27requirements of paragraph (a) of this subdivision. Each such template28shall be dual-language, including English and one additional language.29The commissioner shall determine, in his or her discretion, which30languages to provide in addition to English, based on the size of the31New York state population that speaks each language and any other factor32that the commissioner shall deem relevant. All such templates shall be33made available to employers in such manner as determined by the commis-34sioner;35(c) When an employee identifies as his or her primary language a36language for which a template is not available from the commissioner,37the employer shall comply with this subdivision by providing that38employee an English-language notice or acknowledgment;39(d) An employer shall not be penalized for errors or omissions in the40non-English portions of any notice provided by the commissioner;41(e) The commissioner shall have discretion to waive or alter require-42ments of paragraph (a) of this subdivision for temporary help firms as43defined in section nine hundred sixteen of this chapter.] 44 3. furnish each employee with a statement with every payment of wages, 45 listing [the following: the dates of work covered by that payment of46wages; name of employee; name of employer; address and phone number of47employer; rate or rates of pay and basis thereof, whether paid by the48hour, shift, day, week, salary, piece, commission, or other; gross49wages; deductions; allowances, if any, claimed as part of the minimum50wage; the benefit portion of the minimum rate of home care aide total51compensation as defined in section thirty-six hundred fourteen-c of the52public health law ("home care aide benefits"), if applicable; prevailing53wage supplements, if any, claimed as part of any prevailing wage or54similar requirement pursuant to article eight of this chapter; and net55wages. Where such prevailing wage supplements are claimed, or such home56care aide benefits are provided, the statement shall either: (i) identi-A. 4777 3 1fy the type of each supplement claimed, or the type of each home care2aide benefits provided, and the hourly rate for each; or (ii) be accom-3panied by a copy of the applicable notice required under subdivisions4one and two of this section. For all employees who are not exempt from5overtime compensation as established in the commissioner's minimum wage6orders or otherwise provided by New York state law or regulation, the7statement shall include the regular hourly rate or rates of pay; the8overtime rate or rates of pay; the number of regular hours worked, and9the number of overtime hours worked. For all employees paid a piece10rate, the statement shall include the applicable piece rate or rates of11pay and number of pieces completed at each piece rate. Upon] gross 12 wages, deductions and net wages, and upon the request of an employee[,13an employer shall] furnish an explanation [in writing] of how such wages 14 were computed; 15 4. establish, maintain and preserve for not less than [six] three 16 years [contemporaneous, true, and accurate] payroll records showing [for17each week worked] the hours worked[; the rate or rates of pay and basis18thereof, whether paid by the hour, shift, day, week, salary, piece,19commission, or other;], gross wages[;], deductions[; allowances, if any,20claimed as part of the minimum wage; amount of sick leave provided to21each employee; the benefit portion of the minimum rate of home care aide22total compensation as defined in section thirty-six hundred fourteen-c23of the public health law ("home care aide benefits"), if applicable;24prevailing wage supplements, if any, claimed as part of any prevailing25wage or similar requirement pursuant to article eight of this chapter;] 26 and net wages for each employee. [Where such prevailing wage supplements27are claimed, or such home care aide benefits are provided, the payroll28records shall include copies of all notices required by subdivisions one29and two of this section. For all employees who are not exempt from over-30time compensation as established in the commissioner's minimum wage31orders or otherwise provided by New York state law or regulation, the32payroll records shall include the regular hourly rate or rates of pay,33the overtime rate or rates of pay, the number of regular hours worked,34and the number of overtime hours worked. For all employees paid a piece35rate, the payroll records shall include the applicable piece rate or36rates of pay and number of pieces completed at each piece rate;] 37 § 3. Section 196 of the labor law, as amended by chapter 564 of the 38 laws of 2010, is amended to read as follows: 39 § 196. Powers of commissioner. 1. In addition to the powers of the 40 commissioner specified in other sections of this chapter, the commis- 41 sioner shall have the following duties, powers and authority: 42 a. He or she shall investigate and attempt to adjust equitably contro- 43 versies between employers and employees relating to [this article, or44article five, seven, nineteen or nineteen-A of] this [chapter] article. 45 b. He or she may take assignments of claims for wages [under] as 46 defined in this [chapter] article from employees or third parties in 47 trust for such employees or for the benefit of various funds for such 48 employees. All such assignments shall run to the commissioner and his or 49 her successor in office. The commissioner may sue employers on wage 50 claims thus assigned, with the benefits and subject to the provisions of 51 existing law applying to actions by employees for collection of wages. 52 He or she may join in a single action any number of wage claims against 53 the same employer. 54 c. He or she may institute proceedings on account of any criminal 55 violation of any provision of [this article, or article five, seven,56nineteen or nineteen-A of] this [chapter] article.A. 4777 4 1 d. If it shall appear to him or her that any employer has been 2 convicted of a violation of any provision of this article [or article3nineteen or nineteen-A of this chapter] or that any [order to comply4issued] judgment against an employer [under this chapter] for non-pay- 5 ment of wages remains unsatisfied for a period of ten days after the 6 time to appeal therefrom has expired, and that no appeal therefrom is 7 then pending, the commissioner may require such employer to deposit with 8 him or her a bond in such sum as he or she may deem sufficient and 9 adequate in the circumstances, together with two or more sureties or a 10 duly authorized surety company, to be approved by the commissioner. The 11 bond shall be payable to the commissioner and shall be conditioned that 12 the employer will, for a definite future period, not exceeding two 13 years, pay his or her employees in accordance with the provisions of 14 this article [or article nineteen or nineteen-A of this chapter], and 15 shall be further conditioned upon the payment by the employer of any 16 [amounts due pursuant to an order to comply or] judgment which may be 17 recovered against such employer pursuant to the provisions of this arti- 18 cle [or article nineteen or nineteen-A of this chapter]. 19 If within ten days after demand for such bond, which demand may be 20 made by certified or registered mail, such employer shall fail to depos- 21 it the same, the commissioner may bring an action in the name and on 22 behalf of the people of the state of New York against such employer in 23 the supreme court to compel such employer to furnish such a bond or to 24 cease doing business until he or she has done so. The employer shall 25 have the burden of proving that either such a bond is unnecessary or 26 that the amount demanded is excessive. If the court finds that there is 27 just cause for requiring the bond and that same is reasonably necessary 28 or proper to secure prompt payment of the wages of the employees of such 29 employer and his or her compliance with the provisions of this article 30 [or article nineteen or nineteen-A of this chapter], the court may 31 enjoin such employer and such other person or persons as may have been 32 or may be concerned with or in any way participating in the failure to 33 pay the wages resulting in the conviction or [order to comply] in the 34 judgment as aforesaid, from doing business until the requirement is met 35 and make other and further orders appropriate to compel compliance with 36 the requirement. 37 [If any order to comply issued against an employer under this article38or article nineteen or nineteen-A of this chapter remains unsatisfied39for a period of ten days after the time to appeal therefrom has expired,40and that no appeal therefrom is then pending, the commissioner may41require the employer to provide an accounting of assets of the employer,42including but not limited to, a list of all bank accounts, accounts43receivable, personal property, real property, automobiles or other vehi-44cles, and any other assets, in a form and manner as prescribed by the45commissioner. An employer shall provide such amended accountings of46assets as the commissioner shall order. If within ten days after demand47for such an accounting of assets, which demand may be made by certified48or registered mail, such employer shall fail to provide same, or if the49employer fails to provide an amended accounting as required under this50section, the commissioner may bring an action in the name and on behalf51of the people of the state of New York against such employer in the52supreme court to compel such employer to furnish the accounting and pay53a civil penalty of no more than ten thousand dollars.] 54 e. He or she is hereby authorized and empowered to enter into recipro- 55 cal agreements with the labor department or corresponding agency of any 56 other state or with the person, board, officer, or commission authorizedA. 4777 5 1 to act on behalf of such department or agency, for the collection in 2 such other states of claims and judgments for wages based upon claims 3 assigned to the commissioner. 4 The commissioner may, to the extent provided for by any reciprocal 5 agreement entered into by law or with any agency of another state as 6 herein provided, maintain actions in the courts of such other state for 7 the collection of claims and judgments for wages and may assign such 8 claims and judgments to the labor department or agency of such other 9 state for collection to the extent that such an assignment may be 10 permitted or provided for by the law of such state or by reciprocal 11 agreement. 12 The commissioner may, upon the written consent of the labor department 13 or other corresponding agency of any other state or of any person, 14 board, officer or commission of such state authorized to act on behalf 15 of such labor department or corresponding agency, maintain actions in 16 the courts of this state upon assigned claims and judgments for wages 17 arising in such other state in the same manner and to the same extent 18 that such actions by the commissioner are authorized when arising in 19 this state. However, such actions may be maintained only in cases where 20 such other state by law or reciprocal agreement extends a like comity to 21 cases arising in this state. 22 2. Nothing in this section shall be construed as requiring the commis- 23 sioner in every instance to investigate and attempt to adjust controver- 24 sies, or to take assignments of wage claims, or to institute criminal 25 prosecutions for any violation under this article [or article five,26seven, nineteen or nineteen-A of this chapter], but he or she shall be 27 deemed vested with discretion in such matters. 28 § 4. Paragraph (a) of section 196-a of the labor law, as amended by 29 chapter 564 of the laws of 2010, is amended to read as follows: 30 (a) Any employee[; person or organization acting on the employee's31behalf;], or the recognized and certified collective bargaining agent 32 acting on the employee's behalf, may file with the commissioner a 33 complaint regarding a violation of this article, article [five, seven,] 34 nineteen, or article nineteen-A of this chapter for an investigation of 35 such complaint and statement setting the appropriate remedy, if any. 36 [The commissioner shall keep the names of employees that are the subject37of an investigation confidential until such time that disclosure is38necessary for resolution of an investigation or a complaint.] Failure of 39 an employer to keep adequate records or provide statements of wages to 40 employees as required under this chapter, in addition to exposing such 41 employer to penalties authorized under subdivision one of section two 42 hundred eighteen of this chapter, shall not operate as a bar to filing 43 of a complaint by an employee. In such a case the employer in violation 44 shall bear the burden of proving that the complaining employee was paid 45 wages, benefits and wage supplements. 46 § 5. Section 197 of the labor law, as amended by chapter 93 of the 47 laws of 2019, is amended to read as follows: 48 § 197. Civil penalty. Any employer who fails to pay the wages of his 49 employees or shall differentiate in rate of pay because of protected 50 class status, as provided in this article, shall forfeit to the people 51 of the state the sum of five hundred dollars for each such failure, to 52 be recovered by the commissioner in [any legal action necessary, includ-53ing administrative action or] a civil action. 54 § 6. Section 198 of the labor law, as amended by chapter 564 of the 55 laws of 2010, subdivision 1-a as amended by chapter 362 of the laws of 56 2015, subdivisions 1-b and 1-d as amended by chapter 537 of the laws ofA. 4777 6 1 2014 and subdivision 3 as amended by chapter 2 of the laws of 2015, is 2 amended to read as follows: 3 § 198. Costs, remedies. 1. In any action instituted upon a wage claim 4 by an employee or the commissioner in which the employee prevails, the 5 court may allow such employee in addition to ordinary costs, a reason- 6 able sum, not exceeding fifty dollars for expenses which may be taxed as 7 costs. No assignee of a wage claim, except the commissioner, shall be 8 benefited by this provision. 9 1-a. On behalf of any employee paid less than the wage to which he or 10 she is entitled under the provisions of this article, the commissioner 11 may bring any legal action necessary, including administrative action, 12 to collect such claim and as part of such legal action, in addition to 13 any other remedies and penalties otherwise available under this article, 14 the commissioner [shall] may assess against the employer [the full15amount of any such underpayment, and] an additional amount as liquidated 16 damages equal to twenty-five percent of the total amount of wages found 17 to be due, unless the employer proves a good faith basis for believing 18 that its underpayment of wages was in compliance with the law. [Liqui-19dated damages shall be calculated by the commissioner as no more than20one hundred percent of the total amount of wages found to be due, except21such liquidated damages may be up to three hundred percent of the total22amount of the wages found to be due for a willful violation of section23one hundred ninety-four of this article.] In any action instituted in 24 the courts upon a wage claim by an employee or the commissioner in which 25 the employee prevails, the court shall allow such employee [to recover26the full amount of any underpayment, all] reasonable attorney's fees[,27prejudgment interest as required under the civil practice law and28rules,] and, unless the employer proves a good faith basis to believe 29 that its underpayment of wages was in compliance with the law, an addi- 30 tional amount as liquidated damages equal to [one hundred] twenty-five 31 percent of the total amount of the wages found to be due[, except such32liquidated damages may be up to three hundred percent of the total33amount of the wages found to be due for a willful violation of section34one hundred ninety-four of this article]. 35 [1-b. If any employee is not provided within ten business days of his36or her first day of employment a notice as required by subdivision one37of section one hundred ninety-five of this article, he or she may38recover in a civil action damages of fifty dollars for each work day39that the violations occurred or continue to occur, but not to exceed a40total of five thousand dollars, together with costs and reasonable41attorney's fees. The court may also award other relief, including42injunctive and declaratory relief, that the court in its discretion43deems necessary or appropriate.44On behalf of any employee not provided a notice as required by subdi-45vision one of section one hundred ninety-five of this article, the46commissioner may bring any legal action necessary, including administra-47tive action, to collect such claim, and as part of such legal action, in48addition to any other remedies and penalties otherwise available under49this article, the commissioner may assess against the employer damages50of fifty dollars for each work day that the violations occurred or51continue to occur, but not to exceed a total of five thousand dollars.52In any action or administrative proceeding to recover damages for53violation of paragraph (a) of subdivision one of section one hundred54ninety-five of this article, it shall be an affirmative defense that (i)55the employer made complete and timely payment of all wages due pursuant56to this article or article nineteen or article nineteen-A of this chap-A. 4777 7 1ter to the employee who was not provided notice as required by subdivi-2sion one of section one hundred ninety-five of this article or (ii) the3employer reasonably believed in good faith that it was not required to4provide the employee with notice pursuant to subdivision one of section5one hundred ninety-five of this article.61-d. If any employee is not provided a statement or statements as7required by subdivision three of section one hundred ninety-five of this8article, he or she shall recover in a civil action damages of two9hundred fifty dollars for each work day that the violations occurred or10continue to occur, but not to exceed a total of five thousand dollars,11together with costs and reasonable attorney's fees. The court may also12award other relief, including injunctive and declaratory relief, that13the court in its discretion deems necessary or appropriate.14On behalf of any employee not provided a statement as required by15subdivision three of section one hundred ninety-five of this article,16the commissioner may bring any legal action necessary, including admin-17istrative action, to collect such claim, and as part of such legal18action, in addition to any other remedies and penalties otherwise avail-19able under this article, the commissioner may assess against the employ-20er damages of two hundred fifty dollars for each work day that the21violations occurred or continue to occur, but not to exceed a total of22five thousand dollars. In any action or administrative proceeding to23recover damages for violation of subdivision three of section one24hundred ninety-five of this article, it shall be an affirmative defense25that (i) the employer made complete and timely payment of all wages due26pursuant to this article or articles nineteen or nineteen-A of this27chapter to the employee who was not provided statements as required by28subdivision three of section one hundred ninety-five of this article or29(ii) the employer reasonably believed in good faith that it was not30required to provide the employee with statements pursuant to paragraph31(e) of subdivision one of section one hundred ninety-five of this arti-32cle.] 33 2. The remedies provided by this article may be enforced simultaneous- 34 ly or consecutively so far as not inconsistent with each other. 35 3. Notwithstanding any other provision of law, an action to recover 36 upon a liability imposed by this article must be commenced within six 37 years. [The statute of limitations shall be tolled from the date an38employee files a complaint with the commissioner or the commissioner39commences an investigation, whichever is earlier, until an order to40comply issued by the commissioner becomes final, or where the commis-41sioner does not issue an order, until the date on which the commissioner42notifies the complainant that the investigation has concluded. Investi-43gation by the commissioner shall not be a prerequisite to nor a bar44against a person bringing a civil action under this section.] All 45 employees shall have the right to recover full wages, benefits and wage 46 supplements [and liquidated damages] accrued during the six years previ- 47 ous to the commencing of such action, whether such action is instituted 48 by the employee or by the commissioner. 49 [4. In any civil action by an employee or by the commissioner, the50employee or commissioner shall have the right to collect attorney's fees51and costs incurred in enforcing any court judgment. Any judgment or52court order awarding remedies under this section shall provide that if53any amounts remain unpaid upon the expiration of ninety days following54issuance of judgment, or ninety days after expiration of the time to55appeal and no appeal is then pending, whichever is later, the total56amount of judgment shall automatically increase by fifteen percent.]A. 4777 8 1 § 7. Section 198-a of the labor law, as amended by chapter 564 of the 2 laws of 2010, is amended to read as follows: 3 § 198-a. Criminal penalties. 1. Every employer who does not pay the 4 wages of all of his employees in accordance with the provisions of this 5 chapter, and the officers and agents of any corporation[, partnership,6or limited liability company] who knowingly permit the corporation[,7partnership, or limited liability company] to violate this chapter by 8 failing to pay the wages of any of its employees in accordance with the 9 provisions thereof, shall be guilty of a misdemeanor for the first 10 offense and upon conviction therefor shall be fined not less than five 11 hundred nor more than twenty thousand dollars or imprisoned for not more 12 than one year, and, in the event that any second or subsequent offense 13 occurs within six years of the date of conviction for a prior offense, 14 shall be guilty of a felony for the second or subsequent offense, and 15 upon conviction therefor, shall be fined not less than five hundred nor 16 more than twenty thousand dollars or imprisoned for not more than one 17 year plus one day, or punished by both such fine and imprisonment, for 18 each such offense. An indictment of a person or corporation operating a 19 steam surface railroad for an offense specified in this section may be 20 found and tried in any county within the state in which such railroad 21 ran at the time of such offense. 22 2. Every employer who violates or fails to comply with the require- 23 ments of subdivision four of section one hundred ninety-five of this 24 article, and the officers and agents of any corporation[, partnership,25or limited liability company] who knowingly permit the corporation[,26partnership, or limited liability company] to violate or fail to comply 27 therewith, shall be guilty of a misdemeanor and upon conviction therefor 28 shall be fined not less than five hundred nor more than five thousand 29 dollars or imprisoned for not more than one year. 30 3. Every employer who knowingly violates or fails to comply with the 31 requirements of subdivision four of section one hundred ninety-five of 32 this article, and the officers and agents of any corporation[, partner-33ship, or limited liability company] who knowingly permit the corpo- 34 ration[, partnership, or limited liability company] to violate or fail 35 to comply therewith, shall be guilty of a felony where such employer, 36 officer or agent has been convicted of a violation of such subdivision 37 within the previous six years, and upon conviction therefor shall be 38 fined not less than five hundred nor more than twenty thousand dollars 39 or imprisoned for not more than one year plus one day, or punished by 40 both such fine and imprisonment, for each such offense. In determining 41 the penalty, the court shall consider the severity of the violation, the 42 size of the employer, and the employer's good faith effort to comply 43 with the requirements of subdivision four of section one hundred nine- 44 ty-five of this article. 45 § 8. Section 199-a of the labor law, as amended by chapter 564 of the 46 laws of 2010, is amended to read as follows: 47 § 199-a. Notification of process. 1. Each employee who files a 48 complaint regarding a violation of a provision of [this] article six 49 (payment of wages), article nineteen (minimum wage act), or article 50 nineteen-A [(minimum wage standards and protective labor practices for51farm workers), section one hundred sixty-one, section one hundred52sixty-two], section two hundred twelve-a, or section two hundred 53 twelve-b[, or section two hundred fifteen] of this chapter, or a rule or 54 regulation promulgated thereunder, shall be provided with a written 55 description of the anticipated processing of the complaint, includingA. 4777 9 1 investigation, case conference, potential civil and criminal penalties, 2 and collection procedures. 3 2. Each employee and his or her [authorized] representative shall be 4 notified in writing of any case conference before it is held and given 5 the opportunity to attend. 6 3. Each employee and his or her [authorized] representative shall be 7 notified in writing of any award and collection of back wages and civil 8 penalties, and of any intent to seek criminal penalties. In the event 9 that criminal penalties are sought the employee and his or her [author-10ized] representative shall be notified of the outcome of prosecution. 11 § 9. Section 215 of the labor law, as amended by chapter 564 of the 12 laws of 2010, the closing paragraph of paragraph (a) of subdivision 1 as 13 added by chapter 126 of the laws of 2019, and paragraph (b) of subdivi- 14 sion 1 and paragraph (a) of subdivision 2 as amended by chapter 537 of 15 the laws of 2014, is amended to read as follows: 16 § 215. Penalties and civil action; [prohibited retaliation] employer 17 who penalizes employees because of complaint of employer violations. 1. 18 (a) No employer or his or her agent, or the officer or agent of any 19 corporation, partnership, or limited liability company[, or any other20person,] shall discharge, [threaten,] penalize, or in any other manner 21 discriminate or retaliate against any employee (i) because such employee 22 has made a complaint to his or her employer, or to the commissioner or 23 his or her authorized representative, [or to the attorney general or any24other person,] that the employer has [engaged in conduct that the25employee, reasonably and in good faith, believes violates any provision26of] violated any provision of this chapter, or [any order issued by the27commissioner] (ii) [because such employer or person believes that such28employee has made a complaint to his or her employer, or to the commis-29sioner or his or her authorized representative, or to the attorney30general, or to any other person that the employer has violated any31provision of this chapter, or any order issued by the commissioner32(iii)] because such employee has caused to be instituted [or is about to33institute] a proceeding under or related to this chapter, or [(iv)](iii) 34 because such employee has provided information to the commissioner or 35 his or her authorized representative [or the attorney general], or 36 [(v)](iv) because such employee has testified or is about to testify in 37 an investigation or proceeding under this chapter, or [(vi)](v) because 38 such employee has otherwise exercised rights protected under this chap- 39 ter, or [(vii)](vi) because the employer has received an adverse deter- 40 mination from the commissioner involving the employee. 41 [An employee complaint or other communication need not make explicit42reference to any section or provision of this chapter to trigger the43protections of this section.] 44 As used in this section, to [threaten,] penalize, or in any other 45 manner discriminate or retaliate against any employee includes threaten- 46 ing to contact or contacting United States immigration authorities or 47 otherwise reporting or threatening to report an employee's suspected 48 citizenship or immigration status or the suspected citizenship or immi- 49 gration status of an employee's family or household member, as defined 50 in subdivision two of section four hundred fifty-nine-a of the social 51 services law, to a federal, state or local agency. 52 (b) If after investigation the commissioner finds that an employer [or53person] has violated any provision of this section, the commissioner 54 may, by an order which shall describe particularly the nature of the 55 violation, assess the employer [or person] a civil penalty of not less 56 than one thousand nor more than ten thousand dollars provided, however,A. 4777 10 1 that if the commissioner finds that the employer has violated the 2 provisions of this section in the preceding six years, he or she may 3 assess a civil penalty of not less than one thousand nor more than twen- 4 ty thousand dollars[. The commissioner may also], and order [all appro-5priate relief including enjoining the conduct of any person or employer;6ordering payment of liquidated damages to the employee by the person or7entity in violation; and, where the person or entity in violation is an8employer ordering rehiring or reinstatement of the employee to his or9her former position or an equivalent position, and an award of lost10compensation or an award of front pay in lieu of reinstatement and an11award of lost compensation. Liquidated damages shall be calculated as an12amount not more than twenty thousand dollars. The commissioner may13assess liquidated damages on behalf of every employee aggrieved under14this section, in addition to any other remedies permitted by this15section] the employer to pay lost compensation. 16 (c) Notwithstanding the provisions of section two hundred thirteen of 17 this article, the penalties set forth in this section shall be the 18 exclusive remedies available for violations of this section. 19 (d) This section shall not apply to employees of the state or any 20 municipal subdivisions or departments thereof. 21 2. [(a)] An employee may bring a civil action in a court of competent 22 jurisdiction against any employer or persons alleged to have violated 23 the provisions of this section. The court shall have jurisdiction to 24 restrain violations of this section, within two years after such 25 violation, [regardless of the dates of employment of the employee,] and 26 to order all appropriate relief, including [enjoining the conduct of any27person or employer; ordering payment of liquidated damages, costs and28reasonable attorneys' fees to the employee by the person or entity in29violation; and, where the person or entity in violation is an employer,30ordering] rehiring or reinstatement of the employee to his or her former 31 position with restoration of seniority [or an award of front pay in lieu32of reinstatement], payment [and an award] of lost compensation [and], 33 damages, [costs] and reasonable attorneys' fees. [Liquidated damages34shall be calculated as an amount not more than twenty thousand dollars.35The court shall award liquidated damages to every employee aggrieved36under this section, in addition to any other remedies permitted by this37section. The statute of limitations shall be tolled from the date an38employee files a complaint with the commissioner or the commissioner39commences an investigation, whichever is earlier, until an order to40comply issued by the commissioner becomes final, or where the commis-41sioner does not issue an order, until the date on which the commissioner42notifies the complainant that the investigation has concluded. Investi-43gation by the commissioner shall not be a prerequisite to nor a bar44against a person bringing a civil action under this section.45(b)] At or before the commencement of any action under this section, 46 notice thereof shall be served upon the attorney general by the employ- 47 ee. 48 [3. Any employer or his or her agent, or the officer or agent of any49corporation, partnership, or limited liability company, or any other50person who violates subdivision one of this section shall be guilty of a51class B misdemeanor.] 52 § 10. Subdivisions 1 and 3 of section 218 of the labor law, as amended 53 by chapter 2 of the laws of 2015, are amended to read as follows: 54 1. If the commissioner determines that an employer has violated a 55 provision of article six (payment of wages), article nineteen (minimum 56 wage act), article nineteen-A [(minimum wage standards and protectiveA. 4777 11 1labor practices for farm workers)], section two hundred twelve-a, 2 section two hundred twelve-b, section one hundred sixty-one (day of 3 rest) or section one hundred sixty-two (meal periods) of this chapter, 4 or a rule or regulation promulgated thereunder, the commissioner shall 5 issue to the employer an order directing compliance therewith, which 6 shall describe particularly the nature of the alleged violation. [A copy7of such order shall be provided to any employee who has filed a8complaint and any authorized representative of him or her.] In addition 9 to directing payment of wages, benefits or wage supplements found to be 10 due, [and liquidated damages in the amount of one hundred percent of11unpaid wages,] such order, if issued to an employer who previously has 12 been found in violation of those provisions, rules or regulations, or to 13 an employer whose violation is willful or egregious, shall direct 14 payment to the commissioner of an additional sum as a civil penalty in 15 an amount [not to exceed] equal to double the total amount [of wages,16benefits, or wage supplements] found to be due. In no case shall the 17 order direct payment of an amount less than the total wages, benefits or 18 wage supplements found by the commissioner to be due, plus the [liqui-19dated damages in the amount of one hundred percent of unpaid wages, the] 20 appropriate civil penalty[, and interest at the rate of interest then in21effect, as prescribed by the superintendent of financial services pursu-22ant to section fourteen-a of the banking law per annum from the date of23the underpayment to the date of the payment.] Where the violation is for 24 a reason other than the employer's failure to pay wages, benefits or 25 wage supplements found to be due, the order shall direct payment to the 26 commissioner of a civil penalty in an amount not to exceed one thousand 27 dollars for a first violation, two thousand dollars for a second 28 violation or three thousand dollars for a third or subsequent violation. 29 In assessing the amount of the penalty, the commissioner shall give due 30 consideration to the size of the employer's business, the good faith 31 [basis] of the employer [to believe that its conduct was in compliance32with the law], the gravity of the violation, the history of previous 33 violations and, in the case of wages, benefits or supplements 34 violations, the failure to comply with recordkeeping or other non-wage 35 requirements. 36 Where there is a violation of section one hundred ninety-eight-b of 37 this chapter, the order shall direct payment back to the employee of the 38 amount of wages, supplements or other thing of value unlawfully received 39 plus [liquidated damages in the amount of one hundred percent of unpaid40wages, and] interest at the rate of interest then in effect, as 41 prescribed by the superintendent of financial services pursuant to 42 section fourteen-a of the banking law per annum from the date of the 43 payback, return, donation or contribution to the date of payment, and 44 shall include such other relief as may be appropriate, including rehir- 45 ing or reinstatement of the employee to his or her former position, back 46 wages, and restoration of seniority. In addition, the commissioner shall 47 order payment of a civil penalty of at least twenty-five hundred dollars 48 but not more than five thousand dollars per violation. In assessing the 49 amount of the penalty, the commissioner shall give due consideration to 50 the size of the employer's business, the good faith [basis] of the 51 employer [to believe that its conduct was in compliance with the law], 52 the gravity of the violation, and the history of previous violations. 53 [At the discretion of the commissioner, the commissioner shall have54full authority to provide for inclusion of an automatic fifteen percent55additional amount of damages to come due and owing upon expiration of56ninety days from an order to comply becoming final. The commissionerA. 4777 12 1shall provide written notice to the employer in the order to comply of2this additional damage.] 3 3. Provided that no proceeding for administrative or judicial review 4 as provided in this chapter shall then be pending and the time for 5 initiation of such proceeding shall have expired, the commissioner may 6 file with the county clerk of the county where the employer resides or 7 has a place of business the order of the commissioner, or the decision 8 of the industrial board of appeals containing the amount found to be due 9 including the civil penalty, if any[, and at the commissioner's10discretion, an additional fifteen percent damages upon any outstanding11monies owed. At the request of an employee, the commissioner shall12assign, without consideration or liability, that portion of the filed13order that constitutes wages, wage supplements, interest on wages or14wage supplements, or liquidated damages due that employee, to that15employee and may file an assignment or order in that amount in the name16of that employee with the county clerk of the county where the employer17resides or has a place of business]. The filing of such assignment, 18 order or decision shall have the full force and effect of a judgment 19 duly docketed in the office of such clerk. The assignment, order or 20 decision may be enforced by and in the name of the commissioner, or by 21 the employee, in the same manner, and with like effect, as that 22 prescribed by the civil practice law and rules for the enforcement of a 23 money judgment. 24 § 11. Section 219 of the labor law, as amended by chapter 564 of the 25 laws of 2010, the opening paragraph of subdivision 1 as further amended 26 by section 104 of part A of chapter 62 of the laws of 2011, subdivision 27 3 as amended by chapter 2 of the laws of 2015, subdivision 4 as added by 28 chapter 537 of the laws of 2014, is amended to read as follows: 29 § 219. Violations of certain wage payment provisions; interest, filing 30 of order as judgment. 1. If the commissioner determines that an employer 31 has failed to pay wages, benefits or wage supplements required pursuant 32 to article six (payment of wages), article nineteen (minimum wage act) 33 or article [nineteen-A (minimum wage standards and protective labor34practices for farm workers)] nineteen-a of this chapter, or a rule or 35 regulation promulgated thereunder, the commissioner shall issue to the 36 employer an order directing compliance therewith, which shall describe 37 particularly the nature of the alleged violation. [A copy of such order38shall be provided to any employee who has filed a complaint and to his39or her authorized representative.] Such order shall direct payment of 40 wages or supplements found to be due, [liquidated damages in the amount41of one hundred percent of unpaid wages, and] including interest at the 42 rate of interest then in effect as prescribed by the superintendent of 43 financial services pursuant to section fourteen-a of the banking law per 44 annum from the date of the underpayment to the date of the payment. 45 [At the discretion of the commissioner, the commissioner shall have46full authority to provide for inclusion of an automatic fifteen percent47additional amount of damages to come due and owing upon expiration of48ninety days from an order to comply becoming final. The commissioner49shall provide written notice to the employer in the order to comply of50this additional damage.] 51 2. An order issued under subdivision one of this section shall be 52 final and not subject to review by any court or agency unless review is 53 had pursuant to section one hundred one of this chapter. 54 3. Provided that no proceeding for administrative or judicial review 55 as provided in this chapter shall then be pending and the time for 56 initiation of such proceeding shall have expired, the commissioner mayA. 4777 13 1 file with the county clerk of the county where the employer resides or 2 has a place of business the order of the commissioner or the decision of 3 the industrial board of appeals containing the amount found to be due[,4including, at the commissioner's discretion, an additional fifteen5percent damages upon any outstanding monies owed. At the request of an6employee, the commissioner shall assign, without consideration or7liability, that portion of the filed order that constitutes wages, wage8supplements, interest on wages or wage supplements, or liquidated9damages due the employee, to that employee and may file an assignment or10order in that amount in the name of such employee with the county clerk11of the county where the employer resides or has a place of business]. 12 The filing of such assignment, order or decision shall have the full 13 force and effect of a judgment duly docketed in the office of such 14 clerk. The assignment, order or decision may be enforced by and in the 15 name of the commissioner, or by the employee, in the same manner, and 16 with like effect, as that prescribed by the civil practice law and rules 17 for the enforcement of a money judgment. 18 [4. An employer similar in operation and ownership to a prior employer19found to be in violation of article six, nineteen or nineteen-A of this20chapter, shall be deemed the same employer for the purposes of this21section if the employees of the subsequent employer are engaged in22substantially the same work in substantially the same working conditions23under substantially the same supervisors, or if the new entity has24substantially the same production process, produces substantially the25same products and has substantially the same body of customers. Such a26subsequent employer will continue to be subject to this section and27shall be liable for the acts of the prior employer under this section.] 28 § 12. Section 219-c of the labor law is REPEALED. 29 § 13. Section 661 of the labor law, as amended by chapter 564 of the 30 laws of 2010, is amended to read as follows: 31 § 661. Records of employers. [For all employees covered by this arti-32cle, every] Every employer shall [establish, maintain, and preserve for33not less than six years contemporaneous,] keep true[,] and accurate 34 [payroll] records [showing for each week worked the] of hours worked by 35 each employee covered by an hourly minimum wage rate, the [rate or rates36of pay and basis thereof, whether paid by the hour, shift, day, week,37salary, piece, commission, or other basis; gross wages; deductions;38allowances, if any, claimed as part of the minimum wage; and net wages39for each employee, plus] wages paid to all employees, and such other 40 information as the commissioner deems material and necessary[. For all41employees who are not exempt from overtime compensation as established42in the commissioner's minimum wage orders or otherwise provided by New43York state law or regulation, the payroll records must include the regu-44lar hourly rate or rates of pay, the overtime rate or rates of pay, the45number of regular hours worked, and the number of overtime hours worked.46For all employees paid a piece rate, the payroll records shall include47the applicable piece rate or rates of pay and number of pieces completed48at each piece rate. On], and shall on demand[, the employer shall] 49 furnish to the commissioner or his duly authorized representative a 50 sworn statement of the [hours worked, rate or rates of pay and basis51thereof, whether paid by the hour, shift, day, week, salary, piece,52commission, or other basis; gross wages; deductions; and allowances, if53any, claimed as part of the minimum wage, for each employee, plus such54other information as the commissioner deems material and necessary]same. 55 Every employer shall keep such records open to inspection by the commis- 56 sioner or his duly authorized representative at any reasonable time.A. 4777 14 1 Every employer of an employee shall keep a digest and summary of this 2 article or applicable wage order, which shall be prepared by the commis- 3 sioner, posted in a conspicuous place in his establishment and shall 4 also keep posted such additional copies of said digest and summary as 5 the commissioner prescribes. Employers shall, on request, be furnished 6 with copies of this article and of orders, and of digests and summaries 7 thereof, without charge. Employers shall permit the commissioner or his 8 duly authorized representative to question [without interference] any 9 employee of such employer in [a private location at] the place of 10 employment and during working hours in respect to the wages paid to and 11 the hours worked by such employee or other employees. 12 § 14. Section 662 of the labor law, as amended by chapter 564 of the 13 laws of 2010, is amended to read as follows: 14 § 662. Penalties. 1. [Failure to pay minimum wage or overtime compen-15sation] Discrimination against employee. Any employer or his or her 16 agent, or the officer or agent of any corporation, who discharges or in 17 any other manner discriminates against any employee because such employ- 18 ee has made a complaint to his employer, or to the commissioner or his 19 authorized representative, that he has not been paid in accordance with 20 the provisions of this article, or because such employee has caused to 21 be instituted a proceeding under or related to this article, or because 22 such employee has testified or is about to testify in an investigation 23 or proceeding under this article, shall be guilty of a class B misdemea- 24 nor. 25 2. Payment of less than minimum wage. Any employer or his or her 26 agent, or the officer or agent of any corporation, [partnership, or27limited liability company,] who pays or agrees to pay to any employee 28 less than the wage applicable under this article shall be guilty of a 29 class B misdemeanor and [upon conviction therefor shall be fined not30less than five hundred nor more than twenty thousand dollars or impri-31soned for not more than one year, and, in the event that any second or32subsequent offense occurs within six years of the date of conviction for33a prior offense, shall be guilty of a felony for the second or subse-34quent offense, and upon conviction therefor, shall be fined not less35than five hundred nor more than twenty thousand dollars or imprisoned36for not more than one year plus one day, or punished by both such fine37and imprisonment, for each such offense. Each] each payment to any 38 employee in any week of less than the wage applicable under this article 39 shall constitute a separate offense. 40 [2.] 3. Failure to keep records. Any employer or his or her agent, or 41 the officer or agent of any corporation[, partnership, or limited42liability company], who fails to keep the records required under this 43 article or to furnish such records or any information required to be 44 furnished under this article to the commissioner or his or her author- 45 ized representative upon request, or who hinders or delays the commis- 46 sioner or his or her authorized representative in the performance of his 47 or her duties in the enforcement of this article, or refuses to admit 48 the commissioner or his or her authorized representative to any place of 49 employment, or falsifies any such records or refuses to make such 50 records accessible to the commissioner or his or her authorized repre- 51 sentative, or refuses to furnish a sworn statement of such records or 52 any other information required for the proper enforcement of this arti- 53 cle to the commissioner or his or her authorized representative, shall 54 be guilty of a class B misdemeanor and [upon conviction therefor shall55be fined not less than five hundred nor more than five thousand dollars56or imprisoned for not more than one year, and, in the event that anyA. 4777 15 1second or subsequent offense occurs within six years of the date of2conviction for a prior offense, shall be guilty of a felony for the3second or subsequent offense, and upon conviction therefor, shall be4fined not less than five hundred nor more than twenty thousand dollars5or imprisoned for not more than one year plus one day, or punished by6both such fine and imprisonment, for each such offense. Each] each day's 7 failure to keep the records requested under this article or to furnish 8 such records or information to the commissioner or his or her authorized 9 representative shall constitute a separate offense. 10 4. Where any person has previously been convicted of a violation of 11 this section within the preceding five years, upon conviction for a 12 second or subsequent violation such person may be fined up to ten thou- 13 sand dollars in addition to any other penalties including fines other- 14 wise provided by law; provided, however, that the total additional fine 15 that may be imposed pursuant to this subdivision for separate offenses 16 committed in any consecutive twelve month period may not exceed ten 17 thousand dollars. 18 § 15. Section 663 of the labor law, as amended by chapter 564 of the 19 laws of 2010, subdivision 3 as amended by chapter 2 of the laws of 2015, 20 is amended to read as follows: 21 § 663. Civil action. 1. By employee. If any employee is paid by his or 22 her employer less than the wage to which he or she is entitled under the 23 provisions of this article, he or she [shall] may recover in a civil 24 action the amount of any such underpayments, together with costs [all] 25 and such reasonable attorney's fees, [prejudgment interest as required26under the civil practice law and rules] as may be allowed by the court, 27 and unless the employer proves a good faith basis to believe that its 28 underpayment of wages was in compliance with the law, an additional 29 amount as liquidated damages equal to [one hundred] twenty-five percent 30 of the total of such underpayments found to be due[. Any] the employee 31 and any agreement between the employee, and the employer to work for 32 less than such wage shall be no defense to such action. 33 2. By commissioner. On behalf of any employee paid less than the wage 34 to which the employee is entitled under the provisions of this article, 35 the commissioner may bring any legal action necessary, including admin- 36 istrative action, to collect such claim, and the employer shall be 37 required to pay [the full amount of the underpayment, plus] costs, and 38 unless the employer proves a good faith basis to believe that its under- 39 payment was in compliance with the law, an additional amount as liqui- 40 dated damages equal to twenty-five percent of the total of such under- 41 payments found to be due the employee. [Liquidated damages shall be42calculated by the commissioner as no more than one hundred percent of43the total amount of underpayments found to be due the employee. In any44action brought by the commissioner in a court of competent jurisdiction,45liquidated damages shall be calculated as an amount equal to one hundred46percent of underpayments found to be due the employee.] 47 3. Limitation of time. Notwithstanding any other provision of law, an 48 action to recover upon a liability imposed by this article must be 49 commenced within six years. [The statute of limitations shall be tolled50from the date an employee files a complaint with the commissioner or the51commissioner commences an investigation, whichever is earlier, until an52order to comply issued by the commissioner becomes final, or where the53commissioner does not issue an order, until the date on which the54commissioner notifies the complainant that the investigation has55concluded. Investigation by the commissioner shall not be a prerequisiteA. 4777 16 1to nor a bar against a person bringing a civil action under this arti-2cle.34. Attorneys' fees. In any civil action by an employee or by the4commissioner, the employee or commissioner shall have the right to5collect attorneys' fees and costs incurred in enforcing any court judg-6ment. Any judgment or court order awarding remedies under this section7shall provide that if any amounts remain unpaid upon the expiration of8ninety days following issuance of judgment, or ninety days after expira-9tion of the time to appeal and no appeal therefrom is then pending,10whichever is later, the total amount of judgment shall automatically11increase by fifteen percent.] 12 § 16. This act shall take effect immediately.
