•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A09012 Summary:

BILL NOA09012
 
SAME ASSAME AS S00541-B
 
SPONSORSimon (MS)
 
COSPNSRAlvarez, Reyes, Shrestha, Mamdani, Kim, Dinowitz, Gallagher, Epstein, Rosenthal L, Taylor, Cruz, Bores, Forrest, Carroll, Cunningham, Burdick, Davila, Lavine, Gonzalez-Rojas, Fahy, Simone, Rajkumar, Rozic, Darling, McMahon, Ardila, Jacobson, Bronson, Jean-Pierre, Burgos, Tapia, Raga, Kelles, Lucas, Zinerman, Mitaynes, Shimsky, Otis, DeStefano, Lee, Hevesi, Paulin, Clark, Levenberg, Eachus, Glick, Weprin, Colton, Meeks, Lunsford, Ramos, Santabarbara
 
MLTSPNSRSeawright
 
Add Art 36 §§1020 - 1023, Lab L
 
Enacts the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"; relates to the delegation of state enforcement authority to private actors; authorizes an affected employee, whistleblower, representative organization or an organizational deputy to initiate a public enforcement action on behalf of the commissioner for certain provisions of the labor law, or any regulation promulgated thereunder.
Go to top    

A09012 Actions:

BILL NOA09012
 
02/02/2024referred to labor
Go to top

A09012 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9012
 
SPONSOR: Simon (MS)
  TITLE OF BILL: An act to amend the labor law, in relation to enacting the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"   PURPOSE OF BILL: This legislation empowers affected workers to file claims on behalf of the state against an employer for specified violations of State labor law. The Act also allows labor organizations, and labor organizations deputized by the states to file claims on behalf of impacted workers in order to protect the public interest.   SUMMARY OF PROVISIONS: The legislation adds a new Article 35 to the labor law, which estab- lishes the right of a public enforcement action through which an affected employee or a representative organization or organizational deputy may commence a civil action on behalf of the commissioner of labor for the purpose of enforcing any provision of the labor law. Section 1021 of Article 35 specifies that such action may provide for a civil penalty to be collected by the commissioner and that multiple violations that have affected different employees may be the subject of such complaint. Section 1021 Subsection 2 (a) authorizes a court to exercise the same discretion as the commissioner in determining whether to assess a civil penalty. Subsection 2 (b) establishes a minimum civil penalty of five hundred dollars per period per violation. Subsection 2 (c) provides that any affected employee•or representative organization which prevails shall be entitled to reasonable attorney's fees. Subsection 3 estab- lishes a schedule for the distribution of any civil penalties recovered. Subsection 4 prohibits the use of private agreements to limit the right of employees to pursue a public enforcement action unless such agree- ments are collectively bargained and the bargaining agreement provides a forum for the enforcement of rights enforceable under this article. Section 1021 Subsection 5 establishes a six year statute of limitations. Section 1021 Subsection 6 establishes that public enforcement actions "belong to the state" and shall, with some exceptions, preclude subse- quent state enforcement action. Subsection 7 prohibits retaliatory action by an employer because a relator brought an enforcement action of cooperated with one. The section also establishes that any affection person.or relator may bring a public enforcement action for all appro- priate relief. Section 1022 Subsection 1 establishes the process for the filing of a public enforcement action including the requirement for sixty-day writ- ten notice and the items that must be included in such notice. Section 1022 Subsection 2 allows the commissioner or the Attorney Gener- al to appoint an organizational deputy to serve as the relator. Section 1022 Subsection 3 authorizes the commissioner or the Attorney General to intervene in a public enforcement action and proceed with any and all claims. Section 1022 Subsection 4 establishes that the commissioner or the Attorney General, whoever intervenes may take primary responsibility for litigating the action. Section 1022 Subsection 5 requires that either the commissioner, the Attorney General, or a federal or state court of competent jurisdiction shall approve any settlement arrived at under this act. Section 1022 Subsection 6 a representative organiiation may only initi- ate an action pursuant to this article if an affected employee elects such organization in writing using a form approved by the commissioner and the Attorney General Section 1022 Subsection 7 provides the relator with the right to amend the notice after it has been filed. Section 1022 Subsection 8 ensures prompt trial. Section 1022 Subsection 9 states that no public enforcement action brought under this is required to meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Section 1022 Subsection 10-11 provides for the rules governing discov- ery. Section 1023 Subsection 1 indicates that this article shall not apply to the recovery of administrative and civil penalties in connection with the unemployment insurance law. Section 1023 Subsection 2 indicates that this article shall not apply to the recovery of administrative and civil penalties in connection with the New York State Labor Relations Act. Section 1023 Subsection 3 incorporates a severability clause. Section 1023 Subsection 4 authorizes this article to be construed in light of its remedial purposes to expand the enforcement of this chap- ter. Section 4 is the effective date. This act shall take effect immediately and shall peLmit relators to bring actions that occurred within six years prior to the act's enactment.   JUSTIFICATION: An estimated 2.1 million New York workers are victims of wage theft each year, with a total of more than $3 billion stolen in wages and benefits. Wage theft costs our State millions of dollars a year in lost revenue and leaves law-abiding employers at a major competitive disadvantage. The New York State Department of Labor lacks the resources needed to effectively investigate and prosecute wage theft at scale and is heavily reliant upon uncertain federal funding. As a result, New York's workers may be increasingly vulnerable to exploitation. This legislation extends the reach of the state's public enforcement provisions in order to help ensure that exploitative employers do not get away with wage theft and other abuses; to help establish a level playing field on which law abiding employers can afford to compete; to protect the public interest; and to generate revenue to fund the New York State Department of Labor's own work. Extending the capacity and reach of New York's public enforcement strategies is critically impor- tant in this era for a number of reasons. The public and private enforcement mechanisms that have played a major role in wage theft and workers' rights enforcement for decades are being undeLmined in a number of ways, including: (a) unscrupulous employers who are using this moment of fear to intimidate and threaten workers into accepting exploitation; (b) a lack of sufficient funding for the Department has limited its capacity to enforce existing provisions of the Labor Law. In addition, private enforcement is often difficult to undertake in smaller workplaces and industries where workers' wage theft claims are small, and in rural communities where workers face challenges identify- ing counsel. The EMPIRE Worker Protection Act enables workers to "step into the shoes" of the government for the purposes of enforcing the New York Labor Law, and claims filed under the EMPIRE Worker Protection Act are public in nature and not subject to private agreements. The EMPIRE Work- er Protection Act builds upon recent advances in New York's labor protections, specifically the 2015 Achieve Pay Equity bill, which amended the law to strengthen the State's protections against pay discrimination for women. Additionally the EMPIRE Worker Protection Act is a proven model for strengthening labor law enforcement with Califor- nia having enacted similar legislation. That legislation has assisted our nation's largest state in resolving thousands of labor violations and generated more than $28 million in revenue for the California Department of Labor since 2013.   PRIOR LEGISLATIVE HISTORY: S. 12-A of 2021-2022 (Hoylman): Died in Labor A. 5876 of 2021-2022 (Joyner): Died in Labor S.1648-A of 2019-2020(Hoy1man): Died in Labor A.2265-A of 2019-2020 (Joyner): Died in Labor S.6426 of 2017-2018 (Hoylman): Died in Labor A.7958 of 2017-2018 (JOyner): Died in Labor   FISCAL IMPLICATIONS: Will result in increased revenue for the State.   EFFECTIVE DATE: This act shall take effect immediately, and shall permit relators to bring actions that occurred within the six years prior to the act's enactment.
Go to top

A09012 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9012
 
                   IN ASSEMBLY
 
                                    February 2, 2024
                                       ___________
 
        Introduced  by  M.  of A. SIMON, ALVAREZ, REYES, SHRESTHA, MAMDANI, KIM,
          DINOWITZ,  GALLAGHER,  EPSTEIN,  L. ROSENTHAL,  TAYLOR,  CRUZ,  BORES,
          FORREST, CARROLL, CUNNINGHAM, BURDICK, DAVILA, LAVINE, GONZALEZ-ROJAS,
          FAHY,  SIMONE,  RAJKUMAR,  ROZIC,  DARLING, McMAHON, ARDILA, JACOBSON,
          BRONSON, JEAN-PIERRE, BURGOS, TAPIA, RAGA,  KELLES,  LUCAS,  ZINERMAN,
          MITAYNES, SHIMSKY, OTIS -- Multi-Sponsored by -- M. of A. SEAWRIGHT --
          read once and referred 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, labor organiza-
    12  tions, and labor organizations deputized by the state  to  bring  public
    13  enforcement actions in certain contexts in which the state does not have
    14  the means to fully enforce labor law protections.
    15    3.  The legislature further finds and declares that the purpose of the
    16  EMPIRE Worker Protection Act is to create a means of empowering citizens
    17  as private attorneys general to enforce the New York labor law.
    18    4. The legislature further finds and declares that the purpose of  the
    19  EMPIRE  Worker  Protection  Act  is  to  incentivize  private parties to
    20  recover civil penalties for the government that otherwise may  not  have
    21  been  assessed and collected by overburdened state enforcement agencies.
    22  When the New York labor law is effectively  enforced,  it  protects  the
    23  interests  of  all  New  Yorkers and the state of New York.  Such public
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02068-07-4

        A. 9012                             2
 
     1  enforcement  actions  are  an  efficient  mechanism  to  limit  systemic
     2  violations, will enforce the rights of more workers, and can benefit the
     3  department of labor with enhanced resources.
     4    5.  The legislature further finds and declares that the purpose of the
     5  EMPIRE Worker Protection Act is to benefit those employers who are oper-
     6  ating within the labor law, and who, as a result, face  unfair  competi-
     7  tion from individuals and entities shirking the labor law.
     8    6.  The legislature further finds and declares that the purpose of the
     9  EMPIRE Worker Protection Act is to deter employers from  stealing  wages
    10  or  committing  other violations of the New York labor law and raise the
    11  cost of noncompliance with the New York labor law.
    12    7. The legislature further finds and declares that the purpose of  the
    13  EMPIRE  Worker  Protection  Act is to incentivize labor organizations to
    14  aid working people to report violations of the New York labor law.
    15    8. The legislature further finds and declares that the purpose of  the
    16  EMPIRE  Worker  Protection Act is to facilitate whistleblowers suffering
    17  from violations of the New York labor law to report abuses without  fear
    18  of retaliation and intimidation.
    19    9.  The  legislature further finds and declares that the EMPIRE Worker
    20  Protection Act is part of a history both in New York state  and  in  the
    21  United  States  of  laws  enabling  private  citizens  to  aid in public
    22  enforcement. In similar qui tam legislation enabling private citizens to
    23  aid in public enforcement, the resulting action is a public  enforcement
    24  action.
    25    §  3.  The  labor law is amended by adding a new article 36 to read as
    26  follows:
    27                                 ARTICLE 36
    28   EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
    29  Section 1020. Definitions.
    30          1021. Public enforcement action.
    31          1022. Procedure.
    32          1023. Non-application.
    33    § 1020. Definitions. Whenever used in this article:
    34    1. "affected employee" means any employee as defined by section two of
    35  this chapter who was employed  by  the  alleged  violator  employer  and
    36  against whom one of the alleged violations was committed, or was alleged
    37  to have been committed, as well as any person who is not classified by a
    38  business  as  an  employee  but  who  claims to be an employee and whose
    39  claims against the purported employer relate to this alleged  misclassi-
    40  fication, whether or not that person has received full or partial relief
    41  from harm.
    42    2.  "relator" means an affected employee, a whistleblower, a represen-
    43  tative organization, or an organizational deputy that acts as  a  plain-
    44  tiff in a public enforcement action under this chapter.
    45    3.  "whistleblower"  means any current or former employee, contractor,
    46  subcontractor, or employee of  a  contractor  or  subcontractor  of  the
    47  defendant  with  knowledge of the alleged violations that is independent
    48  of and materially adds to any publicly disclosed information  about  the
    49  alleged  violations. Whistleblowers are not also "affected employees" if
    50  they do not seek civil penalties for violations that personally affected
    51  them in a public enforcement action under this chapter.
    52    4. "employer" means any employer as defined by  section  two  of  this
    53  chapter.  The term "employer" shall not include a governmental agency.
    54    5. "representative organization" means a labor organization as defined
    55  by  subsection  (g)  of  section  four  thousand four hundred two of the
    56  insurance law and which has been selected by  an  affected  employee  or

        A. 9012                             3
 
     1  whistleblower  to  initiate  a public enforcement action on the affected
     2  employee's or whistleblower's behalf, in written notice in such a manner
     3  as the commissioner may prescribe by regulation. Where a  representative
     4  organization  is  designated  as  the  relator, the affected employee or
     5  whistleblower may elect to have  their  name  and  personal  identifying
     6  information  be  kept  confidential  until  the  relator,  in  its  sole
     7  discretion, deems sharing such information is  necessary  to  establish,
     8  litigate, mediate, settle, or otherwise pursue the claim.
     9    6.  "public  enforcement  action"  means  an action brought under this
    10  article intended to enforce this chapter's  protections  enforceable  by
    11  the  commissioner.    Nothing  in  this  article shall be interpreted to
    12  permit a public enforcement action against a governmental agency.
    13    7. "commissioner" shall, for the purposes of this article, include the
    14  commissioner, and any  division,  board,  commission,  or  part  of  the
    15  department  authorized to impose or seek penalties or other remedies for
    16  violations of this chapter.
    17    8. "violation" means an  employer's  noncompliance  with  any  of  the
    18  requirements  of  the  following articles of this chapter and with regu-
    19  lations and wage orders promulgated by the commissioner in  implementing
    20  such articles:
    21    a.  article  six except sections one hundred ninety, one hundred nine-
    22  ty-one-a, one hundred ninety-six, one hundred ninety-six-a, one  hundred
    23  ninety-eight-a, one hundred ninety-nine, and one hundred ninety-nine-a;
    24    b.  article  nineteen  except  sections six hundred fifty, six hundred
    25  fifty-one, six  hundred  fifty-three  through  six  hundred  sixty,  six
    26  hundred sixty-two, and six hundred sixty-five;
    27    c.  sections  one  hundred  sixty,  one hundred sixty-one, one hundred
    28  sixty-two, one hundred sixty-three-a, one hundred sixty-seven,  and  one
    29  hundred seventy of article five;
    30    d.  article nineteen-A except sections six hundred seventy through six
    31  hundred seventy-two, six hundred seventy-four through six hundred seven-
    32  ty-eight, six hundred eighty, and six hundred eighty-three;
    33    e. article nineteen-B except sections six hundred ninety, six  hundred
    34  ninety-three, and six hundred ninety-four;
    35    f.  article nine except sections two hundred thirty, two hundred thir-
    36  ty-four through two hundred thirty-six, and two hundred thirty-eight;
    37    g. article twenty-five-A except sections eight  hundred  sixty,  eight
    38  hundred  sixty-a,  eight  hundred sixty-c through eight hundred sixty-f,
    39  and eight hundred sixty-i;
    40    h. article  twenty-five-B  except  sections  eight  hundred  sixty-one
    41  through eight hundred sixty-one-b;
    42    i.  article  twenty-five-C except sections eight hundred sixty-two and
    43  eight hundred sixty-two-a;
    44    j. article eight except sections  two  hundred  twenty-e  through  two
    45  hundred  twenty-four, two hundred twenty-four-b, and two hundred twenty-
    46  four-c;
    47    k. article twenty-C;
    48    l. sections two hundred, two hundred one-g,  two  hundred  six-c,  two
    49  hundred fifteen, and two hundred eighteen-b of article seven; and
    50    m. section twenty-seven-d of article two.
    51    9.  "organizational  deputy"  means a labor organization as defined by
    52  subsection  (g)  of  section  four   thousand four hundred  two  of  the
    53  insurance  law that has been appointed by the commissioner or the attor-
    54  ney general to represent the state as the relator in the public enforce-
    55  ment action.  The  commissioner  or  the  attorney  general  shall  have

        A. 9012                             4
 
     1  complete  discretion  to determine what labor organizations may serve as
     2  their organizational deputy in a public enforcement action.
     3    §  1021. Public enforcement action. 1. A relator may initiate a public
     4  enforcement action to collect civil penalties on behalf of  the  commis-
     5  sioner  for  a  violation  impacting  affected employees pursuant to the
     6  procedures specified in section one thousand twenty-two of this article.
     7  A relator may allege multiple violations that  have  affected  different
     8  employees  and may seek injunctive and declaratory relief that the state
     9  would be entitled to seek.
    10    2. a. For purposes of this  section,  whenever  the  commissioner  has
    11  discretion  to assess a civil penalty, a court is authorized to exercise
    12  the same discretion to assess a civil penalty. To the  extent  that  the
    13  commissioner  is authorized to determine that an employer has violated a
    14  provision of this chapter or regulation  promulgated  thereunder,  in  a
    15  public enforcement action, a court shall be authorized to determine that
    16  an employer has committed such a violation.
    17    b. For any violation defined in this article, except those for which a
    18  civil  penalty  is  specifically  provided, there is established a civil
    19  penalty of five hundred dollars for each affected employee per pay peri-
    20  od per violation. A court may not award a lesser amount,  unless,  based
    21  on  the  facts  and  circumstances  of the particular case, the employer
    22  demonstrates that to do otherwise would  result  in  an  award  that  is
    23  unjust, arbitrary and oppressive, or confiscatory.
    24    c.  In  any civil action commenced pursuant to this article, the court
    25  shall allow a prevailing relator to recover  all  reasonable  attorneys'
    26  fees,  expert fees and other costs.  The court may also allow a prevail-
    27  ing relator to recover all reasonable ancillary  costs  associated  with
    28  serving  as  a  relator.    For  the  purposes of this article, the term
    29  "prevailing" includes a relator whose  commencement  of  litigation  has
    30  acted  as  a catalyst to effect policy change on the part of the defend-
    31  ant, regardless of whether that change has been implemented voluntarily,
    32  as a result of a settlement or  as  a  result  of  a  judgment  in  such
    33  relator's favor.
    34    d.  Nothing in this section shall operate to limit an affected employ-
    35  ee's right to pursue or recover other remedies available under state  or
    36  federal  law,  either  separately  or  concurrently with an action taken
    37  under this section.
    38    e. Nothing in this section shall operate to limit  the  commissioner's
    39  or  the  attorney general's right to seek restitution and damages, where
    40  available, for affected employees in conjunction with a public  enforce-
    41  ment action in which it has intervened.
    42    3.  a.   Civil penalties recovered in public enforcement actions shall
    43  be distributed as follows:   where  the  commissioner  or  the  attorney
    44  general  has  not  intervened, or where the commissioner or the attorney
    45  general has appointed an organizational deputy to proceed as  the  rela-
    46  tor, forty percent to the relator; and sixty percent to the commissioner
    47  for enforcement of this chapter and education of employers and employees
    48  about  their  rights  and  responsibilities  under  this  chapter, to be
    49  continuously appropriated to supplement and not supplant the funding  to
    50  the  agency  for  those purposes; where the commissioner or the attorney
    51  general has intervened, thirty  percent  to  the  relator;  and  seventy
    52  percent  to  the commissioner for enforcement of this chapter and educa-
    53  tion of employers and employees about their rights and  responsibilities
    54  under  this  chapter,  to be continuously appropriated to supplement and
    55  not supplant the funding to the agency for those purposes.

        A. 9012                             5
 
     1    b. The relator shall equitably distribute the share of  penalties  due
     2  the  relator  among  affected employees.   If the relator is an affected
     3  employee or whistleblower, they shall also  be  entitled  to  recover  a
     4  service award from the penalties recovered, if they prevail in achieving
     5  relief,  in whole or in part, for violations that affected other employ-
     6  ees. The service award shall be not less than five thousand dollars  and
     7  not  more  than  twenty thousand dollars, unless the amount recovered as
     8  civil penalties is less than twenty thousand dollars.  The  court  shall
     9  determine  the  service award by taking due consideration of the burdens
    10  and risks assumed by the relator in prosecuting the action. If the rela-
    11  tor  is  a  representative  organization  or  an  organizational  deputy
    12  appointed by the commissioner or the attorney general, it shall distrib-
    13  ute  all  recovered  penalties  to  affected  employees  but may recover
    14  reasonable attorneys' fees and costs incurred in prosecuting the  action
    15  and  ancillary  costs  associated with serving as a relator. The relator
    16  shall submit a distribution summary to the commissioner and the attorney
    17  general.
    18    4. The right to bring a public enforcement action under  this  article
    19  shall  not be subject to private agreements between an affected employee
    20  and an employer or alleged employer, unless such agreements are  collec-
    21  tively  bargained  and the bargaining agreement provides a forum for the
    22  enforcement of rights and  remedies  otherwise  enforceable  under  this
    23  article.    The  right to represent the state with respect to violations
    24  affecting other workers shall not  be  waivable  by  private  agreement,
    25  unless  such agreements are  collectively  bargained  and the bargaining
    26  agreement provides a forum for the enforcement of rights and    remedies
    27  otherwise enforceable  under  this article, including an award of penal-
    28  ties authorized by this article.
    29    5.  Notwithstanding  any  other provision of law, a public enforcement
    30  action to recover upon  a  penalty  imposed  by  this  article  must  be
    31  commenced  within  six years.  The statute of limitations for bringing a
    32  public enforcement action under this article shall be  tolled  from  the
    33  date  a  relator files a notice pursuant to section one thousand twenty-
    34  two of this article with the commissioner and the attorney  general,  or
    35  the  commissioner  or  the  attorney general commences an investigation,
    36  whichever is earlier.
    37    6. The commissioner shall establish a database of  public  enforcement
    38  notices  submitted  pursuant to this article, including the parties, the
    39  disposition and any other information which the  commissioner  shall  by
    40  regulation  prescribe  and  shall  make  such  database available to the
    41  public online. The commissioner shall also publish an annual  report  of
    42  total penalties recovered under this chapter.
    43    7.  a.  No employer or his or her agent, employee, contractor, subcon-
    44  tractor or the officer or agent  of  any  corporation,  partnership,  or
    45  limited  liability company, or any other person shall discharge, demote,
    46  suspend, threaten, harass, or in any other manner  discriminate  against
    47  any person because of any lawful act done because:
    48    (i)  the  relator or potential relator brought or is perceived to have
    49  brought a public enforcement action;
    50    (ii) the relator or potential relator has provided information, caused
    51  information to be provided, or otherwise assisted in a  public  enforce-
    52  ment  action  or  provided  information,  or  caused  information  to be
    53  provided to a person with supervisory  authority  over  the  relator  or
    54  potential  relator regarding conduct that the relator or potential rela-
    55  tor reasonably believes constitutes a violation of this section; or

        A. 9012                             6
 
     1    (iii) the person believes that the relator or  potential  relator  may
     2  bring a public enforcement action or cooperate with one.
     3    b.  Any  person  affected  by  a violation of this subdivision, or any
     4  affected employee, whistleblower, representative organization, organiza-
     5  tional deputy, or the commissioner, or the attorney general may bring  a
     6  public  enforcement action for all appropriate relief, including enjoin-
     7  ing the conduct of any person or employer;  ordering  payment  of  civil
     8  penalties  as  provided  by section two hundred fifteen of this chapter,
     9  costs and reasonable attorneys' fees to the employee by  the  person  or
    10  entity  in violation; and, where the person or entity in violation is an
    11  employer, ordering rehiring or reinstatement of the employee to  his  or
    12  her  former  position with restoration of seniority. Any person affected
    13  by a violation of this subdivision may also bring a civil  action  in  a
    14  court  of competent jurisdiction against any employer or persons alleged
    15  to have violated the provisions of this subdivision pursuant to subdivi-
    16  sion two of section two hundred fifteen of this chapter.
    17    c. There shall be a rebuttable presumption that  any  adverse  actions
    18  taken against a relator within one hundred eighty days after the relator
    19  has  filed  an action under this chapter is retaliatory. Nothing in this
    20  subdivision shall be interpreted to prohibit an inference of retaliatory
    21  motive after one hundred eighty days after  the  relator  has  filed  an
    22  action under this chapter.
    23    § 1022. Procedure. 1. No public enforcement action by a relator pursu-
    24  ant to section one thousand twenty-one of this article may be commenced:
    25    a.  prior  to  sixty  days  after written notice has been given by the
    26  relator to the commissioner and to the attorney general.    The  relator
    27  shall  submit  a filing fee of seventy-five dollars to the commissioner,
    28  and the time periods in this section shall begin when notice and  filing
    29  fee have been submitted. The fees required by this paragraph are subject
    30  to  waiver in accordance with rules promulgated by the commissioner. The
    31  written notice shall be given in such a manner as the  commissioner  may
    32  prescribe  by regulation, shall be construed in a light favorable to the
    33  relator, and shall include:
    34    (i) the name, address and contact information of the employer.
    35    (ii) the name,  address,  and  contact  information  of  the  affected
    36  employee or whistleblower.
    37    (iii)  if  the action is brought by a representative organization, the
    38  name, address and contact information of  the  representative  organiza-
    39  tion,  its  qualification as a representative organization as defined in
    40  this chapter, and the  form  on  which  the  whistleblower  or  affected
    41  employee has designated the representative organization.
    42    (iv)  if the action is brought by an affected employee or whistleblow-
    43  er, the name, address, and contact information of any labor organization
    44  that has assisted with the filing of the written notice, and  who  would
    45  be  available  to  serve  as  an organizational deputy should they be so
    46  appointed by the commissioner or the attorney general.
    47    (v) the name, address and contact information of the  relator's  legal
    48  counsel, should one exist.
    49    (vi) a statement of the underlying claim.
    50    (vii)  if the relator is a "whistleblower", the relator's knowledge of
    51  the alleged violations that is independent of  and  materially  adds  to
    52  publicly disclosed information.
    53    (viii)  after  searching the database established pursuant to subdivi-
    54  sion six of section one thousand twenty-one of this article for  notices
    55  alleging the same facts and legal theories, a summary of such notices or
    56  statement  that no such notices exist, provided that a notice filed by a

        A. 9012                             7
 
     1  pro se litigant may not be  rejected  for  failure  to  conduct  such  a
     2  search.
     3    b.  if  the commissioner or the attorney general, at any time prior to
     4  the end of the sixty-day notice period prescribed in paragraph a of this
     5  subdivision or prior to commencement of such action, whichever is later,
     6  and  upon  written  notice  to  the  relator  who  provided  the  notice
     7  prescribed  in  paragraph  a  of  this subdivision, has commenced and is
     8  actively prosecuting an administrative enforcement  proceeding  pursuant
     9  to this chapter relative to the alleged violation.
    10    c.  if the commissioner or the attorney general, on the same facts and
    11  theories, cites a person within the timeframes set forth in this section
    12  for a violation of the same section or sections of  this  chapter  under
    13  which  the relator is attempting to recover a civil penalty or remedy on
    14  behalf of himself or herself or others.
    15    d. if the violation is of a posting or agency reporting requirement or
    16  agency filing requirement, except where the filing or reporting require-
    17  ment involves mandatory payroll or injury reporting.
    18    e. if the violation is for minor  variations  in  the  legal  name  or
    19  address  of  the  employer  in  a wage statement or wage notice required
    20  under article six of this chapter, provided that the variations  do  not
    21  impair a worker's ability to promptly and easily identify the employer.
    22    2.  The  commissioner or the attorney general may, after receiving the
    23  notice, appoint an organizational deputy for  the  commissioner  or  the
    24  attorney  general  (based  on who makes the appointment) to serve as the
    25  relator, instead of the person who filed the notice. That organizational
    26  deputy may then proceed with the public enforcement action on behalf  of
    27  the  state. If the commissioner or the attorney general has appointed an
    28  organizational deputy as the relator, that organizational  deputy  shall
    29  serve  as  the  relator  in  accordance  with  all  the other procedures
    30  outlined in this article. The  decision  to  appoint  an  organizational
    31  deputy  shall  not  be  construed  as the commissioner's or the attorney
    32  general's direct intervening in the public enforcement action.
    33    3. The commissioner or the  attorney  general  may  intervene  in  the
    34  public  enforcement  action  and  proceed with any and all claims in the
    35  action:
    36    a. as of right within the sixty-day notice period prescribed in  para-
    37  graph a of subdivision one of this section;
    38    b. for good cause, as determined by the court, after the expiration of
    39  the sixty-day notice period prescribed in paragraph a of subdivision one
    40  of this section; or
    41    c.  if  a  previous relator becomes unavailable to continue the public
    42  enforcement action, by  appointing  an  organizational  deputy  for  the
    43  commissioner  or  the  attorney general (based on who makes the appoint-
    44  ment) to proceed with the public enforcement action  on  behalf  of  the
    45  state.  If  the commissioner or the attorney general has so appointed an
    46  organizational deputy, the organizational  deputy  shall  serve  as  the
    47  relator  in  accordance  with  all the other procedures outlined in this
    48  article. The decision to appoint an organizational deputy shall  not  be
    49  construed as the commissioner or the attorney general directly interven-
    50  ing in the public enforcement action.
    51    4.  If  the  commissioner  or  the  attorney  general intervenes in an
    52  action, he or she may take primary  responsibility  for  litigating  the
    53  action  and  shall  not  be  bound by an act of the relator bringing the
    54  action. In such cases, the relator shall remain a party to  the  action.
    55  The  commissioner  or  the  attorney  general  may also intervene in the
    56  action for the limited purpose of filing  a  statement  of  interest  or

        A. 9012                             8
 
     1  otherwise  advancing the state's view about legal issues at stake in the
     2  action. If the commissioner or the attorney general has  intervened  for
     3  the  purpose of taking primary responsibility for litigating the action,
     4  the  commissioner  or  attorney general may dismiss or settle the action
     5  after the relator has been notified of the filing of the motion and  has
     6  been  provided with an opportunity to be heard, and the court determines
     7  that such dismissal or settlement is fair, adequate, reasonable, and  in
     8  the public interest.
     9    5.  Either  the  commissioner,  the  attorney general, or a federal or
    10  state court of competent  jurisdiction  shall  review  and  approve  any
    11  settlement  of any civil action filed pursuant to this article or of any
    12  claim for which a relator has provided notice pursuant to this  section.
    13  The  commissioner,  the attorney general, or the court shall approve the
    14  settlement if it is fair, reasonable and adequate, in light of the stat-
    15  utory purpose of the provision of this  chapter  alleged  to  have  been
    16  violated and the purpose of this article.
    17    6.  a.  The relator shall, within ten days following commencement of a
    18  civil action pursuant to this article, provide the commissioner and  the
    19  attorney general with a file-stamped copy of the complaint that includes
    20  the case number assigned by the court.
    21    b.  If the commissioner or the attorney general so requests, he or she
    22  shall  be  served with copies of pleadings filed in the action and shall
    23  be supplied with copies of all deposition transcripts. The  commissioner
    24  or  the attorney general shall bear any costs associated with service of
    25  such pleadings and depositions if there are such costs.
    26    c. A copy of the court's judgment in any civil action  filed  pursuant
    27  to  this article and any other order in that action that either provides
    28  for or denies an award of civil penalties under this  article  shall  be
    29  submitted  to  the commissioner and the attorney general within ten days
    30  after entry of the judgment or order.
    31    d. Items required to be  submitted  to  the  commissioner  under  this
    32  subdivision  shall  be  transmitted in such a manner as the commissioner
    33  shall prescribe for the filing of notices under paragraph a of  subdivi-
    34  sion one of this section.
    35    7.  Such regulations prescribed pursuant to paragraph a of subdivision
    36  one of this section shall provide  for  the  right  of  the  relator  to
    37  furnish  an  amended notice, after the notice by the commissioner to the
    38  relator that the original notice was not in compliance with this section
    39  or the regulations issued thereunder and specifying  with  particularity
    40  what  the  deficiencies  were  in  the  original notice. Such notice and
    41  opportunity to amend shall be provided by the commissioner within  sixty
    42  days  of  the  original notice or the original notice shall be deemed in
    43  compliance with this section.  The relator shall have thirty  days  from
    44  receiving  notice  from  the commissioner that their original notice was
    45  not in compliance with this section to amend the notice.
    46    8. A public enforcement action shall be tried promptly, without regard
    47  to concurrent adjudication of private claims, including  without  regard
    48  to concurrent adjudication of claims for violations personally affecting
    49  the relator.
    50    9. No public enforcement action brought pursuant to this article shall
    51  be  required to meet the requirements of Rule 23(a) of the Federal Rules
    52  of Civil Procedure or article nine of the civil practice law and rules.
    53    10. The rules governing pretrial discovery  in  a  public  enforcement
    54  action  brought  pursuant  to  this  article  shall be the same as those
    55  applicable to other civil actions. No special showing of merit or  other

        A. 9012                             9
 
     1  additional  requirement shall be imposed on a relator's discovery rights
     2  in such an action.
     3    11.  A  relator  bringing  an action pursuant to this article shall be
     4  entitled to  discovery  regarding  the  alleged  violations  as  to  all
     5  affected employees as defined in this article.
     6    12.  When  related public enforcement actions are pending, the parties
     7  shall immediately notify the courts overseeing such actions of the over-
     8  lap and submit a joint  statement  describing  the  overlap,  which  may
     9  propose  a  process  to  ensure the just, speedy, and efficient determi-
    10  nation of the actions. The court may appoint  lead  enforcement  counsel
    11  with  sole responsibility for asserting the related claims, with consid-
    12  eration of the following factors:
    13    a. the work that counsel has done in investigating the claims;
    14    b. counsel's experience litigating labor law and past  performance  in
    15  similar cases;
    16    c. counsel's diligence in advancing the case;
    17    d.  the resources that counsel has committed and will commit to prose-
    18  cuting the case, and the relative resources at counsel's disposal; and
    19    e. the length of time each action has been pending.
    20    § 1023. Non-application. 1. This article shall not apply to the recov-
    21  ery of administrative and civil penalties in connection with  the  unem-
    22  ployment insurance law as contained in article eighteen of this chapter.
    23    2.  This article shall not apply to the recovery of administrative and
    24  civil penalties in connection with the New York  state  labor  relations
    25  act as contained in article twenty of this chapter.
    26    3.  Severability.  If  any  word, phrase, clause, sentence, paragraph,
    27  subdivision, section or part of this article or the application  thereof
    28  to  any  person or circumstances shall be adjudged invalid by a court of
    29  competent jurisdiction, such order or judgment shall be confined in  its
    30  operation  to  the  controversy  in which it was rendered, and shall not
    31  affect or invalidate  the  remainder  of  this  article,  but  shall  be
    32  confined  in  its operation to the word, phrase, clause, sentence, para-
    33  graph, subdivision, section or part thereof  directly  involved  in  the
    34  controversy in which such judgment shall have been rendered.
    35    4.  This  article shall be construed in light of its remedial purposes
    36  to expand the enforcement of this chapter.
    37    § 4. This act shall take effect immediately, and shall permit relators
    38  to bring actions concerning New York Labor Law violations that  occurred
    39  within  the  six  years  prior  to this act's effective date, unless the
    40  Labor Law provides a shorter statute of limitations with respect to  the
    41  specific  violation  in  question, in which case that shorter statute of
    42  limitations shall apply.
Go to top