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A07958 Summary:

BILL NOA07958
 
SAME ASSAME AS S06426
 
SPONSORJoyner
 
COSPNSR
 
MLTSPNSR
 
Add Art 33 960 - 963, 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 aggrieved employee or employees or a representative organization to initiate a public enforcement action on behalf of the commissioner for any provision of the labor law, or any regulation promulgated thereunder, that provides for a civil penalty to be assessed and collected by the commissioner for a violation of the labor law.
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A07958 Actions:

BILL NOA07958
 
05/23/2017referred to labor
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A07958 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7958
 
SPONSOR: Joyner
  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 aggrieved workers to file claims on behalf of the state against an employer for any violation of State labor law. The Act also allows representative organizations to file claims on behalf of impacted workers in order to protect the public interest.   SUMMARY OF PROVISIONS: The legislation adds a new Article 33 to the labor law, which estab- lishes the right of a public enforcement action through which an aggrieved employee or a representative organization may commence a civil action on behalf of the commissioner of labor for the purpose of enforc- ing any provision of the labor law. Section 961 of Article 33 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 961 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 aggrieved 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. Section 961 Subsection 5 establishes a six year statute of limitations. Section 961 Subsection 6 establishes that public enforcement actions "belong to the state" and shall, with some exceptions, preclude subsequent state enforcement action. Subsection 7 requires the commissioner to establish a publicly available data base of public enforcement actions. Section 962 Subsection 1 establishes the process for the filing of a public enforcement action including the requirement for thirty-day writ- ten notice and the items that must be included in such notice. Section 962 Subsection 2 authorizes the commissioner to intervene in a public enforcement action and proceed with any and all claims. Section 962 Subsection 3 requires that a federal or state court of competent jurisdiction shall approve any settlement arrived at under this act. Section 962 Subsection 4 a representative organization may only initiate an action pursuant to this article if an aggrieved employ- ee elects such organization in writing using a form approved by the commissioner. Section 962 Subsection 5 provides representative organiza- tions and aggrieved employees with the right to amend an action after it has been filed. Section 962 Subsection 6 authorizes that the notice of an action shall be construed in a light favorable to the employee or representative organization. Section 963 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 963 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 963 Subsection 3 incorporates a severability clause. Section 963 Subsection 4 authorizes this article to be construed in light of its remedial purposes to expand the enforcement of this chapter. This act shall take effect on the ninetieth day after it becomes a law.   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 strat- egies is critically important in this era for a number of reasons. The private enforcement mechanisms that have played a major role in wage theft and workers' rights enforcement for decades is being undermined in a number of ways. First, unscrupulous employers are using this moment of fear to intimidate and threaten workers into accepting exploitation. Additionally, a minimum of thirty percent of private sector employees are forced to sign pre-dispute arbitration agreements as a condition of employment. These fine print contracts force workers to waive their rights to hold employers accountable in court if they break the law; instead they must pursue remedies only via private arbitration, which often entails prohibitive expenses, limitations on discovery and other rules that make enforcement of the law impracticable. The agreements also often contain limits on workers' substantive rights, including statutes of limitation, as well as class and collective action waivers preventing workers from joining together for the purpose of enforcing their rights. The EMPIRE Worker Protection Act enables workers to "step into the shoes" of the government for the purposes of enforcing their rights, and claims filed under the EMPIRE Worker Protection Act are public in nature and not subject to private agreements. The EMPIRE Worker Protection Act builds upon recent advances in New York's labor protections, specif- ically 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 California having enacted simi- lar 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: This is new legislation   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: Immediately
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A07958 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7958
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 23, 2017
                                       ___________
 
        Introduced by M. of A. JOYNER -- 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 to bring  public
    12  enforcement actions in certain contexts in which the state does not have
    13  the means to fully enforce labor law protections.
    14    3.  The legislature further finds and declares that the purpose of the
    15  EMPIRE Worker Protection Act is to create a means of empowering citizens
    16  as private attorneys general to enforce the New York labor law.
    17    4. The legislature further finds and declares that the purpose of  the
    18  EMPIRE  Worker  Protection  Act  is  to  incentivize  private parties to
    19  recover civil penalties for the government that otherwise may  not  have
    20  been  assessed and collected by overburdened state enforcement agencies.
    21  Such representative actions are an efficient mechanism to limit systemic
    22  violations, will enforce the rights of more workers, and can benefit the
    23  department of labor with enhanced resources.
    24    5. The legislature further finds and declares that the purpose of  the
    25  EMPIRE Worker Protection Act is to benefit those employers who are oper-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11483-02-7

        A. 7958                             2
 
     1  ating  within  the labor law, and who, as a result, face unfair competi-
     2  tion from individuals and entities shirking the labor law.
     3    6.  The legislature further finds and declares that the purpose of the
     4  EMPIRE Worker Protection Act is to incentivize labor  organizations  and
     5  not-for-profit  organizations to aid working people to report violations
     6  of the New York labor law.
     7    7. The legislature further finds and declares that the purpose of  the
     8  EMPIRE  Worker  Protection Act is to facilitate whistleblowers suffering
     9  from violations of the New York labor law to report abuses without  fear
    10  of retaliation and intimidation.
    11    8.  The  legislature further finds and declares that the EMPIRE Worker
    12  Protection Act is part of a history both in New York state  and  in  the
    13  United  States  of  laws  enabling  private  citizens  to  aid in public
    14  enforcement in the whistleblower and more recently in the labor context.
    15  In similar qui tam legislation  enabling  private  citizens  to  aid  in
    16  public enforcement, the resulting action is in reality a public enforce-
    17  ment action.
    18    9.  The  legislature further finds and declares that the EMPIRE Worker
    19  Protection Act further increases the capacity of the department of labor
    20  as almost all of the department of labor's investigatory work  is  comp-
    21  laint-driven  rather  than  agency-driven.  Moreover,  the EMPIRE Worker
    22  Protection Act will help offset the loss of human capital at the depart-
    23  ment due to the decrease in  senior  labor  investigators  and  stagnant
    24  numbers of labor investigators employed by the department of labor since
    25  2008.
    26    10. The legislature further finds and declares that the mandate of the
    27  EMPIRE  Worker  Protection  Act  is  consistent  with  the legislature's
    28  commitment to enhance worker protections, especially for low-wage  work-
    29  ers,  as the majority of wages owed by employers according to department
    30  of labor statistics are based on minimum wage violations.
    31    § 3. The labor law is amended by adding a new article 33  to  read  as
    32  follows:
    33                                 ARTICLE 33
    34   EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
    35  Section 960. Definitions.
    36          961. Public enforcement action.
    37          962. Procedure.
    38          963. Construction and non-application.
    39    § 960. Definitions. As used in this article, the following terms shall
    40  have the following meanings:
    41    1.  "aggrieved  employee" means any employee as defined by section two
    42  of article one of this chapter who was employed by the alleged  violator
    43  employer  and  against whom one of the alleged violations was committed,
    44  as well as any person who is not classified by a business as an employee
    45  but who claims to be an employee and whose claims against the  purported
    46  employer relate to this alleged misclassification.
    47    2.  "employer" means any employer as defined by section two of article
    48  one of this chapter.
    49    3. "representative organization" means a labor organization as defined
    50  by subdivision five of section seven hundred one of  article  twenty  of
    51  this  chapter  or  a  not-for-profit corporation, as defined by subpara-
    52  graphs five and seven of paragraph (a) of section  one  hundred  two  of
    53  article  one of the not-for-profit corporation law, which not-for-profit
    54  corporation regularly advocates on behalf of workers or employees and/or
    55  regularly advocates for or assists in enforcement of the  provisions  of
    56  this chapter.

        A. 7958                             3
 
     1    4.  "public  enforcement  action"  means  an action brought under this
     2  article intended to enforce this chapter's  protections  enforceable  by
     3  the commissioner.
     4    5. "commissioner" shall, for the purposes of this article, include the
     5  commissioner,  and  any  division,  board,  commission,  or  part of the
     6  department authorized to impose or seek penalties or other remedies  for
     7  violations of this chapter.
     8    §  961. Public enforcement action. 1. An aggrieved employee or employ-
     9  ees or a representative organization may initiate a  public  enforcement
    10  action  on behalf of the commissioner for any provision of this chapter,
    11  or any regulation promulgated thereunder,  that  provides  for  a  civil
    12  penalty to be assessed and collected by the commissioner for a violation
    13  of  this chapter, or any regulation promulgated thereunder, on behalf of
    14  himself or herself and other current or former employees pursuant to the
    15  procedures specified in section nine hundred sixty-two of this  article.
    16  An aggrieved employee or a representative organization may allege multi-
    17  ple violations that have affected different employees.
    18    2.  a.  For  purposes  of  this section, whenever the commissioner has
    19  discretion to assess a civil penalty, a court  shall  be  authorized  to
    20  exercise  the  same  discretion to assess a civil penalty. To the extent
    21  that the commissioner is authorized to determine that  an  employer  has
    22  violated  a  provision  of this chapter or regulation promulgated there-
    23  under, in a public enforcement action, a court shall  be  authorized  to
    24  determine that an employer has committed such a violation.
    25    b. For all provisions of this chapter and regulations adopted pursuant
    26  to  this chapter, except those for which a civil penalty is specifically
    27  provided, there is established a civil penalty of five  hundred  dollars
    28  for  each  aggrieved  employee per pay period per violation. A court may
    29  not award a lesser amount, unless, based on the facts and  circumstances
    30  of  the  particular case, the employer demonstrates that to do otherwise
    31  would result in an award that is unjust, arbitrary  and  oppressive,  or
    32  confiscatory.
    33    c.  Any  aggrieved  employee  or  a  representative  organization  who
    34  prevails in any public enforcement action shall be entitled to an  award
    35  of reasonable attorney's fees and costs.
    36    d. Nothing in this section shall operate to limit an aggrieved employ-
    37  ee's  right to pursue or recover other remedies available under state or
    38  federal law, either separately or  concurrently  with  an  action  taken
    39  under this section.
    40    3.  Civil  penalties  recovered  by aggrieved employees or a represen-
    41  tative organization in public enforcement actions shall  be  distributed
    42  as  follows:  forty-five percent to the aggrieved employee or employees;
    43  and fifty-five percent to the commissioner for enforcement of this chap-
    44  ter and education of employers and  employees  about  their  rights  and
    45  responsibilities  under this chapter, to be continuously appropriated to
    46  supplement and  not  supplant  the  funding  to  the  agency  for  those
    47  purposes.  If  an aggrieved employee or employees elect a representative
    48  organization to bring the public  enforcement  action,  civil  penalties
    49  recovered  shall  be  distributed  as  follows:    thirty percent to the
    50  aggrieved employee or employees; fifteen percent to  the  representative
    51  organization;  fifty-five percent to the commissioner for enforcement of
    52  this chapter and education of employers and employees about their rights
    53  and responsibilities under this chapter, to be continuously appropriated
    54  to supplement and not supplant the  funding  to  the  agency  for  those
    55  purposes.

        A. 7958                             4
 
     1    4.  The  right to bring a public enforcement action under this article
     2  shall not be subject to private agreements between an aggrieved employee
     3  and an employer or purported employer.
     4    5.  Notwithstanding  any  other provision of law, a public enforcement
     5  action to recover upon  a  penalty  imposed  by  this  article  must  be
     6  commenced  within  six years.  The statute of limitations for bringing a
     7  representative action under this article shall be tolled from  the  date
     8  an  aggrieved  employee  or a representative organization files a notice
     9  pursuant to section nine hundred sixty-two  of  this  article  with  the
    10  commissioner  or  the commissioner commences an investigation, whichever
    11  is earlier.
    12    6. Public enforcement actions belong to the state and preclude  subse-
    13  quent  state  enforcement  efforts,  whether  brought by the state or an
    14  aggrieved employee or representative  organization;  provided,  however,
    15  public  enforcement  actions  are  not  duplicative  of  private actions
    16  related to the same issues or touching the  same  nucleus  of  operative
    17  facts.   Therefore, a public enforcement action brought under this arti-
    18  cle does not have any preclusive effect on  private  actions  addressing
    19  similar wrongdoing.
    20    7.  The  commissioner shall establish a publicly available database of
    21  public enforcement actions brought pursuant to this  article,  including
    22  the parties, the disposition and any other information which the commis-
    23  sioner shall by regulation prescribe.
    24    §  962.  Procedure.  1.  No  public enforcement action by an aggrieved
    25  employee or a  representative  organization  pursuant  to  section  nine
    26  hundred  sixty-one of this article alleging a violation of any provision
    27  of this chapter may be commenced:
    28    a. prior to thirty days after written notice has  been  given  by  the
    29  aggrieved employee or a representative organization to the commissioner.
    30  Such  written notice shall be given in such a manner as the commissioner
    31  may prescribe by regulation, shall be construed in a light favorable  to
    32  the   aggrieved  employee  or  representative  organization,  and  shall
    33  include:
    34    (i) the name, address and contact information of the employer.
    35    (ii) the name, address, occupation  and  contact  information  of  the
    36  aggrieved employee.
    37    (iii)  the name, address and contact information of the representative
    38  organization, if the action is brought by a representative organization.
    39    (iv) the name,  address  and  contact  information  of  the  aggrieved
    40  employee's legal counsel, should one exist.
    41    (v) a statement of the underlying claim.
    42    (vi) estimated number of employees affected.
    43    b. if the commissioner, at any time prior to the end of the thirty day
    44  notice  period prescribed in paragraph a of this subdivision or prior to
    45  commencement of such action, whichever is later, and upon written notice
    46  to the aggrieved employee who provided the notice  prescribed  in  para-
    47  graph  a  of this subdivision, has commenced and is actively prosecuting
    48  an administrative enforcement proceeding pursuant to this chapter  rela-
    49  tive to the alleged violation.
    50    c. if the commissioner, on the same facts and theories, cites a person
    51  within  the  timeframes set forth in this section for a violation of the
    52  same section or sections of  this  chapter  under  which  the  aggrieved
    53  employee or representative organization is attempting to recover a civil
    54  penalty or remedy on behalf of himself or herself or others.
    55    2. The commissioner may intervene in the public enforcement action and
    56  proceed with any and all claims in the action:

        A. 7958                             5
 
     1    a. as of right within the thirty day notice period prescribed in para-
     2  graph a of subdivision one of this section; or
     3    b. for good cause, as determined by the court, after the expiration of
     4  the  thirty  day  notice period prescribed in paragraph a of subdivision
     5  one of this section.
     6    3. a. The aggrieved employee  or  representative  organization  shall,
     7  within  ten  days  following  commencement of a civil action pursuant to
     8  this article, provide the commissioner with a file-stamped copy  of  the
     9  complaint that includes the case number assigned by the court.
    10    b.  Either  the  commissioner or a federal or state court of competent
    11  jurisdiction shall review and approve any settlement of any civil action
    12  filed pursuant to this section. The commissioner or court shall  approve
    13  the  settlement if it is fair, reasonable, and adequate, in light of the
    14  statutory purpose of the provision of this chapter alleged to have  been
    15  violated and the purpose of the EMPIRE Worker Protection Act.
    16    c.  A  copy of the court's judgment in any civil action filed pursuant
    17  to this article and any other order in that action that either  provides
    18  for  or  denies  an award of civil penalties under this article shall be
    19  submitted to the commissioner within ten days after entry of  the  judg-
    20  ment or order.
    21    d.  Items  required  to  be  submitted  to the commissioner under this
    22  subdivision shall be transmitted in such a manner  as  the  commissioner
    23  shall  prescribe for the filing of notices under paragraph a of subdivi-
    24  sion one of this section.
    25    4. If a representative organization  initiates  a  public  enforcement
    26  action  pursuant  to  this article, an aggrieved employee must elect the
    27  representative organization in writing in a form which the  commissioner
    28  shall  by  regulation prescribe. In such cases, the aggrieved employee's
    29  name and personal identifying information shall be kept confidential  if
    30  the aggrieved employee so chooses.
    31    5.  Such regulations prescribed pursuant to paragraph a of subdivision
    32  one of this section shall provide for the right of the aggrieved employ-
    33  ee or representative organization to furnish an  amended  notice,  after
    34  the  notice  by  the commissioner to the aggrieved employee or represen-
    35  tative organization that the original notice was not in compliance  with
    36  this  section  or  the regulations issued thereunder and specifying with
    37  particularity what the deficiencies were in the  original  notice.  Such
    38  notice  and  opportunity  to amend shall be provided by the commissioner
    39  within thirty days of the original notice or the original  notice  shall
    40  be  deemed  in  compliance with this section.  The aggrieved employee or
    41  representative organization shall have thirty days from receiving notice
    42  from the commissioner that their original notice was not  in  compliance
    43  with this section to amend the notice.
    44    6.  For  the purposes of determining whether the aggrieved employee or
    45  representative organization complied with this section, the notice shall
    46  be construed in a light favorable  to  the  employee  or  representative
    47  organization.
    48    §  963.  Construction  and  non-application. 1. This article shall not
    49  apply  to  the  recovery  of  administrative  and  civil  penalties   in
    50  connection  with  the unemployment insurance law as contained in article
    51  eighteen of this chapter.
    52    2. This article shall not apply to the recovery of administrative  and
    53  civil  penalties  in  connection with the New York state labor relations
    54  act as contained in article twenty of this chapter.
    55    3. Severability. If any word,  phrase,  clause,  sentence,  paragraph,
    56  subdivision,  section or part of this article or the application thereof

        A. 7958                             6
 
     1  to any person or circumstances shall be adjudged invalid by a  court  of
     2  competent  jurisdiction, such order or judgment shall be confined in its
     3  operation to the controversy in which it was  rendered,  and  shall  not
     4  affect  or  invalidate  the  remainder  of  this  article,  but shall be
     5  confined in its operation to the word, phrase, clause,  sentence,  para-
     6  graph,  subdivision,  section  or  part thereof directly involved in the
     7  controversy in which such judgment shall have been rendered.
     8    4. This article shall be construed in light of its  remedial  purposes
     9  to expand the enforcement of this chapter.
    10    § 4. This act shall take effect immediately.
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