Amd SS218, 219-c, 198 & 663, Lab L; rpld S97-pppp, St Fin L; amd S13, Chap 537 of 2014
Amends the reporting requirements for employers which violate wage payment provisions and eliminates the duty of the commissioner of labor to investigate such employers' records for the previous 6 years; repeals the wage theft prevention enforcement account.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1267
SPONSOR: Lupardo (MS) TITLE OF BILL: An act to amend the labor law, in relation to penal-
ties for violations of wage payment provisions and contractor account-
ability; to amend chapter 537 of the laws of 2014 amending the labor law
and other laws relating to increased penalties for violations of wage
payment provisions and contractor accountability, in relation to the
effective date of certain provisions thereof; and to repeal section
97-pppp of the state finance law relating to the wage theft prevention
enforcement account
PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to make
amendments to Chapter 537 of the Laws of 2014.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends § 218 of the labor law by removing certain language
added in by chapter 537 of the laws of 2014.
Section 2 amends § 219-c of the labor law by adding a new subdivision 3
that would require an employer who has been issued an order directing
payment of wages, benefits, wage supplements, and liquidated damages who
has previous violations or whose violation is willful or egregious to
provide specified employee and wage data to be posted on the Department
of Labor's website.
Section 3 amends § 198 of the labor law by removing language added in by
chapter 537 of the laws of 2014 that would have required the commission-
ers wage theft investigations to cover the entire six-year statute of
limitations period unless the commissioner otherwise notified all
affected employees.
Section 4 amends § 663 of the labor law by removing language added in by
chapter 537 of the laws of 2014 that would have required the commission-
ers wage theft investigations to cover the entire six-year statute of
limitations period unless the commissioner otherwise notified all
affected employees.
Section 5 makes technical amendments to § 218 of the labor law, as
amended by the laws of 2014.
Section 6 makes technical amendments to § 219 of the labor law, as
amended by chapter 537 of the laws of 2014.
Section 7 repeals § 97-pppp of the state finance law as added by chapter
537 of the laws of 2014.
Section 8 amends § 13 of chapter 537 of the laws of 2014 by making
section one of that chapter effective immediately. This will make the
repeal of the requirement found in § 195 of the labor law that employers
notify employees of specified information relating to wages, benefits,
and employer information effective immediately.
Section 9 is the effective date.
JUSTIFICATION: This bill makes technical amendments to Chapter 537 of
the laws of 2014. In addition, this bill removes the requirement that
the commissioner's wage theft investigations cover the entire six-year
statute of limitations period unless notification is otherwise made.
This will allow the commissioner more flexibility in investigating
claims of wage theft and aid the Department in responding to claims
quicker and more efficiently. It would also repeal the wage theft
prevention enforcement act established by Chapter 537 of the Laws of
2014.
PRIOR LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None known.
EFFECTIVE DATE: This bill will take effect immediately and be deemed
to have been in full force and effect on the same date and manner as
Chapter 537 of the Laws of 2014.
STATE OF NEW YORK
________________________________________________________________________
1267
2015-2016 Regular Sessions
IN ASSEMBLY
January 8, 2015
___________
Introduced by M. of A. LUPARDO, HEASTIE -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to penalties for violations
of wage payment provisions and contractor accountability; to amend
chapter 537 of the laws of 2014 amending the labor law and other laws
relating to increased penalties for violations of wage payment
provisions and contractor accountability, in relation to the effective
date of certain provisions thereof; and to repeal section 97-pppp of
the state finance law relating to the wage theft prevention enforce-
ment account
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 218 of the labor law, as amended
2 by chapter 537 of the laws of 2014, is amended to read as follows:
3 1. If the commissioner determines that an employer has violated a
4 provision of article six (payment of wages), article nineteen (minimum
5 wage act), article nineteen-A (minimum wage standards and protective
6 labor practices for farm workers), section two hundred twelve-a, section
7 two hundred twelve-b, section one hundred sixty-one (day of rest) or
8 section one hundred sixty-two (meal periods) of this chapter, or a rule
9 or regulation promulgated thereunder, the commissioner shall issue to
10 the employer an order directing compliance therewith, which shall
11 describe particularly the nature of the alleged violation. A copy of
12 such order shall be provided to any employee who has filed a complaint
13 and any authorized representative of him or her. In addition to direct-
14 ing payment of wages, benefits or wage supplements found to be due, and
15 liquidated damages in the amount of one hundred percent of unpaid wages,
16 such order, if issued to an employer who previously has been found in
17 violation of those provisions, rules or regulations, or to an employer
18 whose violation is willful or egregious, shall direct payment to the
19 commissioner of an additional sum as a civil penalty in an amount not to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12006-01-5
A. 1267 2
1 exceed double the total amount of wages, benefits, or wage supplements
2 found to be due. [Additionally, such order, if issued to an employer who
3 previously has been found in violation of those provisions, rules or
4 regulations, or to an employer whose violation is willful or egregious,
5 shall direct such employer to report, by location, and for such period
6 as the commissioner shall determine, (a) the number of permanent full-
7 time employees, the number of temporary full-time employees, the number
8 of permanent part-time employees, the number of temporary part-time
9 employees, and the number of temporary staffing agency employees
10 performing work for the employer; (b) the hourly rates of such employees
11 reported in the following brackets: the state minimum wage to $9.99;
12 $10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c) the number
13 of employees who regularly worked the following number of hours per week
14 during the relevant calendar period: at least sixty; at least fifty but
15 fewer than sixty; at least forty, but fewer than fifty; at least thir-
16 ty-five but fewer than forty; at least thirty but fewer than thirty-
17 five; at least twenty-five but fewer than thirty; at least twenty but
18 fewer than twenty-five; at least ten but fewer than twenty; at least
19 five but fewer than ten; fewer than five. No individual identifying
20 information of such employees shall be reported or otherwise disclosed
21 to the department. The department shall post the data collected on the
22 department's website. For the purposes of this section, temporary
23 employees shall be those employees who are hired for a period of sixty
24 days or less during the relevant calendar year, full-time employees
25 shall be those regularly working forty hours or more per week during the
26 relevant calendar year, part-time employees shall be those working less
27 than forty hours per week during the relevant calendar year.] In no case
28 shall the order direct payment of an amount less than the total wages,
29 benefits or wage supplements found by the commissioner to be due, plus
30 the liquidated damages in the amount of one hundred percent of unpaid
31 wages, the appropriate civil penalty, and interest at the rate of inter-
32 est then in effect, as prescribed by the superintendent of financial
33 services pursuant to section fourteen-a of the banking law per annum
34 from the date of the underpayment to the date of the payment. Where the
35 violation is for a reason other than the employer's failure to pay
36 wages, benefits or wage supplements found to be due, the order shall
37 direct payment to the commissioner of a civil penalty in an amount not
38 to exceed one thousand dollars for a first violation, two thousand
39 dollars for a second violation or three thousand dollars for a third or
40 subsequent violation. In assessing the amount of the penalty, the
41 commissioner shall give due consideration to the size of the employer's
42 business, the good faith basis of the employer to believe that its
43 conduct was in compliance with the law, the gravity of the violation,
44 the history of previous violations and, in the case of wages, benefits
45 or supplements violations, the failure to comply with recordkeeping or
46 other non-wage requirements.
47 Where there is a violation of section one hundred ninety-eight-b of
48 this chapter, the order shall direct payment back to the employee of the
49 amount of wages, supplements or other thing of value unlawfully received
50 plus liquidated damages in the amount of one hundred percent of unpaid
51 wages, and interest at the rate of interest then in effect, as
52 prescribed by the superintendent of financial services pursuant to
53 section fourteen-a of the banking law per annum from the date of the
54 payback, return, donation or contribution to the date of payment, and
55 shall include such other relief as may be appropriate, including rehir-
56 ing or reinstatement of the employee to his or her former position, back
A. 1267 3
1 wages, and restoration of seniority. In addition, the commissioner shall
2 order payment of a civil penalty of at least twenty-five hundred dollars
3 but not more than five thousand dollars per violation. In assessing the
4 amount of the penalty, the commissioner shall give due consideration to
5 the size of the employer's business, the good faith basis of the employ-
6 er to believe that its conduct was in compliance with the law, the grav-
7 ity of the violation, and the history of previous violations.
8 At the discretion of the commissioner, the commissioner shall have
9 full authority to provide for inclusion of an automatic fifteen percent
10 additional amount of damages to come due and owing upon expiration of
11 ninety days from an order to comply becoming final. The commissioner
12 shall provide written notice to the employer in the order to comply of
13 this additional damage.
14 § 2. Section 219-c of the labor law is amended by adding a new subdi-
15 vision 3 to read as follows:
16 3. where an order is issued under section two hundred eighteen of this
17 article that assesses a civil penalty against an employer for a
18 repeated, willful, or egregious violation, to direct such employer to
19 report, by location, and to post on the department's website, for such
20 period as the commissioner shall determine, (a) the number of permanent
21 full-time employees, the number of temporary full-time employees, the
22 number of permanent part-time employees, the number of temporary part-
23 time employees, and the number of temporary staffing agency employees
24 performing work for the employer; (b) the hourly rates of such employees
25 reported in the following brackets: the state minimum wage to $9.99;
26 $10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c) the number
27 of employees who regularly worked the following number of hours per week
28 during the relevant calendar period: at least sixty; at least fifty but
29 fewer than sixty; at least forty but fewer than fifty; at least thirty-
30 five but fewer than forty; at least thirty but fewer than thirty-five;
31 at least twenty-five but fewer than thirty; at least twenty but fewer
32 than twenty-five; at least ten but fewer than twenty; at least five but
33 fewer than ten; fewer than five. No individual identifying information
34 of such employees shall be reported or otherwise disclosed to the
35 department. For the purposes of this section "temporary employees" shall
36 be those employees who are hired for a period of sixty days or less
37 during the relevant calendar year, full-time employees shall be those
38 regularly working forty hours or more per week during the relevant
39 calendar year, part-time employees shall be those working less than
40 forty hours per week during the relevant calendar year.
41 § 3. Subdivision 3 of section 198 of the labor law, as amended by
42 chapter 537 of the laws of 2014, is amended to read as follows:
43 3. Notwithstanding any other provision of law, an action to recover
44 upon a liability imposed by this article must be commenced within six
45 years. The statute of limitations shall be tolled from the date an
46 employee files a complaint with the commissioner or the commissioner
47 commences an investigation, whichever is earlier, until an order to
48 comply issued by the commissioner becomes final, or where the commis-
49 sioner does not issue an order, until the date on which the commissioner
50 notifies the complainant that the investigation has concluded. Investi-
51 gation by the commissioner shall not be a prerequisite to nor a bar
52 against a person bringing a civil action under this section. All employ-
53 ees shall have the right to recover full wages, benefits and wage
54 supplements and liquidated damages accrued during the six years previous
55 to the commencing of such action, whether such action is instituted by
56 the employee or by the commissioner. [The commissioner's investigation
A. 1267 4
1 shall cover the entire six-year statute of limitations period unless the
2 commissioner otherwise notifies all affected employees.]
3 § 4. Subdivision 3 of section 663 of the labor law, as amended by
4 chapter 537 of the laws of 2014, is amended to read as follows:
5 3. Limitation of time. Notwithstanding any other provision of law, an
6 action to recover upon a liability imposed by this article must be
7 commenced within six years. The statute of limitations shall be tolled
8 from the date an employee files a complaint with the commissioner or the
9 commissioner commences an investigation, whichever is earlier, until an
10 order to comply issued by the commissioner becomes final, or where the
11 commissioner does not issue an order, until the date on which the
12 commissioner notifies the complainant that the investigation has
13 concluded. [The commissioner's investigation shall cover the entire
14 six-year statute of limitations period unless the commissioner otherwise
15 notifies all affected employees.] Investigation by the commissioner
16 shall not be a prerequisite to nor a bar against a person bringing a
17 civil action under this article.
18 § 5. Subdivision 3 of section 218 of the labor law, as amended by
19 chapter 537 of the laws of 2014, is amended to read as follows:
20 3. Provided that no proceeding for administrative or judicial review
21 as provided in this chapter shall then be pending and the time for
22 initiation of such proceeding shall have expired, the commissioner may
23 file with the county clerk of the county where the employer resides or
24 has a place of business the order of the commissioner, or the decision
25 of the industrial board of appeals containing the amount found to be due
26 including the civil penalty, if any, and at the commissioner's
27 discretion, an additional fifteen percent damages upon any outstanding
28 monies owed. At the request of an employee, the commissioner shall
29 assign, without consideration or liability, that portion of the [money
30 due] filed order that constitutes wages, wage supplements, interest on
31 wages or wage supplements, or liquidated damages due that employee, to
32 that employee and may file an assignment or order in that amount in the
33 name of that employee with the county clerk of the county where the
34 employer resides or has a place of business. The filing of such assign-
35 ment, order or decision shall have the full force and effect of a judg-
36 ment duly docketed in the office of such clerk. The assignment, order or
37 decision may be enforced by and in the name of the commissioner, or by
38 the employee, in the same manner, and with like effect, as that
39 prescribed by the civil practice law and rules for the enforcement of a
40 money judgment.
41 § 6. Subdivision 3 of section 219 of the labor law, as amended by
42 chapter 537 of the laws of 2014, is amended to read as follows:
43 3. Provided that no proceeding for administrative or judicial review
44 as provided in this chapter shall then be pending and the time for
45 initiation of such proceeding shall have expired, the commissioner may
46 file with the county clerk of the county where the employer resides or
47 has a place of business the order of the commissioner or the decision of
48 the industrial board of appeals containing the amount found to be due,
49 including, at the commissioner's discretion, an additional fifteen
50 percent damages upon any outstanding monies owed. At the request of an
51 employee, the commissioner shall assign, without consideration or
52 liability, that portion of the [money due] filed order that constitutes
53 wages, wage supplements, interest on wages or wage supplements, or
54 liquidated damages due the employee, to that employee and may file an
55 assignment or order in that amount in the name of such employee with the
56 county clerk of the county where the employer resides or has a place of
A. 1267 5
1 business. The filing of such assignment, order or decision shall have
2 the full force and effect of a judgment duly docketed in the office of
3 such clerk. The assignment, order or decision may be enforced by and in
4 the name of the commissioner, or by the employee, in the same manner,
5 and with like effect, as that prescribed by the civil practice law and
6 rules for the enforcement of a money judgment.
7 § 7. Section 97-pppp of the state finance law is REPEALED.
8 § 8. Section 13 of chapter 537 of the laws of 2014, amending the labor
9 law and other laws relating to increased penalties for violations of
10 wage payment provisions and contractor accountability, is amended to
11 read as follows:
12 § 13. This act shall take effect on the sixtieth day after it shall
13 have become a law, except that section one of this act shall take effect
14 immediately.
15 § 9. This act shall take effect immediately; provided, however, that
16 sections one through seven of this act shall take effect on the same
17 date and in the same manner as chapter 537 of the laws of 2014.
