Relates to employment agencies, including application for license; relates to procedures; relates to granting of licenses and enforcement of provisions relating thereto.
STATE OF NEW YORK
________________________________________________________________________
3702--A
Cal. No. 158
2015-2016 Regular Sessions
IN ASSEMBLY
January 27, 2015
___________
Introduced by M. of A. MOYA, MOSLEY, CRESPO, PICHARDO, BLAKE, FAHY --
read once and referred to the Committee on Consumer Affairs and
Protection -- advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading
AN ACT to amend the general business law, in relation to employment
agencies
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 171 of the general business law is amended by
2 adding a new subdivision 12 to read as follows:
3 12. "Bona fide order" means a written order from an employer directed
4 to an employment agency stating that the employer requests that the
5 employment agency refer one or more job applicants for a specific posi-
6 tion or positions within a specified and limited application period. An
7 employment agency must renew a bona fide order after forty-five days if
8 it intends to refer an applicant for the position described in such bona
9 fide order, and the employment agency must specify on the bona fide
10 order the name of the representative of the prospective employer who
11 authorized the renewal and the date on which the renewal was authorized.
12 The bona fide order shall also include a written statement setting forth
13 the terms and conditions of employment for the position described in the
14 order; such written statement shall include, at a minimum, the following
15 information:
16 a. the name of the employer, any "doing business as" names used by the
17 employer, the physical address of the employer's main office or princi-
18 pal place of business, and a mailing address if different, the telephone
19 number of the employer, plus such other information as the commissioner
20 deems material and necessary;
21 b. the place or places of employment;
22 c. the hours of work per day and number of days per week to be worked;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06774-08-6
A. 3702--A 2
1 d. the rate or rates of pay and basis thereof, whether paid by the
2 hour, shift, day, week, salary, piece, commission, or other, allowances,
3 if any, claimed as part of the minimum wage, including tip, meal, or
4 lodging allowances;
5 e. the circumstances under which the employee will be paid a premium
6 for working in excess of an established number of hours per day, week,
7 or month, or for working on designated nights, weekends, or holidays;
8 f. the anticipated period of employment;
9 g. any provision to the employee, and how long the provision will be
10 provided by the employer, and any costs to the employee associated with
11 the provision, including but not limited to, transportation to and from
12 work, housing, health insurance or health care, paid sick or annual
13 leave and holiday or holidays, pension or retirement benefits, personal
14 protective equipment required for work, workers' compensation and infor-
15 mation about the insurance policy and rules regarding reporting of acci-
16 dents or injuries, and unemployment compensation; and
17 h. the nature of the work to be performed by the employee.
18 § 2. Paragraph b of subdivision 2 of section 173 of the general busi-
19 ness law, as added by chapter 632 of the laws of 1975, is amended to
20 read as follows:
21 b. The application for a license shall be accompanied by samples or
22 accurate facsimiles of each and every form [which the applicant for a
23 license will require applicants for employment to execute], contract,
24 statement of terms and conditions, and receipt, as required under
25 section one hundred eighty-one of this article, and such forms,
26 contracts, statements of terms and conditions, and receipts must be
27 approved by the commissioner before a license may be issued. The commis-
28 sioner shall approve any such forms which fairly and clearly represent
29 contractual terms and conditions between the proposed employment agency
30 and applicants for employment, such as are permitted by this article.
31 § 3. Subdivisions 1 and 2 of section 174 of the general business law,
32 subdivision 1 as amended by chapter 164 of the laws of 2003, subdivision
33 2 as amended by chapter 632 of the laws of 1975, are amended to read as
34 follows:
35 1. Upon the receipt of an application for a license, the commissioner
36 shall cause the name and address of the applicant, the name under which
37 the employment agency is to be conducted, and the street and number of
38 the place where the agency is to be conducted, to be posted on the
39 commissioner's website, as well as in a conspicuous place in his public
40 office. Such agency shall be used exclusively as an employment agency
41 and for no other purpose, except as hereinafter provided. The commis-
42 sioner shall investigate or cause to be investigated the character and
43 responsibility of the applicant and agency manager and shall examine or
44 cause to be examined the premises designated in such application as the
45 place in which it is proposed to conduct such agency.
46 The commissioner shall require all applicants for licenses and agency
47 managers to be fingerprinted. Such fingerprints shall be submitted to
48 the division of criminal justice services for a state criminal history
49 record check, as defined in subdivision one of section three thousand
50 thirty-five of the education law, and may be submitted to the federal
51 bureau of investigation for a national criminal history record check.
52 The criminal history information, if any, received by the department of
53 labor shall be considered in accordance with the provisions of article
54 twenty-three-A of the correction law and subdivisions fifteen and
55 sixteen of section two hundred ninety-six of the executive law. A
56 reasonable time before making a determination on the application pursu-
A. 3702--A 3
1 ant to this subdivision, the department shall provide the applicant
2 criminal history information, if any. Where such criminal history infor-
3 mation is provided, the department shall also provide a copy of article
4 twenty-three-A of the correction law, and inform such applicant of his
5 or her right to seek correction of any incorrect information contained
6 in such criminal history information pursuant to the regulations and
7 procedures established by the division of criminal justice services.
8 2. Any person may file, within one week after such application is so
9 posted [in the said office], a written protest against the issuance of
10 such license. Such protest shall be in writing and signed by the person
11 filing the same or his authorized agent or attorney, and shall state
12 reasons why the said license should not be granted. Upon the filing of
13 such protest the commissioner shall appoint a time and place for the
14 hearing of such application, and shall give at least five days' notice
15 of such time and place to the applicant and the person filing such
16 protest. The commissioner may administer oaths, subpoena witnesses and
17 take testimony in respect to the matters contained in such application
18 and protests or complaints of any character for violation of this arti-
19 cle, and may receive evidence in the form of affidavits pertaining to
20 such matters. If it shall appear upon such hearing or from the
21 inspection, examination or investigation made by the commissioner that
22 the applicant or agency manager is not a person of good character or
23 responsibility; or that he or the agency manager has not had at least
24 two years experience as a placement employee, vocational counsellor or
25 in related activities, or other satisfactory business experience which
26 similarly tend to establish the competence of such individual to direct
27 and operate the placement activities of the agency; or that the place
28 where such agency is to be conducted is not a suitable place therefor;
29 or that the applicant has not complied with the provisions of this arti-
30 cle; the said application shall be denied and a license shall not be
31 granted. Each application should be granted or refused within thirty
32 days from the date of its filing.
33 § 4. Section 179 of the general business law, as amended by chapter
34 632 of the laws of 1975, is amended to read as follows:
35 § 179. Registers and other records to be kept. It shall be the duty of
36 every licensed person to keep a register, approved by the commissioner,
37 in which shall be entered, in the English language, the date of the
38 application for employment, the date the applicant started work and the
39 name and address of every applicant from whom a fee or deposit is
40 charged, the amount of the fee or deposit and the service for which it
41 is received or charged. Such licensed person shall also enter in the
42 same or in a separate register, approved by the commissioner, in the
43 English language, the name and address of every employer from whom a fee
44 is received or charged or to whom the licensed person refers an appli-
45 cant who has paid or is charged a fee, the date of such employer's
46 request or assent that applicants be furnished, the kind of position for
47 which applicants are requested, the names of the applicants sent from
48 whom a fee or deposit is received or charged with the designation of the
49 one employed, the amount of the fee or deposit charged, and the rate of
50 salary or wages agreed upon. It shall also be the duty of every licensed
51 person to keep complete and accurate written records in the English
52 language of all receipts and income received or derived directly from
53 the operation of his employment agency, and to keep records concerning
54 [job] bona fide orders. No such licensed person, his agent or employees,
55 shall make any false entry in such records. It shall be the duty of
56 every licensed person to communicate orally or in writing with at least
A. 3702--A 4
1 one of the persons mentioned as references for every applicant for work
2 in private families, or employed in a fiduciary capacity, and the result
3 of such investigation shall be kept on file in such agency for a period
4 of at least three years. Every register and all records, including bona
5 fide orders, kept pursuant to the requirements of this article shall be
6 retained on the premises of the agency concerned for three years follow-
7 ing the date on which the last entry thereon was made [except a job
8 order which shall be retained for one year following the date on which
9 it was received].
10 § 5. Section 181 of the general business law, as added by chapter 893
11 of the laws of 1958, subdivision 1 as added and subdivision 2 as amended
12 by chapter 632 of the laws of 1975, subdivision 3 as separately amended
13 by chapters 1010 and 1083 of the laws of 1960, and subdivision 4 as
14 amended by chapter 479 of the laws of 1963, is amended to read as
15 follows:
16 § 181. Contracts, statements of terms and conditions, and receipts. It
17 shall be the duty of every employment agency to give to each applicant
18 for employment:
19 1. A true copy of every contract executed between such agency and such
20 applicant, which shall have printed on it or attached to it a statement
21 setting forth in a clear and concise manner the provisions of sections
22 one hundred eighty-five, and one hundred eighty-six of this article.
23 2. [Information as to the name and address of the person to whom the
24 applicant is to apply for such employment, the kind of service to be
25 performed, the anticipated rate of wages or compensation, the agency's
26 fee for the applicant based on such anticipated wages or compensation,
27 whether such employment is permanent or temporary, the name and address
28 of the person authorizing the hiring of such applicant, and the cost of
29 transportation if the services are required outside of the city, town or
30 village where such agency is located. If the job is a conditionally
31 fee-paid job, the conditions under which the applicant will be required
32 to pay a fee shall be clearly set forth in a separate agreement in ten-
33 point type signed by the job applicant.] (a) An employment agency shall
34 issue a written statement of terms and conditions to each job applicant
35 on each occasion that the agency refers the applicant to a potential
36 employer. The written statement of terms and conditions shall be in
37 English and in the language identified by the applicant as the primary
38 language of such applicant. Every employment agency shall keep on file
39 in its principal place of business for a period of three years a copy of
40 each written statement of terms and conditions issued to each applicant
41 that is signed and dated by the applicant. The statement of terms and
42 conditions shall include, at a minimum, the following information: (i)
43 the name of the employer, any "doing business as" names used by the
44 employer, the physical address of the employer's main office or princi-
45 pal place of business, and a mailing address if different, the telephone
46 number of the employer, plus such other information as the commissioner
47 deems material and necessary; (ii) the place or places of employment;
48 (iii) the hours of work per day and number of days per week to be
49 worked; (iv) the rate or rates of pay and basis thereof, whether paid by
50 the hour, shift, day, week, salary, piece, commission, or other, allow-
51 ances, if any, claimed as part of the minimum wage, including tip, meal,
52 or lodging allowances; (v) the circumstances under which the employee
53 will be paid a premium for working in excess of an established number of
54 hours per day, week, or month, or for working on designated nights,
55 weekends, or holidays; (vi) the anticipated period of employment; (vii)
56 any provision to the employee, and how long the provision will be
A. 3702--A 5
1 provided by the employer, and any costs to the employee associated with
2 the provision, including but not limited to, transportation to and from
3 work, housing, health insurance or health care, paid sick or annual
4 leave and holiday or holidays, pension or retirement benefits, personal
5 protective equipment required for work, workers' compensation and infor-
6 mation about the insurance policy and rules regarding reporting of acci-
7 dents or injuries, and unemployment compensation; and (viii) the nature
8 of the work to be performed by the employee.
9 (b) The commissioner shall prepare templates that comply with the
10 requirements of paragraph (a) of this subdivision. Each such template
11 shall be dual-language, including English and one additional language.
12 The commissioner shall determine, in his or her discretion, which
13 languages to provide in addition to English, based on the size of the
14 New York state population that speaks each language and any other factor
15 that the commissioner shall deem relevant. All such templates shall be
16 made available to employment agencies in such manner as determined by
17 the commissioner.
18 (c) When a job applicant identifies as his or her primary language a
19 language for which a template is not available from the commissioner,
20 the employment agency shall comply with this subdivision by providing
21 that employee an English-language statement.
22 (d) An employment agency shall not be penalized for errors or omis-
23 sions in the non-English portions of any notice provided by the commis-
24 sioner.
25 3. [A receipt for any fee, deposit, consideration, or payment which
26 such agency receives from such applicant, which shall have printed or
27 written on it the name of the applicant, the name and address of the
28 employment agency, the date and amount of such fee, deposit, consider-
29 ation or payment or portion thereof for which the receipt is given, the
30 purpose for which it was paid, and the signature of the person receiving
31 such payment. If the applicant for employment has been recruited from
32 outside the state for domestic or household employment the receipt shall
33 have printed on it, or attached to it, a copy of section one hundred
34 eighty-four of this article.] Every employment agency shall keep on file
35 in its principal place of business for a period of three years a state-
36 ment, signed by the employer of every applicant whom the employment
37 agency has placed, indicating that the employer has read and understood
38 the statement of terms and conditions required by subdivision two of
39 this section and that the employer has received a copy of that state-
40 ment.
41 4. [The original or duplicate-original copy of each such contract and
42 receipt shall be retained by every employment agency for three years
43 following the date on which the contract is executed or the payment is
44 made, and shall be made available for inspection by the commissioner or
45 his duly authorized agent or inspector, upon his request. Notwithstand-
46 ing the other provisions of such contracts, the monetary consideration
47 to be paid by the applicant shall not exceed the fee ceiling provided in
48 subdivision eight of section one hundred eighty-five.] A receipt for any
49 fee, consideration, or payment which an agency receives from an appli-
50 cant. The receipt shall have printed or written on it the name of the
51 applicant, the name and address of the employment agency, the date and
52 amount of such fee, consideration or payment or portion thereof for
53 which the receipt is given, the purpose for which it was paid, and the
54 signature of the person receiving such payment. The receipt shall also
55 include immediately above the place for signature of the person receiv-
56 ing payment, set off in a box and printed in bold and in caps, the
A. 3702--A 6
1 following statement: "An employment agency may not charge you, the job
2 applicant, a fee before referring you to a job that you accept. If you
3 pay a fee before accepting a job or pay a fee that otherwise violates
4 the law, you may demand a refund, which shall be repaid within seven (7)
5 days." The text contained in this box shall also be in English and in
6 the language identified by each applicant as the primary language of
7 such applicant.
8 5. The original or duplicate-original copy of each written contract,
9 each statement of terms and conditions required by subdivision two of
10 this section, and each receipt required by subdivision four of this
11 section shall be retained by every employment agency for three years
12 following the date on which the contract is executed. The records
13 required under this subdivision shall be made available for inspection
14 by the commissioner or his or her duly authorized agent or inspector,
15 upon such request.
16 § 6. Subdivisions 1 and 3 of section 185 of the general business law,
17 subdivision 1 as amended by chapter 460 of the laws of 2012 and subdivi-
18 sion 3 as amended by chapter 1010 of the laws of 1960, are amended and a
19 new subdivision 1-a is added to read as follows:
20 1. Circumstances permitting fee. An employment agency shall not charge
21 or accept a fee or other consideration unless in accordance with the
22 terms of a written contract with a job applicant[, except:
23 (a) for class "A" and "A-1" employment, and except] and after such
24 agency has been responsible for referring such job applicant to an
25 employer or such employer to a job applicant and where as a result ther-
26 eof such job applicant has been employed by such employer[; and
27 (b)], except for class "C" employment: [(i)] (a) after an agency has
28 been responsible for referring an artist to an employer or such employer
29 to an artist and where as a result thereof such artist has been employed
30 by such employer; or [(ii)] (b) after an agency represents an artist in
31 the negotiation or renegotiation of an original or pre-existing employ-
32 ment contract and where as a result thereof the artist enters into a
33 negotiated or renegotiated employment contract. For class "C" employment
34 pursuant to this paragraph, an employment agency shall provide an artist
35 with a statement setting forth in a clear and concise manner the
36 provisions of this section and section one hundred eighty-six of this
37 article.
38 The maximum fees provided for herein for all types of placements or
39 employment may be charged to the job applicant and a similar fee may be
40 charged to the employer provided, however, that with regard to place-
41 ments in class "B" employment, a fee of up to one and one-half times the
42 fee charged to the job applicant may be charged to the employer. By
43 agreement with an employment agency, the employer may voluntarily assume
44 payment of the job applicant's fee. The fees charged to employers by any
45 licensed person conducting an employment agency for rendering services
46 in connection with, or for providing employment in classes "A", "A-1"
47 and "B", as hereinafter defined in subdivision four of this section
48 where the applicant is not charged a fee shall be determined by agree-
49 ment between the employer and the employment agency. No fee shall be
50 charged or accepted for the registration of applicants for employees or
51 employment.
52 1-a. Fee refund. An employment agency who has charged or accepted a
53 fee or other consideration for classes "A" and "A-1" employment without
54 a contract prior to October first, two thousand sixteen, shall refund
55 the full amount to the job applicant by November first, two thousand
56 seventeen, if: (a) such fee or consideration did not lead to the job
A. 3702--A 7
1 applicant obtaining employment through the employment agency; or (b) the
2 fee or consideration was not applied to the job applicant's account for
3 services rendered by the employment agency.
4 3. Deposits, advance fees. Notwithstanding any other provisions of
5 this section, an employment agency [may] shall not require or accept a
6 deposit or advance fee from any applicant [except an applicant for class
7 "A" or class "A1" employment, and only to the extent of the maximum fees
8 hereinafter provided. Such deposit or advance fee shall be offset
9 against any fee charged or accepted when such employment is obtained.
10 Any excess above the lawful fee shall be returned without demand there-
11 for, immediately after the employment agency has been notified that such
12 employment has been obtained; and all of such deposit or advance fee
13 shall be returned immediately upon demand therefor, if at the time of
14 the demand such employment has not been obtained]. Any deposit or
15 advance fee collected by an employment agency prior to October first,
16 two thousand sixteen, must be refunded to the applicant by November
17 first, two thousand seventeen, if: (a) such deposit or advance fee did
18 not lead to the job applicant obtaining employment through the employ-
19 ment agency or (b) the deposit or advance fee was not applied to the job
20 applicant's account for services rendered by the employment agency.
21 § 7. Subdivision 2 of section 186 of the general business law, as
22 amended by chapter 1010 of the laws of 1960, is amended to read as
23 follows:
24 2. Failure to report: If a job applicant accepts employment and there-
25 after fails to report for work, the gross fee charged to such applicant
26 shall not exceed twenty-five per cent of the maximum fee allowed by
27 section one hundred eighty-five of this article[, provided however, if
28 the applicant remains with his same employer, the fee shall not exceed
29 fifty per cent]. If a job applicant accepts employment and fails to
30 report for work, no fee shall be charged to the employer.
31 § 8. Subdivision 3 of section 187 of the general business law, as
32 added by chapter 893 of the laws of 1958, is amended to read as follows:
33 (3) Advertise in newspapers or otherwise, or use letterheads or
34 receipts or other written or printed matter, unless such advertising or
35 other matter contains the name and address of the employment agency
36 [and] the word "agency", and the agency's license number.
37 § 9. Section 189 of the general business law, as amended by chapter
38 479 of the laws of 1963, subdivisions 1 and 2 as amended by chapter 721
39 of the laws of 2004, subdivisions 4 and 5 as amended by chapter 632 of
40 the laws of 1975, is amended to read as follows:
41 § 189. Enforcement of provisions of this article. 1. This article,
42 article nineteen-B of the labor law and sections 37.01, 37.03 and 37.05
43 of the arts and cultural affairs law shall be enforced by the commis-
44 sioner of labor, except that in the city of New York this article and
45 such sections shall be enforced by the commissioner of consumer affairs
46 of such city. In addition to the powers of the commissioner, the attor-
47 ney general shall have the power to enforce this article; such powers
48 include, but are not limited to, actions to restrain or enjoin such
49 violation. Nothing in this section shall in any way limit the rights or
50 remedies which are otherwise available to a person under any other law.
51 2. To effectuate the purposes of this article, article nineteen-B of
52 the labor law and sections 37.01, 37.03 and 37.05 of the arts and
53 cultural affairs law, the commissioner or any duly authorized agent or
54 inspector designated by such commissioner, shall have authority to
55 inspect [the premises, registers, contract forms, receipt books, appli-
56 cation forms, referral forms, reference forms, reference reports and
A. 3702--A 8
1 financial records of fees charged and refunds made of each employment
2 agency, which are essential to the operation of such agency, and of each
3 applicant for an employment agency license, as frequently as necessary
4 to ensure compliance with this article and such sections; but in]
5 employment agencies and applicants for an employment agency license as
6 frequently as necessary to ensure compliance with this article. The
7 following shall be subject to inspection: the premises; registers;
8 contracts signed by job applicants; statements of terms and conditions;
9 receipts; application forms; referral forms; bona fide orders from
10 prospective employers; written notifications from employers required by
11 section one hundred eighty-seven of this article; reference forms;
12 reference reports; records of fees charged; records of refunds made; and
13 any other record that an employment agency must maintain pursuant to
14 this article. In no event shall any employment agency be inspected less
15 frequently than once every eighteen months. Inspections may consist of
16 in-person visits to employment agencies. The commissioner shall also
17 have authority to subpoena records and witnesses or otherwise to conduct
18 investigations of any employer or other person where he or she has
19 reasonable grounds for believing that such employer or person is violat-
20 ing or has conspired or is conspiring with an employment agency to
21 violate this article or such sections.
22 3. To effectuate the purposes of this article, the commissioner may
23 make reasonable administrative rules within the standards set in this
24 article. Before such rules shall be issued, the commissioner shall
25 conduct a public hearing, giving due notice thereof to all interested
26 parties. No rule shall become effective until fifteen days after it has
27 been filed in the office of the department of state, if it is a rule of
28 the industrial commissioner, or in the office of the clerk of the city
29 of New York, if it is a rule of the commissioner of licenses of such
30 city, and copies thereof shall be furnished to all employment agencies
31 affected at least fifteen days prior to the effective date of such rule.
32 4. Complaints against any such licensed or unlicensed person [shall]
33 may be made orally or in writing to the commissioner, or be sent in an
34 affidavit form without appearing in person, and may be made by recog-
35 nized employment agencies, trade associations, or others. The commis-
36 sioner may hold a hearing on a complaint with the powers provided by
37 section one hundred seventy-four of this article. If a hearing is held,
38 reasonable notice thereof, not less than five days, shall be given in
39 writing to said [licensed] person by serving upon the [licensed] person
40 either personally, by mail, or by leaving the same with the person in
41 charge of his office, a concise statement of the facts constituting the
42 complaint, and the hearing shall commence before the commissioner with
43 reasonable speed but in no event later than two weeks from the date of
44 the filing of the complaint. The commissioner when investigating any
45 matters pertaining to the granting, issuing, transferring, renewing,
46 revoking, suspending or cancelling of any license is authorized in his
47 discretion to take such testimony as may be necessary on which to base
48 official action. When taking such testimony he may subpoena witnesses
49 and also direct the production before him of necessary and material
50 books and papers. A daily calendar of all hearings shall be kept by the
51 commissioner and shall be posted in a conspicuous place in his public
52 office for at least one day before the date of such hearings. The
53 commissioner shall render his decision within thirty days from the time
54 the matter is finally submitted to him. The commissioner shall keep a
55 record of all such complaints and hearings. In addition to the powers
A. 3702--A 9
1 of the commissioner, the attorney general may bring an action against
2 anyone who is alleged to have violated this article.
3 5. [Following such hearing if it has been shown] Upon a finding that
4 the licensed person or his agent, employee or anyone acting on his
5 behalf is guilty of violating any provision of this article or is not a
6 person of good character and responsibility, the commissioner may
7 suspend or revoke the license of such licensed person [and/or levy a
8 fine against such licensed person for each violation not to exceed five
9 hundred dollars]. Any employment agency found to have violated any
10 provision of this article shall be subject, for the first offense, to a
11 civil penalty not to exceed one thousand dollars per violation, and, for
12 each subsequent offense within six years of such previous offense, to a
13 civil penalty, not to exceed five thousand dollars per violation. If the
14 person subject to this article fails to pay the damages, fines, attor-
15 ney's fees, costs, or penalties awarded, the amount awarded may be
16 satisfied out of the bond amount required by this article. Whenever such
17 commissioner shall suspend or revoke the license of any employment agen-
18 cy, or shall levy a fine against [such] any agency, said determination
19 shall be subject to judicial review in proceedings brought pursuant to
20 article seventy-eight of the civil practice law and rules. Whenever
21 [such] an employment agency's license is revoked, another license or
22 agency manager permit shall not be issued within three years from the
23 date of such revocation to said licensed person or his agency manager or
24 to any person with whom the licensee has been associated in the business
25 of furnishing employment or engagements. Deputy commissioners, or other
26 officials designated to act on behalf of the commissioner, may conduct
27 hearings and act upon applications for licenses, and revoke or suspend
28 such licenses, or levy fines against an employment agency.
29 6. If any person uses any untrue or misleading statement, information,
30 or advertisement to sell its employment agency services or fails to
31 comply with the applicable provisions of this article, or the contract
32 does not comply with the applicable provisions of this article, then the
33 contract shall be void and unenforceable as contrary to public policy.
34 7. Any person aggrieved by a violation of this article may bring a
35 civil action in a court of competent jurisdiction against any employment
36 agency or persons alleged to have violated the provisions of this arti-
37 cle. The court shall have jurisdiction to restrain violations of this
38 section and to order all appropriate relief, including enjoining the
39 conduct of any person or employment agency; ordering payment of damages,
40 costs and reasonable attorneys' fees to the aggrieved individual by the
41 person or entity found to be in violation of this article.
42 8. The remedies provided in this article are not exclusive and shall
43 be in addition to any other remedies or procedures provided in any other
44 law.
45 9. If any provisions of this article or the application thereof to any
46 person or circumstances is held unconstitutional, the remainder of the
47 article and the application of that provision to other persons and
48 circumstances shall not be affected thereby.
49 10. If an employment agency fails to maintain records as required
50 under this article, the credible testimony of an applicant shall form
51 the proper basis for the calculation of unpaid wages and/or unlawful
52 fees.
53 § 10. Section 190 of the general business law, as amended by chapter
54 632 of the laws of 1975, is amended to read as follows:
55 § 190. Penalties for violations. Any person who violates and the offi-
56 cers of a corporation and stockholders holding ten percent or more of
A. 3702--A 10
1 the stock of a corporation which is not publicly traded, who knowingly
2 permit the corporation to violate sections one hundred seventy-two, one
3 hundred seventy-three, one hundred seventy-six, one hundred eighty-four,
4 one hundred eighty-four-a, one hundred eighty-five, one hundred eighty-
5 five-a, one hundred eighty-six, or one hundred eighty-seven of this
6 article shall be guilty of a misdemeanor and upon conviction shall be
7 subject to a fine not to exceed [one thousand] two thousand five hundred
8 dollars per violation, or imprisonment for not more than one year, or
9 both, by any court of competent jurisdiction. The violation of any other
10 provision of this article shall be punishable by a fine not to exceed
11 [one] five hundred dollars or imprisonment for not more than thirty
12 days. Criminal proceedings based upon violations of these sections shall
13 be instituted by the commissioner, the attorney general, or a district
14 attorney and may be instituted by any persons aggrieved by such
15 violations.
16 § 11. The general business law is amended by adding a new section 195
17 to read as follows:
18 § 195. Protection from retaliation. It shall be unlawful for any
19 employment agency to retaliate or discriminate against any person
20 because he or she has opposed any practice or practices forbidden under
21 this article or because that person has filed a complaint, testified or
22 assisted in any proceeding under this article.
23 § 12. This act shall take effect immediately.
