A08106 Summary:

BILL NO    A08106C

SAME AS    SAME AS S05885-B

SPONSOR    Heastie (MS)

COSPNSR    Morelle, Magnarelli, Peoples-Stokes, Lupardo, Rosenthal, Ortiz,
           Santabarbara, Crespo, Fahy, Clark, Skoufis, McDonald

MLTSPNSR   Davila

Amd SS195, 198, 218, 215, 219 & 663, add S861-g, Lab L; amd S609, Lim Lil L;
add S97-pppp, St Fin L

Increases penalties for wage payment violations; relates to liability of
members of limited liability companies and establishes the wage theft
prevention enforcement account.
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A08106 Actions:

BILL NO    A08106C

06/19/2013 referred to labor
01/08/2014 referred to labor
06/06/2014 amend and recommit to labor
06/06/2014 print number 8106a
06/10/2014 reported referred to codes
06/12/2014 amend and recommit to codes
06/12/2014 print number 8106b
06/16/2014 reported referred to ways and means
06/16/2014 amend and recommit to ways and means
06/16/2014 print number 8106c
06/18/2014 reported referred to rules
06/18/2014 reported 
06/19/2014 rules report cal.450
06/19/2014 ordered to third reading rules cal.450
06/19/2014 passed assembly
06/19/2014 delivered to senate
06/19/2014 REFERRED TO RULES
06/19/2014 SUBSTITUTED FOR S5885B
06/19/2014 3RD READING CAL.1605
06/19/2014 PASSED SENATE
06/19/2014 RETURNED TO ASSEMBLY
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A08106 Votes:

A08106C06/19/2014 124/11
AbbateYCorwinYGlickYLavineYNolanYRozicYTitusY
AbinantYCrespoYGoldfedYLentolYOaksYRussellYWalterNO
ArroyoYCrouchYGoodellYLiftonYO'DonneYRyanYWeinsteY
AubryYCurranYGottfriABLopezYOrtizYSaladinYWeisenbER
BarclayYCusickYGrafYLupardoYOtisYSantabaYWeprinY
BarrettYCymbrowYGuntherYLupinacYPalmesaYScarborYWrightY
BenedetYDavilaYHawleyYMageeYPalumboYSchimelYZebrowsY
BlankenYDenDekkYHeastieYMagnareYPaulinYSchimmiNOMr SpkrY
BorelliYDinowitYHennessYMalliotYPeoplesYSepulveY
BraunstYDiPietrNOHevesiYMarkeyYPerryYSimanowY
BrennanYDupreyYHikindYMayerYPichardYSimotasY
BrindisYEnglebrYHooperYMcDonalYPretlowYSkartadY
BronsonYFahyYJacobsYMcDonouYQuartYSkoufisY
Brook-KYFarrellYJaffeeYMcKevitYRaYSolagesY
BuchwalYFinchYJohnsYMcLaughNORaiaYStecY
ButlerNOFitzpatNOKatzNOMillerYRamosYSteckY
CahillYFriendNOKavanagYMillmanYRiveraYStirpeY
CamaraERGalefYKearnsYMontesaYRobertsYSweeneyY
CerettoYGanttYKellnerABMorelleYRobinsoYTediscoY
ClarkYGarbariYKimYMosleyYRodriguYTenneyER
ColtonYGiglioYKolbNOMoyaYRosaYThieleY
CookYGjonajYLalorNONojayNORosenthYTitoneY

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A08106 Memo:

BILL NUMBER:A8106C

TITLE OF BILL:  An act to amend the labor law, in relation to
increased penalties for violations of wage payment provisions and
contractor accountability; to amend the limited liability company law,
in relation to liability of members; and to amend the state finance
law, in relation to establishing the wage theft prevention account

Purpose or General Idea of Bill:

The purpose of this bill is to provide additional protections for
employees against wage theft.

Summary of Specific Provisions:

Section 1 amends Subdivision 1(a) of Section 195 of the Labor Law to
strike the annual notice requirement from the Wage Theft Prevention
Act when the same information is provided in another manner.

Section 2 amends Subdivisions 1-b and 1-d of Section 198 of the Labor
Law to increase penalties for employers' failure to comply with
certain sections of the Wage Theft Prevention Act.

Section 3 amends Subdivision 1 of Section 218 of the Labor Law if an
order directing payment of wages, benefits, wage supplements and
liquidated damages is issued to an employer who had previously
committed wage theft, or to an employer whose violation is willful or
egregious, the employer will be required to report specified employee
and wage data to the Commissioner of Labor, which will be published on
the Department of Labor's website. Section 3 also adds a new
Subdivision 5 of Section 218 of the Labor Law to provide that an
employer similar in operation or ownership to a prior employer who had
previously committed wage theft is liable for the acts of the prior
employer for the purposes of civil penalties.

Section 4 adds a new Subdivision 4 to Section 219 of the Labor Law to
provide that an employer similar in operation or ownership to a prior
employer who had previously committed wage theft is liable for the
acts of the prior employer for the purposes of orders directing
payment of wages from the Commissioner of Labor or other decisions.

Section 5 amends Subdivision 3 of Section 218 of the Labor Law to
provide that the Commissioner's investigation into employer
retaliation against an employee for reporting wage theft will cover
the entire six-year statute of limitations period unless he otherwise
notifies all affected employees.

Section 6 amends Subdivision 1(b) of Section 215 of the Labor Law to
authorize the Commissioner to assess a greater civil penalty for those
employers who have committed wage theft and had a previous violation
within the previous six years.

Section 7 amends Subdivision 3 of Section 218 of the Labor Law to
require rather than allow the Commissioner to assign the money due to
an employee, and that an order or decision regarding civil penalties
can be filed in the name of an employee as well as the Commissioner.


Section 8 amends Subdivision 3 of Section 219 of the Labor Law to
require rather than allow the Commissioner to assign the money due to
an employee, and that orders directing payment of wages from the
Commissioner of Labor or other decisions can be filed in the name of
an employee as well as the Commissioner.

Section 9 amends Subdivision of Section 663 of the Labor Law to
provide that the Commissioner's investigation related to civil actions
will cover the entire six-year statute of limitations period unless he
otherwise notifies all affected employees.

Section 10 adds a new Section 861-g of the Labor Law to provide that
if a contractor or sub-contractor is found to have committed wage
theft, the contractor or sub-contractor will be required to notify all
of its employees of the violations.

Section 11 adds new Subdivisions (c) and (d) to the Limited Liability
Company Law requiring that the ten members with the largest percentage
ownership in a limited liability company be personally liable for all
debts, wages, or salaries due and owing to any of its laborers,
servants or employees, for services performed by them for such limited
liability company. The bill requires written notice of one hundred and
eighty days after termination of services before any laborer, servant,
or employee may charge any of those ten members under this section. An
action to enforce such liability shall be commenced within ninety days
after the return of an execution unsatisfied against the limited
liability company upon a judgment recovered against it for such
services. The bill allows for any member who has paid more than his or
her pro rata share to be entitled to contribution pro rata from the
other members liable under this section with respect to the excess so
paid, over and above his or her pro rata share, and may sue them
jointly or severally or any number of them to recover the amount due
from them. The bill defines wages or salaries as all compensation and
benefits payable by an employer to or for the account of the employee,
servant or laborer, for services performed by them for such limited
liability company.

Section 12 would add a new Section 97-pppp of the State Finance Law to
create the Wage Theft Prevention Enforcement Account which would be
established in the custody of the state comptroller. The fund shall
consist of moneys collected pursuant to the provisions of Articles
five, six, nineteen, and nineteen-A and sections two hundred fifteen
and two hundred eighteen of the Labor Law, and the regulations
promulgated thereunder. The bill prohibits the moneys to be paid out
without a certificate of allocation and a schedule of amounts to be
made available upon issuance by the director of the budget, and a copy
of such certificate to have been filed with the comptroller.

Section 13 is the effective date.

Justification:

The Wage Theft Prevention Act was enacted in 2010 to provide the
Department of Labor with the tools necessary to ensure that workers
across the State of New York are paid the wages to which they are
entitled. However, many employees are still vulnerable to wage theft


by unscrupulous employers. This bill would better ensure that all New
York workers receive the wages they have rightfully earned.

Prior Legislative History:

2013: A.8106 (Heastie) - Referred to Labor.

Fiscal Implications For State And Local Governments:

None known.

Effective Date:

This bill shall take effect 60 days after enactment.
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A08106 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        8106--C

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                     June 19, 2013
                                      ___________

       Introduced  by  M.  of  A. HEASTIE, MORELLE, MAGNARELLI, PEOPLES-STOKES,
         LUPARDO, ORTIZ, SANTABARBARA, CRESPO, FAHY -- Multi-Sponsored by -- M.
         of A. McDONALD -- read once and referred to the Committee on Labor  --
         recommitted to the Committee on Labor in accordance with Assembly Rule
         3,  sec. 2 -- committee discharged, bill amended, ordered reprinted as
         amended and recommitted to said committee -- reported and referred  to
         the  Committee on Codes -- committee discharged, bill amended, ordered
         reprinted as amended and recommitted to said committee -- reported and
         referred to the Committee on Ways and Means --  committee  discharged,
         bill  amended,  ordered  reprinted  as amended and recommitted to said
         committee

       AN ACT to amend the labor law, in relation to  increased  penalties  for
         violations  of  wage payment provisions and contractor accountability;
         to amend the limited liability company law, in relation  to  liability
         of  members; and to amend the state finance law, in relation to estab-
         lishing the wage theft prevention account

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1. Paragraph (a) of subdivision 1 of section 195 of the labor
    2  law, as amended by chapter 564 of the laws of 2010, is amended  to  read
    3  as follows:
    4    (a)  provide  his  or  her employees, in writing in English and in the
    5  language identified by each employee as the  primary  language  of  such
    6  employee,  at  the  time  of hiring[, and on or before February first of
    7  each subsequent year of the employee's employment with the employer],  a
    8  notice  containing  the  following information: the rate or rates of pay
    9  and basis thereof, whether paid by the hour, shift, day,  week,  salary,
   10  piece,  commission, or other; allowances, if any, claimed as part of the
   11  minimum wage, including tip, meal, or lodging  allowances;  the  regular
   12  pay  day  designated  by  the  employer  in  accordance with section one
   13  hundred ninety-one of this article; the name of the employer; any "doing

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11592-11-4
       A. 8106--C                          2

    1  business as" names used by the employer; the  physical  address  of  the
    2  employer's  main  office  or  principal place of business, and a mailing
    3  address if different; the telephone number of the  employer;  plus  such
    4  other information as the commissioner deems material and necessary. Each
    5  time  the  employer  provides  such  notice to an employee, the employer
    6  shall obtain from the employee a signed and dated  written  acknowledge-
    7  ment, in English and in the primary language of the employee, of receipt
    8  of  this  notice, which the employer shall preserve and maintain for six
    9  years. Such acknowledgement shall include an affirmation by the employee
   10  that the employee accurately identified his or her primary  language  to
   11  the  employer,  and  that  the  notice  provided by the employer to such
   12  employee pursuant to this subdivision was in the language so  identified
   13  or  otherwise complied with paragraph (c) of this subdivision, and shall
   14  conform to any additional requirements established by  the  commissioner
   15  with  regard  to  content and form. For all employees who are not exempt
   16  from overtime compensation as established in the commissioner's  minimum
   17  wage  orders  or otherwise provided by New York state law or regulation,
   18  the notice must state the regular hourly rate and overtime rate of pay;
   19    S 2. Subdivisions 1-b and 1-d of section 198  of  the  labor  law,  as
   20  added  by  chapter  564  of  the  laws  of  2010, are amended to read as
   21  follows:
   22    1-b. If any employee is not provided within ten business days  of  his
   23  or  her  first day of employment a notice as required by subdivision one
   24  of section one hundred ninety-five  of  this  article,  he  or  she  may
   25  recover  in a civil action damages of fifty dollars for each work [week]
   26  DAY that the violations occurred or continue to occur, but not to exceed
   27  a total of [two] FIVE thousand [five  hundred]  dollars,  together  with
   28  costs  and  reasonable  attorney's  fees. The court may also award other
   29  relief, including injunctive and declaratory relief, that the  court  in
   30  its discretion deems necessary or appropriate.
   31    On  behalf of any employee not provided a notice as required by subdi-
   32  vision one of section one  hundred  ninety-five  of  this  article,  the
   33  commissioner may bring any legal action necessary, including administra-
   34  tive action, to collect such claim, and as part of such legal action, in
   35  addition  to  any other remedies and penalties otherwise available under
   36  this article, the commissioner may assess against the  employer  damages
   37  of  fifty  dollars for each work [week] DAY that the violations occurred
   38  or continue to occur, BUT  NOT  TO  EXCEED  A  TOTAL  OF  FIVE  THOUSAND
   39  DOLLARS.  In  any action or administrative proceeding to recover damages
   40  for violation of paragraph [(d)] (A) of subdivision one of  section  one
   41  hundred  ninety-five of this article, it shall be an affirmative defense
   42  that (i) the employer made complete and timely payment of all wages  due
   43  pursuant  to  this  article or article nineteen or article nineteen-A of
   44  this chapter to the employee who was not provided notice as required  by
   45  subdivision  one  of  section one hundred ninety-five of this article or
   46  (ii) the employer reasonably believed in good  faith  that  it  was  not
   47  required to provide the employee with notice pursuant to subdivision one
   48  of section one hundred ninety-five of this article.
   49    1-d.  If  any  employee  is  not provided a statement or statements as
   50  required by subdivision three of section one hundred ninety-five of this
   51  article, he or she shall recover in a civil action damages of [one]  TWO
   52  hundred  FIFTY  dollars  for  each  work  [week] DAY that the violations
   53  occurred or continue to occur, but not to exceed a total of [twenty-five
   54  hundred] FIVE THOUSAND  dollars,  together  with  costs  and  reasonable
   55  attorney's  fees.  The  court  may  also  award  other relief, including
       A. 8106--C                          3

    1  injunctive and declaratory relief, that  the  court  in  its  discretion
    2  deems necessary or appropriate.
    3    On  behalf  of  any  employee  not provided a statement as required by
    4  subdivision three of section one hundred ninety-five  of  this  article,
    5  the  commissioner may bring any legal action necessary, including admin-
    6  istrative action, to collect such claim,  and  as  part  of  such  legal
    7  action, in addition to any other remedies and penalties otherwise avail-
    8  able under this article, the commissioner may assess against the employ-
    9  er  damages  of [one] TWO hundred FIFTY dollars for each work [week] DAY
   10  that the violations occurred or continue to occur, BUT NOT TO  EXCEED  A
   11  TOTAL OF FIVE THOUSAND DOLLARS. In any action or administrative proceed-
   12  ing to recover damages for violation of subdivision three of section one
   13  hundred  ninety-five of this article, it shall be an affirmative defense
   14  that (i) the employer made complete and timely payment of all wages  due
   15  pursuant  to  this  article  or  articles nineteen or nineteen-A of this
   16  chapter to the employee who was not provided statements as  required  by
   17  subdivision  three of section one hundred ninety-five of this article or
   18  (ii) the employer reasonably believed in good  faith  that  it  was  not
   19  required  to  provide the employee with statements pursuant to paragraph
   20  (e) of subdivision one of section one hundred ninety-five of this  arti-
   21  cle.
   22    S  3.  Subdivision  1  of  section 218 of the labor law, as amended by
   23  chapter 564 of the laws of 2010, the opening paragraph and second undes-
   24  ignated paragraph as further amended by section 104 of part A of chapter
   25  62 of the laws of 2011, is amended and a new subdivision 5 is  added  to
   26  read as follows:
   27    1.  If  the  commissioner  determines  that an employer has violated a
   28  provision of article six (payment of wages), article  nineteen  (minimum
   29  wage  act),  article  nineteen-A  (minimum wage standards and protective
   30  labor practices for farm workers), section two hundred twelve-a, section
   31  two hundred twelve-b, section one hundred sixty-one  (day  of  rest)  or
   32  section  one hundred sixty-two (meal periods) of this chapter, or a rule
   33  or regulation promulgated thereunder, the commissioner  shall  issue  to
   34  the  employer  an  order  directing  compliance  therewith,  which shall
   35  describe particularly the nature of the alleged  violation.  A  copy  of
   36  such  order  shall be provided to any employee who has filed a complaint
   37  and any authorized representative of him or her. In addition to  direct-
   38  ing  payment of wages, benefits or wage supplements found to be due, and
   39  liquidated damages in the amount of one hundred percent of unpaid wages,
   40  such order, if issued to an employer who previously has  been  found  in
   41  violation  of  those provisions, rules or regulations, or to an employer
   42  whose violation is willful or egregious, shall  direct  payment  to  the
   43  commissioner of an additional sum as a civil penalty in an amount not to
   44  exceed  double  the total amount of wages, benefits, or wage supplements
   45  found to be due.  ADDITIONALLY, SUCH ORDER, IF ISSUED TO AN EMPLOYER WHO
   46  PREVIOUSLY HAS BEEN FOUND IN VIOLATION OF  THOSE  PROVISIONS,  RULES  OR
   47  REGULATIONS,  OR TO AN EMPLOYER WHOSE VIOLATION IS WILLFUL OR EGREGIOUS,
   48  SHALL DIRECT SUCH EMPLOYER TO REPORT, BY LOCATION, AND FOR  SUCH  PERIOD
   49  AS  THE  COMMISSIONER  SHALL  DETERMINE,  (A)  THE  NUMBER  OF PERMANENT
   50  FULL-TIME EMPLOYEES, THE NUMBER OF TEMPORARY  FULL-TIME  EMPLOYEES,  THE
   51  NUMBER  OF  PERMANENT  PART-TIME  EMPLOYEES,  THE  NUMBER  OF  TEMPORARY
   52  PART-TIME EMPLOYEES, AND THE NUMBER OF TEMPORARY STAFFING AGENCY EMPLOY-
   53  EES PERFORMING WORK FOR THE EMPLOYER;  (B)  THE  HOURLY  RATES  OF  SUCH
   54  EMPLOYEES  REPORTED IN THE FOLLOWING BRACKETS: THE STATE MINIMUM WAGE TO
   55  $9.99; $10.00 TO $11.99; $12.00 TO $14.99; AND $15.00 OR MORE;  (C)  THE
   56  NUMBER  OF  EMPLOYEES WHO REGULARLY WORKED THE FOLLOWING NUMBER OF HOURS
       A. 8106--C                          4

    1  PER WEEK DURING THE RELEVANT CALENDAR PERIOD: AT LEAST SIXTY;  AT  LEAST
    2  FIFTY  BUT  FEWER  THAN  SIXTY; AT LEAST FORTY, BUT FEWER THAN FIFTY; AT
    3  LEAST THIRTY-FIVE BUT FEWER THAN FORTY; AT LEAST THIRTY BUT  FEWER  THAN
    4  THIRTY-FIVE; AT LEAST TWENTY-FIVE BUT FEWER THAN THIRTY; AT LEAST TWENTY
    5  BUT FEWER THAN TWENTY-FIVE; AT LEAST TEN BUT FEWER THAN TWENTY; AT LEAST
    6  FIVE  BUT  FEWER  THAN  TEN;  FEWER THAN FIVE. NO INDIVIDUAL IDENTIFYING
    7  INFORMATION OF SUCH EMPLOYEES SHALL BE REPORTED OR  OTHERWISE  DISCLOSED
    8  TO  THE  DEPARTMENT. THE DEPARTMENT SHALL POST THE DATA COLLECTED ON THE
    9  DEPARTMENT'S WEBSITE.  FOR  THE  PURPOSES  OF  THIS  SECTION,  TEMPORARY
   10  EMPLOYEES  SHALL  BE THOSE EMPLOYEES WHO ARE HIRED FOR A PERIOD OF SIXTY
   11  DAYS OR LESS DURING THE  RELEVANT  CALENDAR  YEAR,  FULL-TIME  EMPLOYEES
   12  SHALL BE THOSE REGULARLY WORKING FORTY HOURS OR MORE PER WEEK DURING THE
   13  RELEVANT  CALENDAR YEAR, PART-TIME EMPLOYEES SHALL BE THOSE WORKING LESS
   14  THAN FORTY HOURS PER WEEK DURING THE RELEVANT CALENDAR YEAR. In no  case
   15  shall  the  order direct payment of an amount less than the total wages,
   16  benefits or wage supplements found by the commissioner to be  due,  plus
   17  the  liquidated  damages  in the amount of one hundred percent of unpaid
   18  wages, the appropriate civil penalty, and interest at the rate of inter-
   19  est then in effect, as prescribed by  the  superintendent  of  financial
   20  services  pursuant  to  section  fourteen-a of the banking law per annum
   21  from the date of the underpayment to the date of the payment. Where  the
   22  violation  is  for  a  reason  other  than the employer's failure to pay
   23  wages, benefits or wage supplements found to be  due,  the  order  shall
   24  direct  payment  to the commissioner of a civil penalty in an amount not
   25  to exceed one thousand dollars  for  a  first  violation,  two  thousand
   26  dollars  for a second violation or three thousand dollars for a third or
   27  subsequent violation. In  assessing  the  amount  of  the  penalty,  the
   28  commissioner  shall give due consideration to the size of the employer's
   29  business, the good faith basis of  the  employer  to  believe  that  its
   30  conduct  was  in  compliance with the law, the gravity of the violation,
   31  the history of previous violations and, in the case of  wages,  benefits
   32  or  supplements  violations, the failure to comply with recordkeeping or
   33  other non-wage requirements.
   34    Where there is a violation of section one  hundred  ninety-eight-b  of
   35  this chapter, the order shall direct payment back to the employee of the
   36  amount of wages, supplements or other thing of value unlawfully received
   37  plus  liquidated  damages in the amount of one hundred percent of unpaid
   38  wages, and  interest  at  the  rate  of  interest  then  in  effect,  as
   39  prescribed  by  the  superintendent  of  financial  services pursuant to
   40  section fourteen-a of the banking law per annum from  the  date  of  the
   41  payback,  return,  donation  or contribution to the date of payment, and
   42  shall include such other relief as may be appropriate, including  rehir-
   43  ing or reinstatement of the employee to his or her former position, back
   44  wages, and restoration of seniority. In addition, the commissioner shall
   45  order payment of a civil penalty of at least twenty-five hundred dollars
   46  but  not more than five thousand dollars per violation. In assessing the
   47  amount of the penalty, the commissioner shall give due consideration  to
   48  the size of the employer's business, the good faith basis of the employ-
   49  er to believe that its conduct was in compliance with the law, the grav-
   50  ity of the violation, the history of previous violations.
   51    At  the  discretion  of  the commissioner, the commissioner shall have
   52  full authority to provide for inclusion of an automatic fifteen  percent
   53  additional  amount  of  damages to come due and owing upon expiration of
   54  ninety days from an order to comply  becoming  final.  The  commissioner
   55  shall  provide  written notice to the employer in the order to comply of
   56  this additional damage.
       A. 8106--C                          5

    1    5. AN EMPLOYER SIMILAR IN OPERATION AND OWNERSHIP TO A PRIOR  EMPLOYER
    2  WHICH HAD BEEN FOUND IN VIOLATION OF ARTICLE SIX, NINETEEN OR NINETEEN-A
    3  OF  THIS  CHAPTER, SHALL BE DEEMED THE SAME EMPLOYER FOR THE PURPOSES OF
    4  THIS SECTION IF THE  EMPLOYEES  OF  THE  NEW  EMPLOYER  ARE  ENGAGED  IN
    5  SUBSTANTIALLY THE SAME WORK IN SUBSTANTIALLY THE SAME WORKING CONDITIONS
    6  UNDER  SUBSTANTIALLY THE SAME SUPERVISORS, OR IF THE SUBSEQUENT EMPLOYER
    7  HAS SUBSTANTIALLY THE SAME PRODUCTION  PROCESS,  PRODUCES  SUBSTANTIALLY
    8  THE SAME PRODUCTS AND HAS SUBSTANTIALLY THE SAME BODY OF CUSTOMERS. SUCH
    9  SUBSEQUENT  EMPLOYER  SHALL  CONTINUE  TO BE SUBJECT TO THIS SECTION AND
   10  LIABLE FOR THE ACTS OF THE PRIOR EMPLOYER UNDER THIS SECTION.
   11    S 4. Section 219 of the labor law is amended by adding a new  subdivi-
   12  sion 4 to read as follows:
   13    4.  AN EMPLOYER SIMILAR IN OPERATION AND OWNERSHIP TO A PRIOR EMPLOYER
   14  FOUND TO BE IN VIOLATION OF ARTICLE SIX, NINETEEN OR NINETEEN-A OF  THIS
   15  CHAPTER,  SHALL  BE  DEEMED  THE  SAME EMPLOYER FOR THE PURPOSES OF THIS
   16  SECTION IF THE EMPLOYEES OF  THE  SUBSEQUENT  EMPLOYER  ARE  ENGAGED  IN
   17  SUBSTANTIALLY THE SAME WORK IN SUBSTANTIALLY THE SAME WORKING CONDITIONS
   18  UNDER  SUBSTANTIALLY  THE  SAME  SUPERVISORS,  OR  IF THE NEW ENTITY HAS
   19  SUBSTANTIALLY THE SAME PRODUCTION PROCESS,  PRODUCES  SUBSTANTIALLY  THE
   20  SAME  PRODUCTS  AND HAS SUBSTANTIALLY THE SAME BODY OF CUSTOMERS. SUCH A
   21  SUBSEQUENT EMPLOYER WILL CONTINUE TO BE  SUBJECT  TO  THIS  SECTION  AND
   22  SHALL BE LIABLE FOR THE ACTS OF THE PRIOR EMPLOYER UNDER THIS SECTION.
   23    S  5.  Subdivision  3  of  section 198 of the labor law, as amended by
   24  chapter 564 of the laws of 2010, is amended to read as follows:
   25    3. Notwithstanding any other provision of law, an  action  to  recover
   26  upon  a  liability  imposed by this article must be commenced within six
   27  years.  The statute of limitations shall be  tolled  from  the  date  an
   28  employee  files  a  complaint  with the commissioner or the commissioner
   29  commences an investigation, whichever is  earlier,  until  an  order  to
   30  comply  issued  by  the commissioner becomes final, or where the commis-
   31  sioner does not issue an order, until the date on which the commissioner
   32  notifies the complainant that the investigation has concluded.  Investi-
   33  gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
   34  against a person bringing a civil action under this section. All employ-
   35  ees shall have the right  to  recover  full  wages,  benefits  and  wage
   36  supplements and liquidated damages accrued during the six years previous
   37  to  the  commencing of such action, whether such action is instituted by
   38  the employee or by the commissioner.   THE COMMISSIONER'S  INVESTIGATION
   39  SHALL COVER THE ENTIRE SIX-YEAR STATUTE OF LIMITATIONS PERIOD UNLESS THE
   40  COMMISSIONER OTHERWISE NOTIFIES ALL AFFECTED EMPLOYEES.
   41    S 6. Paragraph (b) of subdivision 1 and paragraph (a) of subdivision 2
   42  of  section  215 of the labor law, as amended by chapter 564 of the laws
   43  of 2010, are amended to read as follows:
   44    (b) If after investigation the commissioner finds that an employer  or
   45  person has violated any provision of this section, the commissioner may,
   46  by  an  order  which  shall  describe  particularly  the  nature  of the
   47  violation, assess the employer or person a civil  penalty  of  not  less
   48  than  one thousand nor more than ten thousand dollars PROVIDED, HOWEVER,
   49  THAT IF THE COMMISSIONER  FINDS  THAT  THE  EMPLOYER  HAS  VIOLATED  THE
   50  PROVISIONS  OF  THIS  SECTION  IN THE PRECEDING SIX YEARS, HE OR SHE MAY
   51  ASSESS A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND NOR MORE THAN TWEN-
   52  TY THOUSAND DOLLARS. The commissioner may  also  order  all  appropriate
   53  relief including enjoining the conduct of any person or employer; order-
   54  ing payment of liquidated damages to the employee by the person or enti-
   55  ty  in  violation;  and,  where  the person or entity in violation is an
   56  employer ordering rehiring or reinstatement of the employee  to  his  or
       A. 8106--C                          6

    1  her  former  position  or  an  equivalent position, and an award of lost
    2  compensation or an award of front pay in lieu of  reinstatement  and  an
    3  award of lost compensation. Liquidated damages shall be calculated as an
    4  amount not more than [ten] TWENTY thousand dollars. The commissioner may
    5  assess  liquidated  damages  on behalf of every employee aggrieved under
    6  this section, in addition  to  any  other  remedies  permitted  by  this
    7  section.
    8    (a)  An  employee  may  bring  a  civil action in a court of competent
    9  jurisdiction against any employer or persons alleged  to  have  violated
   10  the  provisions  of  this  section. The court shall have jurisdiction to
   11  restrain violations  of  this  section,  within  two  years  after  such
   12  violation, regardless of the dates of employment of the employee, and to
   13  order  all  appropriate  relief,  including enjoining the conduct of any
   14  person or employer; ordering payment of liquidated  damages,  costs  and
   15  reasonable  attorneys'  fees  to the employee by the person or entity in
   16  violation; and, where the person or entity in violation is an  employer,
   17  ordering  rehiring or reinstatement of the employee to his or her former
   18  position with restoration of seniority or an award of front pay in  lieu
   19  of  reinstatement,  and an award of lost compensation and damages, costs
   20  and reasonable attorneys' fees. Liquidated damages shall  be  calculated
   21  as  an  amount  not  more  than [ten] TWENTY thousand dollars. The court
   22  shall award liquidated damages to every employee  aggrieved  under  this
   23  section,  in  addition  to any other remedies permitted by this section.
   24  The statute of limitations shall be tolled from  the  date  an  employee
   25  files a complaint with the commissioner or the commissioner commences an
   26  investigation,  whichever is earlier, until an order to comply issued by
   27  the commissioner becomes final, or where the commissioner does not issue
   28  an order,  until  the  date  on  which  the  commissioner  notifies  the
   29  complainant  that  the investigation has concluded. Investigation by the
   30  commissioner shall not be a prerequisite to nor a bar against  a  person
   31  bringing a civil action under this section.
   32    S  7.  Subdivision  3  of  section 218 of the labor law, as amended by
   33  chapter 564 of the laws of 2010, is amended to read as follows:
   34    3. Provided that no proceeding for administrative or  judicial  review
   35  as  provided  in  this  chapter  shall  then be pending and the time for
   36  initiation of such proceeding shall have expired, the  commissioner  may
   37  file  with  the county clerk of the county where the employer resides or
   38  has a place of business the order of the commissioner, or  the  decision
   39  of the industrial board of appeals containing the amount found to be due
   40  including   the  civil  penalty,  if  any,  and  at  the  commissioner's
   41  discretion, an additional fifteen percent damages upon  any  outstanding
   42  monies  owed.  At  the request of an employee, [and at the discretion of
   43  the commissioner,] the commissioner [may] SHALL assign that  portion  of
   44  the  money  due  that  constitutes  wages, wage supplements, interest on
   45  wages or wage supplements, or liquidated damages due that  employee,  to
   46  that  employee  and  file  an  order  in that amount in the name of that
   47  employee with the county clerk of the county where the employer  resides
   48  or  has  a place of business. The filing of such order or decision shall
   49  have the full force and effect of a judgment duly docketed in the office
   50  of such clerk. The order or decision may be enforced by and in the  name
   51  of  the  commissioner,  OR BY THE EMPLOYEE, in the same manner, and with
   52  like effect, as that prescribed by the civil practice law and rules  for
   53  the enforcement of a money judgment.
   54    S  8.  Subdivision  3  of  section 219 of the labor law, as amended by
   55  chapter 564 of the laws of 2010, is amended to read as follows:
       A. 8106--C                          7

    1    3. Provided that no proceeding for administrative or  judicial  review
    2  as  provided  in  this  chapter  shall  then be pending and the time for
    3  initiation of such proceeding shall have expired, the  commissioner  may
    4  file  with  the county clerk of the county where the employer resides or
    5  has a place of business the order of the commissioner or the decision of
    6  the  industrial  board of appeals containing the amount found to be due,
    7  including, at  the  commissioner's  discretion,  an  additional  fifteen
    8  percent  damages  upon any outstanding monies owed. At the request of an
    9  employee, [and at the discretion of the commissioner,] the  commissioner
   10  [may] SHALL assign that portion of the money due that constitutes wages,
   11  wage  supplements,  interest on wages or wage supplements, or liquidated
   12  damages due the employee, to that employee and file  an  order  in  that
   13  amount  in the name of such employee with the county clerk of the county
   14  where the employer resides or has a place of  business.  The  filing  of
   15  such  order  or decision shall have the full force and effect of a judg-
   16  ment duly docketed in the office of such clerk. The  order  or  decision
   17  may  be  enforced  by  and  in  the  name of the commissioner, OR BY THE
   18  EMPLOYEE, in the same manner, and with like effect, as  that  prescribed
   19  by the civil practice law and rules for the enforcement of a money judg-
   20  ment.
   21    S  9.  Subdivision  3  of  section 663 of the labor law, as amended by
   22  chapter 564 of the laws of 2010, is amended to read as follows:
   23    3. Limitation of time. Notwithstanding any other provision of law,  an
   24  action  to  recover  upon  a  liability  imposed by this article must be
   25  commenced within six years. The statute of limitations shall  be  tolled
   26  from the date an employee files a complaint with the commissioner or the
   27  commissioner  commences an investigation, whichever is earlier, until an
   28  order to comply issued by the commissioner becomes final, or  where  the
   29  commissioner  does  not  issue  an  order,  until  the date on which the
   30  commissioner  notifies  the  complainant  that  the  investigation   has
   31  concluded.  THE COMMISSIONER'S INVESTIGATION SHALL COVER THE ENTIRE SIX-
   32  YEAR STATUTE OF LIMITATIONS PERIOD  UNLESS  THE  COMMISSIONER  OTHERWISE
   33  NOTIFIES  ALL  AFFECTED  EMPLOYEES.    Investigation by the commissioner
   34  shall not be a prerequisite to nor a bar against  a  person  bringing  a
   35  civil action under this article.
   36    S  10.  The labor law is amended by adding a new section 861-g to read
   37  as follows:
   38    S 861-G. CONTRACTOR ACCOUNTABILITY. WHEN A CONTRACTOR OR  SUB-CONTRAC-
   39  TOR  IS FOUND TO HAVE FAILED TO PAY ALL WAGES AS REQUIRED BY ARTICLE SIX
   40  OR NINETEEN OF THIS CHAPTER, EITHER BY  A  FINAL  ORDER  ISSUED  BY  THE
   41  COMMISSIONER,  AN  ASSURANCE  OF DISCONTINUANCE OR FINAL SETTLEMENT WITH
   42  THE OFFICE OF THE ATTORNEY GENERAL, OR A FINAL JUDGMENT OR  ORDER  OF  A
   43  COURT  OF COMPETENT JURISDICTION, THE CONTRACTOR OR SUB-CONTRACTOR SHALL
   44  NOTIFY ALL OF ITS EMPLOYEES OF THE NATURE OF THESE VIOLATIONS.   NOTIFI-
   45  CATION SUMMARIZING THE FINDINGS SHALL BE MADE VIA PAYCHECK ATTACHMENT TO
   46  EMPLOYEES  AT ALL WORKSITES ACCORDING TO SUCH FORM AND MANNER ORDERED BY
   47  THE COMMISSIONER. THE COMMISSIONER SHALL HAVE THE AUTHORITY  TO  PROMUL-
   48  GATE RULES NECESSARY TO EFFECTUATE THE TERMS OF THIS SECTION.
   49    S  11.  Section 609 of the limited liability company law is amended by
   50  adding two new subdivisions (c) and (d) to read as follows:
   51    (C) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS (A) AND (B) OF THIS
   52  SECTION, THE TEN MEMBERS WITH THE LARGEST PERCENTAGE OWNERSHIP INTEREST,
   53  AS DETERMINED AS OF THE BEGINNING OF THE PERIOD DURING WHICH THE  UNPAID
   54  SERVICES  REFERRED  TO  IN  THIS SECTION ARE PERFORMED, OF EVERY LIMITED
   55  LIABILITY COMPANY, SHALL JOINTLY AND SEVERALLY BE PERSONALLY LIABLE  FOR
   56  ALL DEBTS, WAGES OR SALARIES DUE AND OWING TO ANY OF ITS LABORERS, SERV-
       A. 8106--C                          8

    1  ANTS  OR  EMPLOYEES,  FOR  SERVICES  PERFORMED  BY THEM FOR SUCH LIMITED
    2  LIABILITY COMPANY. BEFORE SUCH LABORER, SERVANT OR EMPLOYEE SHALL CHARGE
    3  SUCH MEMBER FOR SUCH SERVICES, HE OR SHE SHALL GIVE NOTICE IN WRITING TO
    4  SUCH MEMBER THAT HE OR SHE INTENDS TO HOLD SUCH MEMBER LIABLE UNDER THIS
    5  SECTION. SUCH NOTICE SHALL BE GIVEN WITHIN ONE HUNDRED EIGHTY DAYS AFTER
    6  TERMINATION  OF SUCH SERVICES. AN ACTION TO ENFORCE SUCH LIABILITY SHALL
    7  BE COMMENCED WITHIN NINETY DAYS AFTER THE RETURN OF AN EXECUTION  UNSAT-
    8  ISFIED  AGAINST  THE LIMITED LIABILITY COMPANY UPON A JUDGMENT RECOVERED
    9  AGAINST IT FOR SUCH SERVICES. A MEMBER WHO HAS PAID MORE THAN HIS OR HER
   10  PRO RATA SHARE UNDER THIS SECTION SHALL BE ENTITLED TO CONTRIBUTION  PRO
   11  RATA  FROM  THE  OTHER MEMBERS LIABLE UNDER THIS SECTION WITH RESPECT TO
   12  THE EXCESS SO PAID, OVER AND ABOVE HIS OR HER PRO RATA  SHARE,  AND  MAY
   13  SUE  THEM  JOINTLY  OR  SEVERALLY  OR  ANY NUMBER OF THEM TO RECOVER THE
   14  AMOUNT DUE FROM THEM. SUCH RECOVERY MAY BE HAD IN A SEPARATE ACTION.  AS
   15  USED  IN  THIS SUBDIVISION, "PRO RATA" MEANS IN PROPORTION TO PERCENTAGE
   16  OWNERSHIP INTEREST. BEFORE A MEMBER MAY CLAIM  CONTRIBUTION  FROM  OTHER
   17  MEMBERS  UNDER THIS SECTION, HE OR SHE SHALL GIVE THEM NOTICE IN WRITING
   18  THAT HE OR SHE INTENDS TO HOLD THEM SO LIABLE TO HIM OR HER.
   19    (D) FOR THE PURPOSES OF THIS SECTION, WAGES OR SALARIES SHALL MEAN ALL
   20  COMPENSATION AND BENEFITS PAYABLE BY AN EMPLOYER TO OR FOR  THE  ACCOUNT
   21  OF  THE EMPLOYEE, SERVANT OR LABORER, FOR SERVICES PERFORMED BY THEM FOR
   22  SUCH LIMITED LIABILITY COMPANY. THESE SHALL SPECIFICALLY INCLUDE BUT NOT
   23  BE LIMITED TO SALARIES, OVERTIME, VACATION, HOLIDAY AND  SEVERANCE  PAY;
   24  EMPLOYER  CONTRIBUTIONS TO OR PAYMENTS OF INSURANCE OR WELFARE BENEFITS;
   25  EMPLOYER CONTRIBUTIONS TO PENSION OR ANNUITY FUNDS; AND ANY OTHER MONEYS
   26  PROPERLY DUE OR PAYABLE FOR SERVICES RENDERED BY SUCH EMPLOYEE,  SERVANT
   27  OR  LABORER,  INCLUDING  ANY  CONCOMITANT LIQUIDATED DAMAGES, PENALTIES,
   28  INTEREST, ATTORNEYS' FEES OR COSTS.
   29    S 12. The state finance law is amended by adding a new section 97-pppp
   30  to read as follows:
   31    S 97-PPPP. WAGE THEFT PREVENTION  ENFORCEMENT  ACCOUNT.  1.  THERE  IS
   32  HEREBY  ESTABLISHED  IN  THE  CUSTODY  OF THE STATE COMPTROLLER THE WAGE
   33  THEFT PREVENTION ENFORCEMENT ACCOUNT.
   34    2. SUCH FUND  SHALL  CONSIST  OF  MONEYS  COLLECTED  PURSUANT  TO  THE
   35  PROVISIONS  OF  ARTICLES FIVE, SIX, NINETEEN AND NINETEEN-A OF THE LABOR
   36  LAW, AND SECTIONS TWO HUNDRED FIFTEEN AND TWO HUNDRED  EIGHTEEN  OF  THE
   37  LABOR LAW, AND THE REGULATIONS PROMULGATED THEREUNDER.
   38    3.  MONEYS OF THE FUND SHALL BE AVAILABLE TO THE COMMISSIONER OF LABOR
   39  FOR PURPOSES OF OFFSETTING THE COSTS INCURRED  BY  THE  COMMISSIONER  OF
   40  LABOR  FOR  THE  ADMINISTRATION  AND  ENFORCEMENT OF ARTICLES FIVE, SIX,
   41  NINETEEN AND NINETEEN-A OF THE  LABOR  LAW,  AND  SECTIONS  TWO  HUNDRED
   42  FIFTEEN  AND  TWO HUNDRED EIGHTEEN OF THE LABOR LAW, AND THE REGULATIONS
   43  PROMULGATED THEREUNDER.
   44    4. THE MONEYS SHALL BE PAID OUT OF THE FUND ON THE AUDIT  AND  WARRANT
   45  OF THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER
   46  OF LABOR OR HIS OR HER DESIGNEE.
   47    5.  NOTWITHSTANDING  THE  PROVISIONS OF ANY GENERAL OR SPECIAL LAW, NO
   48  MONEYS SHALL BE AVAILABLE FROM THE FUND UNTIL  A  CERTIFICATE  OF  ALLO-
   49  CATION  AND  A  SCHEDULE  OF AMOUNTS TO BE AVAILABLE THEREFOR SHALL HAVE
   50  BEEN ISSUED BY THE DIRECTOR OF THE BUDGET, AND A COPY  OF  SUCH  CERTIF-
   51  ICATE  FILED  WITH THE COMPTROLLER. SUCH CERTIFICATE MAY BE AMENDED FROM
   52  TIME TO TIME BY THE DIRECTOR OF THE BUDGET  AND  A  COPY  OF  EACH  SUCH
   53  AMENDMENT SHALL BE FILED WITH THE COMPTROLLER.
   54    S  13.  This  act shall take effect on the sixtieth day after it shall
   55  have become a law.
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