S05885 Summary:

BILL NOS05885B
 
SAME ASSAME AS A08106-C
 
SPONSORSAVINO
 
COSPNSRAVELLA, CARLUCCI, KLEIN, TKACZYK, VALESKY
 
MLTSPNSR
 
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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S05885 Actions:

BILL NOS05885B
 
06/18/2013REFERRED TO RULES
06/21/2013ORDERED TO THIRD READING CAL.1632
06/21/2013RECOMMITTED TO RULES
01/08/2014REFERRED TO LABOR
06/13/2014AMEND (T) AND RECOMMIT TO LABOR
06/13/2014PRINT NUMBER 5885A
06/16/2014AMEND AND RECOMMIT TO LABOR
06/16/2014PRINT NUMBER 5885B
06/19/2014COMMITTEE DISCHARGED AND COMMITTED TO RULES
06/19/2014ORDERED TO THIRD READING CAL.1605
06/19/2014SUBSTITUTED BY A8106C
 A08106 AMEND=C Heastie (MS)
 06/19/2013referred to labor
 01/08/2014referred to labor
 06/06/2014amend and recommit to labor
 06/06/2014print number 8106a
 06/10/2014reported referred to codes
 06/12/2014amend and recommit to codes
 06/12/2014print number 8106b
 06/16/2014reported referred to ways and means
 06/16/2014amend and recommit to ways and means
 06/16/2014print number 8106c
 06/18/2014reported referred to rules
 06/18/2014reported
 06/19/2014rules report cal.450
 06/19/2014ordered to third reading rules cal.450
 06/19/2014passed assembly
 06/19/2014delivered to senate
 06/19/2014REFERRED TO RULES
 06/19/2014SUBSTITUTED FOR S5885B
 06/19/20143RD READING CAL.1605
 06/19/2014PASSED SENATE
 06/19/2014RETURNED TO ASSEMBLY
 12/17/2014delivered to governor
 12/29/2014signed chap.537
 12/29/2014approval memo.30
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S05885 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5885--B
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                      June 18, 2013
                                       ___________
 
        Introduced  by  Sens. SAVINO, TKACZYK -- read twice and ordered printed,
          and when printed to be committed to the Committee on Rules  --  recom-
          mitted  to  the  Committee  on Labor in accordance with Senate Rule 6,
          sec. 8 -- committee discharged, bill  amended,  ordered  reprinted  as
          amended  and  recommitted  to  said committee -- 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
    14  business  as"  names  used  by the employer; the physical address of the
    15  employer's main office or principal place of  business,  and  a  mailing
    16  address  if  different;  the telephone number of the employer; plus such
    17  other information as the commissioner deems material and necessary. Each

 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11592-12-4

        S. 5885--B                          2
 
     1  time the employer provides such notice  to  an  employee,  the  employer
     2  shall  obtain  from the employee a signed and dated written acknowledge-
     3  ment, in English and in the primary language of the employee, of receipt
     4  of  this  notice, which the employer shall preserve and maintain for six
     5  years. Such acknowledgement shall include an affirmation by the employee
     6  that the employee accurately identified his or her primary  language  to
     7  the  employer,  and  that  the  notice  provided by the employer to such
     8  employee pursuant to this subdivision was in the language so  identified

     9  or  otherwise complied with paragraph (c) of this subdivision, and shall
    10  conform to any additional requirements established by  the  commissioner
    11  with  regard  to  content and form. For all employees who are not exempt
    12  from overtime compensation as established in the commissioner's  minimum
    13  wage  orders  or otherwise provided by New York state law or regulation,
    14  the notice must state the regular hourly rate and overtime rate of pay;
    15    § 2. Subdivisions 1-b and 1-d of section 198  of  the  labor  law,  as
    16  added  by  chapter  564  of  the  laws  of  2010, are amended to read as
    17  follows:
    18    1-b. If any employee is not provided within ten business days  of  his
    19  or  her  first day of employment a notice as required by subdivision one
    20  of section one hundred ninety-five  of  this  article,  he  or  she  may

    21  recover  in a civil action damages of fifty dollars for each work [week]
    22  day that the violations occurred or continue to occur, but not to exceed
    23  a total of [two] five thousand [five  hundred]  dollars,  together  with
    24  costs  and  reasonable  attorney's  fees. The court may also award other
    25  relief, including injunctive and declaratory relief, that the  court  in
    26  its discretion deems necessary or appropriate.
    27    On  behalf of any employee not provided a notice as required by subdi-
    28  vision one of section one  hundred  ninety-five  of  this  article,  the
    29  commissioner may bring any legal action necessary, including administra-
    30  tive action, to collect such claim, and as part of such legal action, in
    31  addition  to  any other remedies and penalties otherwise available under

    32  this article, the commissioner may assess against the  employer  damages
    33  of  fifty  dollars for each work [week] day that the violations occurred
    34  or continue to occur, but  not  to  exceed  a  total  of  five  thousand
    35  dollars.  In  any action or administrative proceeding to recover damages
    36  for violation of paragraph [(d)] (a) of subdivision one of  section  one
    37  hundred  ninety-five of this article, it shall be an affirmative defense
    38  that (i) the employer made complete and timely payment of all wages  due
    39  pursuant  to  this  article or article nineteen or article nineteen-A of
    40  this chapter to the employee who was not provided notice as required  by
    41  subdivision  one  of  section one hundred ninety-five of this article or
    42  (ii) the employer reasonably believed in good  faith  that  it  was  not

    43  required to provide the employee with notice pursuant to subdivision one
    44  of section one hundred ninety-five of this article.
    45    1-d.  If  any  employee  is  not provided a statement or statements as
    46  required by subdivision three of section one hundred ninety-five of this
    47  article, he or she shall recover in a civil action damages of [one]  two
    48  hundred  fifty  dollars  for  each  work  [week] day that the violations
    49  occurred or continue to occur, but not to exceed a total of [twenty-five
    50  hundred] five thousand  dollars,  together  with  costs  and  reasonable
    51  attorney's  fees.  The  court  may  also  award  other relief, including
    52  injunctive and declaratory relief, that  the  court  in  its  discretion
    53  deems necessary or appropriate.

    54    On  behalf  of  any  employee  not provided a statement as required by
    55  subdivision three of section one hundred ninety-five  of  this  article,
    56  the  commissioner may bring any legal action necessary, including admin-

        S. 5885--B                          3
 
     1  istrative action, to collect such claim,  and  as  part  of  such  legal
     2  action, in addition to any other remedies and penalties otherwise avail-
     3  able under this article, the commissioner may assess against the employ-
     4  er  damages  of [one] two hundred fifty dollars for each work [week] day
     5  that the violations occurred or continue to occur, but not to  exceed  a
     6  total of five thousand dollars. In any action or administrative proceed-
     7  ing to recover damages for violation of subdivision three of section one

     8  hundred  ninety-five of this article, it shall be an affirmative defense
     9  that (i) the employer made complete and timely payment of all wages  due
    10  pursuant  to  this  article  or  articles nineteen or nineteen-A of this
    11  chapter to the employee who was not provided statements as  required  by
    12  subdivision  three of section one hundred ninety-five of this article or
    13  (ii) the employer reasonably believed in good  faith  that  it  was  not
    14  required  to  provide the employee with statements pursuant to paragraph
    15  (e) of subdivision one of section one hundred ninety-five of this  arti-
    16  cle.
    17    §  3.  Subdivision  1  of  section 218 of the labor law, as amended by
    18  chapter 564 of the laws of 2010, the opening paragraph and second undes-
    19  ignated paragraph as further amended by section 104 of part A of chapter
    20  62 of the laws of 2011, is amended and a new subdivision 5 is  added  to

    21  read as follows:
    22    1.  If  the  commissioner  determines  that an employer has violated a
    23  provision of article six (payment of wages), article  nineteen  (minimum
    24  wage  act),  article  nineteen-A  (minimum wage standards and protective
    25  labor practices for farm workers), section two hundred twelve-a, section
    26  two hundred twelve-b, section one hundred sixty-one  (day  of  rest)  or
    27  section  one hundred sixty-two (meal periods) of this chapter, or a rule
    28  or regulation promulgated thereunder, the commissioner  shall  issue  to
    29  the  employer  an  order  directing  compliance  therewith,  which shall
    30  describe particularly the nature of the alleged  violation.  A  copy  of
    31  such  order  shall be provided to any employee who has filed a complaint
    32  and any authorized representative of him or her. In addition to  direct-
    33  ing  payment of wages, benefits or wage supplements found to be due, and

    34  liquidated damages in the amount of one hundred percent of unpaid wages,
    35  such order, if issued to an employer who previously has  been  found  in
    36  violation  of  those provisions, rules or regulations, or to an employer
    37  whose violation is willful or egregious, shall  direct  payment  to  the
    38  commissioner of an additional sum as a civil penalty in an amount not to
    39  exceed  double  the total amount of wages, benefits, or wage supplements
    40  found to be due.  Additionally, such order, if issued to an employer who
    41  previously has been found in violation of  those  provisions,  rules  or
    42  regulations,  or to an employer whose violation is willful or egregious,
    43  shall direct such employer to report, by location, and for  such  period
    44  as  the  commissioner shall determine, (a) the number of permanent full-

    45  time employees, the number of temporary full-time employees, the  number
    46  of  permanent  part-time  employees,  the  number of temporary part-time
    47  employees,  and  the  number  of  temporary  staffing  agency  employees
    48  performing work for the employer; (b) the hourly rates of such employees
    49  reported  in  the  following  brackets: the state minimum wage to $9.99;
    50  $10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c)  the  number
    51  of employees who regularly worked the following number of hours per week
    52  during  the relevant calendar period: at least sixty; at least fifty but
    53  fewer than sixty; at least forty, but fewer than fifty; at  least  thir-
    54  ty-five  but  fewer  than  forty; at least thirty but fewer than thirty-

    55  five; at least twenty-five but fewer than thirty; at  least  twenty  but
    56  fewer  than  twenty-five;  at  least ten but fewer than twenty; at least

        S. 5885--B                          4
 
     1  five but fewer than ten; fewer  than  five.  No  individual  identifying
     2  information  of  such employees shall be reported or otherwise disclosed
     3  to the department. The department shall post the data collected  on  the
     4  department's  website.  For  the  purposes  of  this  section, temporary
     5  employees shall be those employees who are hired for a period  of  sixty
     6  days  or  less  during  the  relevant calendar year, full-time employees
     7  shall be those regularly working forty hours or more per week during the

     8  relevant calendar year, part-time employees shall be those working  less
     9  than  forty hours per week during the relevant calendar year. In no case
    10  shall the order direct payment of an amount less than the  total  wages,
    11  benefits  or  wage supplements found by the commissioner to be due, plus
    12  the liquidated damages in the amount of one hundred  percent  of  unpaid
    13  wages, the appropriate civil penalty, and interest at the rate of inter-
    14  est  then  in  effect,  as prescribed by the superintendent of financial
    15  services pursuant to section fourteen-a of the  banking  law  per  annum
    16  from  the date of the underpayment to the date of the payment. Where the
    17  violation is for a reason other  than  the  employer's  failure  to  pay
    18  wages,  benefits  or  wage  supplements found to be due, the order shall
    19  direct payment to the commissioner of a civil penalty in an  amount  not

    20  to  exceed  one  thousand  dollars  for  a first violation, two thousand
    21  dollars for a second violation or three thousand dollars for a third  or
    22  subsequent  violation.  In  assessing  the  amount  of  the penalty, the
    23  commissioner shall give due consideration to the size of the  employer's
    24  business,  the  good  faith  basis  of  the employer to believe that its
    25  conduct was in compliance with the law, the gravity  of  the  violation,
    26  the  history  of previous violations and, in the case of wages, benefits
    27  or supplements violations, the failure to comply with  recordkeeping  or
    28  other non-wage requirements.
    29    Where  there  is  a violation of section one hundred ninety-eight-b of
    30  this chapter, the order shall direct payment back to the employee of the
    31  amount of wages, supplements or other thing of value unlawfully received

    32  plus liquidated damages in the amount of one hundred percent  of  unpaid
    33  wages,  and  interest  at  the  rate  of  interest  then  in  effect, as
    34  prescribed by the  superintendent  of  financial  services  pursuant  to
    35  section  fourteen-a  of  the  banking law per annum from the date of the
    36  payback, return, donation or contribution to the date  of  payment,  and
    37  shall  include such other relief as may be appropriate, including rehir-
    38  ing or reinstatement of the employee to his or her former position, back
    39  wages, and restoration of seniority. In addition, the commissioner shall
    40  order payment of a civil penalty of at least twenty-five hundred dollars
    41  but not more than five thousand dollars per violation. In assessing  the
    42  amount  of the penalty, the commissioner shall give due consideration to
    43  the size of the employer's business, the good faith basis of the employ-

    44  er to believe that its conduct was in compliance with the law, the grav-
    45  ity of the violation, the history of previous violations.
    46    At the discretion of the commissioner,  the  commissioner  shall  have
    47  full  authority to provide for inclusion of an automatic fifteen percent
    48  additional amount of damages to come due and owing  upon  expiration  of
    49  ninety  days  from  an  order to comply becoming final. The commissioner
    50  shall provide written notice to the employer in the order to  comply  of
    51  this additional damage.
    52    5.  An employer similar in operation and ownership to a prior employer
    53  which had been found in violation of article six, nineteen or nineteen-A
    54  of this chapter, shall be deemed the same employer for the  purposes  of
    55  this  section  if  the  employees  of  the  new  employer are engaged in

    56  substantially the same work in substantially the same working conditions

        S. 5885--B                          5
 
     1  under substantially the same supervisors, or if the subsequent  employer
     2  has  substantially  the  same production process, produces substantially
     3  the same products and has substantially the same body of customers. Such
     4  subsequent  employer  shall  continue  to be subject to this section and
     5  liable for the acts of the prior employer under this section.
     6    § 4. Section 219 of the labor law is amended by adding a new  subdivi-
     7  sion 4 to read as follows:
     8    4.  An employer similar in operation and ownership to a prior employer
     9  found to be in violation of article six, nineteen or nineteen-A of  this

    10  chapter,  shall  be  deemed  the  same employer for the purposes of this
    11  section if the employees of  the  subsequent  employer  are  engaged  in
    12  substantially the same work in substantially the same working conditions
    13  under  substantially  the  same  supervisors,  or  if the new entity has
    14  substantially the same production process,  produces  substantially  the
    15  same  products  and has substantially the same body of customers. Such a
    16  subsequent employer will continue to be  subject  to  this  section  and
    17  shall be liable for the acts of the prior employer under this section.
    18    §  5.  Subdivision  3  of  section 198 of the labor law, as amended by
    19  chapter 564 of the laws of 2010, is amended to read as follows:
    20    3. Notwithstanding any other provision of law, an  action  to  recover

    21  upon  a  liability  imposed by this article must be commenced within six
    22  years.  The statute of limitations shall be  tolled  from  the  date  an
    23  employee  files  a  complaint  with the commissioner or the commissioner
    24  commences an investigation, whichever is  earlier,  until  an  order  to
    25  comply  issued  by  the commissioner becomes final, or where the commis-
    26  sioner does not issue an order, until the date on which the commissioner
    27  notifies the complainant that the investigation has concluded.  Investi-
    28  gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
    29  against a person bringing a civil action under this section. All employ-
    30  ees shall have the right  to  recover  full  wages,  benefits  and  wage
    31  supplements and liquidated damages accrued during the six years previous
    32  to  the  commencing of such action, whether such action is instituted by

    33  the employee or by the commissioner.   The commissioner's  investigation
    34  shall cover the entire six-year statute of limitations period unless the
    35  commissioner otherwise notifies all affected employees.
    36    § 6. Paragraph (b) of subdivision 1 and paragraph (a) of subdivision 2
    37  of  section  215 of the labor law, as amended by chapter 564 of the laws
    38  of 2010, are amended to read as follows:
    39    (b) If after investigation the commissioner finds that an employer  or
    40  person has violated any provision of this section, the commissioner may,
    41  by  an  order  which  shall  describe  particularly  the  nature  of the
    42  violation, assess the employer or person a civil  penalty  of  not  less
    43  than  one thousand nor more than ten thousand dollars provided, however,
    44  that if the commissioner  finds  that  the  employer  has  violated  the

    45  provisions  of  this  section  in the preceding six years, he or she may
    46  assess a civil penalty of not less than one thousand nor more than twen-
    47  ty thousand dollars. The commissioner may  also  order  all  appropriate
    48  relief including enjoining the conduct of any person or employer; order-
    49  ing payment of liquidated damages to the employee by the person or enti-
    50  ty  in  violation;  and,  where  the person or entity in violation is an
    51  employer ordering rehiring or reinstatement of the employee  to  his  or
    52  her  former  position  or  an  equivalent position, and an award of lost
    53  compensation or an award of front pay in lieu of  reinstatement  and  an
    54  award of lost compensation. Liquidated damages shall be calculated as an
    55  amount not more than [ten] twenty thousand dollars. The commissioner may

    56  assess  liquidated  damages  on behalf of every employee aggrieved under

        S. 5885--B                          6
 
     1  this section, in addition  to  any  other  remedies  permitted  by  this
     2  section.
     3    (a)  An  employee  may  bring  a  civil action in a court of competent
     4  jurisdiction against any employer or persons alleged  to  have  violated
     5  the  provisions  of  this  section. The court shall have jurisdiction to
     6  restrain violations  of  this  section,  within  two  years  after  such
     7  violation, regardless of the dates of employment of the employee, and to
     8  order  all  appropriate  relief,  including enjoining the conduct of any
     9  person or employer; ordering payment of liquidated  damages,  costs  and
    10  reasonable  attorneys'  fees  to the employee by the person or entity in
    11  violation; and, where the person or entity in violation is an  employer,

    12  ordering  rehiring or reinstatement of the employee to his or her former
    13  position with restoration of seniority or an award of front pay in  lieu
    14  of  reinstatement,  and an award of lost compensation and damages, costs
    15  and reasonable attorneys' fees. Liquidated damages shall  be  calculated
    16  as  an  amount  not  more  than [ten] twenty thousand dollars. The court
    17  shall award liquidated damages to every employee  aggrieved  under  this
    18  section,  in  addition  to any other remedies permitted by this section.
    19  The statute of limitations shall be tolled from  the  date  an  employee
    20  files a complaint with the commissioner or the commissioner commences an
    21  investigation,  whichever is earlier, until an order to comply issued by
    22  the commissioner becomes final, or where the commissioner does not issue
    23  an order,  until  the  date  on  which  the  commissioner  notifies  the

    24  complainant  that  the investigation has concluded. Investigation by the
    25  commissioner shall not be a prerequisite to nor a bar against  a  person
    26  bringing a civil action under this section.
    27    §  7.  Subdivision  3  of  section 218 of the labor law, as amended by
    28  chapter 564 of the laws of 2010, is amended to read as follows:
    29    3. Provided that no proceeding for administrative or  judicial  review
    30  as  provided  in  this  chapter  shall  then be pending and the time for
    31  initiation of such proceeding shall have expired, the  commissioner  may
    32  file  with  the county clerk of the county where the employer resides or
    33  has a place of business the order of the commissioner, or  the  decision
    34  of the industrial board of appeals containing the amount found to be due
    35  including   the  civil  penalty,  if  any,  and  at  the  commissioner's

    36  discretion, an additional fifteen percent damages upon  any  outstanding
    37  monies  owed.  At  the request of an employee, [and at the discretion of
    38  the commissioner,] the commissioner [may] shall assign that  portion  of
    39  the  money  due  that  constitutes  wages, wage supplements, interest on
    40  wages or wage supplements, or liquidated damages due that  employee,  to
    41  that  employee  and  file  an  order  in that amount in the name of that
    42  employee with the county clerk of the county where the employer  resides
    43  or  has  a place of business. The filing of such order or decision shall
    44  have the full force and effect of a judgment duly docketed in the office
    45  of such clerk. The order or decision may be enforced by and in the  name
    46  of  the  commissioner,  or by the employee, in the same manner, and with

    47  like effect, as that prescribed by the civil practice law and rules  for
    48  the enforcement of a money judgment.
    49    §  8.  Subdivision  3  of  section 219 of the labor law, as amended by
    50  chapter 564 of the laws of 2010, is amended to read as follows:
    51    3. Provided that no proceeding for administrative or  judicial  review
    52  as  provided  in  this  chapter  shall  then be pending and the time for
    53  initiation of such proceeding shall have expired, the  commissioner  may
    54  file  with  the county clerk of the county where the employer resides or
    55  has a place of business the order of the commissioner or the decision of
    56  the industrial board of appeals containing the amount found to  be  due,

        S. 5885--B                          7
 
     1  including,  at  the  commissioner's  discretion,  an  additional fifteen

     2  percent damages upon any outstanding monies owed. At the request  of  an
     3  employee,  [and at the discretion of the commissioner,] the commissioner
     4  [may] shall assign that portion of the money due that constitutes wages,
     5  wage  supplements,  interest on wages or wage supplements, or liquidated
     6  damages due the employee, to that employee and file  an  order  in  that
     7  amount  in the name of such employee with the county clerk of the county
     8  where the employer resides or has a place of  business.  The  filing  of
     9  such  order  or decision shall have the full force and effect of a judg-
    10  ment duly docketed in the office of such clerk. The  order  or  decision
    11  may  be  enforced  by  and  in  the  name of the commissioner, or by the
    12  employee, in the same manner, and with like effect, as  that  prescribed

    13  by the civil practice law and rules for the enforcement of a money judg-
    14  ment.
    15    §  9.  Subdivision  3  of  section 663 of the labor law, as amended by
    16  chapter 564 of the laws of 2010, is amended to read as follows:
    17    3. Limitation of time. Notwithstanding any other provision of law,  an
    18  action  to  recover  upon  a  liability  imposed by this article must be
    19  commenced within six years. The statute of limitations shall  be  tolled
    20  from the date an employee files a complaint with the commissioner or the
    21  commissioner  commences an investigation, whichever is earlier, until an
    22  order to comply issued by the commissioner becomes final, or  where  the
    23  commissioner  does  not  issue  an  order,  until  the date on which the
    24  commissioner  notifies  the  complainant  that  the  investigation   has
    25  concluded.  The commissioner's investigation shall cover the entire six-

    26  year statute of limitations period  unless  the  commissioner  otherwise
    27  notifies  all  affected  employees.    Investigation by the commissioner
    28  shall not be a prerequisite to nor a bar against  a  person  bringing  a
    29  civil action under this article.
    30    §  10.  The labor law is amended by adding a new section 861-g to read
    31  as follows:
    32    § 861-g. Contractor accountability. When a contractor or  sub-contrac-
    33  tor  is found to have failed to pay all wages as required by article six
    34  or nineteen of this chapter, either by  a  final  order  issued  by  the
    35  commissioner,  an  assurance  of discontinuance or final settlement with
    36  the office of the attorney general, or a final judgment or  order  of  a
    37  court  of competent jurisdiction, the contractor or sub-contractor shall

    38  notify all of its employees of the nature of these violations.   Notifi-
    39  cation summarizing the findings shall be made via paycheck attachment to
    40  employees  at all worksites according to such form and manner ordered by
    41  the commissioner. The commissioner shall have the authority  to  promul-
    42  gate rules necessary to effectuate the terms of this section.
    43    §  11.  Section 609 of the limited liability company law is amended by
    44  adding two new subdivisions (c) and (d) to read as follows:
    45    (c) Notwithstanding the provisions of subdivisions (a) and (b) of this
    46  section, the ten members with the largest percentage ownership interest,
    47  as determined as of the beginning of the period during which the  unpaid
    48  services  referred  to  in  this section are performed, of every limited

    49  liability company, shall jointly and severally be personally liable  for
    50  all debts, wages or salaries due and owing to any of its laborers, serv-
    51  ants  or  employees,  for  services  performed  by them for such limited
    52  liability company. Before such laborer, servant or employee shall charge
    53  such member for such services, he or she shall give notice in writing to
    54  such member that he or she intends to hold such member liable under this
    55  section. Such notice shall be given within one hundred eighty days after
    56  termination of such services. An action to enforce such liability  shall

        S. 5885--B                          8
 
     1  be  commenced within ninety days after the return of an execution unsat-

     2  isfied against the limited liability company upon a  judgment  recovered
     3  against it for such services. A member who has paid more than his or her
     4  pro  rata share under this section shall be entitled to contribution pro
     5  rata from the other members liable under this section  with  respect  to
     6  the  excess  so  paid, over and above his or her pro rata share, and may
     7  sue them jointly or severally or any  number  of  them  to  recover  the
     8  amount  due from them. Such recovery may be had in a separate action. As
     9  used in this subdivision, "pro rata" means in proportion  to  percentage
    10  ownership  interest.  Before  a member may claim contribution from other
    11  members under this section, he or she shall give them notice in  writing

    12  that he or she intends to hold them so liable to him or her.
    13    (d) For the purposes of this section, wages or salaries shall mean all
    14  compensation  and  benefits payable by an employer to or for the account
    15  of the employee, servant or laborer, for services performed by them  for
    16  such limited liability company. These shall specifically include but not
    17  be  limited  to salaries, overtime, vacation, holiday and severance pay;
    18  employer contributions to or payments of insurance or welfare  benefits;
    19  employer contributions to pension or annuity funds; and any other moneys
    20  properly  due or payable for services rendered by such employee, servant
    21  or laborer, including any  concomitant  liquidated  damages,  penalties,
    22  interest, attorneys' fees or costs.

    23    § 12. The state finance law is amended by adding a new section 97-pppp
    24  to read as follows:
    25    §  97-pppp.  Wage  theft  prevention  enforcement account. 1. There is
    26  hereby established in the custody of  the  state  comptroller  the  wage
    27  theft prevention enforcement account.
    28    2.  Such  fund  shall  consist  of  moneys  collected  pursuant to the
    29  provisions of articles five, six, nineteen and nineteen-A of  the  labor
    30  law,  and  sections  two hundred fifteen and two hundred eighteen of the
    31  labor law, and the regulations promulgated thereunder.
    32    3. Moneys of the fund shall be available to the commissioner of  labor
    33  for  purposes  of  offsetting  the costs incurred by the commissioner of

    34  labor for the administration and  enforcement  of  articles  five,  six,
    35  nineteen  and  nineteen-A  of  the  labor  law, and sections two hundred
    36  fifteen and two hundred eighteen of the labor law, and  the  regulations
    37  promulgated thereunder.
    38    4.  The  moneys shall be paid out of the fund on the audit and warrant
    39  of the comptroller on vouchers certified or approved by the commissioner
    40  of labor or his or her designee.
    41    5. Notwithstanding the provisions of any general or  special  law,  no
    42  moneys  shall  be  available  from the fund until a certificate of allo-
    43  cation and a schedule of amounts to be  available  therefor  shall  have
    44  been  issued  by  the director of the budget, and a copy of such certif-

    45  icate filed with the comptroller. Such certificate may be  amended  from
    46  time  to  time  by  the  director  of the budget and a copy of each such
    47  amendment shall be filed with the comptroller.
    48    § 13. This act shall take effect on the sixtieth day  after  it  shall
    49  have become a law.
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