STATE OF NEW YORK
________________________________________________________________________
4777
2021-2022 Regular Sessions
IN ASSEMBLY
February 8, 2021
___________
Introduced by M. of A. B. MILLER -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to the payment of wages; and
to repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 16 of section 2 of the labor law is REPEALED.
2 § 2. Subdivisions 1, 3 and 4 of section 195 of the labor law, subdivi-
3 sion 1 as amended by chapter 564 of the laws of 2010, and paragraph (a)
4 of subdivision 1 and subdivisions 3 and 4 as amended by section 2 of
5 part OO and subdivision 4 as separately amended by section 2 of part J
6 of chapter 56 of the laws of 2020, are amended to read as follows:
7 1. [(a) provide] notify his or her employees, in writing [in English
8 and in the language identified by each employee as the primary language
9 of such employee], at the time of hiring, [a notice containing the
10 following information:] of the rate [or rates] of pay and [basis there-
11 of, whether paid by the hour, shift, day, week, salary, piece, commis-
12 sion, or other; allowances, if any, claimed as part of the minimum wage,
13 including tip, meal, or lodging allowances; the benefit portion of the
14 minimum rate of home care aide total compensation as defined in section
15 thirty-six hundred fourteen-c of the public health law ("home care aide
16 benefits"), if applicable; prevailing wage supplements, if any, claimed
17 as part of any prevailing wage or similar requirement pursuant to arti-
18 cle eight of this chapter;] of the regular pay day designated by the
19 employer in accordance with section one hundred ninety-one of this arti-
20 cle[; the name of the employer; any "doing business as" names used by
21 the employer; the physical address of the employer's main office or
22 principal place of business, and a mailing address if different; the
23 telephone number of the employer; plus such other information as the
24 commissioner deems material and necessary. Where such prevailing wage
25 supplements are claimed, or such home care aide benefits are provided,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08858-01-1
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1 the notice shall identify, for each type of supplement claimed or each
2 type of home care aide benefits provided: (i) the hourly rate claimed;
3 (ii) the type of supplement or type of home care aide benefits, includ-
4 ing when applicable, but not limited to, pension or healthcare; (iii)
5 the names and addresses of the person or entity providing such supple-
6 ment or such home care aide benefits; and (iv) the agreement, if any,
7 requiring or providing for such supplement or such home care aide bene-
8 fits, together with information on how copies of such agreements or
9 summaries thereof may be obtained by an employee. Each time the employer
10 provides such notice to an employee, the employer shall obtain from the
11 employee a signed and dated written acknowledgement, in English and in
12 the primary language of the employee, of receipt of this notice, which
13 the employer shall preserve and maintain for six years], and obtain a
14 written acknowledgement from each employee of receipt of this notice.
15 Such acknowledgement shall [include an affirmation by the employee that
16 the employee accurately identified his or her primary language to the
17 employer, and that the notice provided by the employer to such employee
18 pursuant to this subdivision was in the language so identified or other-
19 wise complied with paragraph (c) of this subdivision, and shall] conform
20 to any [additional] requirements established by the commissioner with
21 regard to content and form. For all employees who are [not exempt from]
22 eligible for overtime compensation as established in the commissioner's
23 minimum wage orders or otherwise provided by [New York state] law or
24 regulation, the notice must state the regular hourly rate and overtime
25 rate of pay;
26 [(b) The commissioner shall prepare templates that comply with the
27 requirements of paragraph (a) of this subdivision. Each such template
28 shall be dual-language, including English and one additional language.
29 The commissioner shall determine, in his or her discretion, which
30 languages to provide in addition to English, based on the size of the
31 New York state population that speaks each language and any other factor
32 that the commissioner shall deem relevant. All such templates shall be
33 made available to employers in such manner as determined by the commis-
34 sioner;
35 (c) When an employee identifies as his or her primary language a
36 language for which a template is not available from the commissioner,
37 the employer shall comply with this subdivision by providing that
38 employee an English-language notice or acknowledgment;
39 (d) An employer shall not be penalized for errors or omissions in the
40 non-English portions of any notice provided by the commissioner;
41 (e) The commissioner shall have discretion to waive or alter require-
42 ments of paragraph (a) of this subdivision for temporary help firms as
43 defined in section nine hundred sixteen of this chapter.]
44 3. furnish each employee with a statement with every payment of wages,
45 listing [the following: the dates of work covered by that payment of
46 wages; name of employee; name of employer; address and phone number of
47 employer; rate or rates of pay and basis thereof, whether paid by the
48 hour, shift, day, week, salary, piece, commission, or other; gross
49 wages; deductions; allowances, if any, claimed as part of the minimum
50 wage; the benefit portion of the minimum rate of home care aide total
51 compensation as defined in section thirty-six hundred fourteen-c of the
52 public health law ("home care aide benefits"), if applicable; prevailing
53 wage supplements, if any, claimed as part of any prevailing wage or
54 similar requirement pursuant to article eight of this chapter; and net
55 wages. Where such prevailing wage supplements are claimed, or such home
56 care aide benefits are provided, the statement shall either: (i) identi-
A. 4777 3
1 fy the type of each supplement claimed, or the type of each home care
2 aide benefits provided, and the hourly rate for each; or (ii) be accom-
3 panied by a copy of the applicable notice required under subdivisions
4 one and two of this section. For all employees who are not exempt from
5 overtime compensation as established in the commissioner's minimum wage
6 orders or otherwise provided by New York state law or regulation, the
7 statement shall include the regular hourly rate or rates of pay; the
8 overtime rate or rates of pay; the number of regular hours worked, and
9 the number of overtime hours worked. For all employees paid a piece
10 rate, the statement shall include the applicable piece rate or rates of
11 pay and number of pieces completed at each piece rate. Upon] gross
12 wages, deductions and net wages, and upon the request of an employee[,
13 an employer shall] furnish an explanation [in writing] of how such wages
14 were computed;
15 4. establish, maintain and preserve for not less than [six] three
16 years [contemporaneous, true, and accurate] payroll records showing [for
17 each week worked] the hours worked[; the rate or rates of pay and basis
18 thereof, whether paid by the hour, shift, day, week, salary, piece,
19 commission, or other;], gross wages[;], deductions[; allowances, if any,
20 claimed as part of the minimum wage; amount of sick leave provided to
21 each employee; the benefit portion of the minimum rate of home care aide
22 total compensation as defined in section thirty-six hundred fourteen-c
23 of the public health law ("home care aide benefits"), if applicable;
24 prevailing wage supplements, if any, claimed as part of any prevailing
25 wage or similar requirement pursuant to article eight of this chapter;]
26 and net wages for each employee. [Where such prevailing wage supplements
27 are claimed, or such home care aide benefits are provided, the payroll
28 records shall include copies of all notices required by subdivisions one
29 and two of this section. For all employees who are not exempt from over-
30 time compensation as established in the commissioner's minimum wage
31 orders or otherwise provided by New York state law or regulation, the
32 payroll records shall include the regular hourly rate or rates of pay,
33 the overtime rate or rates of pay, the number of regular hours worked,
34 and the number of overtime hours worked. For all employees paid a piece
35 rate, the payroll records shall include the applicable piece rate or
36 rates of pay and number of pieces completed at each piece rate;]
37 § 3. Section 196 of the labor law, as amended by chapter 564 of the
38 laws of 2010, is amended to read as follows:
39 § 196. Powers of commissioner. 1. In addition to the powers of the
40 commissioner specified in other sections of this chapter, the commis-
41 sioner shall have the following duties, powers and authority:
42 a. He or she shall investigate and attempt to adjust equitably contro-
43 versies between employers and employees relating to [this article, or
44 article five, seven, nineteen or nineteen-A of] this [chapter] article.
45 b. He or she may take assignments of claims for wages [under] as
46 defined in this [chapter] article from employees or third parties in
47 trust for such employees or for the benefit of various funds for such
48 employees. All such assignments shall run to the commissioner and his or
49 her successor in office. The commissioner may sue employers on wage
50 claims thus assigned, with the benefits and subject to the provisions of
51 existing law applying to actions by employees for collection of wages.
52 He or she may join in a single action any number of wage claims against
53 the same employer.
54 c. He or she may institute proceedings on account of any criminal
55 violation of any provision of [this article, or article five, seven,
56 nineteen or nineteen-A of] this [chapter] article.
A. 4777 4
1 d. If it shall appear to him or her that any employer has been
2 convicted of a violation of any provision of this article [or article
3 nineteen or nineteen-A of this chapter] or that any [order to comply
4 issued] judgment against an employer [under this chapter] for non-pay-
5 ment of wages remains unsatisfied for a period of ten days after the
6 time to appeal therefrom has expired, and that no appeal therefrom is
7 then pending, the commissioner may require such employer to deposit with
8 him or her a bond in such sum as he or she may deem sufficient and
9 adequate in the circumstances, together with two or more sureties or a
10 duly authorized surety company, to be approved by the commissioner. The
11 bond shall be payable to the commissioner and shall be conditioned that
12 the employer will, for a definite future period, not exceeding two
13 years, pay his or her employees in accordance with the provisions of
14 this article [or article nineteen or nineteen-A of this chapter], and
15 shall be further conditioned upon the payment by the employer of any
16 [amounts due pursuant to an order to comply or] judgment which may be
17 recovered against such employer pursuant to the provisions of this arti-
18 cle [or article nineteen or nineteen-A of this chapter].
19 If within ten days after demand for such bond, which demand may be
20 made by certified or registered mail, such employer shall fail to depos-
21 it the same, the commissioner may bring an action in the name and on
22 behalf of the people of the state of New York against such employer in
23 the supreme court to compel such employer to furnish such a bond or to
24 cease doing business until he or she has done so. The employer shall
25 have the burden of proving that either such a bond is unnecessary or
26 that the amount demanded is excessive. If the court finds that there is
27 just cause for requiring the bond and that same is reasonably necessary
28 or proper to secure prompt payment of the wages of the employees of such
29 employer and his or her compliance with the provisions of this article
30 [or article nineteen or nineteen-A of this chapter], the court may
31 enjoin such employer and such other person or persons as may have been
32 or may be concerned with or in any way participating in the failure to
33 pay the wages resulting in the conviction or [order to comply] in the
34 judgment as aforesaid, from doing business until the requirement is met
35 and make other and further orders appropriate to compel compliance with
36 the requirement.
37 [If any order to comply issued against an employer under this article
38 or article nineteen or nineteen-A of this chapter remains unsatisfied
39 for a period of ten days after the time to appeal therefrom has expired,
40 and that no appeal therefrom is then pending, the commissioner may
41 require the employer to provide an accounting of assets of the employer,
42 including but not limited to, a list of all bank accounts, accounts
43 receivable, personal property, real property, automobiles or other vehi-
44 cles, and any other assets, in a form and manner as prescribed by the
45 commissioner. An employer shall provide such amended accountings of
46 assets as the commissioner shall order. If within ten days after demand
47 for such an accounting of assets, which demand may be made by certified
48 or registered mail, such employer shall fail to provide same, or if the
49 employer fails to provide an amended accounting as required under this
50 section, the commissioner may bring an action in the name and on behalf
51 of the people of the state of New York against such employer in the
52 supreme court to compel such employer to furnish the accounting and pay
53 a civil penalty of no more than ten thousand dollars.]
54 e. He or she is hereby authorized and empowered to enter into recipro-
55 cal agreements with the labor department or corresponding agency of any
56 other state or with the person, board, officer, or commission authorized
A. 4777 5
1 to act on behalf of such department or agency, for the collection in
2 such other states of claims and judgments for wages based upon claims
3 assigned to the commissioner.
4 The commissioner may, to the extent provided for by any reciprocal
5 agreement entered into by law or with any agency of another state as
6 herein provided, maintain actions in the courts of such other state for
7 the collection of claims and judgments for wages and may assign such
8 claims and judgments to the labor department or agency of such other
9 state for collection to the extent that such an assignment may be
10 permitted or provided for by the law of such state or by reciprocal
11 agreement.
12 The commissioner may, upon the written consent of the labor department
13 or other corresponding agency of any other state or of any person,
14 board, officer or commission of such state authorized to act on behalf
15 of such labor department or corresponding agency, maintain actions in
16 the courts of this state upon assigned claims and judgments for wages
17 arising in such other state in the same manner and to the same extent
18 that such actions by the commissioner are authorized when arising in
19 this state. However, such actions may be maintained only in cases where
20 such other state by law or reciprocal agreement extends a like comity to
21 cases arising in this state.
22 2. Nothing in this section shall be construed as requiring the commis-
23 sioner in every instance to investigate and attempt to adjust controver-
24 sies, or to take assignments of wage claims, or to institute criminal
25 prosecutions for any violation under this article [or article five,
26 seven, nineteen or nineteen-A of this chapter], but he or she shall be
27 deemed vested with discretion in such matters.
28 § 4. Paragraph (a) of section 196-a of the labor law, as amended by
29 chapter 564 of the laws of 2010, is amended to read as follows:
30 (a) Any employee[; person or organization acting on the employee's
31 behalf;], or the recognized and certified collective bargaining agent
32 acting on the employee's behalf, may file with the commissioner a
33 complaint regarding a violation of this article, article [five, seven,]
34 nineteen, or article nineteen-A of this chapter for an investigation of
35 such complaint and statement setting the appropriate remedy, if any.
36 [The commissioner shall keep the names of employees that are the subject
37 of an investigation confidential until such time that disclosure is
38 necessary for resolution of an investigation or a complaint.] Failure of
39 an employer to keep adequate records or provide statements of wages to
40 employees as required under this chapter, in addition to exposing such
41 employer to penalties authorized under subdivision one of section two
42 hundred eighteen of this chapter, shall not operate as a bar to filing
43 of a complaint by an employee. In such a case the employer in violation
44 shall bear the burden of proving that the complaining employee was paid
45 wages, benefits and wage supplements.
46 § 5. Section 197 of the labor law, as amended by chapter 93 of the
47 laws of 2019, is amended to read as follows:
48 § 197. Civil penalty. Any employer who fails to pay the wages of his
49 employees or shall differentiate in rate of pay because of protected
50 class status, as provided in this article, shall forfeit to the people
51 of the state the sum of five hundred dollars for each such failure, to
52 be recovered by the commissioner in [any legal action necessary, includ-
53 ing administrative action or] a civil action.
54 § 6. Section 198 of the labor law, as amended by chapter 564 of the
55 laws of 2010, subdivision 1-a as amended by chapter 362 of the laws of
56 2015, subdivisions 1-b and 1-d as amended by chapter 537 of the laws of
A. 4777 6
1 2014 and subdivision 3 as amended by chapter 2 of the laws of 2015, is
2 amended to read as follows:
3 § 198. Costs, remedies. 1. In any action instituted upon a wage claim
4 by an employee or the commissioner in which the employee prevails, the
5 court may allow such employee in addition to ordinary costs, a reason-
6 able sum, not exceeding fifty dollars for expenses which may be taxed as
7 costs. No assignee of a wage claim, except the commissioner, shall be
8 benefited by this provision.
9 1-a. On behalf of any employee paid less than the wage to which he or
10 she is entitled under the provisions of this article, the commissioner
11 may bring any legal action necessary, including administrative action,
12 to collect such claim and as part of such legal action, in addition to
13 any other remedies and penalties otherwise available under this article,
14 the commissioner [shall] may assess against the employer [the full
15 amount of any such underpayment, and] an additional amount as liquidated
16 damages equal to twenty-five percent of the total amount of wages found
17 to be due, unless the employer proves a good faith basis for believing
18 that its underpayment of wages was in compliance with the law. [Liqui-
19 dated damages shall be calculated by the commissioner as no more than
20 one hundred percent of the total amount of wages found to be due, except
21 such liquidated damages may be up to three hundred percent of the total
22 amount of the wages found to be due for a willful violation of section
23 one hundred ninety-four of this article.] In any action instituted in
24 the courts upon a wage claim by an employee or the commissioner in which
25 the employee prevails, the court shall allow such employee [to recover
26 the full amount of any underpayment, all] reasonable attorney's fees[,
27 prejudgment interest as required under the civil practice law and
28 rules,] and, unless the employer proves a good faith basis to believe
29 that its underpayment of wages was in compliance with the law, an addi-
30 tional amount as liquidated damages equal to [one hundred] twenty-five
31 percent of the total amount of the wages found to be due[, except such
32 liquidated damages may be up to three hundred percent of the total
33 amount of the wages found to be due for a willful violation of section
34 one hundred ninety-four of this article].
35 [1-b. If any employee is not provided within ten business days of his
36 or her first day of employment a notice as required by subdivision one
37 of section one hundred ninety-five of this article, he or she may
38 recover in a civil action damages of fifty dollars for each work day
39 that the violations occurred or continue to occur, but not to exceed a
40 total of five thousand dollars, together with costs and reasonable
41 attorney's fees. The court may also award other relief, including
42 injunctive and declaratory relief, that the court in its discretion
43 deems necessary or appropriate.
44 On behalf of any employee not provided a notice as required by subdi-
45 vision one of section one hundred ninety-five of this article, the
46 commissioner may bring any legal action necessary, including administra-
47 tive action, to collect such claim, and as part of such legal action, in
48 addition to any other remedies and penalties otherwise available under
49 this article, the commissioner may assess against the employer damages
50 of fifty dollars for each work day that the violations occurred or
51 continue to occur, but not to exceed a total of five thousand dollars.
52 In any action or administrative proceeding to recover damages for
53 violation of paragraph (a) of subdivision one of section one hundred
54 ninety-five of this article, it shall be an affirmative defense that (i)
55 the employer made complete and timely payment of all wages due pursuant
56 to this article or article nineteen or article nineteen-A of this chap-
A. 4777 7
1 ter to the employee who was not provided notice as required by subdivi-
2 sion one of section one hundred ninety-five of this article or (ii) the
3 employer reasonably believed in good faith that it was not required to
4 provide the employee with notice pursuant to subdivision one of section
5 one hundred ninety-five of this article.
6 1-d. If any employee is not provided a statement or statements as
7 required by subdivision three of section one hundred ninety-five of this
8 article, he or she shall recover in a civil action damages of two
9 hundred fifty dollars for each work day that the violations occurred or
10 continue to occur, but not to exceed a total of five thousand dollars,
11 together with costs and reasonable attorney's fees. The court may also
12 award other relief, including injunctive and declaratory relief, that
13 the court in its discretion deems necessary or appropriate.
14 On behalf of any employee not provided a statement as required by
15 subdivision three of section one hundred ninety-five of this article,
16 the commissioner may bring any legal action necessary, including admin-
17 istrative action, to collect such claim, and as part of such legal
18 action, in addition to any other remedies and penalties otherwise avail-
19 able under this article, the commissioner may assess against the employ-
20 er damages of two hundred fifty dollars for each work day that the
21 violations occurred or continue to occur, but not to exceed a total of
22 five thousand dollars. In any action or administrative proceeding to
23 recover damages for violation of subdivision three of section one
24 hundred ninety-five of this article, it shall be an affirmative defense
25 that (i) the employer made complete and timely payment of all wages due
26 pursuant to this article or articles nineteen or nineteen-A of this
27 chapter to the employee who was not provided statements as required by
28 subdivision three of section one hundred ninety-five of this article or
29 (ii) the employer reasonably believed in good faith that it was not
30 required to provide the employee with statements pursuant to paragraph
31 (e) of subdivision one of section one hundred ninety-five of this arti-
32 cle.]
33 2. The remedies provided by this article may be enforced simultaneous-
34 ly or consecutively so far as not inconsistent with each other.
35 3. Notwithstanding any other provision of law, an action to recover
36 upon a liability imposed by this article must be commenced within six
37 years. [The statute of limitations shall be tolled from the date an
38 employee files a complaint with the commissioner or the commissioner
39 commences an investigation, whichever is earlier, until an order to
40 comply issued by the commissioner becomes final, or where the commis-
41 sioner does not issue an order, until the date on which the commissioner
42 notifies the complainant that the investigation has concluded. Investi-
43 gation by the commissioner shall not be a prerequisite to nor a bar
44 against a person bringing a civil action under this section.] All
45 employees shall have the right to recover full wages, benefits and wage
46 supplements [and liquidated damages] accrued during the six years previ-
47 ous to the commencing of such action, whether such action is instituted
48 by the employee or by the commissioner.
49 [4. In any civil action by an employee or by the commissioner, the
50 employee or commissioner shall have the right to collect attorney's fees
51 and costs incurred in enforcing any court judgment. Any judgment or
52 court order awarding remedies under this section shall provide that if
53 any amounts remain unpaid upon the expiration of ninety days following
54 issuance of judgment, or ninety days after expiration of the time to
55 appeal and no appeal is then pending, whichever is later, the total
56 amount of judgment shall automatically increase by fifteen percent.]
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1 § 7. Section 198-a of the labor law, as amended by chapter 564 of the
2 laws of 2010, is amended to read as follows:
3 § 198-a. Criminal penalties. 1. Every employer who does not pay the
4 wages of all of his employees in accordance with the provisions of this
5 chapter, and the officers and agents of any corporation[, partnership,
6 or limited liability company] who knowingly permit the corporation[,
7 partnership, or limited liability company] to violate this chapter by
8 failing to pay the wages of any of its employees in accordance with the
9 provisions thereof, shall be guilty of a misdemeanor for the first
10 offense and upon conviction therefor shall be fined not less than five
11 hundred nor more than twenty thousand dollars or imprisoned for not more
12 than one year, and, in the event that any second or subsequent offense
13 occurs within six years of the date of conviction for a prior offense,
14 shall be guilty of a felony for the second or subsequent offense, and
15 upon conviction therefor, shall be fined not less than five hundred nor
16 more than twenty thousand dollars or imprisoned for not more than one
17 year plus one day, or punished by both such fine and imprisonment, for
18 each such offense. An indictment of a person or corporation operating a
19 steam surface railroad for an offense specified in this section may be
20 found and tried in any county within the state in which such railroad
21 ran at the time of such offense.
22 2. Every employer who violates or fails to comply with the require-
23 ments of subdivision four of section one hundred ninety-five of this
24 article, and the officers and agents of any corporation[, partnership,
25 or limited liability company] who knowingly permit the corporation[,
26 partnership, or limited liability company] to violate or fail to comply
27 therewith, shall be guilty of a misdemeanor and upon conviction therefor
28 shall be fined not less than five hundred nor more than five thousand
29 dollars or imprisoned for not more than one year.
30 3. Every employer who knowingly violates or fails to comply with the
31 requirements of subdivision four of section one hundred ninety-five of
32 this article, and the officers and agents of any corporation[, partner-
33 ship, or limited liability company] who knowingly permit the corpo-
34 ration[, partnership, or limited liability company] to violate or fail
35 to comply therewith, shall be guilty of a felony where such employer,
36 officer or agent has been convicted of a violation of such subdivision
37 within the previous six years, and upon conviction therefor shall be
38 fined not less than five hundred nor more than twenty thousand dollars
39 or imprisoned for not more than one year plus one day, or punished by
40 both such fine and imprisonment, for each such offense. In determining
41 the penalty, the court shall consider the severity of the violation, the
42 size of the employer, and the employer's good faith effort to comply
43 with the requirements of subdivision four of section one hundred nine-
44 ty-five of this article.
45 § 8. Section 199-a of the labor law, as amended by chapter 564 of the
46 laws of 2010, is amended to read as follows:
47 § 199-a. Notification of process. 1. Each employee who files a
48 complaint regarding a violation of a provision of [this] article six
49 (payment of wages), article nineteen (minimum wage act), or article
50 nineteen-A [(minimum wage standards and protective labor practices for
51 farm workers), section one hundred sixty-one, section one hundred
52 sixty-two], section two hundred twelve-a, or section two hundred
53 twelve-b[, or section two hundred fifteen] of this chapter, or a rule or
54 regulation promulgated thereunder, shall be provided with a written
55 description of the anticipated processing of the complaint, including
A. 4777 9
1 investigation, case conference, potential civil and criminal penalties,
2 and collection procedures.
3 2. Each employee and his or her [authorized] representative shall be
4 notified in writing of any case conference before it is held and given
5 the opportunity to attend.
6 3. Each employee and his or her [authorized] representative shall be
7 notified in writing of any award and collection of back wages and civil
8 penalties, and of any intent to seek criminal penalties. In the event
9 that criminal penalties are sought the employee and his or her [author-
10 ized] representative shall be notified of the outcome of prosecution.
11 § 9. Section 215 of the labor law, as amended by chapter 564 of the
12 laws of 2010, the closing paragraph of paragraph (a) of subdivision 1 as
13 added by chapter 126 of the laws of 2019, and paragraph (b) of subdivi-
14 sion 1 and paragraph (a) of subdivision 2 as amended by chapter 537 of
15 the laws of 2014, is amended to read as follows:
16 § 215. Penalties and civil action; [prohibited retaliation] employer
17 who penalizes employees because of complaint of employer violations. 1.
18 (a) No employer or his or her agent, or the officer or agent of any
19 corporation, partnership, or limited liability company[, or any other
20 person,] shall discharge, [threaten,] penalize, or in any other manner
21 discriminate or retaliate against any employee (i) because such employee
22 has made a complaint to his or her employer, or to the commissioner or
23 his or her authorized representative, [or to the attorney general or any
24 other person,] that the employer has [engaged in conduct that the
25 employee, reasonably and in good faith, believes violates any provision
26 of] violated any provision of this chapter, or [any order issued by the
27 commissioner] (ii) [because such employer or person believes that such
28 employee has made a complaint to his or her employer, or to the commis-
29 sioner or his or her authorized representative, or to the attorney
30 general, or to any other person that the employer has violated any
31 provision of this chapter, or any order issued by the commissioner
32 (iii)] because such employee has caused to be instituted [or is about to
33 institute] a proceeding under or related to this chapter, or [(iv)](iii)
34 because such employee has provided information to the commissioner or
35 his or her authorized representative [or the attorney general], or
36 [(v)](iv) because such employee has testified or is about to testify in
37 an investigation or proceeding under this chapter, or [(vi)](v) because
38 such employee has otherwise exercised rights protected under this chap-
39 ter, or [(vii)](vi) because the employer has received an adverse deter-
40 mination from the commissioner involving the employee.
41 [An employee complaint or other communication need not make explicit
42 reference to any section or provision of this chapter to trigger the
43 protections of this section.]
44 As used in this section, to [threaten,] penalize, or in any other
45 manner discriminate or retaliate against any employee includes threaten-
46 ing to contact or contacting United States immigration authorities or
47 otherwise reporting or threatening to report an employee's suspected
48 citizenship or immigration status or the suspected citizenship or immi-
49 gration status of an employee's family or household member, as defined
50 in subdivision two of section four hundred fifty-nine-a of the social
51 services law, to a federal, state or local agency.
52 (b) If after investigation the commissioner finds that an employer [or
53 person] has violated any provision of this section, the commissioner
54 may, by an order which shall describe particularly the nature of the
55 violation, assess the employer [or person] a civil penalty of not less
56 than one thousand nor more than ten thousand dollars provided, however,
A. 4777 10
1 that if the commissioner finds that the employer has violated the
2 provisions of this section in the preceding six years, he or she may
3 assess a civil penalty of not less than one thousand nor more than twen-
4 ty thousand dollars[. The commissioner may also], and order [all appro-
5 priate relief including enjoining the conduct of any person or employer;
6 ordering payment of liquidated damages to the employee by the person or
7 entity in violation; and, where the person or entity in violation is an
8 employer ordering rehiring or reinstatement of the employee to his or
9 her former position or an equivalent position, and an award of lost
10 compensation or an award of front pay in lieu of reinstatement and an
11 award of lost compensation. Liquidated damages shall be calculated as an
12 amount not more than twenty thousand dollars. The commissioner may
13 assess liquidated damages on behalf of every employee aggrieved under
14 this section, in addition to any other remedies permitted by this
15 section] the employer to pay lost compensation.
16 (c) Notwithstanding the provisions of section two hundred thirteen of
17 this article, the penalties set forth in this section shall be the
18 exclusive remedies available for violations of this section.
19 (d) This section shall not apply to employees of the state or any
20 municipal subdivisions or departments thereof.
21 2. [(a)] An employee may bring a civil action in a court of competent
22 jurisdiction against any employer or persons alleged to have violated
23 the provisions of this section. The court shall have jurisdiction to
24 restrain violations of this section, within two years after such
25 violation, [regardless of the dates of employment of the employee,] and
26 to order all appropriate relief, including [enjoining the conduct of any
27 person or employer; ordering payment of liquidated damages, costs and
28 reasonable attorneys' fees to the employee by the person or entity in
29 violation; and, where the person or entity in violation is an employer,
30 ordering] rehiring or reinstatement of the employee to his or her former
31 position with restoration of seniority [or an award of front pay in lieu
32 of reinstatement], payment [and an award] of lost compensation [and],
33 damages, [costs] and reasonable attorneys' fees. [Liquidated damages
34 shall be calculated as an amount not more than twenty thousand dollars.
35 The court shall award liquidated damages to every employee aggrieved
36 under this section, in addition to any other remedies permitted by this
37 section. The statute of limitations shall be tolled from the date an
38 employee files a complaint with the commissioner or the commissioner
39 commences an investigation, whichever is earlier, until an order to
40 comply issued by the commissioner becomes final, or where the commis-
41 sioner does not issue an order, until the date on which the commissioner
42 notifies the complainant that the investigation has concluded. Investi-
43 gation by the commissioner shall not be a prerequisite to nor a bar
44 against a person bringing a civil action under this section.
45 (b)] At or before the commencement of any action under this section,
46 notice thereof shall be served upon the attorney general by the employ-
47 ee.
48 [3. Any employer or his or her agent, or the officer or agent of any
49 corporation, partnership, or limited liability company, or any other
50 person who violates subdivision one of this section shall be guilty of a
51 class B misdemeanor.]
52 § 10. Subdivisions 1 and 3 of section 218 of the labor law, as amended
53 by chapter 2 of the laws of 2015, are amended to read as follows:
54 1. If the commissioner determines that an employer has violated a
55 provision of article six (payment of wages), article nineteen (minimum
56 wage act), article nineteen-A [(minimum wage standards and protective
A. 4777 11
1 labor practices for farm workers)], section two hundred twelve-a,
2 section two hundred twelve-b, section one hundred sixty-one (day of
3 rest) or section one hundred sixty-two (meal periods) of this chapter,
4 or a rule or regulation promulgated thereunder, the commissioner shall
5 issue to the employer an order directing compliance therewith, which
6 shall describe particularly the nature of the alleged violation. [A copy
7 of such order shall be provided to any employee who has filed a
8 complaint and any authorized representative of him or her.] In addition
9 to directing payment of wages, benefits or wage supplements found to be
10 due, [and liquidated damages in the amount of one hundred percent of
11 unpaid wages,] such order, if issued to an employer who previously has
12 been found in violation of those provisions, rules or regulations, or to
13 an employer whose violation is willful or egregious, shall direct
14 payment to the commissioner of an additional sum as a civil penalty in
15 an amount [not to exceed] equal to double the total amount [of wages,
16 benefits, or wage supplements] found to be due. In no case shall the
17 order direct payment of an amount less than the total wages, benefits or
18 wage supplements found by the commissioner to be due, plus the [liqui-
19 dated damages in the amount of one hundred percent of unpaid wages, the]
20 appropriate civil penalty[, and interest at the rate of interest then in
21 effect, as prescribed by the superintendent of financial services pursu-
22 ant to section fourteen-a of the banking law per annum from the date of
23 the underpayment to the date of the payment.] Where the violation is for
24 a reason other than the employer's failure to pay wages, benefits or
25 wage supplements found to be due, the order shall direct payment to the
26 commissioner of a civil penalty in an amount not to exceed one thousand
27 dollars for a first violation, two thousand dollars for a second
28 violation or three thousand dollars for a third or subsequent violation.
29 In assessing the amount of the penalty, the commissioner shall give due
30 consideration to the size of the employer's business, the good faith
31 [basis] of the employer [to believe that its conduct was in compliance
32 with the law], the gravity of the violation, the history of previous
33 violations and, in the case of wages, benefits or supplements
34 violations, the failure to comply with recordkeeping or other non-wage
35 requirements.
36 Where there is a violation of section one hundred ninety-eight-b of
37 this chapter, the order shall direct payment back to the employee of the
38 amount of wages, supplements or other thing of value unlawfully received
39 plus [liquidated damages in the amount of one hundred percent of unpaid
40 wages, and] interest at the rate of interest then in effect, as
41 prescribed by the superintendent of financial services pursuant to
42 section fourteen-a of the banking law per annum from the date of the
43 payback, return, donation or contribution to the date of payment, and
44 shall include such other relief as may be appropriate, including rehir-
45 ing or reinstatement of the employee to his or her former position, back
46 wages, and restoration of seniority. In addition, the commissioner shall
47 order payment of a civil penalty of at least twenty-five hundred dollars
48 but not more than five thousand dollars per violation. In assessing the
49 amount of the penalty, the commissioner shall give due consideration to
50 the size of the employer's business, the good faith [basis] of the
51 employer [to believe that its conduct was in compliance with the law],
52 the gravity of the violation, and the history of previous violations.
53 [At the discretion of the commissioner, the commissioner shall have
54 full authority to provide for inclusion of an automatic fifteen percent
55 additional amount of damages to come due and owing upon expiration of
56 ninety days from an order to comply becoming final. The commissioner
A. 4777 12
1 shall provide written notice to the employer in the order to comply of
2 this additional damage.]
3 3. Provided that no proceeding for administrative or judicial review
4 as provided in this chapter shall then be pending and the time for
5 initiation of such proceeding shall have expired, the commissioner may
6 file with the county clerk of the county where the employer resides or
7 has a place of business the order of the commissioner, or the decision
8 of the industrial board of appeals containing the amount found to be due
9 including the civil penalty, if any[, and at the commissioner's
10 discretion, an additional fifteen percent damages upon any outstanding
11 monies owed. At the request of an employee, the commissioner shall
12 assign, without consideration or liability, that portion of the filed
13 order that constitutes wages, wage supplements, interest on wages or
14 wage supplements, or liquidated damages due that employee, to that
15 employee and may file an assignment or order in that amount in the name
16 of that employee with the county clerk of the county where the employer
17 resides or has a place of business]. The filing of such assignment,
18 order or decision shall have the full force and effect of a judgment
19 duly docketed in the office of such clerk. The assignment, order or
20 decision may be enforced by and in the name of the commissioner, or by
21 the employee, in the same manner, and with like effect, as that
22 prescribed by the civil practice law and rules for the enforcement of a
23 money judgment.
24 § 11. Section 219 of the labor law, as amended by chapter 564 of the
25 laws of 2010, the opening paragraph of subdivision 1 as further amended
26 by section 104 of part A of chapter 62 of the laws of 2011, subdivision
27 3 as amended by chapter 2 of the laws of 2015, subdivision 4 as added by
28 chapter 537 of the laws of 2014, is amended to read as follows:
29 § 219. Violations of certain wage payment provisions; interest, filing
30 of order as judgment. 1. If the commissioner determines that an employer
31 has failed to pay wages, benefits or wage supplements required pursuant
32 to article six (payment of wages), article nineteen (minimum wage act)
33 or article [nineteen-A (minimum wage standards and protective labor
34 practices for farm workers)] nineteen-a of this chapter, or a rule or
35 regulation promulgated thereunder, the commissioner shall issue to the
36 employer an order directing compliance therewith, which shall describe
37 particularly the nature of the alleged violation. [A copy of such order
38 shall be provided to any employee who has filed a complaint and to his
39 or her authorized representative.] Such order shall direct payment of
40 wages or supplements found to be due, [liquidated damages in the amount
41 of one hundred percent of unpaid wages, and] including interest at the
42 rate of interest then in effect as prescribed by the superintendent of
43 financial services pursuant to section fourteen-a of the banking law per
44 annum from the date of the underpayment to the date of the payment.
45 [At the discretion of the commissioner, the commissioner shall have
46 full authority to provide for inclusion of an automatic fifteen percent
47 additional amount of damages to come due and owing upon expiration of
48 ninety days from an order to comply becoming final. The commissioner
49 shall provide written notice to the employer in the order to comply of
50 this additional damage.]
51 2. An order issued under subdivision one of this section shall be
52 final and not subject to review by any court or agency unless review is
53 had pursuant to section one hundred one of this chapter.
54 3. Provided that no proceeding for administrative or judicial review
55 as provided in this chapter shall then be pending and the time for
56 initiation of such proceeding shall have expired, the commissioner may
A. 4777 13
1 file with the county clerk of the county where the employer resides or
2 has a place of business the order of the commissioner or the decision of
3 the industrial board of appeals containing the amount found to be due[,
4 including, at the commissioner's discretion, an additional fifteen
5 percent damages upon any outstanding monies owed. At the request of an
6 employee, the commissioner shall assign, without consideration or
7 liability, that portion of the filed order that constitutes wages, wage
8 supplements, interest on wages or wage supplements, or liquidated
9 damages due the employee, to that employee and may file an assignment or
10 order in that amount in the name of such employee with the county clerk
11 of the county where the employer resides or has a place of business].
12 The filing of such assignment, order or decision shall have the full
13 force and effect of a judgment duly docketed in the office of such
14 clerk. The assignment, order or decision may be enforced by and in the
15 name of the commissioner, or by the employee, in the same manner, and
16 with like effect, as that prescribed by the civil practice law and rules
17 for the enforcement of a money judgment.
18 [4. An employer similar in operation and ownership to a prior employer
19 found to be in violation of article six, nineteen or nineteen-A of this
20 chapter, shall be deemed the same employer for the purposes of this
21 section if the employees of the subsequent employer are engaged in
22 substantially the same work in substantially the same working conditions
23 under substantially the same supervisors, or if the new entity has
24 substantially the same production process, produces substantially the
25 same products and has substantially the same body of customers. Such a
26 subsequent employer will continue to be subject to this section and
27 shall be liable for the acts of the prior employer under this section.]
28 § 12. Section 219-c of the labor law is REPEALED.
29 § 13. Section 661 of the labor law, as amended by chapter 564 of the
30 laws of 2010, is amended to read as follows:
31 § 661. Records of employers. [For all employees covered by this arti-
32 cle, every] Every employer shall [establish, maintain, and preserve for
33 not less than six years contemporaneous,] keep true[,] and accurate
34 [payroll] records [showing for each week worked the] of hours worked by
35 each employee covered by an hourly minimum wage rate, the [rate or rates
36 of pay and basis thereof, whether paid by the hour, shift, day, week,
37 salary, piece, commission, or other basis; gross wages; deductions;
38 allowances, if any, claimed as part of the minimum wage; and net wages
39 for each employee, plus] wages paid to all employees, and such other
40 information as the commissioner deems material and necessary[. For all
41 employees who are not exempt from overtime compensation as established
42 in the commissioner's minimum wage orders or otherwise provided by New
43 York state law or regulation, the payroll records must include the regu-
44 lar hourly rate or rates of pay, the overtime rate or rates of pay, the
45 number of regular hours worked, and the number of overtime hours worked.
46 For all employees paid a piece rate, the payroll records shall include
47 the applicable piece rate or rates of pay and number of pieces completed
48 at each piece rate. On], and shall on demand[, the employer shall]
49 furnish to the commissioner or his duly authorized representative a
50 sworn statement of the [hours worked, rate or rates of pay and basis
51 thereof, whether paid by the hour, shift, day, week, salary, piece,
52 commission, or other basis; gross wages; deductions; and allowances, if
53 any, claimed as part of the minimum wage, for each employee, plus such
54 other information as the commissioner deems material and necessary]same.
55 Every employer shall keep such records open to inspection by the commis-
56 sioner or his duly authorized representative at any reasonable time.
A. 4777 14
1 Every employer of an employee shall keep a digest and summary of this
2 article or applicable wage order, which shall be prepared by the commis-
3 sioner, posted in a conspicuous place in his establishment and shall
4 also keep posted such additional copies of said digest and summary as
5 the commissioner prescribes. Employers shall, on request, be furnished
6 with copies of this article and of orders, and of digests and summaries
7 thereof, without charge. Employers shall permit the commissioner or his
8 duly authorized representative to question [without interference] any
9 employee of such employer in [a private location at] the place of
10 employment and during working hours in respect to the wages paid to and
11 the hours worked by such employee or other employees.
12 § 14. Section 662 of the labor law, as amended by chapter 564 of the
13 laws of 2010, is amended to read as follows:
14 § 662. Penalties. 1. [Failure to pay minimum wage or overtime compen-
15 sation] Discrimination against employee. Any employer or his or her
16 agent, or the officer or agent of any corporation, who discharges or in
17 any other manner discriminates against any employee because such employ-
18 ee has made a complaint to his employer, or to the commissioner or his
19 authorized representative, that he has not been paid in accordance with
20 the provisions of this article, or because such employee has caused to
21 be instituted a proceeding under or related to this article, or because
22 such employee has testified or is about to testify in an investigation
23 or proceeding under this article, shall be guilty of a class B misdemea-
24 nor.
25 2. Payment of less than minimum wage. Any employer or his or her
26 agent, or the officer or agent of any corporation, [partnership, or
27 limited liability company,] who pays or agrees to pay to any employee
28 less than the wage applicable under this article shall be guilty of a
29 class B misdemeanor and [upon conviction therefor shall be fined not
30 less than five hundred nor more than twenty thousand dollars or impri-
31 soned for not more than one year, and, in the event that any second or
32 subsequent offense occurs within six years of the date of conviction for
33 a prior offense, shall be guilty of a felony for the second or subse-
34 quent offense, and upon conviction therefor, shall be fined not less
35 than five hundred nor more than twenty thousand dollars or imprisoned
36 for not more than one year plus one day, or punished by both such fine
37 and imprisonment, for each such offense. Each] each payment to any
38 employee in any week of less than the wage applicable under this article
39 shall constitute a separate offense.
40 [2.] 3. Failure to keep records. Any employer or his or her agent, or
41 the officer or agent of any corporation[, partnership, or limited
42 liability company], who fails to keep the records required under this
43 article or to furnish such records or any information required to be
44 furnished under this article to the commissioner or his or her author-
45 ized representative upon request, or who hinders or delays the commis-
46 sioner or his or her authorized representative in the performance of his
47 or her duties in the enforcement of this article, or refuses to admit
48 the commissioner or his or her authorized representative to any place of
49 employment, or falsifies any such records or refuses to make such
50 records accessible to the commissioner or his or her authorized repre-
51 sentative, or refuses to furnish a sworn statement of such records or
52 any other information required for the proper enforcement of this arti-
53 cle to the commissioner or his or her authorized representative, shall
54 be guilty of a class B misdemeanor and [upon conviction therefor shall
55 be fined not less than five hundred nor more than five thousand dollars
56 or imprisoned for not more than one year, and, in the event that any
A. 4777 15
1 second or subsequent offense occurs within six years of the date of
2 conviction for a prior offense, shall be guilty of a felony for the
3 second or subsequent offense, and upon conviction therefor, shall be
4 fined not less than five hundred nor more than twenty thousand dollars
5 or imprisoned for not more than one year plus one day, or punished by
6 both such fine and imprisonment, for each such offense. Each] each day's
7 failure to keep the records requested under this article or to furnish
8 such records or information to the commissioner or his or her authorized
9 representative shall constitute a separate offense.
10 4. Where any person has previously been convicted of a violation of
11 this section within the preceding five years, upon conviction for a
12 second or subsequent violation such person may be fined up to ten thou-
13 sand dollars in addition to any other penalties including fines other-
14 wise provided by law; provided, however, that the total additional fine
15 that may be imposed pursuant to this subdivision for separate offenses
16 committed in any consecutive twelve month period may not exceed ten
17 thousand dollars.
18 § 15. Section 663 of the labor law, as amended by chapter 564 of the
19 laws of 2010, subdivision 3 as amended by chapter 2 of the laws of 2015,
20 is amended to read as follows:
21 § 663. Civil action. 1. By employee. If any employee is paid by his or
22 her employer less than the wage to which he or she is entitled under the
23 provisions of this article, he or she [shall] may recover in a civil
24 action the amount of any such underpayments, together with costs [all]
25 and such reasonable attorney's fees, [prejudgment interest as required
26 under the civil practice law and rules] as may be allowed by the court,
27 and unless the employer proves a good faith basis to believe that its
28 underpayment of wages was in compliance with the law, an additional
29 amount as liquidated damages equal to [one hundred] twenty-five percent
30 of the total of such underpayments found to be due[. Any] the employee
31 and any agreement between the employee, and the employer to work for
32 less than such wage shall be no defense to such action.
33 2. By commissioner. On behalf of any employee paid less than the wage
34 to which the employee is entitled under the provisions of this article,
35 the commissioner may bring any legal action necessary, including admin-
36 istrative action, to collect such claim, and the employer shall be
37 required to pay [the full amount of the underpayment, plus] costs, and
38 unless the employer proves a good faith basis to believe that its under-
39 payment was in compliance with the law, an additional amount as liqui-
40 dated damages equal to twenty-five percent of the total of such under-
41 payments found to be due the employee. [Liquidated damages shall be
42 calculated by the commissioner as no more than one hundred percent of
43 the total amount of underpayments found to be due the employee. In any
44 action brought by the commissioner in a court of competent jurisdiction,
45 liquidated damages shall be calculated as an amount equal to one hundred
46 percent of underpayments found to be due the employee.]
47 3. Limitation of time. Notwithstanding any other provision of law, an
48 action to recover upon a liability imposed by this article must be
49 commenced within six years. [The statute of limitations shall be tolled
50 from the date an employee files a complaint with the commissioner or the
51 commissioner commences an investigation, whichever is earlier, until an
52 order to comply issued by the commissioner becomes final, or where the
53 commissioner does not issue an order, until the date on which the
54 commissioner notifies the complainant that the investigation has
55 concluded. Investigation by the commissioner shall not be a prerequisite
A. 4777 16
1 to nor a bar against a person bringing a civil action under this arti-
2 cle.
3 4. Attorneys' fees. In any civil action by an employee or by the
4 commissioner, the employee or commissioner shall have the right to
5 collect attorneys' fees and costs incurred in enforcing any court judg-
6 ment. Any judgment or court order awarding remedies under this section
7 shall provide that if any amounts remain unpaid upon the expiration of
8 ninety days following issuance of judgment, or ninety days after expira-
9 tion of the time to appeal and no appeal therefrom is then pending,
10 whichever is later, the total amount of judgment shall automatically
11 increase by fifteen percent.]
12 § 16. This act shall take effect immediately.
