Establishes an excluded worker unemployment program and an excluded worker unemployment program fund to provide wage replacement to workers that do not qualify for unemployment insurance or other worker wage assistance programs and who have lost a major source of income due to lost work.
STATE OF NEW YORK
________________________________________________________________________
9037--A
IN ASSEMBLY
January 27, 2022
___________
Introduced by M. of A. REYES, MITAYNES, NIOU, MAMDANI, JACKSON, TAPIA,
ANDERSON, CRUZ, SIMON, HEVESI, GONZALEZ-ROJAS, BURDICK,
BICHOTTE HERMELYN, EPSTEIN, GALLAGHER, SEPTIMO, KELLES, GLICK, GIBBS,
FORREST, WALKER, KIM, FERNANDEZ, RAMOS, WEPRIN, SEAWRIGHT, DE LOS
SANTOS, L. ROSENTHAL, BARNWELL -- read once and referred to the
Committee on Labor -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the labor law, in relation to establishing the excluded
worker unemployment program; to amend the state finance law, in
relation to establishing the excluded worker unemployment program
fund; and making an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "excluded
2 worker unemployment program act".
3 § 2. The labor law is amended by adding a new section 591-b to read as
4 follows:
5 § 591-b. Excluded worker unemployment program. 1. Definitions. As used
6 in this section, the following terms shall have the following meanings:
7 (a) "Total unemployment" means a month in which the applicant has no
8 employment earnings for at least three of the four full calendar weeks
9 in that month.
10 (b) "Partial unemployment" means a month in which earnings are sixty
11 percent less than an applicant's average monthly earnings during the
12 prior taxable year, or, if the applicant did not have earnings in the
13 prior taxable year, the average monthly earnings in the current year
14 prior to the loss of work-related earnings.
15 (c) "Non-payroll check" means a personal check, check issued from a
16 business's bank account, or other check that does not indicate the hours
17 worked, pay rate, deductions, or tax withholdings or otherwise comply
18 with the requirements of section one hundred ninety-five of this chap-
19 ter.
20 (d) "Domestic worker" shall have the same meaning as defined in subdi-
21 vision sixteen of section two of this chapter.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14399-03-2
A. 9037--A 2
1 (e) "Landscaping worker" means a person engaging in commercial land-
2 scaping services primarily involving the care and maintenance of yards,
3 gardens, or other outdoor landscapes for clients, including private
4 households. Such services include, but are not limited to, lawn care,
5 gardening, and the pruning or removal of trees, shrubs, or plant waste.
6 (f) "Day laborer" means an individual who provides labor or employment
7 that is occasional or irregular for which an individual is employed for
8 not longer than the time period required to complete the assignment for
9 which the individual is hired and in which wage payments are made
10 directly to the day laborer or indirectly by the day labor service agen-
11 cy or the third-party employer for work undertaken by a day laborer. Day
12 labor does not include labor or employment of a professional or clerical
13 nature.
14 (g) "Street vendor" means a person who sells food or merchandise from
15 a food truck, pushcart, stand, display, pedal-driven cart, wagon, show-
16 case, rack, other nonmotorized conveyance, or from one's person, upon a
17 public street, sidewalk or other pedestrian path.
18 (h) "Construction worker" means an individual employed to provide
19 construction labor or services.
20 (i) "Construction" means constructing, reconstructing, altering, main-
21 taining, moving, rehabilitating, repairing, renovating or demolition of
22 any building, structure, or improvement, or relating to the excavation
23 of or other development or improvement to land.
24 (j) "Construction labor provider" means a person who employs and
25 supplies a covered construction worker to a third-party client for the
26 performance of construction work or manual labor for a construction
27 project of such client on a site in the city, in exchange for compen-
28 sation from such third-party client, provided that the completion of
29 such project is directed by such client or such client's contractor and
30 not such person. The term "construction labor provider" does not mean:
31 (i) an employment agency or an employee fee paid employment agency, as
32 defined in article eleven of the general business law; or (ii) a profes-
33 sional employer organization, as defined in article thirty-one of this
34 chapter; or (iii) a construction subcontractor that is responsible for
35 and performs any of the following: (1) performing construction work on a
36 project in accordance with a written contract for a defined scope of
37 construction work at a fixed price; (2) obtaining necessary licenses to
38 perform construction services under the entity's name; (3) exclusively
39 controlling the subcontractor's workers, including having hiring and
40 firing authority and direction of methods and means of construction work
41 performed on the construction project; (4) paying wages and fringe bene-
42 fits to workers by the subcontractor and not any other person or entity,
43 and maintaining required employment and payroll records by the subcon-
44 tractor; (5) purchasing the majority of materials, supplies and tools
45 for construction work performed by the subcontractor on the project; and
46 (6) maintaining workers' compensation and unemployment insurance cover-
47 age for periods preceding, during and succeeding the term of the
48 construction project for the type and scope of construction work
49 performed by the subcontractor on the project; or (iv) a website, mobile
50 application, or other internet service.
51 (k) "Home improvement contractor" means any person, other than a bona
52 fide employee of the owner, who owns, operates, maintains, conducts,
53 controls or transacts a home improvement business and who undertakes or
54 offers to undertake or agrees to perform any home improvement or solic-
55 its any contract therefor, whether or not such person is licensed or
A. 9037--A 3
1 subject to licensing requirements, and whether or not such person is a
2 prime contractor or subcontractor with respect to the owner.
3 (l) "Home improvement" means the construction, repair, replacement,
4 remodeling, alteration, conversion, rehabilitation, renovation, modern-
5 ization, improvement, or addition to any land or building, or that
6 portion thereof which is used or designed to be used as a residence or
7 dwelling place and shall include but not be limited to the construction,
8 erection, replacement, or improvement of driveways, swimming pools,
9 terraces, patios, landscaping, fences, porches, garages, fallout shel-
10 ters, basements, and other improvements to structures or upon land which
11 is adjacent to a dwelling house. "Home improvement" shall not include:
12 (i) the construction of a new home or building or work done by a
13 contractor in compliance with a guarantee of completion of a new build-
14 ing project; (ii) the sale of goods or materials by a seller who neither
15 arranges to perform nor performs directly or indirectly any work or
16 labor in connection with the installation of or application of the goods
17 or materials; (iii) residences owned by or controlled by the state or
18 any municipal subdivision thereof; or (iv) painting or decorating of a
19 building, residence, home or apartment, when not incidental or related
20 to home improvement work as herein defined. Without regard to the extent
21 of affixation, "home improvement" shall also include the installation of
22 central heating or air conditioning systems, central vacuum cleaning
23 systems, storm windows, awnings, and communication systems.
24 (m) "Contractor" means any person or salesperson, other than a bona
25 fide employee of the owner, who owns, operates, maintains, conducts,
26 controls or transacts a home improvement business and who undertakes or
27 offers to undertake or agrees to perform any home improvement or solic-
28 its any contract therefor, whether or not such person is licensed or
29 subject to the licensing requirements of this section, and whether or
30 not such person is a prime contractor or subcontractor with respect to
31 the owner.
32 (n) "Excluded worker unemployment program navigator" means a non-pro-
33 fit organization that is certified by the department to help guide
34 applicants to determine their eligibility for the excluded worker unem-
35 ployment program or unemployment insurance benefits.
36 (o) "Program year" is the twelve month period beginning April first.
37 2. The department is hereby authorized, empowered and mandated to
38 establish and operate an excluded worker unemployment program as author-
39 ized pursuant to this section. Such program shall be established by
40 April first, two thousand twenty-three.
41 3. For the purposes of this section, the term "excluded worker unem-
42 ployment program" means a program under which assistance is available to
43 applicants who reside in the state and:
44 (a) have not received unemployment insurance benefits as described in
45 this article, including benefits payable to federal civilian employees
46 and to ex-servicemen and servicewomen pursuant to Chapter 85 of the
47 United States Code, benefits authorized to be used for the self-employ-
48 ment assistance program pursuant to the Federal-State Extended Unemploy-
49 ment Compensation Act of 1970 in the twelve-month period directly prior
50 to their application for the excluded worker unemployment program; or
51 any other benefits distributed to New Yorkers through the federal unem-
52 ployment account; or
53 (b) received in error payments from the sources in paragraph (a) of
54 this subdivision and such payments were recovered or are recoverable by
55 the administering agency; and
A. 9037--A 4
1 (c) are covered employees for the purposes of the excluded worker
2 unemployment program. For the purposes of this subdivision, "covered
3 employees" mean persons who:
4 (i) have performed services of employment pursuant to section five
5 hundred eleven of this article and are ineligible for benefits under
6 this article because of provisions related to subdivision nine of
7 section five hundred ninety of this article or because they are deemed
8 unavailable to work due to a lack of work authorization; or
9 (ii) have performed any of the following services of employment as
10 defined by section five hundred eleven of this article:
11 (1) domestic workers who are employed by a family or individual house-
12 hold; or
13 (2) day laborers; or
14 (3) workers employed to provide construction, landscaping, or
15 groundskeeping labor or services and hired by a construction labor
16 provider, a private household or home improvement contractor, provided
17 that:
18 (A) they were paid in cash or paid with a personal check or non-pay-
19 roll check; and
20 (B) their wages were not reported to the tax commission by an "employ-
21 er," as defined under section five hundred twelve of this article and as
22 required by paragraph four of subsection (a) of section six hundred
23 seventy-four of the tax law; and
24 (C) they did not receive a wage statement from such "employer" as
25 required under section one hundred ninety-five of this chapter; and
26 (D) they did not receive an internal revenue service form 1099-nec for
27 non-employment services for compensation earned during the most recent
28 taxable year from such employer, or performed services that are custom-
29 arily recorded through a form 1099-nec; or
30 (iii) is a bona fide self-employed worker, regardless of citizenship
31 or immigration status. For the purposes of this subparagraph, "bona
32 fide self-employed worker" means:
33 (1) the individual is free from control and direction in performing
34 the job, both under his or her contract and in fact, and
35 (2) the service is performed outside the usual course of business for
36 which the service is performed, and
37 (3) the individual is customarily engaged in an independently estab-
38 lished trade, occupation, profession, or business that is similar to the
39 labor or service at issue.
40 For the purposes of this subparagraph, street vendors shall be consid-
41 ered to be bona fide self-employed workers;
42 (d) suffered a loss of work-related earnings leading to a period of
43 total or partial unemployment during the prior calendar month;
44 (e) prior to suffering the loss of work-related earnings, had worked
45 in at least three of the previous twelve months and had earned at least
46 four thousand fifty dollars in gross earnings; provided, however, that
47 in the case of a worker described in subparagraph (iii) of paragraph (c)
48 of this subdivision such earnings shall be calculated on a net basis;
49 (f) whose reason for loss of work-related earnings would not have been
50 disqualifying under section five hundred ninety-three of this article;
51 (g) who are capable of work or who are ready, willing and able to
52 work, regardless of citizenship or immigration status, in their usual
53 employment or in any other for which they are reasonably fitted by
54 training and experience;
55 (h) whose principal place of residence is in New York state;
A. 9037--A 5
1 (i) provide suitable documentation pursuant to subdivision four of
2 this section;
3 (j) have earned no more than fifty-six thousand three hundred nine-
4 ty-three dollars in the prior taxable year; provided, however, that:
5 (i) this amount shall be updated on the next January first after the
6 effective date of this section and set as the median annual employment
7 earnings for a full-time worker living in the state as calculated by the
8 United States census bureau, and updated on each January first thereaft-
9 er;
10 (ii) for the purposes of workers becoming eligible under subparagraph
11 (iii) of paragraph (c) of this subdivision, the amount shall be set as
12 forty-five thousand one hundred fourteen dollars in net earnings; and
13 (k) no state or local public benefit program shall require an appli-
14 cant or recipient to apply for the excluded worker unemployment program
15 as a condition of eligibility.
16 4. All documents submitted by an applicant to establish identity and
17 residency shall be: (i) certified by the issuing agency; (ii) unexpired
18 unless specifically noted; (iii) in English, or accompanied by an
19 English language translation; and (iv) not mutilated or damaged. Appli-
20 cants shall not be required to prove that they are lawfully present in
21 the United States. Applicants shall certify, in a form and manner the
22 commissioner of labor shall prescribe. For the purposes of paragraph (i)
23 of subdivision three of this section, "suitable documentation" means the
24 following:
25 (a) For the purposes of establishing residency, an applicant shall be
26 required to produce one or more of the following items, each of which
27 shall show the applicant's name and current residential address located
28 within New York state:
29 (i) a non-expired New York state driver's license issued by the
30 department of motor vehicles;
31 (ii) a non-expired New York state non-driver identification card
32 issued by the department of motor vehicles;
33 (iii) a non-expired New York state learner's permit issued by the
34 department of motor vehicles;
35 (iv) a non-expired IDNYC identification card;
36 (v) a state or federal tax filing or return, with a filing date not
37 more than twelve months prior to the date of application for benefits
38 under this program;
39 (vi) a document issued by an agency, authority, board or commission of
40 New York state, a government agency or authority of a political subdivi-
41 sion within New York state, including a school district, or an agency of
42 the federal government, with a date of not more than twelve months prior
43 to the date of application for benefits under this program;
44 (vii) a social security statement letter or benefit verification
45 letter, with a date of not more than twelve months prior to the date of
46 application for benefits under this program; or
47 (viii) any of the following documents, containing the name and New
48 York state address of the applicant, provided that the date is no more
49 than twelve months before the date of application for benefits under
50 this program:
51 (1) a utility bill, including a bill from a mobile service provider;
52 (2) a bank or credit card statement;
53 (3) a letter addressed to the applicant from the New York city housing
54 authority;
55 (4) a letter addressed to the applicant from a homeless shelter indi-
56 cating that the applicant currently resides at the homeless shelter;
A. 9037--A 6
1 (5) a current lease or sublease, mortgage payment, or property tax
2 statement;
3 (6) a pay stub;
4 (7) an employment offer letter or notice of pay that documents employ-
5 er provided housing located in the state, including seasonal housing;
6 (8) a statement, bill, or record from a health institution or insur-
7 ance company (including health insurance, homeowner's insurance,
8 renter's insurance, life insurance, or automobile insurance);
9 (9) a jury summons, court order, or other document from a state,
10 federal, or local court or administrative law forum within New York
11 state;
12 (10) a letter from a domestic violence residential care program, or a
13 government agency, non-profit organization, or religious institution
14 that provides services to domestic violence survivors;
15 (11) a letter addressed to the applicant from a non-profit organiza-
16 tion or religious institution that provides services to homeless indi-
17 viduals;
18 (12) a letter attesting to the residency of an applicant issued by a
19 charitable organization registered with the charities bureau of the New
20 York state office of the attorney general and that provided services to
21 the applicant in the ordinary course of business of such charitable
22 organization;
23 (13) a letter attesting the residency of an applicant signed and nota-
24 rized by a co-habitant of the same residence; or
25 (14) any other document the commissioner deems acceptable.
26 (b) For the purposes of establishing identity, an applicant shall be
27 required to produce one or more of the following items to establish at
28 least four points of proof of identity:
29 (i) For four points:
30 (1) a New York state driver's license or learner's permit, issued by
31 the department of motor vehicles, which may be expired by not more than
32 two years;
33 (2) a New York state non-driver identification card issued by the
34 department of motor vehicles, which may be expired by not more than two
35 years;
36 (3) a United States or foreign passport, which may be expired by not
37 more than two years;
38 (4) a United States military ID card issued to active, reserve, and
39 retired military personnel only, which may be expired by not more than
40 two years;
41 (5) a United States employment authorization with photo, which may be
42 expired by not more than two years;
43 (6) an inpatient photo identification card issued by the New York
44 state office of mental health;
45 (7) a federal document with photo, issued by the United States Citi-
46 zenship and Immigration Services, including but not limited to Form I-94
47 or I-766 (United States employment authorization document), which may be
48 expired by not more than two years; or
49 (8) a photo identification card, issued by an agency, authority,
50 board, or commission of New York state, a government agency or authority
51 of a political subdivision within New York state, including a school
52 district, or an agency of the federal government, which may be expired
53 by not more than two years; provided, however, that identification cards
54 that are marked "not for identification purposes" or similar language
55 shall not be considered for four points.
56 (ii) For three points:
A. 9037--A 7
1 (1) a photo identification card, issued by an agency, authority,
2 board, or commission of New York state, a government agency or authority
3 of a political subdivision within New York state, including a school
4 district, or an agency of the federal government, that is marked "not
5 for identification purposes" or similar language and which may be
6 expired by not more than two years;
7 (2) a photo identification card issued by an educational institution,
8 including a university, college, or post-secondary school, subject to
9 the regulation of the state education department or board of regents;
10 (3) a New York city health and hospitals patient card issued by a
11 hospital and medical clinic;
12 (4) an identification card issued by the New York state department of
13 corrections and community supervision or by any local or municipal
14 department of corrections located within New York state;
15 (5) a photo identification card issued by a charitable organization
16 registered with the charities bureau of the New York state office of the
17 attorney general relating to eligibility for services or participation
18 in the programs administered by the charitable organization in the ordi-
19 nary course of such charitable organization; or
20 (6) a photo identification card issued by a labor organization.
21 (iii) For two points:
22 (1) an NYC Care membership card;
23 (2) a federal document issued by the United States Citizenship and
24 Immigration Services, including Form I-797, I-797A, or I-797D, that does
25 not include a photo;
26 (3) a foreign driver's license with a photo, which may be expired by
27 not more than two years;
28 (4) a foreign issued identification card, including, but not limited
29 to, a consular identification card or any other photo identification
30 card issued by another country to its citizens;
31 (5) a United States individual taxpayer identification number assign-
32 ment letter;
33 (6) a marriage certificate;
34 (7) a divorce decree;
35 (8) a birth certificate issued by a foreign country;
36 (9) a Direct Express Debit Mastercard provided by the United States
37 treasury; or
38 (10) a social security statement letter or benefit verification
39 letter.
40 (iv) For one point:
41 (1) a non-expired New York city department of parks and recreation
42 membership card;
43 (2) a diploma or transcript from a high school, college, or university
44 in the United States;
45 (3) a photo identification card issued by an employer or entity asso-
46 ciated with an employer, including photo identification cards required
47 to access secure facilities and buildings; or
48 (4) a written employment offer, pay stubs, or notice of pay document
49 provided to the applicant by an employer.
50 (v) The commissioner may accept any other document the commissioner
51 deems relevant and adequate to establish the identity of the applicant
52 and may assign a reasonable point value for such document.
53 (c) Each applicant shall be required to complete and submit a ques-
54 tionnaire attesting that in the twelve months directly prior to the date
55 of application for benefits under this program the applicant worked in
56 at least three calendar months, earned at least four thousand fifty
A. 9037--A 8
1 dollars in gross wages or four thousand fifty dollars in net self-em-
2 ployment earnings, and lost their job through no fault of their own. The
3 applicant shall additionally submit the following documentation to
4 establish four points or more of proof of work history:
5 (i) For four points:
6 (1) wage statements, as set forth in section one hundred ninety-five
7 of this chapter, or, where the employer has failed to provide the appli-
8 cant with accurate wage statements meeting the requirements of section
9 one hundred ninety-five of this chapter, non-payroll checks paid by the
10 employer or employer's agent to the applicant or other records showing
11 payments from an app-based employer to the applicant. Such statements or
12 other records shall demonstrate at least four thousand fifty dollars in
13 gross wages or earnings, and payment of wages in at least three calendar
14 months within the twelve-month period directly prior to the date of
15 application for benefits under this program;
16 (2) a letter from an employer, or a client of the applicant or their
17 employer, attesting that the applicant earned at least four thousand
18 fifty dollars in gross wages or earnings and worked in at least three
19 months in the twelve months directly prior to when the applicant becomes
20 unemployed or partially unemployed. Such letter shall include:
21 (A) the employer's mailing address and the address of the site, within
22 New York state, at which the applicant was employed;
23 (B) the employer's New York state unemployment insurance account
24 number or federal employment identification number; or
25 (C) contact information, including a phone number, for a represen-
26 tative of such employer who can verify the contents of the letter;
27 (3) a letter attesting to the applicant's employment history issued by
28 a charitable organization registered with the charities bureau of the
29 New York state office of the attorney general or other entity designated
30 by the commissioner and based on direct knowledge that the applicant
31 earned at least four thousand fifty dollars in gross wages or earnings
32 and worked in at least three calendar months in the twelve months
33 directly prior to when the applicant became unemployed or partially
34 unemployed, acquired in the course of conducting intake, interviews, or
35 other standard processes related to the provision of job-related direct
36 services to the applicant; or
37 (4) a complaint, charge, or equivalent document filed with a local,
38 state, or federal agency or court, and acknowledged by such entity,
39 alleging that the applicant worked in New York state in at least three
40 calendar months and earned at least four thousand fifty dollars in gross
41 wages or earnings in the twelve-month period directly prior to the date
42 the applicant certifies that he or she became eligible for benefits.
43 (ii) For three points:
44 (1) a federal tax return for the tax year immediately prior to the
45 year in which the applicant became unemployed or partially unemployed,
46 with proof of filing with the internal revenue service using a social
47 security number or valid United States individual taxpayer identifica-
48 tion number;
49 (2) a state tax return for the tax year immediately prior to the year
50 in which the applicant became unemployed or partially unemployed, filed
51 with the department of taxation and finance using a social security
52 number or valid United States individual taxpayer identification number;
53 or
54 (3) a form W-2 or 1099 form demonstrating four thousand fifty dollars
55 or more in gross wages or earnings for the tax year immediately prior to
A. 9037--A 9
1 the year in which the applicant became unemployed or partially unem-
2 ployed.
3 (iii) For two points:
4 (1) evidence, such as statements issued by a financial institution,
5 showing regular direct deposits made by the employer to the applicant,
6 or regular deposits of cash earnings or checks made by the applicant to
7 the applicant's bank account, or transfers from an entity or from an
8 unrelated individual (in each case that is not determined to not be an
9 employer) to the applicant;
10 (2) receipts from a check cashing establishment or transaction logs
11 from a payment app, of regular direct deposits, deposits, or transfers
12 from an entity or from an unrelated individual (in each case that is not
13 determined to not be an employer) to the applicant;
14 (3) an employer issued identification badge;
15 (4) emails, text messages, social media posts or messages, or other
16 written communications relating to delivery order sheets, work invoices,
17 point of sale receipts, work schedules, sign-in sheets, timesheets,
18 directions or instructions from employers or other written communi-
19 cations between an applicant and an employer or hiring party establish-
20 ing the existence of a work relationship;
21 (5) documents or materials issued by an employer to an employee,
22 including any materials containing the employer's mailing address, the
23 employer's New York state unemployment insurance account number or
24 federal employment identification number, and contact information,
25 including a phone number, from a representative of such employer; or
26 (6) receipts or records showing a consecutive pattern of commuting to
27 and from a work location, such as toll records, parking receipts, or
28 public transportation records.
29 (iv) The commissioner may, by regulation, establish alternative docu-
30 ments that sufficiently demonstrate an applicant's qualification for the
31 program, provided that such additional documents shall clearly demon-
32 strate that the applicant was employed in at least three calendar months
33 and earned at least four thousand fifty dollars in the twelve-month
34 period prior to the date the applicant certifies that he or she became
35 eligible for benefits pursuant to this section.
36 (v) Where an applicant has not received sufficient documentation of
37 their work hours, wages, or other employment records in order to meet
38 the four points required pursuant to this paragraph, the commissioner
39 shall conduct a credibility interview to determine whether the appli-
40 cant's questionnaire and/or documentation submitted reasonably demon-
41 strates that they meet the work-related eligibility requirements of this
42 program. The commissioner may establish procedures for credibility
43 interviews in cases when documents used to meet the four point eligibil-
44 ity need additional verification or clarification.
45 5. The department shall establish application procedures which shall
46 include, but not be limited to:
47 (a) creating a user-friendly, and language-accessible website for
48 application to the program. The department shall provide translation of
49 the website and application forms on the website in the ten most common
50 non-English languages spoken by individuals with limited-English profi-
51 ciency in the state of New York;
52 (b) establishing, in collaboration with the director of the budget, an
53 excluded worker unemployment program navigator grant for non-profit
54 agencies to help screen potential applicants on whether they are eligi-
55 ble for the program and to assist applicants in applying for the
A. 9037--A 10
1 program. Such navigator grant shall be established by January first,
2 two thousand twenty-three;
3 (c) requiring that all applications for the program shall be processed
4 within four weeks of the receipt of a completed application. The depart-
5 ment shall provide a response to each applicant on whether such appli-
6 cant is eligible for the program, unless the local jurisdiction is
7 facing extenuating circumstances;
8 (d) providing notice to the public at least fourteen days prior to
9 closing the application process period to applicants;
10 (e) processes for reviewing applications that have been rejected,
11 either in whole or in part. Reviews shall be conducted in a manner spec-
12 ified by the commissioner. Such processes shall require the commissioner
13 to provide a detailed explanation of the reason for denial to any appli-
14 cant whose application has been denied;
15 (f) providing all notices to the applicant in the applicant's primary
16 language, as indicated in their initial application;
17 (g) issuing a written notice of determination to the applicant within
18 five calendar days of reaching a determination of the applicant's eligi-
19 bility for benefits under this program; and
20 (h) establishing procedures for denials and appeals which, at a mini-
21 mum, provide that:
22 (i) when an application is denied, the department shall include in the
23 notice of determination a specific explanation as to the reason for the
24 denial and detailed instructions as to what documentation or documented
25 justification is needed to reverse the determination;
26 (ii) the department may create an appeal form in the ten most common
27 non-English languages spoken by individuals with limited-English profi-
28 ciency in the state of New York. Such form shall be included with the
29 notice of determination and shall be in the applicant's primary
30 language, as indicated in their initial application;
31 (iii) an applicant may file an appeal within sixty days after receipt
32 of the notice of determination required pursuant to paragraph (g) of
33 this subdivision;
34 (iv) an applicant may submit the appeals form provided by the depart-
35 ment pursuant to this paragraph, in addition to any additional informa-
36 tion or documentation required to support the applicant's position in
37 filing their appeal;
38 (v) the department shall notify the applicant in writing of the deter-
39 mination on the appeal or of the need for additional information and the
40 date by which the information must be provided. Such notification shall
41 be provided to the applicant within thirty days from the date the
42 department receives the appeal and shall provide the applicant with at
43 least twenty-one days' notice to provide additional information to the
44 department; and
45 (vi) the department shall notify the applicant in writing of its final
46 determination on the appeal within thirty days following the receipt of
47 any additional information or following expiration of the period for
48 providing such information.
49 6. (a) Persons eligible to receive funding shall be given the option
50 to receive such funds via prepaid ATM card or direct deposit into a bank
51 account of their designation.
52 (b) If an applicant elects to receive funds via prepaid ATM card, such
53 card:
54 (i) shall be sent to the address the applicant provided to the depart-
55 ment. If the applicant receives funding for more than one month, such
56 funds shall be sent to the same debit card;
A. 9037--A 11
1 (ii) shall be limited to two pin-based withdrawals per month. Retail
2 transactions, online transactions, and teller desk withdrawals shall be
3 unlimited. There shall be no limit for cash withdrawals made at the
4 teller desk on such cards.
5 (iii) the department, in conjunction with the department of financial
6 services, shall issue guidance to banks regarding acceptable identifica-
7 tion documents to be accepted for withdrawals. Such documentation shall
8 mirror the documentation to prove eligibility under this program to the
9 maximum extent possible.
10 (c) If an applicant chooses to receive funding via direct deposit:
11 (i) the applicant shall submit bank information while filling out the
12 application or by submitting a bank account pursuant to regulations
13 promulgated by the department.
14 (ii) the department shall conduct a review to ensure that the neces-
15 sary anti-fraud provisions for bank account direct deposits exist. The
16 department shall have the right to restrict direct deposit payments if
17 such payments violate requisite anti-fraud provisions.
18 (d) The disbursement of funds shall be accompanied by a document from
19 the department or the department of taxation and finance, that explains
20 that such funds count as income or wage replacement and are subject to
21 the payment of taxes. Such form shall also include information related
22 to the state tax rate.
23 (e) (i) The department, in coordination with the administrator of the
24 fund, shall promulgate rules and regulations necessary to create an
25 efficient and effective dispute process for charges a recipient of funds
26 under this program claims to be fraudulent. Such regulations shall
27 require a provision that a bank disbursing funds via ATM cards shall be
28 obligated to notify the recipient, by telephone call or email, when: (1)
29 a fraudulent charges claim has been received; (2) when more information
30 is needed; (3) when there is any status update; and (4) when the case
31 has been resolved and what the determination is.
32 (ii) To the extent practicable under state and federal law, as it
33 relates to claims of fraud by a recipient of funds under this program,
34 banks shall accept a signed and notarized attestation from a community
35 based organization confirming such fraud in lieu of police reports. The
36 department shall promptly communicate all information regarding the
37 disbursement of funds and any applicable fraud warnings to an applicant,
38 in such applicant's preferred language as chosen in the original appli-
39 cation.
40 7. Any person who applies for benefits under this chapter or who
41 requests documentation or evidence to support an application for bene-
42 fits under this chapter shall not be subject to retaliation, as that
43 term is used in paragraph (a) of subdivision one of section two hundred
44 fifteen of this chapter, for engaging in any of these activities. For
45 the purposes of this subdivision, retaliation shall include deliberately
46 misinforming a person or dissuading a person from applying for benefits
47 under this article. Violations of this subdivision shall be deemed to
48 be violations of paragraph (a) of subdivision one of section two hundred
49 fifteen of this chapter and the civil penalties and remedies of para-
50 graph (b) of subdivision one and paragraphs (a) and (b) of subdivision
51 two of section two hundred fifteen of this chapter shall be applicable
52 to this subdivision.
53 8. At the time of their application, each applicant shall be given the
54 option to report their employer or previous employer to the department
55 in order to initiate a labor dispute regarding wage theft, misclassi-
56 fication, retaliation, or other violations of the labor law. At the
A. 9037--A 12
1 close of each calendar year, the department shall provide the applica-
2 tion documents, with any identifying information of individual appli-
3 cants redacted, but including the names of any employer of an applicant,
4 to a liaison of the department's division responsible for the enforce-
5 ment of the New York state construction industry fair play act pursuant
6 to article twenty-five-B of this chapter if:
7 (a) the employer, at the close of the year, employs ten or more
8 employees; or
9 (b) employees of the employer performed construction work of a
10 construction site in New York city which was required by code to be
11 overseen by a certified site safety manager; and
12 (c) the applicant is a covered employee for the purpose of the
13 excluded worker unemployment program, defined for these purposes as a
14 person:
15 (i) who was paid in cash or paid with a personal check or non-payroll
16 check; and
17 (ii) whose wages were not reported to the tax commission by an
18 "employer," as defined under section five hundred twelve of this article
19 and as required by paragraph four of subsection (a) of section six
20 hundred seventy-four of the tax law; and
21 (iii) who did not receive a wage statement from that employer as
22 required under section one hundred ninety-five of this chapter; or
23 (iv) who received an internal revenue service Form 1099-NEC and who
24 performed construction work which would be considered non-exempt work
25 under the New York state construction industry fair play act.
26 (d) The department shall investigate potential violations of the New
27 York state construction industry fair play act and as applicable assess
28 civil penalties and prosecute violating employers. In order to protect
29 worker confidentiality, the department shall conduct broad audits of
30 multiple employers, to the extent possible. The redacted applications
31 provided under this section shall not be a public record and shall be
32 subject to the limitations on disclosure, redisclosure, release, dissem-
33 ination, or other publication in subdivision eleven of this section.
34 9. All excluded worker unemployment program payments made pursuant to
35 this section shall be subject to the appropriation of funds therefor.
36 (a) Eligible applicants shall be eligible to receive up to six monthly
37 excluded worker unemployment program payments per program year. Such
38 payments shall be made to eligible applicants who certify that they are
39 totally or partially unemployed in the prior month and that they are
40 available for work, as required pursuant to subdivision three of this
41 section. If all monies in the excluded worker unemployment program fund
42 are exhausted prior to the end of an eligible applicant's six months of
43 eligibility, the state shall be responsible for replenishing the funds
44 needed to provide workers the funds they are owed pursuant to this
45 section.
46 (b) The allowance payable to eligible applicants shall be in the
47 amount of: (i) for the year two thousand twenty-two, one thousand two
48 hundred dollars per month; (ii) for January first, two thousand twenty-
49 three and thereafter, the benefit payment shall increase from one thou-
50 sand two hundred dollars per month at a rate equal to the annual
51 percentage change in the state's average weekly wage as determined by
52 quarter four data from the previous year's United States Bureau of Labor
53 Statistics.
54 (c) Eligible applicants may receive initial and subsequent payments
55 retroactively to their first month of partial or total unemployment;
56 provided, however, that no more than three months of retroactive
A. 9037--A 13
1 payments may be made at one time. Subsequent payments shall be contin-
2 gent upon the availability of funds.
3 (d) For the purposes of this subdivision, "subsequent payment" means a
4 payment which is made after the first month an applicant is eligible for
5 a payment from the excluded worker unemployment program.
6 (e) No more than twenty-five percent of the total funds appropriated
7 shall be paid to workers eligible pursuant to subparagraph (iii) of
8 paragraph (c) of subdivision three of this section.
9 (f) Twenty-five percent of the total funds appropriated for the
10 program shall be reserved for individuals receiving their initial
11 payments made after October first of the program year.
12 (g) (i) Individuals that have received an initial payment during the
13 prior program year can continue to apply for and receive subsequent
14 payments in the following year, subject to the availability of funds.
15 (ii) Individuals that apply for benefits in the prior program year but
16 were not eligible because all funds were appropriated when they applied
17 can receive up to six payments retroactive to their initial application
18 in the following year.
19 (iii) No more than twenty-five percent of the total funds appropriated
20 shall be paid to workers eligible pursuant to this paragraph.
21 10. (a) Excluded worker unemployment program navigators shall assist
22 applicants applying for excluded worker unemployment benefits as
23 follows:
24 (i) The navigator shall assist the potential applicant in the gather-
25 ing of required documentation of residency, identity and work history to
26 satisfy the requirements of subdivision four of this section;
27 (ii) Target underserved populations, as identified by the department,
28 to expand opportunities for employment through reemployment services,
29 education or training opportunities, apprenticeships and other models
30 that result in skill development and family-supporting careers;
31 (iii) Assist individuals with procuring food, housing, and meeting
32 other basic needs in order to help them persist in education and work;
33 (iv) Conduct outreach and provide individual assistance and education
34 to individuals applying for and making ongoing claims pursuant to the
35 excluded no more program and unemployment compensation benefits, includ-
36 ing partial unemployment benefits and assistance for dislocated or
37 marginalized workers and qualified entities. To be eligible to be certi-
38 fied by the department as an excluded worker unemployment program navi-
39 gator, an entity must:
40 (A) demonstrate existing peer relationships with the target population
41 of the excluded worker unemployment program immigrants, cash earners,
42 persons with limited English proficiency, racial and ethnic minorities,
43 persons with low literacy, persons with disabilities and others seeking
44 to gain employment; and
45 (B) demonstrate the capability to carry out the duties of this section
46 including knowledge of eligibility requirements and the application
47 process for the excluded no more program;
48 (v) Comply with existing confidentiality standards to ensure the
49 privacy of all information collected from individuals receiving naviga-
50 tor services; and
51 (vi) Provide services under this section without charge to the indi-
52 viduals receiving those services.
53 (b) The department shall establish standards for the awarding of
54 contracts to qualified entities in accordance with this subdivision.
55 (c) (i) To support the maintenance of relationships between qualified
56 entities and target populations as identified in paragraph (a) of subdi-
A. 9037--A 14
1 vision three of this section and to ensure a high quality of service,
2 the department shall award contracts to qualified entities for a dura-
3 tion of three years as long as the qualified entities satisfy perform-
4 ance standards set forth in the contracts.
5 (ii) The department shall give priority for navigator contracts to
6 qualified entities that are a recognized source of support or advocacy
7 for excluded workers, especially those as described in this subdivision,
8 including but not limited to immigrants, cash earners, persons with
9 limited English proficiency, racial and ethnic minorities, persons with
10 low literacy, persons with disabilities and others seeking to gain
11 employment. Navigator services provided by qualified entities that
12 receive navigator contracts shall be coordinated with and supplement,
13 not supplant, services provided by the department.
14 (iii) The department shall ensure that selected qualified entities do
15 not perform functions that must be performed by department staff,
16 including following up on matters of individual eligibility and resolv-
17 ing such matters.
18 (d) All navigator services provided under this subdivision shall be
19 performed in a manner that is culturally and linguistically appropriate
20 to the population served, immigrants, cash earners, persons with limited
21 English proficiency, racial and ethnic minorities, persons with low
22 literacy, persons with disabilities and others seeking to gain employ-
23 ment, while recognizing the varying levels of digital literacy and
24 access to technology among individuals in need of services.
25 11. (a) (i) Except where necessary to comply with a lawful court
26 order, judicial warrant signed by a judge appointed pursuant to Article
27 III of the United States Constitution, subpoena for individual records
28 issued pursuant to the criminal procedure law or the civil practice law
29 and rules, or in accordance with this section, no record or portion
30 thereof relating to an applicant or worker who has filed an application
31 for benefits pursuant to this section shall be a public record and no
32 such record shall be disclosed, redisclosed, released, disseminated or
33 otherwise published or made available.
34 (ii) For purposes of this subdivision:
35 (1) "record" means an application, a claim file, a file regarding a
36 complaint or circumstances for which no application has been made,
37 and/or any records maintained by the department in electronic databases
38 in which individual applicants, recipients or workers are identifiable,
39 or any other information relating to any person who has heretofore or
40 hereafter filed an application for benefits pursuant to this section,
41 including a copy or oral description of a record which is or was in the
42 possession or custody of the department, its officers, members, employ-
43 ees or agents.
44 (2) "person" means any natural person, corporation, association, part-
45 nership, or other public or private entity.
46 (3) "individually identifiable information" means any data concerning
47 any application, benefit or potential application or benefit that is
48 linked to an identifiable worker or other natural person, including but
49 not limited to a photo image, social security number, tax identification
50 number, telephone number, place of birth, country of origin, place of
51 employment, school or educational institution attended, source of
52 income, status as a recipient of public benefits, customer identifica-
53 tion number associated with a public utilities account, or medical or
54 disability information.
55 (b) Records which contain individually identifiable information may,
56 unless otherwise prohibited by law, be disclosed to:
A. 9037--A 15
1 (i) officers, members and employees of the department if such disclo-
2 sure is necessary to the performance of their official duties pursuant
3 to a purpose of the department required to be accomplished by statute or
4 executive order or otherwise necessary to act upon an application for
5 benefits submitted by the person who is the subject of the particular
6 record;
7 (ii) officers or employees of another governmental unit, or agent or
8 contractors of another governmental unit at the request or direction of
9 such governmental unit, if the information sought to be disclosed is
10 necessary to act upon an application for benefits submitted by the
11 person who is the subject of the particular record;
12 (iii) a judicial or administrative officer or employee in connection
13 with an administrative or judicial proceeding if the information sought
14 to be disclosed is necessary to act upon an application for benefits
15 submitted by the person who is the subject of the particular record; and
16 (iv) a person engaged in bona fide statistical research, including but
17 not limited to actuarial studies and health and safety investigations,
18 which are authorized by statute or regulation of the department or other
19 governmental agency. Individually identifiable information shall not be
20 disclosed unless the researcher has entered into an agreement not to
21 disclose any individually identifiable information which contains
22 restrictions no less restrictive than the restrictions set forth in this
23 section and which includes an agreement that any research findings shall
24 not disclose individually identifiable information.
25 (c) Notwithstanding the restrictions on disclosure set forth in para-
26 graphs (a) and (b) of this subdivision, an applicant may authorize the
27 release, re-release or publication of his or her record to a specific
28 person not otherwise authorized to receive such record, by submitting
29 written authorization for such release to the department on a form
30 prescribed by the commissioner or by a notarized original authorization
31 specifically directing the department to release the applicant's records
32 to such person; provided, however, that no such authorization directing
33 disclosure of records to a prospective employer shall be valid, nor
34 shall an authorization permitting disclosure of records in connection
35 with assessing fitness or capability for employment be valid, and no
36 disclosure of records shall be made pursuant thereto. It shall be unlaw-
37 ful for any person to consider for the purpose of assessing eligibility
38 for benefits, or as the basis for an employment-related action, an indi-
39 vidual's failure to provide authorization under this paragraph.
40 (d) For the purposes of this section, whenever disclosure of records
41 is sought pursuant to a lawful court order, judicial warrant signed by a
42 judge pursuant to Article III of the United States Constitution, or
43 subpoena for individual records properly issued pursuant to the criminal
44 procedure law or the civil practice law and rules or pursuant to this
45 subdivision, such specifically sought records may be disclosed, and any
46 such disclosure shall be limited only to such records as are necessary
47 to fulfill the purpose of such disclosure.
48 (e) The commissioner shall require any person or entity that receives
49 or has access to records to certify that, before such receipt or access,
50 such person or entity shall not:
51 (i) use such records or information for civil immigration purposes; or
52 (ii) disclose such records or information to any agency that primarily
53 enforces immigration law or to any employee or agent of any such agency
54 unless such disclosure is pursuant to a cooperative arrangement between
55 city, state and federal agencies which arrangement does not enforce
56 immigration law and which disclosure is limited to the specific records
A. 9037--A 16
1 or information being sought pursuant to such arrangement. Violation of
2 such certification shall be a class A misdemeanor. In addition to any
3 records required to be kept pursuant to subdivision (c) of section 2721
4 of title 18 of the United States code, any person or entity certifying
5 pursuant to this paragraph shall keep for a period of five years records
6 of all uses and identifying each person or entity that primarily
7 enforces immigration law that received department records or information
8 from such certifying person or entity. Such records shall be maintained
9 in a manner and form prescribed by the commissioner and shall be avail-
10 able for inspection by the commissioner or his or her designee upon his
11 or her request.
12 (iii) For purposes of this paragraph, the term "agency that primarily
13 enforces immigration law" shall include, but not be limited to, the
14 United States immigration and customs enforcement and United States
15 customs and border protection, and any successor agencies having similar
16 duties.
17 (iv) Failure to maintain records as required by this paragraph shall
18 be a class E felony.
19 (f) Except as otherwise provided by this subdivision, any person who
20 knowingly and willfully obtains records which contain individually iden-
21 tifiable information under false pretenses or otherwise violates this
22 subdivision shall be guilty of a class E felony.
23 (g) In addition to or in lieu of any criminal proceeding available
24 pursuant to this subdivision, whenever there shall be a violation of
25 this subdivision, application may be made by the attorney general in the
26 name of the people of the state of New York to a court or justice having
27 jurisdiction by a special proceeding to issue an injunction, and upon
28 notice to the defendant of not less than five days, to enjoin and
29 restrain the continuance of such violations; and if it shall appear to
30 the satisfaction of the court or justice that the defendant has, in
31 fact, violated this subdivision, an injunction may be issued by such
32 court or justice, enjoining and restraining any further violation, with-
33 out requiring proof that any person has, in fact, been injured or
34 damaged thereby. In any such proceeding, the court may make allowances
35 to the attorney general as provided in paragraph six of subdivision (a)
36 of section eighty-three hundred three of the civil practice law and
37 rules, and direct restitution. Whenever the court shall determine that a
38 violation of this subdivision has occurred, the court may impose a civil
39 penalty of not more than five hundred dollars for the first violation,
40 and not more than one thousand dollars for the second or subsequent
41 violation within a three-year period. In connection with any such
42 proposed application, the attorney general is authorized to take proof
43 and make a determination of the relevant facts and to issue subpoenas in
44 accordance with the civil practice law and rules.
45 12. Notwithstanding any law, rule, or regulation to the contrary,
46 general operating funds required by the department shall not be reduced
47 due to monies expended from or by the excluded worker unemployment
48 program fund established pursuant to section ninety-five-k of the state
49 finance law.
50 § 3. The state finance law is amended by adding a new section 95-k to
51 read as follows:
52 § 95-k. Excluded worker unemployment program fund. 1. There is hereby
53 established in the joint custody of the commissioner of taxation and
54 finance and the state comptroller a special fund to be known as the
55 "excluded worker unemployment program fund".
A. 9037--A 17
1 2. Moneys in such fund shall consist of all moneys appropriated for
2 the purposes of such fund and all moneys appropriated, credited or
3 transferred thereto from any other fund or source pursuant to law. Any
4 interest received by the comptroller on money on deposit in the fund
5 shall be retained in and become part of the fund.
6 3. All moneys collected as contributions and interest relating to wage
7 replacement to workers and families unable to access traditional worker
8 wage insurance or assistance programs shall be deposited in a bank,
9 trust company or industrial bank designated by the state comptroller.
10 Moneys so deposited shall be credited immediately to the account of the
11 excluded worker unemployment program fund and shall be used for the
12 purposes set forth in section five hundred ninety-one-b of the labor
13 law. Moneys in such fund may be invested by the state comptroller in
14 accordance with the provisions of section ninety-eight of this article,
15 and shall only be used for the purposes specified herein.
16 4. Moneys in the fund shall be used exclusively for the purpose of
17 providing wage replacement to workers that do not qualify for unemploy-
18 ment insurance or other worker wage assistance programs and who have
19 lost a major source of income due to lost work. The moneys shall be paid
20 out of the fund on the audit and warrant of the state comptroller on
21 vouchers certified or approved by such commissioner or his or her duly
22 designated officer. Any balance in such fund shall not lapse at any time
23 but shall remain continuously available for such purposes.
24 5. Moneys of the fund shall not be used in whole or in part for any
25 purpose or in any manner which would (a) permit its substitution for, or
26 a corresponding reduction in, federal funds that would be available in
27 its absence to finance expenditures for the administration of this arti-
28 cle; or (b) cause the appropriate agency of the United States government
29 to withhold any part of an administrative grant which would otherwise be
30 made.
31 § 4. The sum of eight hundred million dollars ($800,000,000) is hereby
32 appropriated from any moneys in the state treasury in the general fund
33 to the credit of the state purposes account for the excluded worker
34 unemployment program fund in carrying out the provisions of this act.
35 Such sum shall be payable on the audit and warrant of the state comp-
36 troller on vouchers certified or approved in the manner provided by law.
37 No expenditure shall be made from this appropriation until a certificate
38 of approval of availability shall have been issued by the director of
39 the budget and filed with the state comptroller and a copy filed with
40 the chairman of the senate finance committee and the chairman of the
41 assembly ways and means committee. Such certificate may be amended from
42 time to time by the director of the budget and a copy of each such
43 amendment shall be filed with the state comptroller, the chairman of the
44 senate finance committee and the chairman of the assembly ways and means
45 committee.
46 § 5. Severability Clause. If any clause, sentence, paragraph, subdivi-
47 sion, section, or part of this act shall be adjudged by any court of
48 competent jurisdiction to be invalid, such judgment shall not affect,
49 impair or invalidate the remainder thereof, but shall be confined in its
50 operation to the clause, sentence, paragraph, subdivision, section, or
51 part thereof directly involved in the controversy in which such judgment
52 shall have been rendered. It is hereby declared to be the intent of the
53 legislature that this act would have been enacted even if such invalid
54 provisions had not been included herein.
55 § 6. This act shall take effect immediately.
