Enacts the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"; relates to the delegation of state enforcement authority to private actors; authorizes an aggrieved employee or employees or a representative organization to initiate a public enforcement action on behalf of the commissioner for any provision of the labor law, or any regulation promulgated thereunder, that provides for a civil penalty to be assessed and collected by the commissioner for a violation of the labor law.
STATE OF NEW YORK
________________________________________________________________________
7958
2017-2018 Regular Sessions
IN ASSEMBLY
May 23, 2017
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection
3 Act".
4 § 2. Legislative findings. 1. The legislature finds and declares that
5 violations of the labor law are often systemic, affecting many workers.
6 2. The legislature further finds and declares that despite the labor
7 law's strong protections for workers, limits on the availability of
8 public enforcement resources have deleterious effects on the marketplace
9 by allowing abuses targeting workers to persist unprosecuted. To ensure
10 the robust enforcement of the labor law, while minimizing the outlay of
11 scarce state funds, this act allows private individuals to bring public
12 enforcement actions in certain contexts in which the state does not have
13 the means to fully enforce labor law protections.
14 3. The legislature further finds and declares that the purpose of the
15 EMPIRE Worker Protection Act is to create a means of empowering citizens
16 as private attorneys general to enforce the New York labor law.
17 4. The legislature further finds and declares that the purpose of the
18 EMPIRE Worker Protection Act is to incentivize private parties to
19 recover civil penalties for the government that otherwise may not have
20 been assessed and collected by overburdened state enforcement agencies.
21 Such representative actions are an efficient mechanism to limit systemic
22 violations, will enforce the rights of more workers, and can benefit the
23 department of labor with enhanced resources.
24 5. The legislature further finds and declares that the purpose of the
25 EMPIRE Worker Protection Act is to benefit those employers who are oper-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11483-02-7
A. 7958 2
1 ating within the labor law, and who, as a result, face unfair competi-
2 tion from individuals and entities shirking the labor law.
3 6. The legislature further finds and declares that the purpose of the
4 EMPIRE Worker Protection Act is to incentivize labor organizations and
5 not-for-profit organizations to aid working people to report violations
6 of the New York labor law.
7 7. The legislature further finds and declares that the purpose of the
8 EMPIRE Worker Protection Act is to facilitate whistleblowers suffering
9 from violations of the New York labor law to report abuses without fear
10 of retaliation and intimidation.
11 8. The legislature further finds and declares that the EMPIRE Worker
12 Protection Act is part of a history both in New York state and in the
13 United States of laws enabling private citizens to aid in public
14 enforcement in the whistleblower and more recently in the labor context.
15 In similar qui tam legislation enabling private citizens to aid in
16 public enforcement, the resulting action is in reality a public enforce-
17 ment action.
18 9. The legislature further finds and declares that the EMPIRE Worker
19 Protection Act further increases the capacity of the department of labor
20 as almost all of the department of labor's investigatory work is comp-
21 laint-driven rather than agency-driven. Moreover, the EMPIRE Worker
22 Protection Act will help offset the loss of human capital at the depart-
23 ment due to the decrease in senior labor investigators and stagnant
24 numbers of labor investigators employed by the department of labor since
25 2008.
26 10. The legislature further finds and declares that the mandate of the
27 EMPIRE Worker Protection Act is consistent with the legislature's
28 commitment to enhance worker protections, especially for low-wage work-
29 ers, as the majority of wages owed by employers according to department
30 of labor statistics are based on minimum wage violations.
31 § 3. The labor law is amended by adding a new article 33 to read as
32 follows:
33 ARTICLE 33
34 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
35 Section 960. Definitions.
36 961. Public enforcement action.
37 962. Procedure.
38 963. Construction and non-application.
39 § 960. Definitions. As used in this article, the following terms shall
40 have the following meanings:
41 1. "aggrieved employee" means any employee as defined by section two
42 of article one of this chapter who was employed by the alleged violator
43 employer and against whom one of the alleged violations was committed,
44 as well as any person who is not classified by a business as an employee
45 but who claims to be an employee and whose claims against the purported
46 employer relate to this alleged misclassification.
47 2. "employer" means any employer as defined by section two of article
48 one of this chapter.
49 3. "representative organization" means a labor organization as defined
50 by subdivision five of section seven hundred one of article twenty of
51 this chapter or a not-for-profit corporation, as defined by subpara-
52 graphs five and seven of paragraph (a) of section one hundred two of
53 article one of the not-for-profit corporation law, which not-for-profit
54 corporation regularly advocates on behalf of workers or employees and/or
55 regularly advocates for or assists in enforcement of the provisions of
56 this chapter.
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1 4. "public enforcement action" means an action brought under this
2 article intended to enforce this chapter's protections enforceable by
3 the commissioner.
4 5. "commissioner" shall, for the purposes of this article, include the
5 commissioner, and any division, board, commission, or part of the
6 department authorized to impose or seek penalties or other remedies for
7 violations of this chapter.
8 § 961. Public enforcement action. 1. An aggrieved employee or employ-
9 ees or a representative organization may initiate a public enforcement
10 action on behalf of the commissioner for any provision of this chapter,
11 or any regulation promulgated thereunder, that provides for a civil
12 penalty to be assessed and collected by the commissioner for a violation
13 of this chapter, or any regulation promulgated thereunder, on behalf of
14 himself or herself and other current or former employees pursuant to the
15 procedures specified in section nine hundred sixty-two of this article.
16 An aggrieved employee or a representative organization may allege multi-
17 ple violations that have affected different employees.
18 2. a. For purposes of this section, whenever the commissioner has
19 discretion to assess a civil penalty, a court shall be authorized to
20 exercise the same discretion to assess a civil penalty. To the extent
21 that the commissioner is authorized to determine that an employer has
22 violated a provision of this chapter or regulation promulgated there-
23 under, in a public enforcement action, a court shall be authorized to
24 determine that an employer has committed such a violation.
25 b. For all provisions of this chapter and regulations adopted pursuant
26 to this chapter, except those for which a civil penalty is specifically
27 provided, there is established a civil penalty of five hundred dollars
28 for each aggrieved employee per pay period per violation. A court may
29 not award a lesser amount, unless, based on the facts and circumstances
30 of the particular case, the employer demonstrates that to do otherwise
31 would result in an award that is unjust, arbitrary and oppressive, or
32 confiscatory.
33 c. Any aggrieved employee or a representative organization who
34 prevails in any public enforcement action shall be entitled to an award
35 of reasonable attorney's fees and costs.
36 d. Nothing in this section shall operate to limit an aggrieved employ-
37 ee's right to pursue or recover other remedies available under state or
38 federal law, either separately or concurrently with an action taken
39 under this section.
40 3. Civil penalties recovered by aggrieved employees or a represen-
41 tative organization in public enforcement actions shall be distributed
42 as follows: forty-five percent to the aggrieved employee or employees;
43 and fifty-five percent to the commissioner for enforcement of this chap-
44 ter and education of employers and employees about their rights and
45 responsibilities under this chapter, to be continuously appropriated to
46 supplement and not supplant the funding to the agency for those
47 purposes. If an aggrieved employee or employees elect a representative
48 organization to bring the public enforcement action, civil penalties
49 recovered shall be distributed as follows: thirty percent to the
50 aggrieved employee or employees; fifteen percent to the representative
51 organization; fifty-five percent to the commissioner for enforcement of
52 this chapter and education of employers and employees about their rights
53 and responsibilities under this chapter, to be continuously appropriated
54 to supplement and not supplant the funding to the agency for those
55 purposes.
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1 4. The right to bring a public enforcement action under this article
2 shall not be subject to private agreements between an aggrieved employee
3 and an employer or purported employer.
4 5. Notwithstanding any other provision of law, a public enforcement
5 action to recover upon a penalty imposed by this article must be
6 commenced within six years. The statute of limitations for bringing a
7 representative action under this article shall be tolled from the date
8 an aggrieved employee or a representative organization files a notice
9 pursuant to section nine hundred sixty-two of this article with the
10 commissioner or the commissioner commences an investigation, whichever
11 is earlier.
12 6. Public enforcement actions belong to the state and preclude subse-
13 quent state enforcement efforts, whether brought by the state or an
14 aggrieved employee or representative organization; provided, however,
15 public enforcement actions are not duplicative of private actions
16 related to the same issues or touching the same nucleus of operative
17 facts. Therefore, a public enforcement action brought under this arti-
18 cle does not have any preclusive effect on private actions addressing
19 similar wrongdoing.
20 7. The commissioner shall establish a publicly available database of
21 public enforcement actions brought pursuant to this article, including
22 the parties, the disposition and any other information which the commis-
23 sioner shall by regulation prescribe.
24 § 962. Procedure. 1. No public enforcement action by an aggrieved
25 employee or a representative organization pursuant to section nine
26 hundred sixty-one of this article alleging a violation of any provision
27 of this chapter may be commenced:
28 a. prior to thirty days after written notice has been given by the
29 aggrieved employee or a representative organization to the commissioner.
30 Such written notice shall be given in such a manner as the commissioner
31 may prescribe by regulation, shall be construed in a light favorable to
32 the aggrieved employee or representative organization, and shall
33 include:
34 (i) the name, address and contact information of the employer.
35 (ii) the name, address, occupation and contact information of the
36 aggrieved employee.
37 (iii) the name, address and contact information of the representative
38 organization, if the action is brought by a representative organization.
39 (iv) the name, address and contact information of the aggrieved
40 employee's legal counsel, should one exist.
41 (v) a statement of the underlying claim.
42 (vi) estimated number of employees affected.
43 b. if the commissioner, at any time prior to the end of the thirty day
44 notice period prescribed in paragraph a of this subdivision or prior to
45 commencement of such action, whichever is later, and upon written notice
46 to the aggrieved employee who provided the notice prescribed in para-
47 graph a of this subdivision, has commenced and is actively prosecuting
48 an administrative enforcement proceeding pursuant to this chapter rela-
49 tive to the alleged violation.
50 c. if the commissioner, on the same facts and theories, cites a person
51 within the timeframes set forth in this section for a violation of the
52 same section or sections of this chapter under which the aggrieved
53 employee or representative organization is attempting to recover a civil
54 penalty or remedy on behalf of himself or herself or others.
55 2. The commissioner may intervene in the public enforcement action and
56 proceed with any and all claims in the action:
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1 a. as of right within the thirty day notice period prescribed in para-
2 graph a of subdivision one of this section; or
3 b. for good cause, as determined by the court, after the expiration of
4 the thirty day notice period prescribed in paragraph a of subdivision
5 one of this section.
6 3. a. The aggrieved employee or representative organization shall,
7 within ten days following commencement of a civil action pursuant to
8 this article, provide the commissioner with a file-stamped copy of the
9 complaint that includes the case number assigned by the court.
10 b. Either the commissioner or a federal or state court of competent
11 jurisdiction shall review and approve any settlement of any civil action
12 filed pursuant to this section. The commissioner or court shall approve
13 the settlement if it is fair, reasonable, and adequate, in light of the
14 statutory purpose of the provision of this chapter alleged to have been
15 violated and the purpose of the EMPIRE Worker Protection Act.
16 c. A copy of the court's judgment in any civil action filed pursuant
17 to this article and any other order in that action that either provides
18 for or denies an award of civil penalties under this article shall be
19 submitted to the commissioner within ten days after entry of the judg-
20 ment or order.
21 d. Items required to be submitted to the commissioner under this
22 subdivision shall be transmitted in such a manner as the commissioner
23 shall prescribe for the filing of notices under paragraph a of subdivi-
24 sion one of this section.
25 4. If a representative organization initiates a public enforcement
26 action pursuant to this article, an aggrieved employee must elect the
27 representative organization in writing in a form which the commissioner
28 shall by regulation prescribe. In such cases, the aggrieved employee's
29 name and personal identifying information shall be kept confidential if
30 the aggrieved employee so chooses.
31 5. Such regulations prescribed pursuant to paragraph a of subdivision
32 one of this section shall provide for the right of the aggrieved employ-
33 ee or representative organization to furnish an amended notice, after
34 the notice by the commissioner to the aggrieved employee or represen-
35 tative organization that the original notice was not in compliance with
36 this section or the regulations issued thereunder and specifying with
37 particularity what the deficiencies were in the original notice. Such
38 notice and opportunity to amend shall be provided by the commissioner
39 within thirty days of the original notice or the original notice shall
40 be deemed in compliance with this section. The aggrieved employee or
41 representative organization shall have thirty days from receiving notice
42 from the commissioner that their original notice was not in compliance
43 with this section to amend the notice.
44 6. For the purposes of determining whether the aggrieved employee or
45 representative organization complied with this section, the notice shall
46 be construed in a light favorable to the employee or representative
47 organization.
48 § 963. Construction and non-application. 1. This article shall not
49 apply to the recovery of administrative and civil penalties in
50 connection with the unemployment insurance law as contained in article
51 eighteen of this chapter.
52 2. This article shall not apply to the recovery of administrative and
53 civil penalties in connection with the New York state labor relations
54 act as contained in article twenty of this chapter.
55 3. Severability. If any word, phrase, clause, sentence, paragraph,
56 subdivision, section or part of this article or the application thereof
A. 7958 6
1 to any person or circumstances shall be adjudged invalid by a court of
2 competent jurisdiction, such order or judgment shall be confined in its
3 operation to the controversy in which it was rendered, and shall not
4 affect or invalidate the remainder of this article, but shall be
5 confined in its operation to the word, phrase, clause, sentence, para-
6 graph, subdivision, section or part thereof directly involved in the
7 controversy in which such judgment shall have been rendered.
8 4. This article shall be construed in light of its remedial purposes
9 to expand the enforcement of this chapter.
10 § 4. This act shall take effect immediately.
