Creates, in addition to the existing sanction of criminal contempt of court, the remedies of labor law civil penalties and employee's right to bring civil action for unlawful discharge, penalty or discrimination on account of the exercise by an employee of a juror's right to be absent from employment by reason of jury service.
STATE OF NEW YORK
________________________________________________________________________
116--A
2015-2016 Regular Sessions
IN ASSEMBLY(Prefiled)
January 7, 2015
___________
Introduced by M. of A. DINOWITZ, KAVANAGH, LAVINE, MILLER, ABINANTI,
WEPRIN -- Multi-Sponsored by -- M. of A. GOTTFRIED, LIFTON -- read
once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the judiciary law and the labor law, in relation to
creating additional remedies for unlawful discharge, penalty or
discrimination on account of the exercise of a juror's right to be
absent from employment for jury duty
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 519 of the judiciary law, as added by chapter 85
2 of the laws of 1995, is amended to read as follows:
3 § 519. Right of juror to be absent from employment. Any person who is
4 summoned to serve as a juror under the provisions of this article and
5 who notifies his or her employer to that effect prior to the commence-
6 ment of a term of service shall not, on account of absence from employ-
7 ment by reason of such jury service, be subject to discharge [or],
8 penalty, or discrimination in any other manner. An employer may, howev-
9 er, withhold wages of any such employee serving as a juror during the
10 period of such service; provided that an employer who employs more than
11 ten employees shall not withhold the first forty dollars of such juror's
12 daily wages during the first three days of jury service. Withholding of
13 wages in accordance with this section shall not be deemed a penalty or
14 discrimination in any other manner. Violation of this section shall
15 constitute a criminal contempt of court punishable pursuant to section
16 seven hundred fifty of this chapter and shall also constitute a
17 violation of section two hundred fifteen of the labor law and be subject
18 to the civil penalties and civil action provided for thereunder.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01547-02-5
A. 116--A 2
1 § 2. Paragraph 7 of subdivision A of section 750 of the judiciary law,
2 as amended by chapter 823 of the laws of 1982, is amended to read as
3 follows:
4 7. Wilful failure to obey any mandate, process, or notice issued
5 pursuant to [articles] article sixteen[, seventeen, eighteen, eighteen-a
6 or eighteen-b] of [the judiciary law] this chapter, or to rules adopted
7 pursuant thereto, or to any other statute relating thereto, or refusal
8 to be sworn as provided therein, or subjection of an employee to
9 discharge [or], penalty, or discrimination in any other manner on
10 account of his or her absence from employment by reason of jury or
11 subpoenaed witness service in violation of this chapter or section
12 215.11 of the penal law. Applications to punish the accused for a
13 contempt specified in this subdivision may be made by notice of motion
14 or by order to show cause, and shall be made returnable at the term of
15 the supreme court at which contested motions are heard, or of the county
16 court if the supreme court is not in session.
17 § 3. Section 215 of the labor law, as amended by chapter 564 of the
18 laws of 2010, paragraph (b) of subdivision 1 and paragraph (a) of subdi-
19 vision 2 as amended by chapter 537 of the laws of 2014, is amended to
20 read as follows:
21 § 215. [Penalties] Civil penalties and civil action; prohibited retal-
22 iation. 1. (a) No employer or his or her agent, or the officer or agent
23 of any corporation, partnership, or limited liability company, or any
24 other person, shall discharge, threaten, penalize, or in any other
25 manner discriminate or retaliate against any employee (i) because such
26 employee has made a complaint to his or her employer, or to the commis-
27 sioner or his or her authorized representative, or to the attorney
28 general or any other person, that the employer has engaged in conduct
29 that the employee, reasonably and in good faith, believes violates any
30 provision of this chapter, or any order issued by the commissioner (ii)
31 because such employer or person believes that such employee has made a
32 complaint to his or her employer, or to the commissioner or his or her
33 authorized representative, or to the attorney general, or to any other
34 person that the employer has violated any provision of this chapter, or
35 any order issued by the commissioner (iii) because such employee has
36 caused to be instituted or is about to institute a proceeding under or
37 related to this chapter, or (iv) because such employee has provided
38 information to the commissioner or his or her authorized representative
39 or the attorney general, or (v) because such employee has testified or
40 is about to testify in an investigation or proceeding under this chap-
41 ter, or (vi) because such employee has otherwise exercised rights
42 protected under this chapter, or (vii) because the employer has received
43 an adverse determination from the commissioner involving the employee,
44 or (viii) because such employee has exercised his or her right to be
45 absent from employment pursuant to section five hundred nineteen of the
46 judiciary law by reason of jury service.
47 An employee complaint or other communication need not make explicit
48 reference to any section or provision of this chapter to trigger the
49 protections of this section.
50 (b) If after investigation the commissioner finds that an employer or
51 person has violated any provision of this section, the commissioner may,
52 by an order which shall describe particularly the nature of the
53 violation, assess the employer or person a civil penalty of not less
54 than one thousand nor more than ten thousand dollars provided, however,
55 that if the commissioner finds that the employer has violated the
56 provisions of this section in the preceding six years, he or she may
A. 116--A 3
1 assess a civil penalty of not less than one thousand nor more than twen-
2 ty thousand dollars. Each act taken in contravention of a prohibition
3 contained in this section shall constitute a separate and distinct
4 violation of this section, and in assessing any such civil penalty the
5 commissioner shall consider, in addition to the nature of the violation,
6 all prior findings of violations of the provisions of this section by
7 the employer. The commissioner may also order all appropriate relief
8 including enjoining the conduct of any person or employer; ordering
9 payment of liquidated damages to the employee by the person or entity in
10 violation; and, where the person or entity in violation is an employer
11 ordering rehiring or reinstatement of the employee to his or her former
12 position or an equivalent position, and an award of lost compensation or
13 an award of front pay in lieu of reinstatement and an award of lost
14 compensation. Liquidated damages shall be calculated as an amount not
15 more than twenty thousand dollars. The commissioner may assess liqui-
16 dated damages on behalf of every employee aggrieved under this section,
17 in addition to any other remedies permitted by this section.
18 (c) The provisions of section two hundred thirteen of this article
19 shall not apply to the violations specified in this section.
20 (d) This section shall not apply to employees of the state or any
21 municipal subdivisions or departments thereof.
22 2. (a) [An] In addition to the civil penalties provided for under
23 subdivision one of this section, an employee may bring a civil action in
24 a court of competent jurisdiction against any employer or persons
25 alleged to have violated the provisions of this section. The court shall
26 have jurisdiction to restrain violations of this section, within two
27 years after such violation, regardless of the dates of employment of the
28 employee, and to order all appropriate relief, including enjoining the
29 conduct of any person or employer; ordering payment of liquidated
30 damages, costs and reasonable attorneys' fees to the employee by the
31 person or entity in violation; and, where the person or entity in
32 violation is an employer, ordering rehiring or reinstatement of the
33 employee to his or her former position with restoration of seniority or
34 an award of front pay in lieu of reinstatement, and an award of lost
35 compensation and damages, costs and reasonable attorneys' fees. Liqui-
36 dated damages shall be calculated as an amount not more than twenty
37 thousand dollars. The court shall award liquidated damages to every
38 employee aggrieved under this section, in addition to any other remedies
39 permitted by this section. The statute of limitations shall be tolled
40 from the date an employee files a complaint with the commissioner or the
41 commissioner commences an investigation, whichever is earlier, until an
42 order to comply issued by the commissioner becomes final, or where the
43 commissioner does not issue an order, until the date on which the
44 commissioner notifies the complainant that the investigation has
45 concluded. Investigation by the commissioner shall not be a prerequisite
46 to nor a bar against a person bringing a civil action under this
47 section.
48 (b) At or before the commencement of any action under this section,
49 notice thereof shall be served upon the attorney general by the employ-
50 ee.
51 3. Any employer or his or her agent, or the officer or agent of any
52 corporation, partnership, or limited liability company, or any other
53 person who violates subdivision one of this section shall be guilty of a
54 class B misdemeanor.
55 § 4. This act shall take effect on the thirtieth day after it shall
56 have become a law.
