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
________________________________________________________________________
649
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. DINOWITZ, KAVANAGH, LAVINE, MILLER -- Multi-Spon-
sored by -- M. of A. GOTTFRIED, LIFTON -- read once and referred to
the Committee on Judiciary
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.
19 § 2. Paragraph 7 of subdivision A of section 750 of the judiciary law,
20 as amended by chapter 823 of the laws of 1982, is amended to read as
21 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02646-01-3
A. 649 2
1 7. Wilful failure to obey any mandate, process, or notice issued
2 pursuant to [articles] article sixteen[, seventeen, eighteen, eighteen-a
3 or eighteen-b] of [the judiciary law] this chapter, or to rules adopted
4 pursuant thereto, or to any other statute relating thereto, or refusal
5 to be sworn as provided therein, or subjection of an employee to
6 discharge [or], penalty, or discrimination in any other manner on
7 account of his or her absence from employment by reason of jury or
8 subpoenaed witness service in violation of this chapter or section
9 215.11 of the penal law. Applications to punish the accused for a
10 contempt specified in this subdivision may be made by notice of motion
11 or by order to show cause, and shall be made returnable at the term of
12 the supreme court at which contested motions are heard, or of the county
13 court if the supreme court is not in session.
14 § 3. Section 215 of the labor law, as amended by chapter 564 of the
15 laws of 2010, is amended to read as follows:
16 § 215. [Penalties] Civil penalties and civil action; prohibited retal-
17 iation. 1. (a) No employer or his or her agent, or the officer or agent
18 of any corporation, partnership, or limited liability company, or any
19 other person, shall discharge, threaten, penalize, or in any other
20 manner discriminate or retaliate against any employee (i) because such
21 employee has made a complaint to his or her employer, or to the commis-
22 sioner or his or her authorized representative, or to the attorney
23 general or any other person, that the employer has engaged in conduct
24 that the employee, reasonably and in good faith, believes violates any
25 provision of this chapter, or any order issued by the commissioner (ii)
26 because such employer or person believes that such employee has made a
27 complaint to his or her employer, or to the commissioner or his or her
28 authorized representative, or to the attorney general, or to any other
29 person that the employer has violated any provision of this chapter, or
30 any order issued by the commissioner (iii) because such employee has
31 caused to be instituted or is about to institute a proceeding under or
32 related to this chapter, or (iv) because such employee has provided
33 information to the commissioner or his or her authorized representative
34 or the attorney general, or (v) because such employee has testified or
35 is about to testify in an investigation or proceeding under this chap-
36 ter, or (vi) because such employee has otherwise exercised rights
37 protected under this chapter, or (vii) because the employer has received
38 an adverse determination from the commissioner involving the employee,
39 or (viii) because such employee has exercised his or her right to be
40 absent from employment pursuant to section five hundred nineteen of the
41 judiciary law by reason of jury service.
42 An employee complaint or other communication need not make explicit
43 reference to any section or provision of this chapter to trigger the
44 protections of this section.
45 (b) If after investigation the commissioner finds that an employer or
46 person has violated any provision of this section, the commissioner may,
47 by an order which shall describe particularly the nature of the
48 violation, assess the employer or person a civil penalty of not less
49 than one thousand nor more than ten thousand dollars. Each act taken in
50 contravention of a prohibition contained in this section shall consti-
51 tute a separate and distinct violation of this section, and in assessing
52 any such civil penalty the commissioner shall consider, in addition to
53 the nature of the violation, all prior findings of violations of the
54 provisions of this section by the employer. The commissioner may also
55 order all appropriate relief including enjoining the conduct of any
56 person or employer; ordering payment of liquidated damages to the
A. 649 3
1 employee by the person or entity in violation; and, where the person or
2 entity in violation is an employer ordering rehiring or reinstatement of
3 the employee to his or her former position or an equivalent position,
4 and an award of lost compensation or an award of front pay in lieu of
5 reinstatement and an award of lost compensation. Liquidated damages
6 shall be calculated as an amount not more than ten thousand dollars. The
7 commissioner may assess liquidated damages on behalf of every employee
8 aggrieved under this section, in addition to any other remedies permit-
9 ted by this section.
10 (c) The provisions of section two hundred thirteen of this article
11 shall not apply to the violations specified in this section.
12 (d) This section shall not apply to employees of the state or any
13 municipal subdivisions or departments thereof.
14 2. (a) [An] In addition to the civil penalties provided for under
15 subdivision one of this section, an employee may bring a civil action in
16 a court of competent jurisdiction against any employer or persons
17 alleged to have violated the provisions of this section. The court shall
18 have jurisdiction to restrain violations of this section, within two
19 years after such violation, regardless of the dates of employment of the
20 employee, and to order all appropriate relief, including enjoining the
21 conduct of any person or employer; ordering payment of liquidated
22 damages, costs and reasonable attorneys' fees to the employee by the
23 person or entity in violation; and, where the person or entity in
24 violation is an employer, ordering rehiring or reinstatement of the
25 employee to his or her former position with restoration of seniority or
26 an award of front pay in lieu of reinstatement, and an award of lost
27 compensation and damages, costs and reasonable attorneys' fees. Liqui-
28 dated damages shall be calculated as an amount not more than ten thou-
29 sand dollars. The court shall award liquidated damages to every employee
30 aggrieved under this section, in addition to any other remedies permit-
31 ted by this section. The statute of limitations shall be tolled from the
32 date an employee files a complaint with the commissioner or the commis-
33 sioner commences an investigation, whichever is earlier, until an order
34 to comply issued by the commissioner becomes final, or where the commis-
35 sioner does not issue an order, until the date on which the commissioner
36 notifies the complainant that the investigation has concluded. Investi-
37 gation by the commissioner shall not be a prerequisite to nor a bar
38 against a person bringing a civil action under this section.
39 (b) At or before the commencement of any action under this section,
40 notice thereof shall be served upon the attorney general by the employ-
41 ee.
42 3. Any employer or his or her agent, or the officer or agent of any
43 corporation, partnership, or limited liability company, or any other
44 person who violates subdivision one of this section shall be guilty of a
45 class B misdemeanor.
46 § 4. This act shall take effect on the thirtieth day after it shall
47 have become a law.
