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
________________________________________________________________________
2527
2017-2018 Regular Sessions
IN ASSEMBLY
January 20, 2017
___________
Introduced by M. of A. DINOWITZ, KAVANAGH, M. G. MILLER, ABINANTI,
WEPRIN -- Multi-Sponsored 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.
LBD03180-01-7
A. 2527 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, paragraph (b) of subdivision 1 and paragraph (a) of subdi-
16 vision 2 as amended by chapter 537 of the laws of 2014, is amended to
17 read as follows:
18 § 215. [Penalties] Civil penalties and civil action; prohibited retal-
19 iation. 1. (a) No employer or his or her agent, or the officer or agent
20 of any corporation, partnership, or limited liability company, or any
21 other person, shall discharge, threaten, penalize, or in any other
22 manner discriminate or retaliate against any employee (i) because such
23 employee has made a complaint to his or her employer, or to the commis-
24 sioner or his or her authorized representative, or to the attorney
25 general or any other person, that the employer has engaged in conduct
26 that the employee, reasonably and in good faith, believes violates any
27 provision of this chapter, or any order issued by the commissioner (ii)
28 because such employer or person believes that such employee has made a
29 complaint to his or her employer, or to the commissioner or his or her
30 authorized representative, or to the attorney general, or to any other
31 person that the employer has violated any provision of this chapter, or
32 any order issued by the commissioner (iii) because such employee has
33 caused to be instituted or is about to institute a proceeding under or
34 related to this chapter, or (iv) because such employee has provided
35 information to the commissioner or his or her authorized representative
36 or the attorney general, or (v) because such employee has testified or
37 is about to testify in an investigation or proceeding under this chap-
38 ter, or (vi) because such employee has otherwise exercised rights
39 protected under this chapter, or (vii) because the employer has received
40 an adverse determination from the commissioner involving the employee,
41 or (viii) because such employee has exercised his or her right to be
42 absent from employment pursuant to section five hundred nineteen of the
43 judiciary law by reason of jury service.
44 An employee complaint or other communication need not make explicit
45 reference to any section or provision of this chapter to trigger the
46 protections of this section.
47 (b) If after investigation the commissioner finds that an employer or
48 person has violated any provision of this section, the commissioner may,
49 by an order which shall describe particularly the nature of the
50 violation, assess the employer or person a civil penalty of not less
51 than one thousand nor more than ten thousand dollars provided, however,
52 that if the commissioner finds that the employer has violated the
53 provisions of this section in the preceding six years, he or she may
54 assess a civil penalty of not less than one thousand nor more than twen-
55 ty thousand dollars. Each act taken in contravention of a prohibition
56 contained in this section shall constitute a separate and distinct
A. 2527 3
1 violation of this section, and in assessing any such civil penalty the
2 commissioner shall consider, in addition to the nature of the violation,
3 all prior findings of violations of the provisions of this section by
4 the employer. The commissioner may also order all appropriate relief
5 including enjoining the conduct of any person or employer; ordering
6 payment of liquidated damages to the employee by the person or entity in
7 violation; and, where the person or entity in violation is an employer
8 ordering rehiring or reinstatement of the employee to his or her former
9 position or an equivalent position, and an award of lost compensation or
10 an award of front pay in lieu of reinstatement and an award of lost
11 compensation. Liquidated damages shall be calculated as an amount not
12 more than twenty thousand dollars. The commissioner may assess liqui-
13 dated damages on behalf of every employee aggrieved under this section,
14 in addition to any other remedies permitted by this section.
15 (c) The provisions of section two hundred thirteen of this article
16 shall not apply to the violations specified in this section.
17 (d) This section shall not apply to employees of the state or any
18 municipal subdivisions or departments thereof.
19 2. (a) [An] In addition to the civil penalties provided for under
20 subdivision one of this section, an employee may bring a civil action in
21 a court of competent jurisdiction against any employer or persons
22 alleged to have violated the provisions of this section. The court shall
23 have jurisdiction to restrain violations of this section, within two
24 years after such violation, regardless of the dates of employment of the
25 employee, and to order all appropriate relief, including enjoining the
26 conduct of any person or employer; ordering payment of liquidated
27 damages, costs and reasonable attorneys' fees to the employee by the
28 person or entity in violation; and, where the person or entity in
29 violation is an employer, ordering rehiring or reinstatement of the
30 employee to his or her former position with restoration of seniority or
31 an award of front pay in lieu of reinstatement, and an award of lost
32 compensation and damages, costs and reasonable attorneys' fees. Liqui-
33 dated damages shall be calculated as an amount not more than twenty
34 thousand dollars. The court shall award liquidated damages to every
35 employee aggrieved under this section, in addition to any other remedies
36 permitted by this section. The statute of limitations shall be tolled
37 from the date an employee files a complaint with the commissioner or the
38 commissioner commences an investigation, whichever is earlier, until an
39 order to comply issued by the commissioner becomes final, or where the
40 commissioner does not issue an order, until the date on which the
41 commissioner notifies the complainant that the investigation has
42 concluded. Investigation by the commissioner shall not be a prerequisite
43 to nor a bar against a person bringing a civil action under this
44 section.
45 (b) At or before the commencement of any action under this section,
46 notice thereof shall be served upon the attorney general by the employ-
47 ee.
48 3. Any employer or his or her agent, or the officer or agent of any
49 corporation, partnership, or limited liability company, or any other
50 person who violates subdivision one of this section shall be guilty of a
51 class B misdemeanor.
52 § 4. This act shall take effect on the thirtieth day after it shall
53 have become a law.
