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, whistleblower or representative organization to initiate a public enforcement action on behalf of the commissioner for certain provisions of the labor law, or any regulation promulgated thereunder.
STATE OF NEW YORK
________________________________________________________________________
1848--A
2019-2020 Regular Sessions
IN SENATE
January 16, 2019
___________
Introduced by Sens. HOYLMAN, GIANARIS, JACKSON, KRUEGER, MAYER, MYRIE,
RAMOS, SALAZAR, SANDERS, SERRANO -- read twice and ordered printed,
and when printed to be committed to the Committee on Labor -- recom-
mitted to the Committee on Labor in accordance with Senate Rule 6,
sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00280-03-0
S. 1848--A 2
1 violations, will enforce the rights of more workers, and can benefit the
2 department of labor with enhanced resources.
3 5. The legislature further finds and declares that the purpose of the
4 EMPIRE Worker Protection Act is to benefit those employers who are oper-
5 ating within the labor law, and who, as a result, face unfair competi-
6 tion from individuals and entities shirking the labor law.
7 6. The legislature further finds and declares that the purpose of the
8 EMPIRE Worker Protection Act is to incentivize labor organizations and
9 not-for-profit organizations to aid working people to report violations
10 of the New York labor law.
11 7. The legislature further finds and declares that the purpose of the
12 EMPIRE Worker Protection Act is to facilitate whistleblowers suffering
13 from violations of the New York labor law to report abuses without fear
14 of retaliation and intimidation.
15 8. The legislature further finds and declares that the EMPIRE Worker
16 Protection Act is part of a history both in New York state and in the
17 United States of laws enabling private citizens to aid in public
18 enforcement in the whistleblower and more recently in the labor context.
19 In similar qui tam legislation enabling private citizens to aid in
20 public enforcement, the resulting action is in reality a public enforce-
21 ment action.
22 § 3. The labor law is amended by adding a new article 34 to read as
23 follows:
24 ARTICLE 34
25 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
26 Section 960. Definitions.
27 961. Representative civil action.
28 962. Procedure.
29 963. Non-application.
30 § 960. Definitions. Whenever used in this article:
31 1. "aggrieved employee" means any employee as defined by section two
32 of article one of this chapter who was employed by the alleged violator
33 employer and against whom one of the alleged violations was committed,
34 or was alleged to have been committed, as well as any person who is not
35 classified by a business as an employee but who claims to be an employee
36 and whose claims against the purported employer relate to this alleged
37 misclassification, whether or not that person has received full or
38 partial relief from harm.
39 2. "relator" means an aggrieved party, whistleblower, or a represen-
40 tative organization that acts as a plaintiff in a public enforcement
41 action under this chapter.
42 3. "whistleblower" means any current or former employee, contractor,
43 subcontractor, or employee of a contractor or subcontractor of the
44 defendant with knowledge of the alleged violations that is independent
45 of and materially adds to any publicly disclosed information about the
46 alleged violations.
47 4. "employer" means any employer as defined by section two of article
48 one of this chapter. The term "employer" shall not include a govern-
49 mental agency.
50 5. "representative organization" means a labor organization as defined
51 by subdivision five of section seven hundred one of article twenty of
52 this chapter or a not-for-profit corporation, as defined by subpara-
53 graphs five and seven of paragraph (a) of section one hundred two of
54 article one of the not-for-profit corporation law, which not-for-profit
55 corporation regularly assists in enforcement of the provisions of this
56 chapter and which has been selected by an aggrieved employee or whistle-
S. 1848--A 3
1 blower to initiate a public enforcement action on the aggrieved employ-
2 ee's or whistleblower's behalf, in written notice in such a manner as
3 the commissioner may prescribe by regulation. Where a representative
4 organization is designated as the relator, the aggrieved employee or
5 whistleblower may elect to have their name and personal identifying
6 information be kept confidential.
7 6. "public enforcement action" means an action brought under this
8 article intended to enforce this chapter's protections enforceable by
9 the commissioner. Nothing in this article shall be interpreted to
10 permit a public enforcement action against a governmental agency.
11 7. "community-based enforcement" means activities conducted by non-
12 profit community-based organizations to assist workers in enforcing
13 their employment rights, including outreach, education, training materi-
14 als, technical assistance, counseling, research and referral services,
15 as further defined by the commissioner.
16 8. "commissioner" shall, for the purposes of this article, include the
17 commissioner, and any division, board, commission, or part of the
18 department authorized to impose or seek penalties or other remedies for
19 violations of this chapter.
20 9. "violation" means an employer's noncompliance with any of the
21 requirements of the following articles of this chapter and with regu-
22 lations and wage orders promulgated by the commissioner in implementing
23 such articles:
24 a. article two except sections ten through twenty-five-c, sections
25 twenty-seven through thirty, and sections thirty-three through forty-
26 three;
27 b. article four except sections one hundred thirty, one hundred thir-
28 ty-seven, one hundred forty, one hundred forty-one, and one hundred
29 forty-five;
30 c. article four-a except sections one hundred fifty and one hundred
31 fifty-three through one hundred fifty-four-a;
32 d. article five except sections one hundred sixty-eight through one
33 hundred sixty-nine-a;
34 e. article six except sections one hundred ninety, one hundred nine-
35 ty-one-a, one hundred ninety-six, one hundred ninety-six-a, one hundred
36 ninety-eight-a, one hundred ninety-nine and one hundred ninety-nine-a;
37 f. article seven except sections two hundred-a, two hundred one, two
38 hundred two-b through two hundred two-g, two hundred four, two hundred
39 four-b, two hundred six, two hundred six-b, two hundred eight through
40 two hundred ten, two hundred eleven, two hundred eleven-a, two hundred
41 twelve-c, two hundred thirteen through two hundred fourteen, two hundred
42 fifteen-a, two hundred fifteen-b, two hundred sixteen, two hundred nine-
43 teen-a, and two hundred nineteen-c;
44 g. article nine except sections two hundred thirty, two hundred thir-
45 ty-four through two hundred thirty-six, and two hundred thirty-eight;
46 h. article ten except section two hundred forty-two;
47 i. article eleven except sections two hundred sixty through two
48 hundred sixty-eight, two hundred seventy-five through two hundred seven-
49 ty-seven, two hundred ninety-seven, and three hundred fifteen;
50 j. article thirteen except sections three hundred fifty through three
51 hundred fifty-three, and three hundred fifty-five through three hundred
52 sixty-three;
53 k. article fourteen;
54 l. article fifteen except sections four hundred, four hundred one,
55 four hundred twenty-five, four hundred thirty-two, four hundred thirty-
56 six and four hundred thirty-seven;
S. 1848--A 4
1 m. article sixteen except sections four hundred fifty, four hundred
2 fifty-one, four hundred fifty-six, four hundred fifty-eight through four
3 hundred sixty, four hundred sixty-two, four hundred sixty-three, and
4 four hundred sixty-five;
5 n. article seventeen except sections four hundred seventy-one through
6 four hundred seventy-four-a;
7 o. article nineteen except sections six hundred fifty, six hundred
8 fifty-one, six hundred fifty-three through six hundred sixty, six
9 hundred sixty-two, and six hundred sixty-five;
10 p. article nineteen-a except sections six hundred seventy through six
11 hundred seventy-two, six hundred seventy-four through six hundred seven-
12 ty-eight, six hundred eighty, and six hundred eighty-three;
13 q. article nineteen-b except sections six hundred ninety, six hundred
14 ninety-three, and six hundred ninety-four;
15 r. article twenty-b except sections seven hundred thirty-three, seven
16 hundred thirty-eight, and seven hundred thirty-nine;
17 s. article twenty-c;
18 t. article twenty-five-a except sections eight hundred sixty, eight
19 hundred sixty-a, eight hundred sixty-c through eight hundred sixty-f,
20 and eight hundred sixty-i;
21 u. article twenty-seven except sections eight hundred seventy-a
22 through eight hundred seventy-f and eight hundred seventy-h through
23 eight hundred seventy-o;
24 v. article twenty-eight except sections eight hundred seventy-five,
25 eight hundred seventy-seven, and eight hundred eighty-one through eight
26 hundred eighty-three; and
27 w. article thirty except sections nine hundred, nine hundred one, nine
28 hundred three, and nine hundred five through nine hundred eight.
29 § 961. Representative civil action. 1. A relator may initiate a public
30 enforcement action to collect civil penalties on behalf of the commis-
31 sioner for a violation on behalf of himself or herself and other current
32 or former employees pursuant to the procedures specified in section nine
33 hundred sixty-two of this article. A relator may allege multiple
34 violations that have affected different employees and may seek injunc-
35 tive and declaratory relief that the state would be entitled to seek.
36 2. a. For purposes of this section, whenever the commissioner has
37 discretion to assess a civil penalty, a court is authorized to exercise
38 the same discretion to assess a civil penalty. To the extent that the
39 commissioner is authorized to determine that an employer has violated a
40 provision of this chapter or regulation promulgated thereunder, in a
41 public enforcement action, a court shall be authorized to determine that
42 an employer has committed such a violation.
43 b. For any violation defined in this article, except those for which a
44 civil penalty is specifically provided, there is established a civil
45 penalty of five hundred dollars for each aggrieved employee per pay
46 period per violation. A court may not award a lesser amount, unless,
47 based on the facts and circumstances of the particular case, the employ-
48 er demonstrates that to do otherwise would result in an award that is
49 unjust, arbitrary and oppressive, or confiscatory.
50 c. In any civil action commenced pursuant to this article, the court
51 shall allow a prevailing relator to recover all reasonable attorneys'
52 fees, expert fees and other costs. For the purposes of this article, the
53 term "prevailing" includes a relator whose commencement of litigation
54 has acted as a catalyst to effect policy change on the part of the
55 defendant, regardless of whether that change has been implemented volun-
S. 1848--A 5
1 tarily, as a result of a settlement or as a result of a judgment in such
2 relator's favor.
3 d. Nothing in this section shall operate to limit an aggrieved employ-
4 ee's right to pursue or recover other remedies available under state or
5 federal law, either separately or concurrently with an action taken
6 under this section.
7 e. Nothing in this section shall operate to limit the commissioner's
8 right to seek restitution and damages, where available, for aggrieved
9 employees in conjunction with a public enforcement action in which it
10 has intervened.
11 3. a. Civil penalties recovered in public enforcement actions shall
12 be distributed as follows: where the commissioner has not intervened,
13 forty percent to the relator; and sixty percent to the commissioner for
14 enforcement of this chapter and education of employers and employees
15 about their rights and responsibilities under this chapter, to be
16 continuously appropriated to supplement and not supplant the funding to
17 the agency for those purposes; where the commissioner has intervened,
18 thirty percent to the relator; and seventy percent to the commissioner
19 for enforcement of this chapter and education of employers and employees
20 about their rights and responsibilities under this chapter, to be
21 continuously appropriated to supplement and not supplant the funding to
22 the agency for those purposes.
23 b. Twenty-five percent of the commissioner's penalty share shall be
24 reserved for community-based enforcement.
25 c. The relator shall equitably distribute the share of penalties due
26 the relator among aggrieved employees, with due consideration of the
27 burdens and risks assumed by the relator in prosecuting the action. If
28 the relator is a representative organization, it shall distribute all
29 recovered penalties to aggrieved workers but may recover reasonable
30 attorneys' fees and costs incurred in prosecuting the action and ancil-
31 lary costs associated with serving as a relator. The relator, shall
32 submit a distribution summary to the commissioner.
33 4. The right to bring a public enforcement action under this article
34 shall not be subject to private agreements between an aggrieved employee
35 and an employer or alleged employer.
36 5. Notwithstanding any other provision of law, a public enforcement
37 action to recover upon a penalty imposed by this article must be
38 commenced within six years. The statute of limitations for bringing a
39 representative action under this article shall be tolled from the date a
40 relator files a notice pursuant to section nine hundred sixty-two of
41 this article with the commissioner or the commissioner commences an
42 investigation, whichever is earlier.
43 6. The commissioner shall establish a database of public enforcement
44 notices submitted pursuant to this article, including the parties, the
45 disposition and any other information which the commissioner shall by
46 regulation prescribe and shall make such database available to the
47 public online. The commissioner shall also publish an annual report of
48 total penalties recovered under this chapter.
49 7. a. No employer or his or her agent, employee, contractor, subcon-
50 tractor or the officer or agent of any corporation, partnership, or
51 limited liability company, or any other person shall discharge, demote,
52 suspend, threaten, harass, or in any other manner discriminate against
53 any person because of any lawful act done because:
54 (i) the relator or potential relator brought or is perceived to have
55 brought a public enforcement action;
S. 1848--A 6
1 (ii) the relator or potential relator has provided information, caused
2 information to be provided, or otherwise assisted in a public enforce-
3 ment action or provided information, or caused information to be
4 provided to a person with supervisory authority over the relator or
5 potential relator regarding conduct that the relator or potential rela-
6 tor reasonably believes constitutes a violation of this section; or
7 (iii) the person believes that the relator or potential relator may
8 bring a public enforcement action or cooperate with one.
9 b. Any person aggrieved by a violation of this subdivision may bring a
10 public enforcement action for all appropriate relief, including enjoin-
11 ing the conduct of any person or employer; ordering payment of civil
12 penalties as provided by section two hundred fifteen of this chapter,
13 costs and reasonable attorneys' fees to the employee by the person or
14 entity in violation; and, where the person or entity in violation is an
15 employer, ordering rehiring or reinstatement of the employee to his or
16 her former position with restoration of seniority. Any person aggrieved
17 by a violation of this subdivision may also bring a civil action in a
18 court of competent jurisdiction against any employer or persons alleged
19 to have violated the provisions of this subdivision pursuant to subdivi-
20 sion two of section two hundred fifteen of this chapter.
21 c. There shall be a rebuttable presumption that any adverse actions
22 taken against a relator within one hundred eighty days after the relator
23 has filed an action under this chapter is retaliatory. Nothing in this
24 subdivision shall be interpreted to prohibit an inference of retaliatory
25 motive after one hundred eighty days after the relator has filed an
26 action under this chapter.
27 § 962. Procedure. 1. No representative civil action by a relator
28 pursuant to section nine hundred sixty-one of this article may be
29 commenced:
30 a. prior to thirty days after written notice has been given by the
31 relator to the commissioner. The relator shall submit a filing fee of
32 seventy-five dollars to the commissioner, and the time periods in this
33 section shall begin when notice and filing fee have been submitted. The
34 fees required by this paragraph are subject to waiver in accordance with
35 rules promulgated by the commissioner. The written notice shall be given
36 in such a manner as the commissioner may prescribe by regulation, shall
37 be construed in a light favorable to the relator, and shall include:
38 (i) the name, address and contact information of the employer.
39 (ii) the name, address, and contact information of the aggrieved
40 employee or whistleblower.
41 (iii) if the action is brought by a representative organization, the
42 name, address and contact information of the representative organiza-
43 tion, it's qualification as a representative organization as defined in
44 this chapter, and the form on which the whistleblower or aggrieved
45 employee has designated the representative organization.
46 (iv) the name, address and contact information of the relator's legal
47 counsel, should one exist.
48 (v) a statement of the underlying claim.
49 (vi) if the relator is a "whistleblower," the relator's knowledge of
50 the alleged violations that is independent of and materially adds to
51 publicly disclosed information.
52 (vii) after searching the database established pursuant to subdivision
53 six of section nine hundred sixty-one of this article for notices alleg-
54 ing the same facts and legal theories, a summary of such notices or
55 statement that no such notices exist, provided that a notice filed by a
S. 1848--A 7
1 pro se litigant may not be rejected for failure to conduct such a
2 search.
3 b. if the commissioner, at any time prior to the end of the thirty day
4 notice period prescribed in paragraph a of this subdivision or prior to
5 commencement of such action, whichever is later, and upon written notice
6 to the relator who provided the notice prescribed in paragraph a of this
7 subdivision, has commenced and is actively prosecuting an administrative
8 enforcement proceeding pursuant to this chapter relative to the alleged
9 violation.
10 c. if the commissioner, on the same facts and theories, cites a person
11 within the timeframes set forth in this section for a violation of the
12 same section or sections of this chapter under which the relator is
13 attempting to recover a civil penalty or remedy on behalf of himself or
14 herself or others.
15 d. if the violation is of a posting or agency reporting requirement or
16 agency filing requirement, except where the filing of reporting require-
17 ment involves mandatory payroll or injury reporting.
18 e. if the violation is for minor variations in the legal name or
19 address of the employer in a wage statement or wage notice required
20 under article six of this chapter, provided that the variations do not
21 impair a worker's ability to promptly and easily identify the employer.
22 2. The commissioner may intervene in the public enforcement action and
23 proceed with any and all claims in the action:
24 a. as of right within the thirty day notice period prescribed in para-
25 graph a of subdivision one of this section; or
26 b. for good cause, as determined by the court, after the expiration of
27 the thirty day notice period prescribed in paragraph a of subdivision
28 one of this section.
29 3. a. If the commissioner intervenes in an action, he or she shall
30 have primary responsibility for litigating the action and shall not be
31 bound by an act of the relator bringing the action. In such cases, the
32 relator shall remain a party to the action. The commissioner may dismiss
33 or settle the action after the relator has been notified of the filing
34 of the motion and has been provided with an opportunity to be heard, and
35 the court determines that such dismissal or settlement is fair,
36 adequate, reasonable, and in the public interest.
37 4. Either the commissioner or a federal or state court of competent
38 jurisdiction shall review and approve any settlement of any civil action
39 filed pursuant to this article or of any claim for which a relator has
40 provided notice pursuant to this section. The commissioner or court
41 shall approve the settlement if it is fair, reasonable and adequate, in
42 light of the statutory purpose of the provision of this chapter alleged
43 to have been violated and the purpose of this article.
44 5. a. The relator shall, within ten days following commencement of a
45 civil action pursuant to this article, provide the commissioner with a
46 file-stamped copy of the complaint that includes the case number
47 assigned by the court.
48 b. If the commissioner so requests, he or she shall be served with
49 copies of pleadings filed in the action and shall be supplied with
50 copies of all deposition transcripts. The commissioner shall bear any
51 costs associated with service of such pleadings and depositions if there
52 are such costs.
53 c. A copy of the court's judgment in any civil action filed pursuant
54 to this article and any other order in that action that either provides
55 for or denies an award of civil penalties under this article shall be
S. 1848--A 8
1 submitted to the commissioner within ten days after entry of the judg-
2 ment or order.
3 d. Items required to be submitted to the commissioner under this
4 subdivision shall be transmitted in such a manner as the commissioner
5 shall prescribe for the filing of notices under paragraph a of subdivi-
6 sion one of this section.
7 6. Such regulations prescribed pursuant to paragraph a of subdivision
8 one of this section shall provide for the right of the relator to
9 furnish an amended notice, after the notice by the commissioner to the
10 relator that the original notice was not in compliance with this section
11 or the regulations issued thereunder and specifying with particularity
12 what the deficiencies were in the original notice. Such notice and
13 opportunity to amend shall be provided by the commissioner within thirty
14 days of the original notice or the original notice shall be deemed in
15 compliance with this section. The relator shall have thirty days from
16 receiving notice from the commissioner that their original notice was
17 not in compliance with this section to amend the notice.
18 7. A public enforcement action shall be tried promptly, without regard
19 to concurrent adjudication of private claims.
20 8. No public enforcement action brought pursuant to this article shall
21 be required to meet the requirements of Rule 23(a) of the Federal Rules
22 of Civil Procedure or article nine of the civil practice law and rules.
23 9. The rules governing pretrial discovery in a public enforcement
24 action brought pursuant to this article shall be the same as those
25 applicable to other civil actions. No special showing of merit or other
26 additional requirement shall be imposed on a relator's discovery rights
27 in such an action.
28 10. A relator bringing an action pursuant to this article shall be
29 entitled to discovery regarding the alleged violations as to all
30 aggrieved employees as defined in this article.
31 11. When related public enforcement actions are pending, the parties
32 shall immediately notify the courts overseeing such actions of the over-
33 lap and submit a joint statement describing the overlap, which may
34 propose a process to ensure the just, speedy, and efficient determi-
35 nation of the actions. The court may appoint lead enforcement counsel
36 with sole responsibility for asserting the related claims, with consid-
37 eration of the following factors: a. the work that counsel has done in
38 investigating the claims; b. counsel's experience litigating labor law
39 and past performance in similar cases; c. counsel's diligence in advanc-
40 ing the case; d. the resources that counsel has committed and will
41 commit to prosecuting the case, and the relative resources at counsel's
42 disposal; and e. the length of time each action has been pending.
43 § 963. Non-application. 1. This article shall not apply to the recov-
44 ery of administrative and civil penalties in connection with the unem-
45 ployment insurance law as contained in article eighteen of this chapter.
46 2. This article shall not apply to the recovery of administrative and
47 civil penalties in connection with the New York state labor relations
48 act as contained in article twenty of this chapter.
49 3. Severability. If any word, phrase, clause, sentence, paragraph,
50 subdivision, section or part of this article or the application thereof
51 to any person or circumstances shall be adjudged invalid by a court of
52 competent jurisdiction, such order or judgment shall be confined in its
53 operation to the controversy in which it was rendered, and shall not
54 affect or invalidate the remainder of this article, but shall be
55 confined in its operation to the word, phrase, clause, sentence, para-
S. 1848--A 9
1 graph, subdivision, section or part thereof directly involved in the
2 controversy in which such judgment shall have been rendered.
3 4. This article shall be construed in light of its remedial purposes
4 to expand the enforcement of this chapter.
5 § 4. This act shall take effect immediately.
