STATE OF NEW YORK
________________________________________________________________________
6027--A
2015-2016 Regular Sessions
IN SENATE
August 7, 2015
___________
Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules -- recommitted
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 certain affirmative
defenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of subdivision 1 of section 195 of the labor
2 law, as added by chapter 564 of the laws of 2010, is amended to read as
3 follows:
4 (b) The commissioner shall prepare templates that comply with the
5 requirements of paragraph (a) of this subdivision. Each such template
6 shall be dual-language, including English and one additional language.
7 The commissioner shall determine, in his or her discretion, which
8 languages to provide in addition to English, based on the size of the
9 New York state population that speaks each language and any other factor
10 that the commissioner shall deem relevant. All such templates shall be
11 made available to employers in such manner as determined by the commis-
12 sioner. Employers may rely upon these templates and shall not be liable
13 for their good faith reliance upon the templates provided by the commis-
14 sioner;
15 § 2. Section 196-d of the labor law, as added by chapter 1007 of the
16 laws of 1968, is amended to read as follows:
17 § 196-d. Gratuities. No employer or his agent or an officer or agent
18 of any corporation, or any other person shall demand or accept, directly
19 or indirectly, any part of the gratuities, received by an employee, or
20 retain any part of a gratuity or of any charge purported to be a gratui-
21 ty for an employee. This provision shall not apply to the checking of
22 hats, coats or other apparel. Nothing in this subdivision shall be
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11769-03-6
S. 6027--A 2
1 construed as affecting the allowances from the minimum wage for gratui-
2 ties in the amount determined in accordance with the provisions of arti-
3 cle nineteen of this chapter nor as affecting any affirmative defenses
4 made available under this chapter, or any practices in connection with
5 banquets and other special functions where a fixed percentage of the
6 patron's bill is added for gratuities which are distributed to employ-
7 ees, nor to the sharing of tips by a waiter with a busboy or similar
8 employee.
9 § 3. Subdivision 1-a, the closing paragraph of subdivision 1-b and the
10 closing paragraph of subdivision 1-d of section 198 of the labor law,
11 subdivision 1-a as amended by chapter 362 of the laws of 2015, the clos-
12 ing paragraph of subdivision 1-b and the closing paragraph of subdivi-
13 sion 1-d as amended by chapter 537 of the laws of 2014, are amended to
14 read as follows:
15 1-a. On behalf of any employee paid less than the wage to which he or
16 she is entitled under the provisions of this article, the commissioner
17 may bring any legal action necessary, including administrative action,
18 to collect such claim and as part of such legal action, in addition to
19 any other remedies and penalties otherwise available under this article,
20 the commissioner shall assess against the employer the full amount of
21 any such underpayment, and an additional amount as liquidated damages,
22 unless the employer proves a good faith basis for believing that its
23 underpayment of wages was in compliance with the law, which may include,
24 but is not limited to, reliance by the employer on any template provided
25 by the commissioner pursuant to paragraph (b) of subdivision one of
26 section one hundred ninety-five of this article. Liquidated damages
27 shall be calculated by the commissioner as no more than one hundred
28 percent of the total amount of wages found to be due, except such liqui-
29 dated damages may be up to three hundred percent of the total amount of
30 the wages found to be due for a willful violation of section one hundred
31 ninety-four of this article. In any action instituted in the courts upon
32 a wage claim by an employee or the commissioner in which the employee
33 prevails, the court shall allow such employee to recover the full amount
34 of any underpayment, all reasonable attorney's fees, prejudgment inter-
35 est as required under the civil practice law and rules, and, unless the
36 employer proves a good faith basis to believe that its underpayment of
37 wages was in compliance with the law, which may include, but is not
38 limited to, reliance by employer on any template provided by the commis-
39 sioner pursuant to paragraph (b) of subdivision one of section one
40 hundred ninety-five of this article, an additional amount as liquidated
41 damages equal to one hundred percent of the total amount of the wages
42 found to be due, except such liquidated damages may be up to three
43 hundred percent of the total amount of the wages found to be due for a
44 willful violation of section one hundred ninety-four of this article.
45 On behalf of any employee not provided a notice as required by subdi-
46 vision one of section one hundred ninety-five of this article, the
47 commissioner may bring any legal action necessary, including administra-
48 tive action, to collect such claim, and as part of such legal action, in
49 addition to any other remedies and penalties otherwise available under
50 this article, the commissioner may assess against the employer damages
51 of fifty dollars for each work day that the violations occurred or
52 continue to occur, but not to exceed a total of five thousand dollars.
53 In any action or administrative proceeding to recover damages for
54 violation of paragraph (a) of subdivision one of section one hundred
55 ninety-five of this article, it shall be an affirmative defense that (i)
56 the employer made complete and timely payment of all wages due pursuant
S. 6027--A 3
1 to this article or article nineteen or article nineteen-A of this chap-
2 ter to the employee who was not provided notice as required by subdivi-
3 sion one of section one hundred ninety-five of this article [or]; (ii)
4 the employer reasonably believed in good faith that it was not required
5 to provide the employee with notice pursuant to subdivision one of
6 section one hundred ninety-five of this article; (iii) the employer
7 relied in good faith upon the templates provided by the commissioner
8 pursuant to paragraph (b) of subdivision one of section one hundred
9 ninety-five of this article; or (iv) the employee received sufficient
10 tips to equal or exceed the amount of any allowances claimed by the
11 employer as any part of the minimum wage, including any and all avail-
12 able tip allowances. In such circumstances where the employer estab-
13 lishes any of the affirmative defenses described in subparagraphs (i)
14 through (iv) of this paragraph, the employer shall not forfeit any tip
15 allowances available under law. These affirmative defenses shall be
16 available to employers in defense of actions brought by the commissioner
17 and/or by the employee.
18 On behalf of any employee not provided a statement as required by
19 subdivision three of section one hundred ninety-five of this article,
20 the commissioner may bring any legal action necessary, including admin-
21 istrative action, to collect such claim, and as part of such legal
22 action, in addition to any other remedies and penalties otherwise avail-
23 able under this article, the commissioner may assess against the employ-
24 er damages of two hundred fifty dollars for each work day that the
25 violations occurred or continue to occur, but not to exceed a total of
26 five thousand dollars. In any action or administrative proceeding to
27 recover damages for violation of subdivision three of section one
28 hundred ninety-five of this article, it shall be an affirmative defense
29 that (i) the employer made complete and timely payment of all wages due
30 pursuant to this article or articles nineteen or nineteen-A of this
31 chapter to the employee who was not provided statements as required by
32 subdivision three of section one hundred ninety-five of this article
33 [or]; (ii) the employer reasonably believed in good faith that it was
34 not required to provide the employee with statements pursuant to para-
35 graph (e) of subdivision one of section one hundred ninety-five of this
36 article; (iii) the employer relied in good faith upon the templates
37 provided by the commissioner pursuant to paragraph (b) of subdivision
38 one of section one hundred ninety-five of this article; or (iv) the
39 employee received sufficient tips to equal or exceed the amount of any
40 allowances claimed by the employer as any part of the minimum wage
41 including any and all available tip allowances. In such circumstances
42 where the employer establishes any of the affirmative defenses described
43 in subparagraphs (i) through (iv) of this paragraph the employer shall
44 not forfeit any tip allowances available under law. These affirmative
45 defenses shall be available to employers in defense of actions brought
46 by the commissioner and/or by the employee.
47 § 4. Section 199 of the labor law, as added by chapter 548 of the laws
48 of 1966, is amended to read as follows:
49 § 199. Rules and regulations. The commissioner may issue such rules
50 and regulations as he determines necessary for the purposes of carrying
51 out the provisions of this article, which shall be consistent with and
52 shall not alter the terms and conditions set forth in this article.
53 § 5. This act shall take effect immediately and shall apply to affir-
54 mative defenses that became available before, on, or after such effec-
55 tive date.
