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S08380 Summary:

S08380 Actions:

S08380 Floor Votes:

S08380 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8380
 
                    IN SENATE
 
                                      June 27, 2010
                                       ___________
 
        Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        AN ACT to amend the labor law, in  relation  to  establishing  the  wage
          theft prevention act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 

     1    Section 1. This act shall be known and may be cited as the "wage theft
     2  prevention act".
     3    § 2. Section 2 of the labor law is amended by adding a new subdivision
     4  16 to read as follows:
     5    16. All references to labor law, chapter, article or section shall  be
     6  deemed  to  include any rule, regulation or order promulgated thereunder
     7  or related thereto.
     8    § 3.  Subdivisions 1, 2, 3 and 4 of section 195 of the labor  law,  as
     9  added by chapter 548 of the laws of 1966 and subdivision 1 as amended by
    10  chapter 270 of the laws of 2009, are amended to read as follows:
    11    1.  (a)  [notify]  provide his or her employees, in writing in English
    12  and in the language identified by each employee as the primary  language

    13  of  such employee, at the time of hiring [of], and on or before February
    14  first of each subsequent year of  the  employee's  employment  with  the
    15  employer,  a  notice  containing  the following information: the rate or
    16  rates of pay and [of] basis thereof, whether paid by  the  hour,  shift,
    17  day,  week,  salary,  piece,  commission,  or other; allowances, if any,
    18  claimed as part of the minimum wage, including  tip,  meal,  or  lodging
    19  allowances; the regular pay day designated by the employer in accordance
    20  with  section one hundred ninety-one of this article[, and]; the name of
    21  the employer; any "doing business as" names used by  the  employer;  the

    22  physical  address  of  the  employer's main office or principal place of
    23  business, and a mailing address if different; the  telephone  number  of
    24  the  employer;  plus  such  other  information as the commissioner deems
    25  material and necessary. Each time the employer provides such  notice  to
    26  an  employee,  the  employer shall obtain from the employee a signed and
    27  dated written acknowledgement [from each employee], in  English  and  in
    28  the  primary  language of the employee, of receipt of this notice, which
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD17901-01-0

        S. 8380                             2
 
     1  the employer shall preserve and maintain for six  years.  Such  acknowl-
     2  edgement  shall include an affirmation by the employee that the employee
     3  accurately identified his or her primary language to the  employer,  and
     4  that  the  notice  provided by the employer to such employee pursuant to
     5  this subdivision was in the language so identified or otherwise complied
     6  with paragraph (c) of this subdivision, and shall conform to  any  addi-
     7  tional  requirements  established  by  the  commissioner  with regard to
     8  content and form. For all employees who are [eligible  for]  not  exempt
     9  from  overtime compensation as established in the commissioner's minimum

    10  wage orders or otherwise provided by New York state law  or  regulation,
    11  the notice must state the regular hourly rate and overtime rate of pay;
    12    (b)  The  commissioner  shall  prepare  templates that comply with the
    13  requirements of paragraph (a) of this subdivision.   Each such  template
    14  shall  be  dual-language, including English and one additional language.
    15  The commissioner shall  determine,  in  his  or  her  discretion,  which
    16  languages  to  provide  in addition to English, based on the size of the
    17  New York state population that speaks each language and any other factor
    18  that the commissioner shall deem relevant.  All such templates shall  be
    19  made  available to employers in such manner as determined by the commis-
    20  sioner;

    21    (c) When an employee identifies as  his  or  her  primary  language  a
    22  language  for  which  a template is not available from the commissioner,
    23  the employer shall  comply  with  this  subdivision  by  providing  that
    24  employee an English-language notice or acknowledgment;
    25    (d)  An employer shall not be penalized for errors or omissions in the
    26  non-English portions of any notice provided by the commissioner;
    27    (e) The commissioner shall have discretion to waive or alter  require-
    28  ments  of  paragraph (a) of this subdivision for temporary help firms as
    29  defined in section nine hundred sixteen of this chapter.
    30    2. notify his or her employees in writing of any changes to the infor-

    31  mation set forth in [the pay] subdivision one of this section, at  least
    32  seven  calendar  days  prior  to  the  time of such changes, unless such
    33  changes are reflected on the wage statement furnished in accordance with
    34  subdivision three of this section;
    35    3. furnish each employee with a statement with every payment of wages,
    36  listing the following: the dates of work  covered  by  that  payment  of
    37  wages;  name  of employee; name of employer; address and phone number of
    38  employer; rate or rates of pay and basis thereof, whether  paid  by  the
    39  hour,  shift,  day,  week,  salary,  piece,  commission, or other; gross
    40  wages[,]; deductions; allowances, if any, claimed as part of the minimum

    41  wage; and net wages[, and upon]. For all employees who  are  not  exempt
    42  from  overtime compensation as established in the commissioner's minimum
    43  wage orders or otherwise provided by New York state law  or  regulation,
    44  the statement shall include the regular hourly rate or rates of pay; the
    45  overtime  rate  or rates of pay; the number of regular hours worked, and
    46  the number of overtime hours worked. For  all  employees  paid  a  piece
    47  rate,  the statement shall include the applicable piece rate or rates of
    48  pay and number of pieces completed at each piece rate. Upon the  request
    49  of  an  employee, an employer shall furnish an explanation in writing of
    50  how such wages were computed;

    51    4. establish, maintain and preserve for  not  less  than  [three]  six
    52  years  contemporaneous,  true,  and accurate payroll records showing for
    53  each week worked the hours worked[,]; the rate or rates of pay and basis
    54  thereof, whether paid by the hour,  shift,  day,  week,  salary,  piece,
    55  commission,  or  other;  gross wages[,]; deductions; allowances, if any,
    56  claimed as part of the minimum wage; and net wages  for  each  employee.
        S. 8380                             3
 
     1  For  all  employees  who  are  not  exempt from overtime compensation as
     2  established in the  commissioner's  minimum  wage  orders  or  otherwise

     3  provided  by New York state law or regulation, the payroll records shall
     4  include  the  regular  hourly rate or rates of pay, the overtime rate or
     5  rates of pay, the number of regular hours  worked,  and  the  number  of
     6  overtime  hours worked. For all employees paid a piece rate, the payroll
     7  records shall include the applicable piece rate  or  rates  of  pay  and
     8  number of pieces completed at each piece rate;
     9    § 4. Section 196 of the labor law, as added by chapter 548 of the laws
    10  of  1966,  paragraph b of subdivision 1 as amended by chapter 328 of the
    11  laws of 1972 and paragraph e of subdivision 1 as added by chapter 336 of
    12  the laws of 1985, is amended to read as follows:
    13    § 196. Powers of commissioner. 1. In addition to  the  powers  of  the

    14  commissioner  specified  in  other sections of this chapter, the commis-
    15  sioner shall have the following duties, powers and authority:
    16    a. He or she shall investigate and attempt to adjust equitably contro-
    17  versies between employers and employees relating  to  this  article,  or
    18  article five, seven, nineteen or nineteen-A of this [article] chapter.
    19    b.  He or she may take assignments of claims for wages [as defined in]
    20  under this [article] chapter from employees or third  parties  in  trust
    21  for  such employees or for the benefit of various funds for such employ-
    22  ees. All such assignments shall run to the commissioner and his  or  her
    23  successor  in  office. The commissioner may sue employers on wage claims

    24  thus assigned, with the benefits and subject to the provisions of exist-
    25  ing law applying to actions by employees for collection of wages.  He or
    26  she may join in a single action any number of wage  claims  against  the
    27  same employer.
    28    c.  He  or  she  may  institute proceedings on account of any criminal
    29  violation of any provision of this  article,  or  article  five,  seven,
    30  nineteen or nineteen-A of this [article] chapter.
    31    d.  If  it  shall  appear  to  him  or  her that any employer has been
    32  convicted of a violation of any provision of  this  article  or  article
    33  nineteen  or nineteen-A of this chapter or that any [judgement] order to

    34  comply issued against an employer [for non-payment of wages] under  this
    35  chapter  remains  unsatisfied for a period of ten days after the time to
    36  appeal therefrom has expired, and that no appeal therefrom is then pend-
    37  ing, the commissioner may require such employer to deposit with  him  or
    38  her  a bond in such sum as he or she may deem sufficient and adequate in
    39  the circumstances, together with two or more sureties or a duly  author-
    40  ized  surety company, to be approved by the commissioner. The bond shall
    41  be payable to the commissioner and shall be conditioned that the employ-
    42  er will, for a definite future period, not exceeding two years, pay  his
    43  or  her  employees  in accordance with the provisions of this article or

    44  article nineteen or nineteen-A of this chapter,  and  shall  be  further
    45  conditioned upon the payment by the employer of any amounts due pursuant
    46  to  an order to comply or judgment [which may be recovered] against such
    47  employer pursuant to the provisions of this article or article  nineteen
    48  or nineteen-A of this chapter.
    49    If  within  ten  days  after demand for such bond, which demand may be
    50  made by certified or registered mail, such employer shall fail to depos-
    51  it the same, the commissioner may bring an action in  the  name  and  on
    52  behalf  of  the people of the state of New York against such employer in
    53  the supreme court to compel such employer to furnish such a bond  or  to
    54  cease  doing  business  until  he or she has done so. The employer shall

    55  have the burden of proving that either such a  bond  is  unnecessary  or
    56  that  the amount demanded is excessive. If the court finds that there is
        S. 8380                             4
 
     1  just cause for requiring the bond and that same is reasonably  necessary
     2  or proper to secure prompt payment of the wages of the employees of such
     3  employer  and  his or her compliance with the provisions of this article
     4  or  article nineteen or nineteen-A of this chapter, the court may enjoin
     5  such employer and such other person or persons as may have been  or  may
     6  be  concerned with or in any way participating in the failure to pay the
     7  wages resulting in the conviction [or  in  the  judgment]  or  order  to
     8  comply  as  aforesaid,  from doing business until the requirement is met

     9  and make other and further orders appropriate to compel compliance  with
    10  the requirement.
    11    If  any  order to comply issued against an employer under this article
    12  or article nineteen or nineteen-A of this  chapter  remains  unsatisfied
    13  for a period of ten days after the time to appeal therefrom has expired,
    14  and  that  no  appeal  therefrom  is  then pending, the commissioner may
    15  require the employer to provide an accounting of assets of the employer,
    16  including but not limited to, a list  of  all  bank  accounts,  accounts
    17  receivable, personal property, real property, automobiles or other vehi-
    18  cles,  and  any  other assets, in a form and manner as prescribed by the
    19  commissioner. An employer shall  provide  such  amended  accountings  of

    20  assets  as the commissioner shall order. If within ten days after demand
    21  for such an accounting of assets, which demand may be made by  certified
    22  or  registered mail, such employer shall fail to provide same, or if the
    23  employer fails to provide an amended accounting as required  under  this
    24  section,  the commissioner may bring an action in the name and on behalf
    25  of the people of the state of New York  against  such  employer  in  the
    26  supreme  court to compel such employer to furnish the accounting and pay
    27  a civil penalty of no more than ten thousand dollars.
    28    e. He or she is hereby authorized and empowered to enter into recipro-
    29  cal agreements with the labor department or corresponding agency of  any
    30  other state or with the person, board, officer, or commission authorized

    31  to  act  on  behalf  of such department or agency, for the collection in
    32  such other states of claims and judgments for wages  based  upon  claims
    33  assigned to the commissioner.
    34    The  commissioner  may,  to  the extent provided for by any reciprocal
    35  agreement entered into by law or with any agency  of  another  state  as
    36  herein  provided, maintain actions in the courts of such other state for
    37  the collection of claims and judgments for wages  and  may  assign  such
    38  claims  and  judgments  to  the labor department or agency of such other
    39  state for collection to the  extent  that  such  an  assignment  may  be
    40  permitted  or  provided  for  by  the law of such state or by reciprocal
    41  agreement.
    42    The commissioner may, upon the written consent of the labor department
    43  or other corresponding agency of any  other  state  or  of  any  person,

    44  board,  officer  or commission of such state authorized to act on behalf
    45  of such labor department or corresponding agency,  maintain  actions  in
    46  the  courts  of  this state upon assigned claims and judgments for wages
    47  arising in such other state in the same manner and to  the  same  extent
    48  that  such  actions  by  the commissioner are authorized when arising in
    49  this state. However, such actions may be maintained only in cases  where
    50  such other state by law or reciprocal agreement extends a like comity to
    51  cases arising in this state.
    52    2. Nothing in this section shall be construed as requiring the commis-
    53  sioner in every instance to investigate and attempt to adjust controver-
    54  sies,  or  to  take assignments of wage claims, or to institute criminal
    55  prosecutions for any violation  under  this  article  or  article  five,

        S. 8380                             5
 
     1  seven,  nineteen  or  nineteen-A of this chapter, but he or she shall be
     2  deemed vested with discretion in such matters.
     3    §  5. Section 196-a of the labor law, as amended by chapter 417 of the
     4  laws of 2009, is amended to read as follows:
     5    § 196-a. Complaints by employees to commissioner. (a) Any employee[,];
     6  person or organization acting on the employee's behalf;  or  the  recog-
     7  nized and certified collective bargaining agent acting on the employee's
     8  behalf, may file with the commissioner a complaint regarding a violation
     9  of  this article, article five, seven, nineteen, or [article] nineteen-A
    10  of this chapter for an investigation of  such  complaint  and  statement

    11  setting the appropriate remedy, if any.  The commissioner shall keep the
    12  names of employees that are the subject of an investigation confidential
    13  until such time that disclosure is necessary for resolution of an inves-
    14  tigation or a complaint. Failure of an employer to keep adequate records
    15  or provide statements of wages to employees as required under this chap-
    16  ter, in addition to exposing such employer to penalties authorized under
    17  subdivision  one  of section two hundred eighteen of this chapter, shall
    18  not operate as a bar to filing of a complaint by an employee. In such  a
    19  case the employer in violation shall bear the burden of proving that the
    20  complaining employee was paid wages, benefits and wage supplements.
    21    (b)  Any employee, or the recognized and certified collective bargain-

    22  ing agent acting on the employee's behalf, contractor, or the recognized
    23  and certified labor organization with which the contractor has  executed
    24  a  collective  bargaining agreement covering wages, benefits and supple-
    25  ments, may file with the commissioner a complaint regarding  an  alleged
    26  violation of this article or article nineteen of this chapter occasioned
    27  by  another  person,  corporation,  employer or entities in violation of
    28  article thirty-five-E of the general business law for  an  investigation
    29  of such complaint and statement setting the appropriate remedy, if any.
    30    §  6.  Section  197 of the labor law, as amended by chapter 427 of the
    31  laws of 2002, is amended to read as follows:
    32    § 197. Civil penalty. Any employer who fails to pay the wages  of  his
    33  employees  or  shall  differentiate  in  rate  of pay because of sex, as

    34  provided in this article, shall forfeit to the people of the  state  the
    35  sum  of  five  hundred dollars for each such failure, to be recovered by
    36  the commissioner in any legal action necessary, including administrative
    37  action or a civil action.
    38    § 7. Section 198 of the labor law, as added by chapter 548 of the laws
    39  of 1966, subdivision 1-a as amended by chapter 372 of the laws  of  2009
    40  and  subdivision  3  as  amended  by chapter 605 of the laws of 1997, is
    41  amended to read as follows:
    42    § 198. Costs, remedies. 1. In any action instituted upon a wage  claim
    43  by  an  employee or the commissioner in which the employee prevails, the
    44  court may allow such employee in addition to ordinary costs,  a  reason-
    45  able sum, not exceeding fifty dollars for expenses which may be taxed as
    46  costs.  No  assignee  of a wage claim, except the commissioner, shall be

    47  benefited by this provision.
    48    1-a. On behalf of any employee paid less than the wage to which he  or
    49  she  is  entitled under the provisions of this article, the commissioner
    50  may bring any legal action necessary, including  administrative  action,
    51  to  collect  such claim and as part of such legal action, in addition to
    52  any other remedies and penalties otherwise available under this article,
    53  the commissioner [may] shall assess against the employer the full amount
    54  of any such underpayment, and an additional amount as liquidated damages
    55  [equal to twenty-five percent of the total amount of wages found  to  be
    56  due],  unless  the employer proves a good faith basis for believing that
        S. 8380                             6
 

     1  its underpayment of wages was in compliance with the  law.    Liquidated
     2  damages  shall  be  calculated  by  the commissioner as no more than one
     3  hundred percent of the total amount of wages found to  be  due.  In  any
     4  action  instituted in the courts upon a wage claim by an employee or the
     5  commissioner in which the employee prevails, the court shall allow  such
     6  employee  to recover the full amount of any underpayment, all reasonable
     7  attorney's fees, prejudgment interest as required under the civil  prac-
     8  tice  law  and rules, and, unless the employer proves a good faith basis
     9  to believe that its underpayment of wages was  in  compliance  with  the
    10  law,  an  additional amount as liquidated damages equal to [twenty-five]
    11  one hundred percent of the total amount of the wages found to be due.

    12    1-b.  If any employee is not provided within ten business days of  his
    13  or  her  first day of employment a notice as required by subdivision one
    14  of section one hundred ninety-five  of  this  article,  he  or  she  may
    15  recover  in  a  civil action damages of fifty dollars for each work week
    16  that the violations occurred or continue to occur, but not to  exceed  a
    17  total  of  two  thousand  five  hundred dollars, together with costs and
    18  reasonable attorney's fees. The  court  may  also  award  other  relief,
    19  including  injunctive  and  declaratory  relief,  that  the court in its
    20  discretion deems necessary or appropriate.
    21    On behalf of any employee not provided a notice as required by  subdi-

    22  vision  one  of  section  one  hundred  ninety-five of this article, the
    23  commissioner may bring any legal action necessary, including administra-
    24  tive action, to collect such claim, and as part of such legal action, in
    25  addition to any other remedies and penalties otherwise  available  under
    26  this  article,  the commissioner may assess against the employer damages
    27  of fifty dollars for each work week  that  the  violations  occurred  or
    28  continue to occur. In any action or administrative proceeding to recover
    29  damages for violation of paragraph (d) of subdivision one of section one
    30  hundred  ninety-five of this article, it shall be an affirmative defense
    31  that (i) the employer made complete and timely payment of all wages  due

    32  pursuant  to  this  article or article nineteen or article nineteen-A of
    33  this chapter to the employee who was not provided notice as required  by
    34  subdivision  one  of  section one hundred ninety-five of this article or
    35  (ii) the employer reasonably believed in good  faith  that  it  was  not
    36  required to provide the employee with notice pursuant to subdivision one
    37  of section one hundred ninety-five of this article.
    38    1-d.  If  any  employee  is  not provided a statement or statements as
    39  required by subdivision three of section one hundred ninety-five of this
    40  article, he or she shall recover  in  a  civil  action  damages  of  one
    41  hundred  dollars  for  each  work  week  that the violations occurred or

    42  continue to occur, but not to exceed  a  total  of  twenty-five  hundred
    43  dollars,  together  with costs and reasonable attorney's fees. The court
    44  may also  award  other  relief,  including  injunctive  and  declaratory
    45  relief, that the court in its discretion deems necessary or appropriate.
    46    On  behalf  of  any  employee  not provided a statement as required by
    47  subdivision three of section one hundred ninety-five  of  this  article,
    48  the  commissioner may bring any legal action necessary, including admin-
    49  istrative action, to collect such claim,  and  as  part  of  such  legal
    50  action, in addition to any other remedies and penalties otherwise avail-
    51  able under this article, the commissioner may assess against the employ-

    52  er damages of one hundred dollars for each work week that the violations
    53  occurred or continue to occur.  In any action or administrative proceed-
    54  ing to recover damages for violation of subdivision three of section one
    55  hundred  ninety-five of this article, it shall be an affirmative defense
    56  that (i) the employer made complete and timely payment of all wages  due
        S. 8380                             7
 
     1  pursuant  to  this  article  or  articles nineteen or nineteen-A of this
     2  chapter to the employee who was not provided statements as  required  by
     3  subdivision  three of section one hundred ninety-five of this article or
     4  (ii)  the  employer  reasonably  believed  in good faith that it was not

     5  required to provide the employee with statements pursuant  to  paragraph
     6  (e)  of subdivision one of section one hundred ninety-five of this arti-
     7  cle.
     8    2.  The remedies provided by this article may be  enforced  simultane-
     9  ously or consecutively so far as not inconsistent with each other.
    10    3.    Notwithstanding any other provision of law, an action to recover
    11  upon a liability imposed by this article must be  commenced  within  six
    12  years.    The  statute  of  limitations shall be tolled from the date an
    13  employee files a complaint with the  commissioner  or  the  commissioner
    14  commences  an  investigation,  whichever  is  earlier, until an order to
    15  comply issued by the commissioner becomes final, or  where  the  commis-

    16  sioner does not issue an order, until the date on which the commissioner
    17  notifies  the complainant that the investigation has concluded. Investi-
    18  gation by the commissioner shall not be a  prerequisite  to  nor  a  bar
    19  against a person bringing a civil action under this section. All employ-
    20  ees  shall  have  the  right  to  recover  full wages, benefits and wage
    21  supplements and liquidated damages accrued during the six years previous
    22  to the commencing of such action, whether such action is  instituted  by
    23  the employee or by the commissioner.
    24    4.  In  any  civil  action  by an employee or by the commissioner, the
    25  employee or commissioner shall have the right to collect attorney's fees
    26  and costs incurred in enforcing any court judgment.    Any  judgment  or

    27  court  order  awarding remedies under this section shall provide that if
    28  any amounts remain unpaid upon the expiration of ninety  days  following
    29  issuance  of  judgment,  or  ninety days after expiration of the time to
    30  appeal and no appeal is then pending,  whichever  is  later,  the  total
    31  amount of judgment shall automatically increase by fifteen percent.
    32    §  8. Section 198-a of the labor law, as amended by chapter 241 of the
    33  laws of 2002, is amended to read as follows:
    34    § 198-a. Criminal penalties. 1.  Every employer who does not  pay  the
    35  wages  of all of his employees in accordance with the provisions of this
    36  chapter, and the officers and agents of any corporation, partnership, or
    37  limited liability company who knowingly permit the corporation, partner-

    38  ship, or limited liability company to violate this chapter by failing to
    39  pay the wages of any of its employees in accordance with the  provisions
    40  thereof, shall be guilty of a misdemeanor for the first offense and upon
    41  conviction  therefor  shall be fined not less than five hundred nor more
    42  than twenty thousand dollars or imprisoned for not more than  one  year,
    43  and,  in  the  event that any second or subsequent offense occurs within
    44  six years of the date of conviction for a prior offense, shall be guilty
    45  of a felony for the second or subsequent offense,  and  upon  conviction
    46  therefor, shall be fined not less than five hundred nor more than twenty
    47  thousand  dollars or imprisoned for not more than one year plus one day,
    48  or punished by both such fine and imprisonment, for each  such  offense.
    49  An indictment of a person or corporation operating a steam surface rail-

    50  road  for an offense specified in this section may be found and tried in
    51  any county within the state in which such railroad ran at  the  time  of
    52  such offense.
    53    2.  Every  employer  who violates or fails to comply with the require-
    54  ments of subdivision four of section one  hundred  ninety-five  of  this
    55  article, and the officers and agents of any corporation, partnership, or
    56  limited liability company who knowingly permit the corporation, partner-
        S. 8380                             8
 
     1  ship,  or  limited liability company to violate or fail to comply there-
     2  with, shall be guilty of a  misdemeanor  and  upon  conviction  therefor
     3  shall  be  fined  not less than five hundred nor more than five thousand
     4  dollars or imprisoned for not more than one year.

     5    3.  Every  employer who knowingly violates or fails to comply with the
     6  requirements of subdivision four of section one hundred  ninety-five  of
     7  this  article,  and the officers and agents of any corporation, partner-
     8  ship, or limited liability company who knowingly permit the corporation,
     9  partnership, or limited liability company to violate or fail  to  comply
    10  therewith,  shall  be guilty of a felony where such employer, officer or
    11  agent has been convicted of a violation of such subdivision  within  the
    12  previous six years, and upon conviction therefor shall be fined not less
    13  than  five  hundred  nor more than twenty thousand dollars or imprisoned
    14  for not more than one year plus one day, or punished by both  such  fine
    15  and imprisonment, for each such offense. In determining the penalty, the

    16  court  shall  consider  the  severity  of the violation, the size of the
    17  employer, and the employer's  good  faith  effort  to  comply  with  the
    18  requirements  of  subdivision four of section one hundred ninety-five of
    19  this article.
    20    § 9. Section 199-a of the labor law, as added by chapter  605  of  the
    21  laws of 1997, is amended to read as follows:
    22    §  199-a.  Notification  of  process.  1.  Each  employee  who files a
    23  complaint regarding a violation of a provision  of  this  article  [six]
    24  (payment  of  wages),  article  nineteen  (minimum wage act), or article
    25  nineteen-A (minimum wage standards and protective  labor  practices  for
    26  farm  workers),  section  one  hundred  sixty-one,  section  one hundred

    27  sixty-two, section  two  hundred  twelve-a  [or],  section  two  hundred
    28  twelve-b,  or  section two hundred fifteen of this chapter, or a rule or
    29  regulation promulgated thereunder, shall  be  provided  with  a  written
    30  description  of  the  anticipated processing of the complaint, including
    31  investigation, case conference, potential civil and criminal  penalties,
    32  and collection procedures.
    33    2.    Each  employee and his or her authorized representative shall be
    34  notified in writing of any case conference before it is held  and  given
    35  the opportunity to attend.
    36    3.  Each  employee  and  his or her authorized representative shall be
    37  notified in writing of any award and collection of back wages and  civil
    38  penalties,  and  of  any intent to seek criminal penalties. In the event

    39  that criminal penalties are sought the employee and his or  her  author-
    40  ized representative shall be notified of the outcome of prosecution.
    41    §  10.  Section 215 of the labor law, as amended by chapter 744 of the
    42  laws of 1986, subdivision 1 as amended by chapter 372  of  the  laws  of
    43  2009, is amended to read as follows:
    44    §  215.  Penalties and civil action; [employer who penalizes employees
    45  because of complaints of employer violations] prohibited retaliation. 1.
    46  (a) No employer or his or her agent, or the  officer  or  agent  of  any
    47  corporation,  partnership,  or  limited  liability company, or any other
    48  person, shall discharge, threaten, penalize,  or  in  any  other  manner
    49  discriminate or retaliate against any employee (i) because such employee

    50  has  made  a complaint to his or her employer, or to the commissioner or
    51  his or her authorized representative, or to the attorney general or  any
    52  other  person, that the employer has [violated any provision of] engaged
    53  in conduct that the employee, reasonably and  in  good  faith,  believes
    54  violates  any  provision  of  this  chapter,  or any order issued by the
    55  commissioner (ii) because such employer or  person  believes  that  such
    56  employee  has made a complaint to his or her employer, or to the commis-
        S. 8380                             9
 
     1  sioner or his or her  authorized  representative,  or  to  the  attorney
     2  general,  or  to  any  other  person  that the employer has violated any

     3  provision of this chapter, or any order issued by the commissioner (iii)
     4  because  such employee has caused to be instituted or is about to insti-
     5  tute a proceeding under or related to  this  chapter,  or  [(iii)]  (iv)
     6  because  such  employee  has provided information to the commissioner or
     7  his or her authorized representative or the attorney general, or  [(iv)]
     8  (v)  because  such  employee  has testified or is about to testify in an
     9  investigation or proceeding under this chapter, or  [(v)]  (vi)  because
    10  such  employee has otherwise exercised rights protected under this chap-
    11  ter, or [(vi)] (vii) because the employer has received an adverse deter-
    12  mination from the commissioner involving the employee.

    13    An employee complaint or other communication need  not  make  explicit
    14  reference  to  any  section  or provision of this chapter to trigger the
    15  protections of this section.
    16    (b) If after investigation the commissioner finds that an employer  or
    17  person has violated any provision of this section, the commissioner may,
    18  by  an  order  which  shall  describe  particularly  the  nature  of the
    19  violation, assess the employer or person a civil  penalty  of  not  less
    20  than one thousand nor more than ten thousand dollars[, and]. The commis-
    21  sioner may also order [the employer to pay lost compensation] all appro-
    22  priate relief including enjoining the conduct of any person or employer;

    23  ordering  payment of liquidated damages to the employee by the person or
    24  entity in violation; and, where the person or entity in violation is  an
    25  employer  ordering  rehiring  or reinstatement of the employee to his or
    26  her former position or an equivalent position,  and  an  award  of  lost
    27  compensation  or  an  award of front pay in lieu of reinstatement and an
    28  award of lost compensation.  Liquidated damages shall be  calculated  as
    29  an  amount  not  more  than ten thousand dollars.   The commissioner may
    30  assess liquidated damages on behalf of every  employee  aggrieved  under
    31  this  section,  in  addition  to  any  other  remedies permitted by this
    32  section.
    33    (c) [Notwithstanding the provisions of section two hundred thirteen of

    34  this article, the penalties set forth  in  this  section  shall  be  the
    35  exclusive remedies available for violations of this section.
    36    (d)]  This  section  shall  not apply to employees of the state or any
    37  municipal subdivisions or departments thereof.
    38    2. (a) An employee may bring a civil action in a  court  of  competent
    39  jurisdiction  against  any  employer or persons alleged to have violated
    40  the provisions of this section. The court  shall  have  jurisdiction  to
    41  restrain  violations  of  this  section,  within  two  years  after such
    42  violation, regardless of the dates of employment of the employee, and to
    43  order all appropriate relief, including enjoining  the  conduct  of  any
    44  person  or  employer;  ordering payment of liquidated damages, costs and

    45  reasonable attorneys' fees to the employee by the person  or  entity  in
    46  violation;  and, where the person or entity in violation is an employer,
    47  ordering rehiring or reinstatement of the employee to his or her  former
    48  position  with restoration of seniority or an award of front pay in lieu
    49  of reinstatement, [payment] and an award  of  lost  compensation[,]  and
    50  damages, costs and reasonable attorneys' fees.  Liquidated damages shall
    51  be  calculated  as  an  amount  not more than ten thousand dollars.  The
    52  court shall award liquidated damages to every employee  aggrieved  under
    53  this  section,  in  addition  to  any  other  remedies permitted by this

    54  section. The statute of limitations shall be tolled  from  the  date  an
    55  employee  files  a  complaint  with the commissioner or the commissioner
    56  commences an investigation, whichever is  earlier,  until  an  order  to
        S. 8380                            10
 
     1  comply  issued  by  the commissioner becomes final, or where the commis-
     2  sioner does not issue an order, until the date on which the commissioner
     3  notifies the complainant that the investigation has concluded.  Investi-
     4  gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
     5  against a person bringing a civil action under this section.
     6    (b) At or before the commencement of any action  under  this  section,

     7  notice  thereof shall be served upon the attorney general by the employ-
     8  ee.
     9    3.  Any employer or his or her agent, or the officer or agent  of  any
    10  corporation,  partnership,  or  limited  liability company, or any other
    11  person who violates subdivision one of this section shall be guilty of a
    12  class B misdemeanor.
    13    § 11. Subdivisions 1 and 3 of section 218 of the labor  law,  subdivi-
    14  sion  1 as amended by chapter 190 of the laws of 1990, the opening para-
    15  graph of subdivision 1 as amended by chapter 304 of the laws of 2007 and
    16  subdivision 3 as added by chapter 697 of the laws of 1980,  are  amended
    17  to read as follows:
    18    1.  If  the  commissioner  determines  that an employer has violated a
    19  provision of article six (payment of wages), article  nineteen  (minimum

    20  wage  act),  article  nineteen-A  (minimum wage standards and protective
    21  labor practices for farm workers), section two hundred twelve-a, section
    22  two hundred twelve-b, section one hundred sixty-one  (day  of  rest)  or
    23  section  one hundred sixty-two (meal periods) of this chapter, or a rule
    24  or regulation promulgated thereunder, the commissioner  shall  issue  to
    25  the  employer  an  order  directing  compliance  therewith,  which shall
    26  describe particularly the nature of the alleged  violation.  A  copy  of
    27  such  order  shall be provided to any employee who has filed a complaint
    28  and any authorized representative of him or her. In addition to  direct-
    29  ing  payment of wages, benefits or wage supplements found to be due, and
    30  liquidated damages in the amount of one hundred percent of unpaid wages,

    31  such order, if issued to an employer who previously has  been  found  in
    32  violation  of  those provisions, rules or regulations, or to an employer
    33  whose violation is willful or egregious, shall  direct  payment  to  the
    34  commissioner of an additional sum as a civil penalty in an amount [equal
    35  to]  not  to  exceed double the total amount of wages, benefits, or wage
    36  supplements found to be due. In no case shall the order  direct  payment
    37  of  an  amount  less  than the total wages, benefits or wage supplements
    38  found by the commissioner to be due, plus the liquidated damages in  the
    39  amount  of  one  hundred  percent of unpaid wages, the appropriate civil
    40  penalty, and interest at  the  rate  of  interest  then  in  effect,  as

    41  prescribed by the superintendent of banks pursuant to section fourteen-a
    42  of  the  banking  law per annum from the date of the underpayment to the
    43  date of the payment.  Where the violation is for a reason other than the
    44  employer's failure to pay wages, benefits or wage supplements  found  to
    45  be  due,  the  order shall direct payment to the commissioner of a civil
    46  penalty in an amount not to exceed one  thousand  dollars  for  a  first
    47  violation, two thousand dollars for a second violation or three thousand
    48  dollars  for a third or subsequent violation. In assessing the amount of
    49  the penalty, the commissioner shall give due consideration to  the  size
    50  of  the  employer's  business,  the  good faith basis of the employer to
    51  believe that its conduct was in compliance with the law, the gravity  of

    52  the  violation,  the  history of previous violations and, in the case of
    53  wages, benefits or supplements violations, the failure  to  comply  with
    54  recordkeeping or other non-wage requirements.
    55    Where  there  is  a violation of section one hundred ninety-eight-b of
    56  this chapter, the order shall direct payment back to the employee of the
        S. 8380                            11
 
     1  amount of wages, supplements or other thing of value unlawfully received
     2  plus liquidated damages in the amount of one hundred percent  of  unpaid
     3  wages,  and  interest  at  the  rate  of  interest  then  in  effect, as
     4  prescribed by the superintendent of banks pursuant to section fourteen-a
     5  of  the  banking  law  per  annum  from the date of the payback, return,
     6  donation or contribution to the date of payment, and shall include  such

     7  other  relief as may be appropriate, including rehiring or reinstatement
     8  of the employee to his or her former position, back wages, and  restora-
     9  tion  of seniority. In addition, the commissioner shall order payment of
    10  a civil penalty of at least twenty-five hundred  dollars  but  not  more
    11  than five thousand dollars per violation. In assessing the amount of the
    12  penalty,  the  commissioner  shall give due consideration to the size of
    13  the employer's business, the good faith basis of the employer to believe
    14  that its conduct was in compliance with the  law,  the  gravity  of  the
    15  violation, the history of previous violations.
    16    At  the  discretion  of  the commissioner, the commissioner shall have
    17  full authority to provide for inclusion of an automatic fifteen  percent

    18  additional  amount  of  damages to come due and owing upon expiration of
    19  ninety days from an order to comply  becoming  final.  The  commissioner
    20  shall  provide  written notice to the employer in the order to comply of
    21  this additional damage.
    22    3. Provided that no proceeding for administrative or  judicial  review
    23  as  provided  in  this  chapter  shall  then be pending and the time for
    24  initiation of such proceeding shall have expired, the  commissioner  may
    25  file  with  the county clerk of the county where the employer resides or
    26  has a place of business the order of the commissioner, or  the  decision
    27  of the industrial board of appeals containing the amount found to be due
    28  including   the  civil  penalty,  if  any,  and  at  the  commissioner's

    29  discretion, an additional fifteen percent damages upon  any  outstanding
    30  monies owed. At the request of an employee, and at the discretion of the
    31  commissioner,  the commissioner may assign that portion of the money due
    32  that constitutes wages, wage supplements,  interest  on  wages  or  wage
    33  supplements,  or  liquidated damages due that employee, to that employee
    34  and file an order in that amount in the name of that employee  with  the
    35  county  clerk of the county where the employer resides or has a place of
    36  business.  The filing of such order or  decision  shall  have  the  full
    37  force  and  effect  of  a  judgment  duly docketed in the office of such
    38  clerk. The order or decision may be enforced by and in the name  of  the

    39  commissioner  in  the  same  manner,  and  with  like  effect,  as  that
    40  prescribed by the civil practice law and rules for the enforcement of  a
    41  money judgment.
    42    §  12.  Section  219  of the labor law, as added by chapter 697 of the
    43  laws of 1980 and subdivision 1 as amended by chapter 417 of the laws  of
    44  1987, is amended to read as follows:
    45    § 219. Violations of certain wage payment provisions; interest, filing
    46  of order as judgment.  1. If the commissioner determines that an employ-
    47  er has failed to pay wages, benefits or wage supplements required pursu-
    48  ant  to  article  six (payment of wages), article nineteen (minimum wage
    49  act) or article [nineteen-a]  nineteen-A  (minimum  wage  standards  and
    50  protective  labor practices for farm workers) of this chapter, or a rule

    51  or regulation promulgated thereunder, the commissioner  shall  issue  to
    52  the  employer  an  order  directing  compliance  therewith,  which shall
    53  describe particularly the nature of the alleged  violation.  A  copy  of
    54  such  order  shall be provided to any employee who has filed a complaint
    55  and to his or her authorized representative.  Such  order  shall  direct
    56  payment of wages or supplements found to be due, [including]  liquidated
        S. 8380                            12
 
     1  damages in the amount of one hundred percent of unpaid wages, and inter-
     2  est  at  the rate of interest then in effect as prescribed by the super-
     3  intendent of banks pursuant to section fourteen-a of the banking law per
     4  annum from the date of the underpayment to the date of the payment.

     5    At  the  discretion  of  the commissioner, the commissioner shall have
     6  full authority to provide for inclusion of an automatic fifteen  percent
     7  additional  amount  of  damages to come due and owing upon expiration of
     8  ninety days from an order to comply  becoming  final.  The  commissioner
     9  shall  provide  written notice to the employer in the order to comply of
    10  this additional damage.
    11    2. An order issued under subdivision one  of  this  section  shall  be
    12  final  and not subject to review by any court or agency unless review is
    13  had pursuant to section one hundred one of this chapter.
    14    3. Provided that no proceeding for administrative or  judicial  review
    15  as  provided  in  this  chapter  shall  then be pending and the time for
    16  initiation of such proceeding shall have expired, the  commissioner  may

    17  file  with  the county clerk of the county where the employer resides or
    18  has a place of business the order of the commissioner or the decision of
    19  the industrial board of appeals containing the amount found to  be  due,
    20  including,  at  the  commissioner's  discretion,  an  additional fifteen
    21  percent damages upon any outstanding monies owed. At the request  of  an
    22  employee,  and  at  the discretion of the commissioner, the commissioner
    23  may assign that portion of the money due that  constitutes  wages,  wage
    24  supplements,  interest  on  wages  or  wage  supplements,  or liquidated
    25  damages due the employee, to that employee and file  an  order  in  that
    26  amount  in the name of such employee with the county clerk of the county

    27  where the employer resides or has a place of business.   The  filing  of
    28  such  order  or decision shall have the full force and effect of a judg-
    29  ment duly docketed in the office of such clerk. The  order  or  decision
    30  may  be  enforced  by  and  in  the name of the commissioner in the same
    31  manner, and with like effect, as that prescribed by the  civil  practice
    32  law and rules for the enforcement of a money judgment.
    33    §  13.  The labor law is amended by adding a new section 219-c to read
    34  as follows:
    35    § 219-c.  Public notice of employer violations. The commissioner shall
    36  have the following powers:
    37    1. where an employer is found in violation of article six, nineteen or
    38  nineteen-A of this chapter, to post and/or affix for  a  period  not  to

    39  exceed  one  year  a notice of no less than eight and one-half by eleven
    40  inches in an area visible to employees summarizing the violations  found
    41  and other information deemed pertinent by the commissioner, according to
    42  such form and manner ordered by the commissioner; and
    43    2.  where  the  violation is for a willful failure to pay all wages as
    44  required by article six, nineteen, or nineteen-A  of  this  chapter,  to
    45  post  and/or  affix  for  a  period not to exceed ninety days in an area
    46  visible to the general public, as ordered by the commissioner, a  notice
    47  of no less than eight and one-half by eleven inches as to the violations
    48  found,  according  to  such form and manner ordered by the commissioner.

    49  Any person other  than  the  commissioner  or  the  commissioner's  duly
    50  authorized  representative  who  removes,  alters,  defaces or otherwise
    51  interferes with a notice posted and/or affixed under this section  shall
    52  be guilty of a misdemeanor.
    53    §  14.  Section  661  of the labor law, as added by chapter 619 of the
    54  laws of 1960, is amended to read as follows:
    55    § 661. Records of employers.   [Every] For all  employees  covered  by
    56  this  article,  every  employer  shall  [keep]  establish, maintain, and
        S. 8380                            13
 
     1  preserve for not less than six years contemporaneous, true, and accurate

     2  payroll records [of] showing for each week worked the hours  worked  [by
     3  each  employee  covered by an hourly minimum wage rate], the [wages paid
     4  to  all  employees, and] rate or rates of pay and basis thereof, whether
     5  paid by the hour, shift, day, week, salary, piece, commission, or  other
     6  basis;  gross  wages; deductions; allowances, if any, claimed as part of
     7  the minimum wage; and net wages  for  each  employee,  plus  such  other
     8  information  as  the  commissioner  deems  material  and necessary[, and
     9  shall, on]. For all employees who are not exempt from  overtime  compen-
    10  sation  as  established  in  the  commissioner's  minimum wage orders or

    11  otherwise provided by New York state  law  or  regulation,  the  payroll
    12  records  must include the regular hourly rate or rates of pay, the over-
    13  time rate or rates of pay, the number of regular hours worked,  and  the
    14  number  of  overtime  hours worked. For all employees paid a piece rate,
    15  the payroll records shall include the applicable piece rate or rates  of
    16  pay  and  number of pieces completed at each piece rate.  On demand, the
    17  employer shall furnish to the commissioner or his duly authorized repre-
    18  sentative a sworn statement of the [same] hours worked, rate or rates of
    19  pay and basis thereof, whether paid by the hour, shift, day, week, sala-
    20  ry, piece, commission, or other  basis;  gross  wages;  deductions;  and

    21  allowances,  if  any,  claimed  as  part  of  the minimum wage, for each
    22  employee, plus such other information as the commissioner deems material
    23  and necessary. Every employer shall keep such records open to inspection
    24  by the commissioner or his duly authorized representative at any reason-
    25  able time. Every employer of an employee shall keep a digest and summary
    26  of this article or applicable wage order, which shall be prepared by the
    27  commissioner, posted in a conspicuous place  in  his  establishment  and
    28  shall also keep posted such additional copies of said digest and summary
    29  as   the  commissioner  prescribes.  Employers  shall,  on  request,  be
    30  furnished with copies of this article and of orders, and of digests  and
    31  summaries  thereof,  without  charge. Employers shall permit the commis-

    32  sioner or his duly authorized representative to question without  inter-
    33  ference any employee of such employer in a private location at the place
    34  of  employment  and during working hours in respect to the wages paid to
    35  and the hours worked by such employee or other employees.
    36    § 15. Section 662 of the labor law, as amended by chapter 587  of  the
    37  laws  of  1983  and subdivision 4 as added by chapter 776 of the laws of
    38  1983, is amended to read as follows:
    39    § 662. Penalties.  1. [Discrimination against employee.  Any  employer
    40  or his agent, or the officer or agent of any corporation, who discharges
    41  or  in  any other manner discriminates against any employee because such
    42  employee has made a complaint to his employer, or to the commissioner or

    43  his authorized representative, that he has not been paid  in  accordance
    44  with the provisions of this article, or because such employee has caused
    45  to  be  instituted  a  proceeding  under  or related to this article, or
    46  because such employee has testified or is about to testify in an  inves-
    47  tigation  or proceeding under this article, shall be guilty of a class B
    48  misdemeanor.
    49    2. Payment of less than minimum wage] Failure to pay minimum  wage  or
    50  overtime compensation.  Any employer or his or her agent, or the officer
    51  or  agent of any corporation, partnership, or limited liability company,
    52  who pays or agrees to pay to any employee less than the wage  applicable

    53  under this article shall be guilty of a [class B] misdemeanor and [each]
    54  upon  conviction  therefor shall be fined not less than five hundred nor
    55  more than twenty thousand dollars or imprisoned for not  more  than  one
    56  year,  and,  in  the  event that any second or subsequent offense occurs
        S. 8380                            14
 
     1  within six years of the date of conviction for a prior offense, shall be
     2  guilty of a felony for  the  second  or  subsequent  offense,  and  upon
     3  conviction  therefor, shall be fined not less than five hundred nor more
     4  than  twenty  thousand  dollars or imprisoned for not more than one year
     5  plus one day, or punished by both such fine and imprisonment,  for  each

     6  such  offense. Each payment to any employee in any week of less than the
     7  wage applicable under this article shall constitute a separate offense.
     8    [3.] 2. Failure to keep records. Any employer or his or her agent,  or
     9  the officer or agent of any corporation, partnership, or limited liabil-
    10  ity  company,  who fails to keep the records required under this article
    11  or to furnish such records or any information required to  be  furnished
    12  under  this  article to the commissioner or his or her authorized repre-
    13  sentative upon request, or who hinders or delays the commissioner or his
    14  or her authorized representative in the performance of his or her duties
    15  in the enforcement of this article, or refuses to admit the commissioner

    16  or his or her authorized representative to any place of  employment,  or
    17  falsifies any such records or refuses to make such records accessible to
    18  the  commissioner or his or her authorized representative, or refuses to
    19  furnish a sworn statement of  such  records  or  any  other  information
    20  required  for the proper enforcement of this article to the commissioner
    21  or his or her authorized representative, shall be guilty of a [class  B]
    22  misdemeanor  and [each] upon conviction therefor shall be fined not less
    23  than five hundred nor more than five thousand dollars or imprisoned  for
    24  not  more than one year, and, in the event that any second or subsequent
    25  offense occurs within six years of the date of conviction  for  a  prior

    26  offense,  shall  be  guilty  of  a  felony  for the second or subsequent
    27  offense, and upon conviction therefor, shall be fined not less than five
    28  hundred nor more than twenty thousand dollars or imprisoned for not more
    29  than one year plus one day, or punished by both such fine and  imprison-
    30  ment,  for  each  such  offense.  Each day's failure to keep the records
    31  requested under this article or to furnish such records  or  information
    32  to  the  commissioner  or  his  or  her  authorized representative shall
    33  constitute a separate offense.
    34    [4. Where any person has previously been convicted of a  violation  of
    35  this  section  within  the  preceding  five years, upon conviction for a
    36  second or subsequent violation such person may be fined up to ten  thou-

    37  sand  dollars  in addition to any other penalties including fines other-
    38  wise provided by law; provided, however, that the total additional  fine
    39  that  may  be imposed pursuant to this subdivision for separate offenses
    40  committed in any consecutive twelve month  period  may  not  exceed  ten
    41  thousand dollars.]
    42    §  16.  Section  663  of the labor law, as added by chapter 619 of the
    43  laws of 1960, subdivisions 1 and 2 as amended by chapter 372 of the laws
    44  of 2009 and subdivision 3 as added by chapter 497 of the laws  of  1966,
    45  is amended to read as follows:
    46    § 663. Civil action. 1. By employee. If any employee is paid by his or
    47  her employer less than the wage to which he or she is entitled under the
    48  provisions  of  this  article,  he or she [may] shall recover in a civil

    49  action the amount of any such underpayments, together  with  costs  [and
    50  such]  all  reasonable attorney's fees [as may be allowed by the court],
    51  prejudgment interest as required under the civil practice law and rules,
    52  and unless the employer proves a good faith basis to  believe  that  its
    53  underpayment  of  wages  was  in  compliance with the law, an additional
    54  amount as liquidated damages equal to [twenty-five] one hundred  percent
    55  of  the  total  of  such underpayments found to be due [the employee and
        S. 8380                            15

     1  any].  Any agreement between the employee, and the employer to work  for
     2  less than such wage shall be no defense to such action.

     3    2.  By commissioner. On behalf of any employee paid less than the wage
     4  to which the employee is entitled under the provisions of this  article,
     5  the  commissioner may bring any legal action necessary, including admin-
     6  istrative action, to collect such  claim,  and  the  employer  shall  be
     7  required  to  pay  the  full amount of the underpayment, plus costs, and
     8  unless the employer proves a good faith basis to believe that its under-
     9  payment was in compliance with the law, an additional amount  as  liqui-
    10  dated  damages [equal to twenty-five percent of the total of such under-
    11  payments found to be due the employee].   Liquidated  damages  shall  be
    12  calculated  by  the  commissioner as no more than one hundred percent of
    13  the total amount of underpayments found to be due the employee.  In  any

    14  action brought by the commissioner in a court of competent jurisdiction,
    15  liquidated damages shall be calculated as an amount equal to one hundred
    16  percent of underpayments found to be due the employee.
    17    3.  Limitation of time. Notwithstanding any other provision of law, an
    18  action to recover upon a liability  imposed  by  this  article  must  be
    19  commenced  within six years.  The statute of limitations shall be tolled
    20  from the date an employee files a complaint with the commissioner or the
    21  commissioner commences an investigation, whichever is earlier, until  an
    22  order  to  comply issued by the commissioner becomes final, or where the
    23  commissioner does not issue an  order,  until  the  date  on  which  the
    24  commissioner   notifies  the  complainant  that  the  investigation  has

    25  concluded. Investigation by the commissioner shall not be a prerequisite
    26  to nor a bar against a person bringing a civil action under  this  arti-
    27  cle.
    28    4.  Attorneys'  fees.    In  any civil action by an employee or by the
    29  commissioner, the employee or  commissioner  shall  have  the  right  to
    30  collect  attorneys' fees and costs incurred in enforcing any court judg-
    31  ment.  Any judgment or court order awarding remedies under this  section
    32  shall  provide  that if any amounts remain unpaid upon the expiration of
    33  ninety days following issuance of judgment, or ninety days after expira-
    34  tion of the time to appeal and no  appeal  therefrom  is  then  pending,
    35  whichever  is  later,  the  total amount of judgment shall automatically

    36  increase by fifteen percent.
    37    § 17. This act shall take effect on  the  one  hundred  twentieth  day
    38  after it shall have become a law.