S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2118

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M. of A. JOHN -- read once and referred to the Committee
  on Labor

AN ACT to amend the labor law, in relation to public employee safety and
  health

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraphs a, c and d of subdivision 6 of section 27-a of
the labor law, paragraph a as amended by chapter  190  of  the  laws  of
1990,  paragraph c as added by chapter 729 of the laws of 1980 and para-
graph d as amended by chapter 145 of the laws of 1993,  are  amended  to
read as follows:
  a.  If  the  commissioner  determines  that an employer has violated a
provision of this section, or a safety or health standard or  regulation
promulgated  under this section, he or she shall with reasonable prompt-
ness issue to the employer an  order  to  comply  which  shall  describe
particularly  the  nature  of the violation including a reference to the
provision of this section, standard, regulation or order alleged to have
been violated, shall fix a reasonable time for compliance and may estab-
lish the penalty to be assessed for failure to correct the violation  by
the  time  fixed for compliance. An employer who fails to correct a non-
serious violation by the time fixed for compliance  may  be  assessed  a
civil  penalty  of  up  to  fifty dollars per day until the violation is
corrected. An employer who fails to correct a serious violation  by  the
time  fixed  for compliance may be assessed a civil penalty of up to two
hundred dollars per day until the violation is corrected.  CIVIL  PENAL-
TIES  FOR  AN  EMPLOYER  FOUND TO BE A WILLFUL OR REPEAT VIOLATOR MAY BE
ASSESSED FOR FAILURE TO CORRECT THE VIOLATION  BY  THE  TIME  FIXED  FOR
COMPLIANCE  IN  AN AMOUNT UP TO THREE HUNDRED DOLLARS PER DAY, UNTIL THE
VIOLATION IS CORRECTED. ANY CIVIL PENALTIES ASSESSED  PURSUANT  TO  THIS
SUBDIVISION   SHALL   BE  PAID  AND  DEPOSITED  INTO  THE  STATE  SCHOOL
CONSTRUCTION FUND. Pursuant to section 18(k) of the United States  Occu-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01923-01-9
              

A. 2118                             2

pational Safety and Health Act of 1970 (Public Law[,] 91-596), a serious
violation  shall be deemed to exist in a place of employment if there is
a substantial probability that death  or  serious  physical  harm  could
result  from  a  condition  which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or  are
in  use,  in  such  place of employment unless the employer did not, and
could not with the exercise of reasonable diligence, know of  the  pres-
ence  of  the violation. A non-serious violation shall be defined as any
violation that does not fall under the definition of serious  violation.
FOR  PURPOSES OF THIS ARTICLE, AN EMPLOYER SHALL HAVE COMMITTED A "WILL-
FUL" VIOLATION IF:
  (I) THE EMPLOYER WAS AWARE OF THE REQUIREMENTS OF THIS ARTICLE OR  THE
EXISTENCE  OF  THE APPLICABLE STANDARD OR REGULATION, AND WAS ALSO AWARE
OF A CONDITION OR PRACTICE IN VIOLATION  OF THAT REQUIREMENT OR;
  (II) AT THE TIME THE EMPLOYER COMMITTED THE  VIOLATION,  THE  EMPLOYER
WAS NOT AWARE OF ANY LEGAL REQUIREMENT BUT WAS AWARE THAT A CONDITION OR
PRACTICE WAS HAZARDOUS TO THE SAFETY OR HEALTH OF EMPLOYEES.
  AN  EMPLOYER SHALL HAVE COMMITTED A "REPEAT" VIOLATION IF THE EMPLOYER
HAD BEEN ISSUED AN ORDER TO COMPLY PREVIOUSLY FOR A SUBSTANTIALLY  SIMI-
LAR  VIOLATION  AT  THE  SAME SITE AND NO APPEAL OR OTHER PROCEEDING FOR
REVIEW PROVIDED FOR IN THIS ARTICLE SHALL THEN BE PENDING AND  THE  TIME
FOR TAKING THEREOF SHALL HAVE EXPIRED.
  The  commissioner  shall  not assess a penalty against an employer for
failure to correct a violation of a standard which is the subject of  an
application for a PERMANENT OR temporary order granting a variance, or a
violation OF A STANDARD which is the subject of a petition [to modify an
order to comply] FOR MODIFICATION OF THE ABATEMENT DATE, provided howev-
er,  that  upon  issuance by the commissioner of a determination denying
such variance or petition to modify, or upon expiration of  a  temporary
variance  or  modified  compliance period, the time fixed for compliance
shall recommence and  the  employer  become  liable  for  the  penalties
provided herein.
  c.  Any  employer,  or  other party affected by a determination of the
[industrial] commissioner issued pursuant to this section  may  petition
the  industrial  board  of  appeals  for review of such determination in
accordance with section one hundred one of this chapter. Judicial review
of the decision of the industrial board of appeals may  be  obtained  by
any  party affected by such decision by commencing a proceeding pursuant
to article seventy-eight of the civil  practice  law  and  rules  within
sixty days after such decision is issued.
  d. If the time for compliance with an order of the commissioner issued
pursuant  to this section has elapsed, and the employer has not complied
with the provisions of the order, the commissioner shall  seek  judicial
enforcement of such order by commencing a proceeding pursuant to article
seventy-eight of the civil practice law and rules. Where an employer has
complied  with  an  order  in  all  respects other than the payment of a
penalty imposed pursuant to this subdivision, the commissioner may  file
with  the county clerk of the county where the employer has its place of
business the order  of  the  commissioner  [continuing]  CONTAINING  the
amount  of civil penalty found to be due. The filing of such order shall
have the full force and effect of a judgment duly docketed in the office
of such clerk.  The order or decision may be enforced by and in the same
manner, and with like effect, as that prescribed by the  civil  practice
law and rules for the enforcement of a money judgment.
  S  2.  This  act  shall take effect immediately and shall apply to all
violations which occur on or after such date.