S T A T E   O F   N E W   Y O R K
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                                  8210

                            I N  S E N A T E

                              June 16, 2010
                               ___________

Introduced  by  Sen.  ESPADA -- 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 the payment of wages

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

  Section  1.  Subdivisions  2  and  3  of section 190 of the labor law,
subdivision 2 as added by chapter 548 of the laws of 1966  and  subdivi-
sion  3  as  amended by chapter 281 of the laws of 2002, are amended and
two new subdivisions 10 and 11 are added to read as follows:
  2. "Employee" means [any person employed for hire by  an  employer  in
any  employment]  A  NATURAL  PERSON WHO IS EMPLOYED IN THIS STATE BY AN
EMPLOYER, INCLUDING AN INDIVIDUAL WHO IS IN RECEIPT OF OR IS ENTITLED TO
ANY COMPENSATION FOR LABOR PERFORMED FOR  ANY  EMPLOYER.  EMPLOYEE  ALSO
INCLUDES  A COMMISSION SALESPERSON WHO TAKES ORDERS OR PERFORMS SERVICES
ON BEHALF OF A PRINCIPAL AND WHO IS PAID ON THE  BASIS  OF  COMMISSIONS,
BUT  DOES  NOT  INCLUDE  PERSONS  WHO PURCHASE FOR THEIR OWN ACCOUNT FOR
RESALE.
  3. "Employer" [includes any  person,  corporation,  limited  liability
company,  or  association  employing  any  individual in any occupation,
industry, trade, business or service] MEANS A  PERSON,  FIRM  OR  CORPO-
RATION,  AGENT,  MANAGER,  REPRESENTATIVE,  CONTRACTOR, SUBCONTRACTOR OR
PRINCIPAL, OR OTHER PERSON ACTING DIRECTLY OR INDIRECTLY IN THE INTEREST
OF AN EMPLOYER TO SUFFER OR PERMIT ANOTHER PERSON  TO  WORK;  WHETHER  A
PERSON  IS  AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE SHALL BE DETERMINED
ACCORDING TO THE STANDARDS OF THE FEDERAL FAIR LABOR STANDARDS  ACT,  29
U.S.C.  201  TO 219, BUT THE BURDEN OF PROOF SHALL BE UPON THE PARTY FOR
WHOM THE WORK IS PERFORMED TO  SHOW  INDEPENDENT  CONTRACTOR  STATUS  BY
CLEAR  AND CONVINCING EVIDENCE.  The term "employer" shall not include a
governmental agency.
  10. "INDEPENDENT CONTRACTOR" MEANS A PERSON WHO:
  (A) PERFORMS SERVICES FREE FROM DIRECTION AND CONTROL OVER  THE  MEANS
AND  MANNER  OF PROVIDING THE SERVICES, SUBJECT ONLY TO THE RIGHT OF THE
PERSON OR ENTITY FOR WHOM SERVICES ARE PROVIDED TO SPECIFY  THE  DESIRED
RESULT;

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

                                                           LBD17744-01-0

S. 8210                             2

  (B)  FURNISHES  THE  TOOLS  AND  EQUIPMENT  NECESSARY  TO  PROVIDE THE
SERVICE;
  (C)  OPERATES A BUSINESS THAT IS CONSIDERED INSEPARABLE FROM THE INDI-
VIDUAL FOR PURPOSES OF TAXES, PROFITS, AND LIABILITIES:
  (I) IN WHICH THE INDIVIDUAL:
  (A) OWNS ALL OF THE ASSETS AND PROFITS OF THE BUSINESS; AND
  (B) HAS SOLE, UNLIMITED, PERSONAL LIABILITY FOR ALL OF THE  DEBTS  AND
LIABILITIES  OF  THE  BUSINESS,  UNLESS  THE  BUSINESS IS ORGANIZED AS A
SINGLE-OWNED CORPORATE ENTITY, TO WHICH SOLE, UNLIMITED PERSONAL LIABIL-
ITY DOES NOT APPLY; AND
  (II) FOR WHICH:
  (A) THE INDIVIDUAL DOES NOT PAY TAXES FOR THE BUSINESS SEPARATELY  BUT
REPORTS  BUSINESS  INCOME  AND  LOSSES  ON THE INDIVIDUAL'S PERSONAL TAX
RETURN; AND
  (B) IF THE BUSINESS IS ORGANIZED AS A CORPORATE ENTITY AND  THE  INDI-
VIDUAL  OTHERWISE  QUALIFIES AS AN EXEMPT PERSON UNDER THIS ARTICLE, THE
INDIVIDUAL FILES A SEPARATE FEDERAL INFORMATIONAL  TAX  RETURN  FOR  THE
ENTITY AS REQUIRED BY LAW;
  (D)  EXERCISES  COMPLETE CONTROL OVER THE MANAGEMENT AND OPERATIONS OF
THE BUSINESS; AND
  (E) EXERCISES THE RIGHT AND  OPPORTUNITY  ON  A  CONTINUING  BASIS  TO
PERFORM  THE SERVICES OF THE BUSINESS FOR MULTIPLE ENTITIES AT THE INDI-
VIDUAL'S SOLE CHOICE AND DISCRETION.
  11. "LIQUIDATED DAMAGES" MEANS THE SUM OF FIVE PERCENT  MULTIPLIED  BY
THE AMOUNT OF ANY WAGES THAT WERE NOT PAID OR OF ANY AUTHORIZED EXPENSES
THAT  WERE  NOT REIMBURSED ON A REGULAR PAYDAY OR ON ANOTHER DAY, MULTI-
PLIED BY THE TOTAL NUMBER OF DAYS, EXCLUDING  SUNDAYS,  LEGAL  HOLIDAYS,
AND  THE  FIRST  SEVEN DAYS AFTER THE REGULAR PAYDAY ON WHICH WAGES WERE
NOT PAID OR EXPENSES WERE NOT REIMBURSED. HOWEVER, SUCH  SUM  SHALL  NOT
EXCEED  TWICE  THE  AMOUNT  OF THE UNPAID WAGES AND SHALL NOT ACCUMULATE
WHEN AN EMPLOYER IS SUBJECT TO A PETITION FILED IN BANKRUPTCY.
  S 2. Section 198-a of the labor law is amended by adding a new  subdi-
vision 4 to read as follows:
  4.  ANY  WEEK  WHERE  AN  INDIVIDUAL EMPLOYEE WAS NOT PAID THE LEGALLY
REQUIRED WAGES UNDER THIS ARTICLE, STATE TAXES WERE NOT WITHHELD, OR  IN
THE  CASE  OF  RETALIATION AGAINST AN EMPLOYEE, EVERY WEEK AFTER RETALI-
ATION HAS OCCURRED UNTIL COMPENSATION IS FINALLY MADE, SHALL  CONSTITUTE
A SEPARATE VIOLATION OF THE PROVISIONS OF THIS ARTICLE.
  S  3. Section 195 of the labor law is amended by adding a new subdivi-
sion 7 to read as follows:
  7. ON EACH REGULAR PAYDAY, SEND TO EACH EMPLOYEE BY MAIL OR PROVIDE AT
THE EMPLOYEE'S NORMAL PLACE OF EMPLOYMENT DURING NORMAL EMPLOYMENT HOURS
A STATEMENT SHOWING THE HOURS THE EMPLOYEE WORKED, THE WAGES  EARNED  BY
THE EMPLOYEE, AND DEDUCTIONS MADE FOR THE EMPLOYEE.
  S  4.  Subdivision  1-a of section 198 of the labor law, as amended by
chapter 372 of the laws of 2009, is amended to read as follows:
  1-a. On behalf of any employee paid less than the wage to which he  or
she  is  entitled under the provisions of this article, the commissioner
may bring any legal action necessary, including  administrative  action,
to  collect  such claim and as part of such legal action, in addition to
any other remedies and penalties otherwise available under this article,
the commissioner may assess against the employer an additional amount as
liquidated damages [equal to twenty-five percent of the total amount  of
wages  found to be due] AS DEFINED IN SECTION ONE HUNDRED NINETY OF THIS
ARTICLE, unless the employer proves a good  faith  basis  for  believing
that  its  underpayment of wages was in compliance with the law.  In any

S. 8210                             3

action instituted in the courts upon a wage claim by an employee or  the
commissioner  in which the employee prevails, the court shall allow such
employee reasonable attorney's fees and, unless the  employer  proves  a
good  faith  basis  to  believe  that  its  underpayment of wages was in
compliance with the law, an  additional  amount  as  liquidated  damages
[equal  to twenty-five percent of the total amount of the wages found to
be due] AS DEFINED IN SECTION ONE HUNDRED NINETY OF THIS ARTICLE.
  S 5. The labor law is amended by adding a new section 191-d to read as
follows:
  S 191-D. PRIVATE RIGHT OF  ACTION  BY  MISCLASSIFIED  EMPLOYEES.    1.
NOTWITHSTANDING  ANY  REMEDY AVAILABLE UNDER THIS ARTICLE, AN INDIVIDUAL
WHO HAS NOT BEEN PROPERLY CLASSIFIED AS AN EMPLOYEE MAY  BRING  A  CIVIL
ACTION  FOR DAMAGES AGAINST THE EMPLOYER FOR ANY VIOLATION OF THIS ARTI-
CLE.
  2. AN ACTION FILED UNDER THIS SECTION  SHALL  BE  FILED  WITHIN  THREE
YEARS AFTER THE DATE THE CAUSE OF ACTION ACCRUES.
  3.  IF THE COURT DETERMINES THAT AN INDIVIDUAL OR CLASS OF INDIVIDUALS
IS ENTITLED TO JUDGMENT IN  AN  ACTION  AGAINST  AN  EMPLOYER  FILED  IN
ACCORDANCE WITH THIS SECTION, THE COURT MAY AWARD EACH INDIVIDUAL:
  (A)  ANY  DAMAGES  TO  WHICH THE INDIVIDUAL MAY BE ENTITLED UNDER THIS
ARTICLE;
  (B) AN ADDITIONAL AMOUNT UP TO THREE TIMES  THE  AMOUNT  OF  ANY  SUCH
DAMAGES, IF THE EMPLOYER KNOWINGLY FAILED TO PROPERLY CLASSIFY THE INDI-
VIDUAL;
  (C) REASONABLE COUNSEL FEES AND OTHER COSTS OF THE ACTION; AND
  (D) ANY OTHER APPROPRIATE RELIEF.
  S  6. Subdivision 2 of section 196 of the labor law, as added by chap-
ter 548 of the laws of 1966, is amended to read as follows:
  2. THE COMMISSIONER MAY  HOLD  HEARINGS  AND  INVESTIGATE  CHARGES  OF
VIOLATIONS OF THIS ARTICLE.
  3. THE COMMISSIONER MAY, CONSISTENT WITH DUE PROCESS OF LAW, ENTER ANY
PLACE OF EMPLOYMENT TO INSPECT RECORDS CONCERNING WAGES AND PAYROLLS, TO
QUESTION  THE  EMPLOYER  AND  EMPLOYEES,  AND TO INVESTIGATE SUCH FACTS,
CONDITIONS OR MATTERS AS ARE DEEMED APPROPRIATE IN  DETERMINING  WHETHER
ANY PERSON HAS VIOLATED THE PROVISIONS OF THIS ARTICLE.  THE NAME OF ANY
EMPLOYEE  IDENTIFIED  IN  A  COMPLAINT  TO  THE DEPARTMENT SHALL BE KEPT
CONFIDENTIAL AS LONG AS POSSIBLE. WHERE THE DEPARTMENT  DETERMINES  THAT
AN EMPLOYEE'S NAME MUST BE DISCLOSED IN ORDER TO INVESTIGATE A COMPLAINT
FURTHER, IT MAY DO SO ONLY WITH THE EMPLOYEE'S CONSENT.
  4. Nothing in this section shall be construed as requiring the commis-
sioner in every instance to investigate and attempt to adjust controver-
sies,  or  to  take assignments of wage claims, or to institute criminal
prosecutions for any violation under  this  article,  but  he  shall  be
deemed vested with discretion in such matters.
  S 7. The labor law is amended by adding a new section 196-b to read as
follows:
  S  196-B.  RETALIATION  AGAINST  EMPLOYEES  PROHIBITED.  NO  PERSON OR
EMPLOYER SHALL DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE OR  RETALI-
ATE  AGAINST  AN EMPLOYEE OR OTHER PERSON FOR EXERCISING ANY RIGHT UNDER
THIS ARTICLE OR ANY REGULATION IMPLEMENTING ITS PROVISIONS,  OR  AGAINST
ANY  PERSON  FOR  PROVIDING  ASSISTANCE  TO  ANY EMPLOYEE OR INFORMATION
REGARDING THE SAME, OR FOR TESTIFYING OR  PLANNING  TO  TESTIFY  IN  ANY
INVESTIGATION  OR  PROCEEDING  REGARDING THE SAME. TAKING ADVERSE ACTION
AGAINST A PERSON WITHIN NINETY DAYS OF A PERSON'S ENGAGING IN THE  FORE-
GOING  ACTIVITIES SHALL RAISE A PRESUMPTION THAT SUCH ACTION WAS RETALI-
ATION, WHICH MAY BE REBUTTED BY CLEAN AND CONVINCING EVIDENCE THAT  SUCH

S. 8210                             4

ACTION  WAS TAKEN FOR OTHER PERMISSIBLE REASONS. ANY EMPLOYEE MAY FILE A
COMPLAINT WITH THE COMMISSIONER  ALLEGING  DISCHARGE  OR  DISCRIMINATION
WITHIN  THIRTY  DAYS  AFTER  SUCH  VIOLATION OCCURS. UPON RECEIPT OF THE
COMPLAINT,  THE  COMMISSIONER SHALL CAUSE AN INVESTIGATION TO BE MADE TO
THE EXTENT DEEMED APPROPRIATE. IF THE COMMISSIONER DETERMINES  FROM  THE
INVESTIGATION  THAT  THE  PROVISIONS OF THIS ARTICLE HAVE BEEN VIOLATED,
THE COMMISSIONER SHALL BRING AN ACTION IN A COURT OF COMPETENT JURISDIC-
TION AGAINST SUCH PERSON. SUCH COURT SHALL ORDER ALL APPROPRIATE  RELIEF
INCLUDING  REHIRING OR REINSTATEMENT OF THE EMPLOYEE TO THE FORMER POSI-
TION WITH BACK PAY. A CIVIL ACTION TO ENFORCE THIS ARTICLE MAY  ALSO  BE
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION BY THE STATE OR BY ANY
PARTY INURED BY A VIOLATION OF THIS ARTICLE. ANY EMPLOYER WHO RETALIATES
AGAINST  AN  EMPLOYEE OR OTHER PERSON IN VIOLATION OF THIS ARTICLE SHALL
BE REQUIRED TO PAY THE PERSON AN AMOUNT SET BY THE DEPARTMENT OR A COURT
SUFFICIENT TO COMPENSATE THE EMPLOYEE AND DETER FUTURE  VIOLATIONS,  BUT
NOT  LESS  THAN  ONE  HUNDRED  DOLLARS  FOR EACH DAY THAT THE VIOLATIONS
CONTINUED, OR UNTIL LEGAL JUDGMENT IS FINAL.
  S 8. Subdivision 1 of section 198-a of the labor law,  as  amended  by
chapter 241 of the laws of 2002, is amended to read as follows:
  1.  Every  employer who does not pay the wages of all of his employees
in accordance with the provisions of this chapter, and the officers  and
agents  of  any  corporation  [who  knowingly  permit the corporation to
violate] WHICH VIOLATES this chapter by failing to pay the wages of  any
of  its  employees  in  accordance with the provisions thereof, shall be
guilty of a misdemeanor for the first offense and upon conviction there-
for shall be fined not less than five hundred nor more than twenty thou-
sand dollars or imprisoned for not more than one year, and, in the event
that any second or subsequent offense occurs within  six  years  of  the
date  of conviction for a prior offense, shall be guilty of a felony for
the second or subsequent offense, and upon conviction therefor, shall be
fined not less than five hundred nor more than twenty  thousand  dollars
or  imprisoned  for  not more than one year plus one day, or punished by
both such fine and imprisonment, for each such offense.    ADDITIONALLY,
THE  TEN  LARGEST SHAREHOLDERS, AS DETERMINED BY THE FAIR VALUE OF THEIR
BENEFICIAL INTEREST AS OF THE BEGINNING OF THE PERIOD DURING  WHICH  THE
UNPAID  SERVICES  REFERRED  TO  IN  THIS ARTICLE ARE PERFORMED, OF EVERY
CORPORATION (OTHER THAN AN INVESTMENT COMPANY REGISTERED AS  SUCH  UNDER
AN ACT OF CONGRESS ENTITLED "INVESTMENT COMPANY ACT OF 1940"), NO SHARES
OF WHICH ARE LISTED ON A NATIONAL SECURITIES EXCHANGE OR REGULARLY QUOT-
ED IN AN OVER-THE-COUNTER MARKET BY ONE OR MORE MEMBERS OF A NATIONAL OR
AN  AFFILIATED  SECURITIES  ASSOCIATION,  SHALL JOINTLY AND SEVERALLY BE
PERSONALLY LIABLE FOR ALL DEBTS, WAGES OR SALARIES DUE AND OWING TO  ANY
OF  ITS EMPLOYEES FOR SERVICES PERFORMED BY THEM FOR SUCH CORPORATION. A
CIVIL ACTION MAY BE BROUGHT AGAINST A SHAREHOLDER LIABLE FOR  WAGES  DUE
UNDER  THIS  CHAPTER  INSTEAD  OF  AND  IN  ADDITION TO THE EMPLOYER. An
indictment of a person or corporation operating a steam surface railroad
for an offense specified in this section may be found and tried  in  any
county  within  the state in which such railroad ran at the time of such
offense.
  S 9. The labor law is amended by adding a new section 191-e to read as
follows:
  S 191-E. PRIVATE ATTORNEYS GENERAL PROVISION FOR ENFORCEMENT.  1.  (A)
NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, ANY PROVISION OF THIS ARTI-
CLE THAT PROVIDES FOR A CIVIL PENALTY TO BE ASSESSED  AND  COLLECTED  BY
THE  COMMISSIONER  MAY,  AS AN ALTERNATIVE, BE RECOVERED THROUGH A CIVIL

S. 8210                             5

ACTION BROUGHT BY AN AGGRIEVED EMPLOYEE ON BEHALF OF HIMSELF OR  HERSELF
AND OTHER CURRENT OR FORMER EMPLOYEES.
  (B)  NO  ACTION  MAY  BE  BROUGHT  UNDER  THIS SECTION BY AN AGGRIEVED
EMPLOYEE IF THE COMMISSIONER ON THE SAME FACTS  AND  THEORIES,  CITES  A
PERSON  WITHIN  THE TIMEFRAMES SET FORTH IN THIS ARTICLE FOR A VIOLATION
OF THE SAME SECTION OR SECTIONS OF LAW UNDER WHICH THE AGGRIEVED EMPLOY-
EE IS ATTEMPTING TO RECOVER A CIVIL PENALTY  ON  BEHALF  OF  HIMSELF  OR
HERSELF OR OTHERS.
  (C) CIVIL PENALTIES RECOVERED BY AGGRIEVED EMPLOYEES SHALL BE DISTRIB-
UTED  AS FOLLOWS: SEVENTY-FIVE PERCENT TO THE COMMISSION FOR ENFORCEMENT
OF LABOR LAWS AND EDUCATION  OF  EMPLOYERS  AND  EMPLOYEES  ABOUT  THEIR
RIGHTS  AND  RESPONSIBILITIES  UNDER  THIS  ARTICLE,  TO BE CONTINUOUSLY
APPROPRIATED TO SUPPLEMENT AND NOT SUPPLANT THE FUNDING  TO  THE  AGENCY
FOR THOSE PURPOSES; AND TWENTY-FIVE PERCENT TO THE AGGRIEVED EMPLOYEES.
  (D)  COURTS SHALL REVIEW AND APPROVE ANY PENALTIES SOUGHT AS PART OF A
PROPOSED SETTLEMENT AGREEMENT PURSUANT TO THIS SECTION.
  2. (A) A CIVIL ACTION BY AN AGGRIEVED EMPLOYEE SEEKING CIVIL PENALTIES
PURSUANT TO THIS SECTION ALLEGING A VIOLATION  OF  ANY  PROVISION  SHALL
COMMENCE ONLY AFTER THE FOLLOWING REQUIREMENTS HAVE BEEN MET:
  (I) THE AGGRIEVED EMPLOYEE OR REPRESENTATIVE SHALL GIVE WRITTEN NOTICE
BY  CERTIFIED  MAIL  TO  THE DEPARTMENT AND THE EMPLOYER OF THE SPECIFIC
PROVISIONS OF THIS ARTICLE ALLEGED TO HAVE BEEN VIOLATED, INCLUDING  THE
FACTS AND THEORIES TO SUPPORT THE ALLEGED VIOLATION.
  (II)  (A)  THE  DEPARTMENT SHALL NOTIFY THE EMPLOYER AND THE AGGRIEVED
EMPLOYEE OR REPRESENTATIVE BY CERTIFIED MAIL THAT IT DOES NOT INTEND  TO
INVESTIGATE  THE  ALLEGED  VIOLATION  WITHIN THIRTY CALENDAR DAYS OF THE
POSTMARK DATE OF THE NOTICE RECEIVED PURSUANT  TO  SUBPARAGRAPH  (I)  OF
THIS  PARAGRAPH. UPON RECEIPT OF THAT NOTICE OR IF NO NOTICE IS PROVIDED
WITHIN THIRTY-THREE CALENDAR DAYS OF THE POSTMARK  DATE  OF  THE  NOTICE
GIVEN  PURSUANT  TO  SUCH  SUBPARAGRAPH  (I), THE AGGRIEVED EMPLOYEE MAY
COMMENCE A CIVIL ACTION.
  (B) IF THE DEPARTMENT INTENDS TO INVESTIGATE THE ALLEGED VIOLATION, IT
SHALL NOTIFY THE EMPLOYER AND THE AGGRIEVED EMPLOYEE  OR  REPRESENTATIVE
BY  CERTIFIED  MAIL OF ITS DECISION WITHIN THIRTY-THREE CALENDAR DAYS OF
THE POSTMARK DATE OF THE NOTICE RECEIVED PURSUANT TO SUBPARAGRAPH (I) OF
THIS PARAGRAPH. WITHIN ONE HUNDRED TWENTY CALENDAR DAYS  OF  THAT  DECI-
SION,  THE  AGENCY  MAY  INVESTIGATE THE ALLEGED VIOLATION AND ISSUE ANY
APPROPRIATE CITATION. IF THE AGENCY DETERMINES THAT NO CITATION WILL  BE
ISSUED,  IT  SHALL  NOTIFY  THE  EMPLOYER AND AGGRIEVED EMPLOYEE OF THAT
DECISION WITHIN FIVE BUSINESS  DAYS  THEREOF  BY  CERTIFIED  MAIL.  UPON
RECEIPT  OF THAT NOTICE OR IF NO CITATION IS ISSUED BY THE AGENCY WITHIN
THE ONE HUNDRED FIFTY-EIGHT-DAY PERIOD PRESCRIBED BY THIS  PARAGRAPH  OR
IF THE AGENCY FAILS TO PROVIDE TIMELY OR ANY NOTIFICATION, THE AGGRIEVED
EMPLOYEE MAY COMMENCE A CIVIL ACTION.
  (C)  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, A PLAINTIFF MAY AS A
MATTER OF RIGHT AMEND AN EXISTING COMPLAINT TO ADD  A  CAUSE  OF  ACTION
ARISING  UNDER  THIS  SECTION  AT ANY TIME WITHIN SIXTY DAYS OF THE TIME
PERIODS SPECIFIED IN THIS SECTION.
  S 10. This act shall take effect immediately.