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

                                  9644

                          I N  A S S E M B L Y

                             March 24, 2016
                               ___________

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

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:

  Section  1. Paragraph (b) of subdivision 1 of section 195 of the labor
law, as added by chapter 564 of the laws of 2010, is amended to read  as
follows:
  (b)  The  commissioner  shall  prepare  templates that comply with the
requirements of paragraph (a) of this subdivision.  Each  such  template
shall  be  dual-language, including English and one additional language.
The commissioner shall  determine,  in  his  or  her  discretion,  which
languages  to  provide  in addition to English, based on the size of the
New York state population that speaks each language and any other factor
that the commissioner shall deem relevant. All such templates  shall  be
made  available to employers in such manner as determined by the commis-
sioner. EMPLOYERS MAY RELY UPON THESE TEMPLATES AND SHALL NOT BE  LIABLE
FOR THEIR GOOD FAITH RELIANCE UPON THE TEMPLATES PROVIDED BY THE COMMIS-
SIONER;
  S  2.  Section 196-d of the labor law, as added by chapter 1007 of the
laws of 1968, is amended to read as follows:
  S 196-d. Gratuities. No employer or his agent or an officer  or  agent
of any corporation, or any other person shall demand or accept, directly
or  indirectly,  any part of the gratuities, received by an employee, or
retain any part of a gratuity or of any charge purported to be a gratui-
ty for an employee. This provision shall not apply to  the  checking  of
hats,  coats  or  other  apparel.  Nothing  in this subdivision shall be
construed as affecting the allowances from the minimum wage for  gratui-
ties in the amount determined in accordance with the provisions of arti-
cle  nineteen  of this chapter nor as affecting ANY AFFIRMATIVE DEFENSES
MADE AVAILABLE UNDER THIS CHAPTER, OR ANY practices in  connection  with
banquets  and  other  special  functions where a fixed percentage of the
patron's bill is added for gratuities which are distributed  to  employ-

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

                                                           LBD11769-04-6

A. 9644                             2

ees,  nor  to  the  sharing of tips by a waiter with a busboy or similar
employee.
  S 3. Subdivision 1-a, the closing paragraph of subdivision 1-b and the
closing  paragraph  of  subdivision 1-d of section 198 of the labor law,
subdivision 1-a as amended by chapter 362 of the laws of 2015, the clos-
ing paragraph of subdivision 1-b and the closing paragraph  of  subdivi-
sion  1-d  as amended by chapter 537 of the laws of 2014, are 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 shall assess against the employer the  full  amount  of
any  such  underpayment, and an additional amount as liquidated damages,
unless the employer proves a good faith basis  for  believing  that  its
underpayment of wages was in compliance with the law, WHICH MAY INCLUDE,
BUT IS NOT LIMITED TO, RELIANCE BY THE EMPLOYER ON ANY TEMPLATE PROVIDED
BY  THE  COMMISSIONER  PURSUANT  TO  PARAGRAPH (B) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED NINETY-FIVE  OF  THIS  ARTICLE.  Liquidated  damages
shall  be  calculated  by  the  commissioner as no more than one hundred
percent of the total amount of wages found to be due, except such liqui-
dated damages may be up to three hundred percent of the total amount  of
the wages found to be due for a willful violation of section one hundred
ninety-four of this article. In any 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 to recover the full amount
of any underpayment, all reasonable attorney's fees, prejudgment  inter-
est  as required under the civil practice law and rules, and, unless the
employer proves a good faith basis to believe that its  underpayment  of
wages  was  in  compliance  with  the law, WHICH MAY INCLUDE, BUT IS NOT
LIMITED TO, RELIANCE BY EMPLOYER ON ANY TEMPLATE PROVIDED BY THE COMMIS-
SIONER PURSUANT TO PARAGRAPH (B)  OF  SUBDIVISION  ONE  OF  SECTION  ONE
HUNDRED  NINETY-FIVE OF THIS ARTICLE, an additional amount as liquidated
damages equal to one hundred percent of the total amount  of  the  wages
found  to  be  due,  except  such  liquidated damages may be up to three
hundred percent of the total amount of the wages found to be due  for  a
willful violation of section one hundred ninety-four of this article.
  On  behalf of any employee not provided a notice as required by subdi-
vision one of section one  hundred  ninety-five  of  this  article,  the
commissioner may bring any legal action necessary, including administra-
tive 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  damages
of  fifty  dollars  for  each  work  day that the violations occurred or
continue to occur, but not to exceed a total of five  thousand  dollars.
In  any  action  or  administrative  proceeding  to  recover damages for
violation of paragraph (a) of subdivision one  of  section  one  hundred
ninety-five of this article, it shall be an affirmative defense that (i)
the  employer made complete and timely payment of all wages due pursuant
to this article or article nineteen or article nineteen-A of this  chap-
ter  to the employee who was not provided notice as required by subdivi-
sion one of section one hundred ninety-five of this article  [or];  (ii)
the  employer reasonably believed in good faith that it was not required
to provide the employee with  notice  pursuant  to  subdivision  one  of
section  one  hundred  ninety-five  of  this article; (III) THE EMPLOYER

A. 9644                             3

RELIED IN GOOD FAITH UPON THE TEMPLATES  PROVIDED  BY  THE  COMMISSIONER
PURSUANT  TO  PARAGRAPH  (B)  OF  SUBDIVISION ONE OF SECTION ONE HUNDRED
NINETY-FIVE OF THIS ARTICLE; OR (IV) THE  EMPLOYEE  RECEIVED  SUFFICIENT
TIPS  TO  EQUAL  OR  EXCEED  THE AMOUNT OF ANY ALLOWANCES CLAIMED BY THE
EMPLOYER AS ANY PART OF THE MINIMUM WAGE, INCLUDING ANY AND  ALL  AVAIL-
ABLE  TIP  ALLOWANCES.  IN  SUCH CIRCUMSTANCES WHERE THE EMPLOYER ESTAB-
LISHES ANY OF THE AFFIRMATIVE DEFENSES DESCRIBED  IN  SUBPARAGRAPHS  (I)
THROUGH  (IV)  OF THIS PARAGRAPH, THE EMPLOYER SHALL NOT FORFEIT ANY TIP
ALLOWANCES AVAILABLE UNDER LAW.  THESE  AFFIRMATIVE  DEFENSES  SHALL  BE
AVAILABLE TO EMPLOYERS IN DEFENSE OF ACTIONS BROUGHT BY THE COMMISSIONER
AND/OR BY THE EMPLOYEE.
  On  behalf  of  any  employee  not provided a statement as required by
subdivision three of section one hundred ninety-five  of  this  article,
the  commissioner may bring any legal action necessary, including admin-
istrative action, to collect such claim,  and  as  part  of  such  legal
action, in addition to any other remedies and penalties otherwise avail-
able under this article, the commissioner may assess against the employ-
er  damages  of  two  hundred  fifty  dollars for each work day that the
violations occurred or continue to occur, but not to exceed a  total  of
five  thousand  dollars.  In  any action or administrative proceeding to
recover damages for  violation  of  subdivision  three  of  section  one
hundred  ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages  due
pursuant  to  this  article  or  articles nineteen or nineteen-A of this
chapter to the employee who was not provided statements as  required  by
subdivision  three  of  section  one hundred ninety-five of this article
[or]; (ii) the employer reasonably believed in good faith  that  it  was
not  required  to provide the employee with statements pursuant to para-
graph (e) of subdivision one of section one hundred ninety-five of  this
article;  (III)  THE  EMPLOYER  RELIED  IN GOOD FAITH UPON THE TEMPLATES
PROVIDED BY  THE COMMISSIONER PURSUANT TO PARAGRAPH (B)  OF  SUBDIVISION
ONE  OF  SECTION  ONE  HUNDRED  NINETY-FIVE OF THIS ARTICLE; OR (IV) THE
EMPLOYEE RECEIVED SUFFICIENT TIPS TO EQUAL OR EXCEED THE AMOUNT  OF  ANY
ALLOWANCES  CLAIMED  BY  THE  EMPLOYER  AS  ANY PART OF THE MINIMUM WAGE
INCLUDING ANY AND ALL AVAILABLE TIP ALLOWANCES.  IN  SUCH  CIRCUMSTANCES
WHERE THE EMPLOYER ESTABLISHES ANY OF THE AFFIRMATIVE DEFENSES DESCRIBED
IN  SUBPARAGRAPHS  (I) THROUGH (IV) OF THIS PARAGRAPH THE EMPLOYER SHALL
NOT FORFEIT ANY TIP ALLOWANCES AVAILABLE UNDER  LAW.  THESE  AFFIRMATIVE
DEFENSES  SHALL  BE AVAILABLE TO EMPLOYERS IN DEFENSE OF ACTIONS BROUGHT
BY THE COMMISSIONER AND/OR BY THE EMPLOYEE.
  S 4. Section 199 of the labor law, as added by chapter 548 of the laws
of 1966, is amended to read as follows:
  S 199. Rules and regulations. The commissioner may  issue  such  rules
and  regulations as he determines necessary for the purposes of carrying
out the provisions of this article, WHICH SHALL BE CONSISTENT  WITH  AND
SHALL NOT ALTER THE TERMS AND CONDITIONS SET FORTH IN THIS ARTICLE.
  S  5. This act shall take effect immediately and shall apply to affir-
mative defenses that became available before, on, or after  such  effec-
tive date.