S. 3415--A 2
D. THE RATE OR RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY THE
HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOWANCES,
IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE, INCLUDING TIP, MEAL, OR
LODGING ALLOWANCES;
E. THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE WILL BE PAID A PREMIUM
FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF HOURS PER DAY, WEEK,
OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS, WEEKENDS, OR HOLIDAYS;
F. THE ANTICIPATED PERIOD OF EMPLOYMENT;
G. ANY PROVISION TO THE EMPLOYEE, AND HOW LONG THE PROVISION WILL BE
PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED WITH
THE PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
WORK, HOUSING, HEALTH INSURANCE OR HEALTH CARE, PAID SICK OR ANNUAL
LEAVE AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
DENTS OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND
H. THE NATURE OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
S 2. Paragraph b of subdivision 2 of section 173 of the general busi-
ness law, as added by chapter 632 of the laws of 1975, is amended to
read as follows:
b. The application for a license shall be accompanied by samples or
accurate facsimiles of each and every form [which the applicant for a
license will require applicants for employment to execute], CONTRACT,
STATEMENT OF TERMS AND CONDITIONS, AND RECEIPT, AS REQUIRED UNDER
SECTION ONE HUNDRED EIGHTY-ONE OF THIS ARTICLE, and such forms,
CONTRACTS, STATEMENTS OF TERMS AND CONDITIONS, AND RECEIPTS must be
approved by the commissioner before a license may be issued. The commis-
sioner shall approve any such forms which fairly and clearly represent
contractual terms and conditions between the proposed employment agency
and applicants for employment, such as are permitted by this article.
S 3. Subdivisions 1 and 2 of section 174 of the general business law,
subdivision 1 as amended by chapter 164 of the laws of 2003, subdivision
2 as amended by chapter 632 of the laws of 1975, are amended to read as
follows:
1. Upon the receipt of an application for a license, the commissioner
shall cause the name and address of the applicant, the name under which
the employment agency is to be conducted, and the street and number of
the place where the agency is to be conducted, to be posted ON THE
COMMISSIONER'S WEBSITE, AS WELL AS in a conspicuous place in his public
office. Such agency shall be used exclusively as an employment agency
and for no other purpose, except as hereinafter provided. The commis-
sioner shall investigate or cause to be investigated the character and
responsibility of the applicant and agency manager and shall examine or
cause to be examined the premises designated in such application as the
place in which it is proposed to conduct such agency.
The commissioner shall require all applicants for licenses and agency
managers to be fingerprinted. Such fingerprints shall be submitted to
the division of criminal justice services for a state criminal history
record check, as defined in subdivision one of section three thousand
thirty-five of the education law, and may be submitted to the federal
bureau of investigation for a national criminal history record check.
THE CRIMINAL HISTORY INFORMATION, IF ANY, RECEIVED BY THE DEPARTMENT OF
LABOR SHALL BE CONSIDERED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
TWENTY-THREE-A OF THE CORRECTION LAW AND SUBDIVISIONS FIFTEEN AND
SIXTEEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW. A
REASONABLE TIME BEFORE MAKING A DETERMINATION ON THE APPLICATION PURSU-
S. 3415--A 3
ANT TO THIS SUBDIVISION, THE DEPARTMENT SHALL PROVIDE THE APPLICANT
CRIMINAL HISTORY INFORMATION, IF ANY. WHERE SUCH CRIMINAL HISTORY INFOR-
MATION IS PROVIDED, THE DEPARTMENT SHALL ALSO PROVIDE A COPY OF ARTICLE
TWENTY-THREE-A OF THE CORRECTION LAW, AND INFORM SUCH APPLICANT OF HIS
OR HER RIGHT TO SEEK CORRECTION OF ANY INCORRECT INFORMATION CONTAINED
IN SUCH CRIMINAL HISTORY INFORMATION PURSUANT TO THE REGULATIONS AND
PROCEDURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
2. Any person may file, within one week after such application is so
posted [in the said office], a written protest against the issuance of
such license. Such protest shall be in writing and signed by the person
filing the same or his authorized agent or attorney, and shall state
reasons why the said license should not be granted. Upon the filing of
such protest the commissioner shall appoint a time and place for the
hearing of such application, and shall give at least five days' notice
of such time and place to the applicant and the person filing such
protest. The commissioner may administer oaths, subpoena witnesses and
take testimony in respect to the matters contained in such application
and protests or complaints of any character for violation of this arti-
cle, and may receive evidence in the form of affidavits pertaining to
such matters. If it shall appear upon such hearing or from the
inspection, examination or investigation made by the commissioner that
the applicant or agency manager is not a person of good character or
responsibility; or that he or the agency manager has not had at least
two years experience as a placement employee, vocational counsellor or
in related activities, or other satisfactory business experience which
similarly tend to establish the competence of such individual to direct
and operate the placement activities of the agency; or that the place
where such agency is to be conducted is not a suitable place therefor;
or that the applicant has not complied with the provisions of this arti-
cle; the said application shall be denied and a license shall not be
granted. Each application should be granted or refused within thirty
days from the date of its filing.
S 4. Subdivision 1 of section 177 of the general business law, as
amended by section 11 of part A of chapter 57 of the laws of 2004, is
amended to read as follows:
1. Every person licensed under the provisions of this article to carry
on the business of an employment agency shall pay to the commissioner a
license fee in accordance with the following schedule before such
license is issued. The minimum fee for said license shall be five
hundred dollars, and for an agency operating with more than four place-
ment employees, seven hundred dollars, provided, however, that if the
license is to run less than one year, the fee shall be two hundred fifty
dollars and three hundred fifty dollars respectively, and if the license
is to run less than six months, the fee shall be one hundred twenty-five
dollars and one hundred seventy-five dollars respectively. For the
purpose of determining the license fee which an employment agency shall
pay, the applicant for such license shall state in his application to
the commissioner the average number of placement employees employed by
the applicant's employment agency during the preceding calendar year;
or, in the event that the applicant has not previously conducted an
employment agency under the provisions of this article, he or she shall
state the average number of placement employees which he or she reason-
ably expects will be employed by the employment agency during the calen-
dar year in which the license is issued. If the application for a
license is denied or withdrawn, one-half of the license fee provided
herein shall be returned to the applicant. He or she shall also deposit
S. 3415--A 4
before such license is issued, with the commissioner, a bond in the
penal sum of [five] TWENTY thousand dollars with two or more sureties or
a duly authorized surety company, to be approved by the commissioner,
provided, however, that if the applicant will engage in the recruitment
of domestic or household employees from outside the continental United
States, or will conduct a modeling agency the bond shall be in the penal
sum of [ten] FORTY thousand dollars.
S 5. Section 179 of the general business law, as amended by chapter
632 of the laws of 1975, is amended to read as follows:
S 179. Registers and other records to be kept. It shall be the duty of
every licensed person to keep a register, approved by the commissioner,
in which shall be entered, in the English language, the date of the
application for employment, the date the applicant started work and the
name and address of every applicant from whom a fee or deposit is
charged, the amount of the fee or deposit and the service for which it
is received or charged. Such licensed person shall also enter in the
same or in a separate register, approved by the commissioner, in the
English language, the name and address of every employer from whom a fee
is received or charged or to whom the licensed person refers an appli-
cant who has paid or is charged a fee, the date of such employer's
request or assent that applicants be furnished, the kind of position for
which applicants are requested, the names of the applicants sent from
whom a fee or deposit is received or charged with the designation of the
one employed, the amount of the fee or deposit charged, and the rate of
salary or wages agreed upon. It shall also be the duty of every licensed
person to keep complete and accurate written records in the English
language of all receipts and income received or derived directly from
the operation of his employment agency, and to keep records concerning
[job] BONA FIDE orders. No such licensed person, his agent or employees,
shall make any false entry in such records. It shall be the duty of
every licensed person to communicate orally or in writing with at least
one of the persons mentioned as references for every applicant for work
in private families, or employed in a fiduciary capacity, and the result
of such investigation shall be kept on file in such agency for a period
of at least three years. Every register and all records, INCLUDING BONA
FIDE ORDERS, kept pursuant to the requirements of this article shall be
retained on the premises of the agency concerned for three years follow-
ing the date on which the last entry thereon was made [except a job
order which shall be retained for one year following the date on which
it was received].
S 6. Section 181 of the general business law, as added by chapter 893
of the laws of 1958, subdivision 1 as added and subdivision 2 as amended
by chapter 632 of the laws of 1975, subdivision 3 as separately amended
by chapters 1010 and 1083 of the laws of 1960, and subdivision 4 as
amended by chapter 479 of the laws of 1963, is amended to read as
follows:
S 181. Contracts, STATEMENTS OF TERMS AND CONDITIONS, AND receipts. It
shall be the duty of every employment agency to give to each applicant
for employment:
1. A true copy of every contract executed between such agency and such
applicant, which SHALL BE PRINTED IN ENGLISH AND IN THE LANGUAGE IDENTI-
FIED BY THE APPLICANT AS THE PRIMARY LANGUAGE OF THE APPLICANT AND IN
WHICH THE CONTRACT IS NEGOTIATED, shall have printed on it or attached
to it a statement IN ENGLISH AND SUCH LANGUAGE setting forth in a clear
and concise manner the provisions of sections one hundred eighty-five[,]
and one hundred eighty-six of this article. A CONTRACT SHALL INCLUDE
S. 3415--A 5
IMMEDIATELY ABOVE THE PLACE FOR THE APPLICANT'S SIGNATURE, SET OFF IN A
BOX AND PRINTED IN A COLOR THAT SHARPLY CONTRASTS WITH THE PRINT
SURROUNDING IT, A STATEMENT THAT DESCRIBES THE APPLICANT'S RIGHTS TO A
RETURN OF ANY FEES OR EXCESS PORTIONS THEREOF PAID UNDER THE CONTRACT AS
PRESCRIBED BY LAW. THE COMMISSIONER MAY PRESCRIBE BY RULE HOW SUCH
INFORMATION IS TO BE DISCLOSED AND ANY ADDITIONAL INFORMATION THAT MUST
BE CLEARLY EXPLAINED IN SUCH STATEMENT REGARDING THE RIGHTS OF AN APPLI-
CANT TO A RETURN OF A FEE OR EXCESS PORTIONS THEREOF AS PROVIDED FOR IN
THIS ARTICLE.
2. [Information as to the name and address of the person to whom the
applicant is to apply for such employment, the kind of service to be
performed, the anticipated rate of wages or compensation, the agency's
fee for the applicant based on such anticipated wages or compensation,
whether such employment is permanent or temporary, the name and address
of the person authorizing the hiring of such applicant, and the cost of
transportation if the services are required outside of the city, town or
village where such agency is located. If the job is a conditionally
fee-paid job, the conditions under which the applicant will be required
to pay a fee shall be clearly set forth in a separate agreement in ten-
point type signed by the job applicant.] (A) AN EMPLOYMENT AGENCY SHALL
ISSUE A WRITTEN STATEMENT OF TERMS AND CONDITIONS TO EACH JOB APPLICANT
ON EACH OCCASION THAT THE AGENCY REFERS THE APPLICANT TO A POTENTIAL
EMPLOYER. THE WRITTEN STATEMENT OF TERMS AND CONDITIONS SHALL BE IN
ENGLISH AND IN THE LANGUAGE IDENTIFIED BY THE APPLICANT AS THE PRIMARY
LANGUAGE OF SUCH APPLICANT. EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE
IN ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A COPY OF
EACH WRITTEN STATEMENT OF TERMS AND CONDITIONS ISSUED TO EACH APPLICANT
THAT IS SIGNED AND DATED BY THE APPLICANT. THE STATEMENT OF TERMS AND
CONDITIONS SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING INFORMATION: (I)
THE NAME OF THE EMPLOYER, ANY "DOING BUSINESS AS" NAMES USED BY THE
EMPLOYER, THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR PRINCI-
PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
NUMBER OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE COMMISSIONER
DEEMS MATERIAL AND NECESSARY; (II) THE PLACE OR PLACES OF EMPLOYMENT;
(III) THE HOURS OF WORK PER DAY AND NUMBER OF DAYS PER WEEK TO BE
WORKED; (IV) THE RATE OR RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY
THE HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOW-
ANCES, IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE, INCLUDING TIP, MEAL,
OR LODGING ALLOWANCES; (V) THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE
WILL BE PAID A PREMIUM FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF
HOURS PER DAY, WEEK, OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS,
WEEKENDS, OR HOLIDAYS; (VI) THE ANTICIPATED PERIOD OF EMPLOYMENT; (VII)
ANY PROVISION TO THE EMPLOYEE, AND HOW LONG THE PROVISION WILL BE
PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED WITH
THE PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
WORK, HOUSING, HEALTH INSURANCE OR HEALTH CARE, PAID SICK OR ANNUAL
LEAVE AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
DENTS OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND (VIII) THE NATURE
OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
(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
S. 3415--A 6
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 EMPLOYMENT AGENCIES IN SUCH MANNER AS DETERMINED BY
THE COMMISSIONER.
(C) WHEN A JOB APPLICANT IDENTIFIES AS HIS OR HER PRIMARY LANGUAGE A
LANGUAGE FOR WHICH A TEMPLATE IS NOT AVAILABLE FROM THE COMMISSIONER,
THE EMPLOYMENT AGENCY SHALL COMPLY WITH THIS SUBDIVISION BY PROVIDING
THAT EMPLOYEE AN ENGLISH-LANGUAGE STATEMENT.
(D) AN EMPLOYMENT AGENCY SHALL NOT BE PENALIZED FOR ERRORS OR OMIS-
SIONS IN THE NON-ENGLISH PORTIONS OF ANY NOTICE PROVIDED BY THE COMMIS-
SIONER.
3. A receipt for any fee, [deposit,] consideration, or payment which
such agency receives from such applicant, which shall have printed or
written on it the name of the applicant, the name and address of the
employment agency, the date and amount of such fee, [deposit,] consider-
ation or payment or portion thereof for which the receipt is given, the
purpose for which it was paid, and the signature of the person receiving
such payment. [If the applicant for employment has been recruited from
outside the state for domestic or household employment the receipt shall
have printed on it, or attached to it, a copy of section one hundred
eighty-four of this article.] A RECEIPT SHALL INCLUDE A STATEMENT THAT
CLEARLY DESCRIBES THE APPLICANT'S RIGHTS TO THE RETURN OF ANY FEES,
CONSIDERATION OR PAYMENTS PAID BY THE APPLICANT UNDER THE CONTRACT AS
PRESCRIBED BY LAW. THE COMMISSIONER MAY PRESCRIBE BY RULE HOW SUCH
INFORMATION IS TO BE DISCLOSED AND ANY ADDITIONAL INFORMATION THAT MUST
BE CLEARLY EXPLAINED IN SUCH STATEMENT REGARDING THE RIGHTS OF AN APPLI-
CANT TO A RETURN OF A FEE OR EXCESS PORTIONS THEREOF AS PROVIDED FOR IN
THIS ARTICLE. SUCH STATEMENT SHALL BE LOCATED IMMEDIATELY ADJACENT TO
WHERE THE AMOUNT OF THE FEE, CONSIDERATION OR PAYMENT IS LISTED AND
SHALL BE SET OFF IN A BOX AND PRINTED IN A COLOR THAT SHARPLY CONTRASTS
WITH THE PRINT SURROUNDING IT.
3-A. EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE IN ITS PRINCIPAL PLACE
OF BUSINESS FOR A PERIOD OF THREE YEARS A STATEMENT, SIGNED BY THE
EMPLOYER OF EVERY APPLICANT WHOM THE EMPLOYMENT AGENCY HAS PLACED, INDI-
CATING THAT THE EMPLOYER HAS READ AND UNDERSTOOD THE STATEMENT OF TERMS
AND CONDITIONS REQUIRED BY SUBDIVISION TWO OF THIS SECTION AND THAT THE
EMPLOYER HAS RECEIVED A COPY OF THAT STATEMENT.
4. [The original or duplicate-original copy of each such contract and
receipt shall be retained by every employment agency for three years
following the date on which the contract is executed or the payment is
made, and shall be made available for inspection by the commissioner or
his duly authorized agent or inspector, upon his request. Notwithstand-
ing the other provisions of such contracts, the monetary consideration
to be paid by the applicant shall not exceed the fee ceiling provided in
subdivision eight of section one hundred eighty-five.] A RECEIPT FOR ANY
FEE, CONSIDERATION, OR PAYMENT WHICH AN AGENCY RECEIVES FROM AN APPLI-
CANT. THE RECEIPT SHALL HAVE PRINTED OR WRITTEN ON IT THE NAME OF THE
APPLICANT, THE NAME AND ADDRESS OF THE EMPLOYMENT AGENCY, THE DATE AND
AMOUNT OF SUCH FEE, CONSIDERATION OR PAYMENT OR PORTION THEREOF FOR
WHICH THE RECEIPT IS GIVEN, THE PURPOSE FOR WHICH IT WAS PAID, AND THE
SIGNATURE OF THE PERSON RECEIVING SUCH PAYMENT. THE RECEIPT SHALL ALSO
INCLUDE IMMEDIATELY ABOVE THE PLACE FOR SIGNATURE OF THE PERSON RECEIV-
ING PAYMENT, SET OFF IN A BOX AND PRINTED IN BOLD AND IN CAPS, THE
FOLLOWING STATEMENT: "AN EMPLOYMENT AGENCY MAY NOT CHARGE YOU, THE JOB
APPLICANT, A FEE BEFORE REFERRING YOU TO A JOB THAT YOU ACCEPT. IF YOU
PAY A FEE BEFORE ACCEPTING A JOB OR PAY A FEE THAT OTHERWISE VIOLATES
S. 3415--A 7
THE LAW, YOU MAY DEMAND A REFUND, WHICH SHALL BE REPAID WITHIN SEVEN (7)
DAYS." THE TEXT CONTAINED IN THIS BOX SHALL ALSO BE IN ENGLISH AND IN
THE LANGUAGE IDENTIFIED BY EACH APPLICANT AS THE PRIMARY LANGUAGE OF
SUCH APPLICANT.
5. THE ORIGINAL OR DUPLICATE-ORIGINAL COPY OF EACH WRITTEN CONTRACT,
EACH STATEMENT OF TERMS AND CONDITIONS REQUIRED BY SUBDIVISION TWO OF
THIS SECTION, AND EACH RECEIPT REQUIRED BY SUBDIVISION FOUR OF THIS
SECTION SHALL BE RETAINED BY EVERY EMPLOYMENT AGENCY FOR THREE YEARS
FOLLOWING THE DATE ON WHICH THE CONTRACT IS EXECUTED. THE RECORDS
REQUIRED UNDER THIS SUBDIVISION SHALL BE MADE AVAILABLE FOR INSPECTION
BY THE COMMISSIONER OR HIS OR HER DULY AUTHORIZED AGENT OR INSPECTOR,
UPON SUCH REQUEST.
S 7. Subdivisions 1 and 3 of section 185 of the general business law,
subdivision 1 as amended by chapter 460 of the laws of 2012 and subdivi-
sion 3 as amended by chapter 1010 of the laws of 1960, are amended and a
new subdivision 1-a is added to read as follows:
1. Circumstances permitting fee. An employment agency shall not charge
or accept a fee or other consideration unless in accordance with the
terms of a written contract with a job applicant[, except:
(a) for class "A" and "A-1" employment, and except] AND after such
agency has been responsible for referring such job applicant to an
employer or such employer to a job applicant and where as a result ther-
eof such job applicant has been employed by such employer[; and
(b)], EXCEPT for class "C" employment: [(i)] (A) after an agency has
been responsible for referring an artist to an employer or such employer
to an artist and where as a result thereof such artist has been employed
by such employer; or [(ii)] (B) after an agency represents an artist in
the negotiation or renegotiation of an original or pre-existing employ-
ment contract and where as a result thereof the artist enters into a
negotiated or renegotiated employment contract. For class "C" employment
pursuant to this paragraph, an employment agency shall provide an artist
with a statement setting forth in a clear and concise manner the
provisions of this section and section one hundred eighty-six of this
article.
The maximum fees provided for herein for all types of placements or
employment may be charged to the job applicant and a similar fee may be
charged to the employer provided, however, that with regard to place-
ments in class "B" employment, a fee of up to one and one-half times the
fee charged to the job applicant may be charged to the employer. By
agreement with an employment agency, the employer may voluntarily assume
payment of the job applicant's fee. The fees charged to employers by any
licensed person conducting an employment agency for rendering services
in connection with, or for providing employment in classes "A", "A-1"
and "B", as hereinafter defined in subdivision four of this section
where the applicant is not charged a fee shall be determined by agree-
ment between the employer and the employment agency. No fee shall be
charged or accepted for the registration of applicants for employees or
employment.
1-A. FEE REFUND. AN EMPLOYMENT AGENCY WHO HAS CHARGED OR ACCEPTED A
FEE OR OTHER CONSIDERATION FOR CLASSES "A" AND "A-1" EMPLOYMENT WITHOUT
A CONTRACT PRIOR TO OCTOBER FIRST, TWO THOUSAND FIFTEEN, SHALL REFUND
THE FULL AMOUNT TO THE JOB APPLICANT BY NOVEMBER FIRST, TWO THOUSAND
SIXTEEN, IF: (A) SUCH FEE OR CONSIDERATION DID NOT LEAD TO THE JOB
APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT AGENCY; OR (B) THE
FEE OR CONSIDERATION WAS NOT APPLIED TO THE JOB APPLICANT'S ACCOUNT FOR
SERVICES RENDERED BY THE EMPLOYMENT AGENCY.
S. 3415--A 8
3. Deposits, advance fees. Notwithstanding any other provisions of
this section, an employment agency [may] SHALL not require OR ACCEPT a
deposit or advance fee from any applicant [except an applicant for class
"A" or class "A1" employment, and only to the extent of the maximum fees
hereinafter provided. Such deposit or advance fee shall be offset
against any fee charged or accepted when such employment is obtained.
Any excess above the lawful fee shall be returned without demand there-
for, immediately after the employment agency has been notified that such
employment has been obtained; and all of such deposit or advance fee
shall be returned immediately upon demand therefor, if at the time of
the demand such employment has not been obtained]. ANY DEPOSIT OR
ADVANCE FEE COLLECTED BY AN EMPLOYMENT AGENCY PRIOR TO OCTOBER FIRST,
TWO THOUSAND FIFTEEN, MUST BE REFUNDED TO THE APPLICANT BY NOVEMBER
FIRST, TWO THOUSAND SIXTEEN, IF: (A) SUCH DEPOSIT OR ADVANCE FEE DID NOT
LEAD TO THE JOB APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT
AGENCY OR (B) THE DEPOSIT OR ADVANCE FEE WAS NOT APPLIED TO THE JOB
APPLICANT'S ACCOUNT FOR SERVICES RENDERED BY THE EMPLOYMENT AGENCY.
S 8. Subdivision 2 of section 186 of the general business law, as
amended by chapter 1010 of the laws of 1960, is amended to read as
follows:
2. Failure to report: If a job applicant accepts employment and there-
after fails to report for work, the gross fee charged to such applicant
shall not exceed twenty-five per cent of the maximum fee allowed by
section one hundred eighty-five of this article[, provided however, if
the applicant remains with his same employer, the fee shall not exceed
fifty per cent]. If a job applicant accepts employment and fails to
report for work, no fee shall be charged to the employer.
S 9. Subdivision 3 of section 187 of the general business law, as
added by chapter 893 of the laws of 1958, is amended to read as follows:
(3) Advertise in newspapers or otherwise, or use letterheads or
receipts or other written or printed matter, unless such advertising or
other matter contains the name and address of the employment agency
[and] the word "agency", AND THE AGENCY'S LICENSE NUMBER.
S 10. Section 189 of the general business law, as amended by chapter
479 of the laws of 1963, subdivisions 1 and 2 as amended by chapter 721
of the laws of 2004, subdivisions 4 and 5 as amended by chapter 632 of
the laws of 1975, is amended to read as follows:
S 189. Enforcement of provisions of this article. 1. This article,
article nineteen-B of the labor law and sections 37.01, 37.03 and 37.05
of the arts and cultural affairs law shall be enforced by the commis-
sioner of labor, except that in the city of New York this article and
such sections shall be enforced by the commissioner of consumer affairs
of such city. IN ADDITION TO THE POWERS OF THE COMMISSIONER, THE ATTOR-
NEY GENERAL SHALL HAVE THE POWER TO ENFORCE THIS ARTICLE; SUCH POWERS
INCLUDE, BUT ARE NOT LIMITED TO, ACTIONS TO RESTRAIN OR ENJOIN SUCH
VIOLATION. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR
REMEDIES WHICH ARE OTHERWISE AVAILABLE TO A PERSON UNDER ANY OTHER LAW.
2. To effectuate the purposes of this article, article nineteen-B of
the labor law and sections 37.01, 37.03 and 37.05 of the arts and
cultural affairs law, the commissioner or any duly authorized agent or
inspector designated by such commissioner, shall have authority to
inspect [the premises, registers, contract forms, receipt books, appli-
cation forms, referral forms, reference forms, reference reports and
financial records of fees charged and refunds made of each employment
agency, which are essential to the operation of such agency, and of each
applicant for an employment agency license, as frequently as necessary
S. 3415--A 9
to ensure compliance with this article and such sections; but in]
EMPLOYMENT AGENCIES AND APPLICANTS FOR AN EMPLOYMENT AGENCY LICENSE AS
FREQUENTLY AS NECESSARY TO ENSURE COMPLIANCE WITH THIS ARTICLE. THE
FOLLOWING SHALL BE SUBJECT TO INSPECTION: THE PREMISES; REGISTERS;
CONTRACTS SIGNED BY JOB APPLICANTS; STATEMENTS OF TERMS AND CONDITIONS;
RECEIPTS; APPLICATION FORMS; REFERRAL FORMS; BONA FIDE ORDERS FROM
PROSPECTIVE EMPLOYERS; WRITTEN NOTIFICATIONS FROM EMPLOYERS REQUIRED BY
SECTION ONE HUNDRED EIGHTY-SEVEN OF THIS ARTICLE; REFERENCE FORMS;
REFERENCE REPORTS; RECORDS OF FEES CHARGED; RECORDS OF REFUNDS MADE; AND
ANY OTHER RECORD THAT AN EMPLOYMENT AGENCY MUST MAINTAIN PURSUANT TO
THIS ARTICLE. IN no event shall any employment agency be inspected less
frequently than once every eighteen months. INSPECTIONS MAY CONSIST OF
IN-PERSON VISITS TO EMPLOYMENT AGENCIES. The commissioner shall also
have authority to subpoena records and witnesses or otherwise to conduct
investigations of any employer or other person where he or she has
reasonable grounds for believing that such employer or person is violat-
ing or has conspired or is conspiring with an employment agency to
violate this article or such sections.
3. To effectuate the purposes of this article, the commissioner may
make reasonable administrative rules within the standards set in this
article. Before such rules shall be issued, the commissioner shall
conduct a public hearing, giving due notice thereof to all interested
parties. No rule shall become effective until fifteen days after it has
been filed in the office of the department of state, if it is a rule of
the industrial commissioner, or in the office of the clerk of the city
of New York, if it is a rule of the commissioner of licenses of such
city, and copies thereof shall be furnished to all employment agencies
affected at least fifteen days prior to the effective date of such rule.
4. Complaints against any such licensed OR UNLICENSED person [shall]
MAY be made orally or in writing to the commissioner, or be sent in an
affidavit form without appearing in person, and may be made by recog-
nized employment agencies, trade associations, or others. The commis-
sioner may hold a hearing on a complaint with the powers provided by
section one hundred seventy-four of this article. If a hearing is held,
reasonable notice thereof, not less than five days, shall be given in
writing to said [licensed] person by serving upon the [licensed] person
either personally, by mail, or by leaving the same with the person in
charge of his office, a concise statement of the facts constituting the
complaint, and the hearing shall commence before the commissioner with
reasonable speed but in no event later than two weeks from the date of
the filing of the complaint. The commissioner when investigating any
matters pertaining to the granting, issuing, transferring, renewing,
revoking, suspending or cancelling of any license is authorized in his
discretion to take such testimony as may be necessary on which to base
official action. When taking such testimony he may subpoena witnesses
and also direct the production before him of necessary and material
books and papers. A daily calendar of all hearings shall be kept by the
commissioner and shall be posted in a conspicuous place in his public
office for at least one day before the date of such hearings. The
commissioner shall render his decision within thirty days from the time
the matter is finally submitted to him. The commissioner shall keep a
record of all such complaints and hearings. IN ADDITION TO THE POWERS
OF THE COMMISSIONER, THE ATTORNEY GENERAL MAY BRING AN ACTION AGAINST
ANYONE WHO IS ALLEGED TO HAVE VIOLATED THIS ARTICLE.
5. [Following such hearing if it has been shown] UPON A FINDING that
the licensed person or his agent, employee or anyone acting on his
S. 3415--A 10
behalf is guilty of violating any provision of this article or is not a
person of good character and responsibility, the commissioner may
suspend or revoke the license of such licensed person [and/or levy a
fine against such licensed person for each violation not to exceed five
hundred dollars]. ANY EMPLOYMENT AGENCY FOUND TO HAVE VIOLATED ANY
PROVISION OF THIS ARTICLE SHALL BE SUBJECT, FOR THE FIRST OFFENSE, TO A
CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS PER VIOLATION, AND, FOR
EACH SUBSEQUENT OFFENSE WITHIN SIX YEARS OF SUCH PREVIOUS OFFENSE, TO A
CIVIL PENALTY, NOT TO EXCEED FIVE THOUSAND DOLLARS PER VIOLATION. IF THE
PERSON SUBJECT TO THIS ARTICLE FAILS TO PAY THE DAMAGES, FINES, ATTOR-
NEYS' FEES, COSTS, OR PENALTIES AWARDED, THE AMOUNT AWARDED MAY BE
SATISFIED OUT OF THE BOND AMOUNT REQUIRED BY THIS ARTICLE. Whenever such
commissioner shall suspend or revoke the license of any employment agen-
cy, or shall levy a fine against [such] ANY agency, said determination
shall be subject to judicial review in proceedings brought pursuant to
article seventy-eight of the civil practice law and rules. Whenever
[such] AN EMPLOYMENT AGENCY'S license is revoked, another license or
agency manager permit shall not be issued within three years from the
date of such revocation to said licensed person or his agency manager or
to any person with whom the licensee has been associated in the business
of furnishing employment or engagements. Deputy commissioners, or other
officials designated to act on behalf of the commissioner, may conduct
hearings and act upon applications for licenses, and revoke or suspend
such licenses, or levy fines AGAINST AN EMPLOYMENT AGENCY.
6. IF ANY PERSON USES ANY UNTRUE OR MISLEADING STATEMENT, INFORMATION,
OR ADVERTISEMENT TO SELL ITS EMPLOYMENT AGENCY SERVICES OR FAILS TO
COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, OR THE CONTRACT
DOES NOT COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, THEN THE
CONTRACT SHALL BE VOID AND UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY.
7. ANY PERSON AGGRIEVED BY A VIOLATION OF THIS ARTICLE MAY BRING A
CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION AGAINST ANY EMPLOYMENT
AGENCY OR PERSONS ALLEGED TO HAVE VIOLATED THE PROVISIONS OF THIS ARTI-
CLE. THE COURT SHALL HAVE JURISDICTION TO RESTRAIN VIOLATIONS OF THIS
SECTION AND TO ORDER ALL APPROPRIATE RELIEF, INCLUDING ENJOINING THE
CONDUCT OF ANY PERSON OR EMPLOYMENT AGENCY; ORDERING PAYMENT OF DAMAGES,
COSTS AND REASONABLE ATTORNEYS' FEES TO THE AGGRIEVED INDIVIDUAL BY THE
PERSON OR ENTITY FOUND TO BE IN VIOLATION OF THIS ARTICLE.
8. THE REMEDIES PROVIDED IN THIS ARTICLE ARE NOT EXCLUSIVE AND SHALL
BE IN ADDITION TO ANY OTHER REMEDIES OR PROCEDURES PROVIDED IN ANY OTHER
LAW.
9. IF ANY PROVISIONS OF THIS ARTICLE OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES IS HELD UNCONSTITUTIONAL, THE REMAINDER OF THE
ARTICLE AND THE APPLICATION OF THAT PROVISION TO OTHER PERSONS AND
CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
10. IF AN EMPLOYMENT AGENCY FAILS TO MAINTAIN RECORDS AS REQUIRED
UNDER THIS ARTICLE, THE CREDIBLE TESTIMONY OF AN APPLICANT SHALL FORM
THE PROPER BASIS FOR THE CALCULATION OF UNPAID WAGES AND/OR UNLAWFUL
FEES.
S 11. Section 190 of the general business law, as amended by chapter
632 of the laws of 1975, is amended to read as follows:
S 190. Penalties for violations. Any person who violates and the offi-
cers of a corporation and stockholders holding ten percent or more of
the stock of a corporation which is not publicly traded, who knowingly
permit the corporation to violate sections one hundred seventy-two, one
hundred seventy-three, one hundred seventy-six, one hundred eighty-four,
one hundred eighty-four-a, one hundred eighty-five, one hundred eighty-
S. 3415--A 11
five-a, one hundred eighty-six, or one hundred eighty-seven of this
article shall be guilty of a misdemeanor and upon conviction shall be
subject to a fine not to exceed [one thousand] TWO THOUSAND FIVE HUNDRED
dollars PER VIOLATION, or imprisonment for not more than one year, or
both, by any court of competent jurisdiction. The violation of any other
provision of this article shall be punishable by a fine not to exceed
[one] FIVE hundred dollars or imprisonment for not more than thirty
days. Criminal proceedings based upon violations of these sections shall
be instituted by the commissioner, THE ATTORNEY GENERAL, OR A DISTRICT
ATTORNEY and may be instituted by any persons aggrieved by such
violations.
S 12. The general business law is amended by adding a new section 195
to read as follows:
S 195. PROTECTION FROM RETALIATION. IT SHALL BE UNLAWFUL FOR ANY
EMPLOYMENT AGENCY TO RETALIATE OR DISCRIMINATE AGAINST ANY PERSON
BECAUSE HE OR SHE HAS OPPOSED ANY PRACTICE OR PRACTICES FORBIDDEN UNDER
THIS ARTICLE OR BECAUSE THAT PERSON HAS FILED A COMPLAINT, TESTIFIED OR
ASSISTED IN ANY PROCEEDING UNDER THIS ARTICLE.
S 13. This act shall take effect immediately.