S T A T E O F N E W Y O R K
________________________________________________________________________
7958
2017-2018 Regular Sessions
I N A S S E M B L Y
May 23, 2017
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection
Act".
§ 2. Legislative findings. 1. The legislature finds and declares that
violations of the labor law are often systemic, affecting many workers.
2. The legislature further finds and declares that despite the labor
law's strong protections for workers, limits on the availability of
public enforcement resources have deleterious effects on the marketplace
by allowing abuses targeting workers to persist unprosecuted. To ensure
the robust enforcement of the labor law, while minimizing the outlay of
scarce state funds, this act allows private individuals to bring public
enforcement actions in certain contexts in which the state does not have
the means to fully enforce labor law protections.
3. The legislature further finds and declares that the purpose of the
EMPIRE Worker Protection Act is to create a means of empowering citizens
as private attorneys general to enforce the New York labor law.
4. The legislature further finds and declares that the purpose of the
EMPIRE Worker Protection Act is to incentivize private parties to
recover civil penalties for the government that otherwise may not have
been assessed and collected by overburdened state enforcement agencies.
Such representative actions are an efficient mechanism to limit systemic
violations, will enforce the rights of more workers, and can benefit the
department of labor with enhanced resources.
5. The legislature further finds and declares that the purpose of the
EMPIRE Worker Protection Act is to benefit those employers who are oper-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11483-02-7
A. 7958 2
ating within the labor law, and who, as a result, face unfair competi-
tion from individuals and entities shirking the labor law.
6. The legislature further finds and declares that the purpose of the
EMPIRE Worker Protection Act is to incentivize labor organizations and
not-for-profit organizations to aid working people to report violations
of the New York labor law.
7. The legislature further finds and declares that the purpose of the
EMPIRE Worker Protection Act is to facilitate whistleblowers suffering
from violations of the New York labor law to report abuses without fear
of retaliation and intimidation.
8. The legislature further finds and declares that the EMPIRE Worker
Protection Act is part of a history both in New York state and in the
United States of laws enabling private citizens to aid in public
enforcement in the whistleblower and more recently in the labor context.
In similar qui tam legislation enabling private citizens to aid in
public enforcement, the resulting action is in reality a public enforce-
ment action.
9. The legislature further finds and declares that the EMPIRE Worker
Protection Act further increases the capacity of the department of labor
as almost all of the department of labor's investigatory work is comp-
laint-driven rather than agency-driven. Moreover, the EMPIRE Worker
Protection Act will help offset the loss of human capital at the depart-
ment due to the decrease in senior labor investigators and stagnant
numbers of labor investigators employed by the department of labor since
2008.
10. The legislature further finds and declares that the mandate of the
EMPIRE Worker Protection Act is consistent with the legislature's
commitment to enhance worker protections, especially for low-wage work-
ers, as the majority of wages owed by employers according to department
of labor statistics are based on minimum wage violations.
§ 3. The labor law is amended by adding a new article 33 to read as
follows:
ARTICLE 33
EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
SECTION 960. DEFINITIONS.
961. PUBLIC ENFORCEMENT ACTION.
962. PROCEDURE.
963. CONSTRUCTION AND NON-APPLICATION.
§ 960. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
1. "AGGRIEVED EMPLOYEE" MEANS ANY EMPLOYEE AS DEFINED BY SECTION TWO
OF ARTICLE ONE OF THIS CHAPTER WHO WAS EMPLOYED BY THE ALLEGED VIOLATOR
EMPLOYER AND AGAINST WHOM ONE OF THE ALLEGED VIOLATIONS WAS COMMITTED,
AS WELL AS ANY PERSON WHO IS NOT CLASSIFIED BY A BUSINESS AS AN EMPLOYEE
BUT WHO CLAIMS TO BE AN EMPLOYEE AND WHOSE CLAIMS AGAINST THE PURPORTED
EMPLOYER RELATE TO THIS ALLEGED MISCLASSIFICATION.
2. "EMPLOYER" MEANS ANY EMPLOYER AS DEFINED BY SECTION TWO OF ARTICLE
ONE OF THIS CHAPTER.
3. "REPRESENTATIVE ORGANIZATION" MEANS A LABOR ORGANIZATION AS DEFINED
BY SUBDIVISION FIVE OF SECTION SEVEN HUNDRED ONE OF ARTICLE TWENTY OF
THIS CHAPTER OR A NOT-FOR-PROFIT CORPORATION, AS DEFINED BY SUBPARA-
GRAPHS FIVE AND SEVEN OF PARAGRAPH (A) OF SECTION ONE HUNDRED TWO OF
ARTICLE ONE OF THE NOT-FOR-PROFIT CORPORATION LAW, WHICH NOT-FOR-PROFIT
CORPORATION REGULARLY ADVOCATES ON BEHALF OF WORKERS OR EMPLOYEES AND/OR
REGULARLY ADVOCATES FOR OR ASSISTS IN ENFORCEMENT OF THE PROVISIONS OF
THIS CHAPTER.
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4. "PUBLIC ENFORCEMENT ACTION" MEANS AN ACTION BROUGHT UNDER THIS
ARTICLE INTENDED TO ENFORCE THIS CHAPTER'S PROTECTIONS ENFORCEABLE BY
THE COMMISSIONER.
5. "COMMISSIONER" SHALL, FOR THE PURPOSES OF THIS ARTICLE, INCLUDE THE
COMMISSIONER, AND ANY DIVISION, BOARD, COMMISSION, OR PART OF THE
DEPARTMENT AUTHORIZED TO IMPOSE OR SEEK PENALTIES OR OTHER REMEDIES FOR
VIOLATIONS OF THIS CHAPTER.
§ 961. PUBLIC ENFORCEMENT ACTION. 1. AN AGGRIEVED EMPLOYEE OR EMPLOY-
EES OR A REPRESENTATIVE ORGANIZATION MAY INITIATE A PUBLIC ENFORCEMENT
ACTION ON BEHALF OF THE COMMISSIONER FOR ANY PROVISION OF THIS CHAPTER,
OR ANY REGULATION PROMULGATED THEREUNDER, THAT PROVIDES FOR A CIVIL
PENALTY TO BE ASSESSED AND COLLECTED BY THE COMMISSIONER FOR A VIOLATION
OF THIS CHAPTER, OR ANY REGULATION PROMULGATED THEREUNDER, ON BEHALF OF
HIMSELF OR HERSELF AND OTHER CURRENT OR FORMER EMPLOYEES PURSUANT TO THE
PROCEDURES SPECIFIED IN SECTION NINE HUNDRED SIXTY-TWO OF THIS ARTICLE.
AN AGGRIEVED EMPLOYEE OR A REPRESENTATIVE ORGANIZATION MAY ALLEGE MULTI-
PLE VIOLATIONS THAT HAVE AFFECTED DIFFERENT EMPLOYEES.
2. A. FOR PURPOSES OF THIS SECTION, WHENEVER THE COMMISSIONER HAS
DISCRETION TO ASSESS A CIVIL PENALTY, A COURT SHALL BE AUTHORIZED TO
EXERCISE THE SAME DISCRETION TO ASSESS A CIVIL PENALTY. TO THE EXTENT
THAT THE COMMISSIONER IS AUTHORIZED TO DETERMINE THAT AN EMPLOYER HAS
VIOLATED A PROVISION OF THIS CHAPTER OR REGULATION PROMULGATED THERE-
UNDER, IN A PUBLIC ENFORCEMENT ACTION, A COURT SHALL BE AUTHORIZED TO
DETERMINE THAT AN EMPLOYER HAS COMMITTED SUCH A VIOLATION.
B. FOR ALL PROVISIONS OF THIS CHAPTER AND REGULATIONS ADOPTED PURSUANT
TO THIS CHAPTER, EXCEPT THOSE FOR WHICH A CIVIL PENALTY IS SPECIFICALLY
PROVIDED, THERE IS ESTABLISHED A CIVIL PENALTY OF FIVE HUNDRED DOLLARS
FOR EACH AGGRIEVED EMPLOYEE PER PAY PERIOD PER VIOLATION. A COURT MAY
NOT AWARD A LESSER AMOUNT, UNLESS, BASED ON THE FACTS AND CIRCUMSTANCES
OF THE PARTICULAR CASE, THE EMPLOYER DEMONSTRATES THAT TO DO OTHERWISE
WOULD RESULT IN AN AWARD THAT IS UNJUST, ARBITRARY AND OPPRESSIVE, OR
CONFISCATORY.
C. ANY AGGRIEVED EMPLOYEE OR A REPRESENTATIVE ORGANIZATION WHO
PREVAILS IN ANY PUBLIC ENFORCEMENT ACTION SHALL BE ENTITLED TO AN AWARD
OF REASONABLE ATTORNEY'S FEES AND COSTS.
D. NOTHING IN THIS SECTION SHALL OPERATE TO LIMIT AN AGGRIEVED EMPLOY-
EE'S RIGHT TO PURSUE OR RECOVER OTHER REMEDIES AVAILABLE UNDER STATE OR
FEDERAL LAW, EITHER SEPARATELY OR CONCURRENTLY WITH AN ACTION TAKEN
UNDER THIS SECTION.
3. CIVIL PENALTIES RECOVERED BY AGGRIEVED EMPLOYEES OR A REPRESEN-
TATIVE ORGANIZATION IN PUBLIC ENFORCEMENT ACTIONS SHALL BE DISTRIBUTED
AS FOLLOWS: FORTY-FIVE PERCENT TO THE AGGRIEVED EMPLOYEE OR EMPLOYEES;
AND FIFTY-FIVE PERCENT TO THE COMMISSIONER FOR ENFORCEMENT OF THIS CHAP-
TER AND EDUCATION OF EMPLOYERS AND EMPLOYEES ABOUT THEIR RIGHTS AND
RESPONSIBILITIES UNDER THIS CHAPTER, TO BE CONTINUOUSLY APPROPRIATED TO
SUPPLEMENT AND NOT SUPPLANT THE FUNDING TO THE AGENCY FOR THOSE
PURPOSES. IF AN AGGRIEVED EMPLOYEE OR EMPLOYEES ELECT A REPRESENTATIVE
ORGANIZATION TO BRING THE PUBLIC ENFORCEMENT ACTION, CIVIL PENALTIES
RECOVERED SHALL BE DISTRIBUTED AS FOLLOWS: THIRTY PERCENT TO THE
AGGRIEVED EMPLOYEE OR EMPLOYEES; FIFTEEN PERCENT TO THE REPRESENTATIVE
ORGANIZATION; FIFTY-FIVE PERCENT TO THE COMMISSIONER FOR ENFORCEMENT OF
THIS CHAPTER AND EDUCATION OF EMPLOYERS AND EMPLOYEES ABOUT THEIR RIGHTS
AND RESPONSIBILITIES UNDER THIS CHAPTER, TO BE CONTINUOUSLY APPROPRIATED
TO SUPPLEMENT AND NOT SUPPLANT THE FUNDING TO THE AGENCY FOR THOSE
PURPOSES.
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4. THE RIGHT TO BRING A PUBLIC ENFORCEMENT ACTION UNDER THIS ARTICLE
SHALL NOT BE SUBJECT TO PRIVATE AGREEMENTS BETWEEN AN AGGRIEVED EMPLOYEE
AND AN EMPLOYER OR PURPORTED EMPLOYER.
5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A PUBLIC ENFORCEMENT
ACTION TO RECOVER UPON A PENALTY IMPOSED BY THIS ARTICLE MUST BE
COMMENCED WITHIN SIX YEARS. THE STATUTE OF LIMITATIONS FOR BRINGING A
REPRESENTATIVE ACTION UNDER THIS ARTICLE SHALL BE TOLLED FROM THE DATE
AN AGGRIEVED EMPLOYEE OR A REPRESENTATIVE ORGANIZATION FILES A NOTICE
PURSUANT TO SECTION NINE HUNDRED SIXTY-TWO OF THIS ARTICLE WITH THE
COMMISSIONER OR THE COMMISSIONER COMMENCES AN INVESTIGATION, WHICHEVER
IS EARLIER.
6. PUBLIC ENFORCEMENT ACTIONS BELONG TO THE STATE AND PRECLUDE SUBSE-
QUENT STATE ENFORCEMENT EFFORTS, WHETHER BROUGHT BY THE STATE OR AN
AGGRIEVED EMPLOYEE OR REPRESENTATIVE ORGANIZATION; PROVIDED, HOWEVER,
PUBLIC ENFORCEMENT ACTIONS ARE NOT DUPLICATIVE OF PRIVATE ACTIONS
RELATED TO THE SAME ISSUES OR TOUCHING THE SAME NUCLEUS OF OPERATIVE
FACTS. THEREFORE, A PUBLIC ENFORCEMENT ACTION BROUGHT UNDER THIS ARTI-
CLE DOES NOT HAVE ANY PRECLUSIVE EFFECT ON PRIVATE ACTIONS ADDRESSING
SIMILAR WRONGDOING.
7. THE COMMISSIONER SHALL ESTABLISH A PUBLICLY AVAILABLE DATABASE OF
PUBLIC ENFORCEMENT ACTIONS BROUGHT PURSUANT TO THIS ARTICLE, INCLUDING
THE PARTIES, THE DISPOSITION AND ANY OTHER INFORMATION WHICH THE COMMIS-
SIONER SHALL BY REGULATION PRESCRIBE.
§ 962. PROCEDURE. 1. NO PUBLIC ENFORCEMENT ACTION BY AN AGGRIEVED
EMPLOYEE OR A REPRESENTATIVE ORGANIZATION PURSUANT TO SECTION NINE
HUNDRED SIXTY-ONE OF THIS ARTICLE ALLEGING A VIOLATION OF ANY PROVISION
OF THIS CHAPTER MAY BE COMMENCED:
A. PRIOR TO THIRTY DAYS AFTER WRITTEN NOTICE HAS BEEN GIVEN BY THE
AGGRIEVED EMPLOYEE OR A REPRESENTATIVE ORGANIZATION TO THE COMMISSIONER.
SUCH WRITTEN NOTICE SHALL BE GIVEN IN SUCH A MANNER AS THE COMMISSIONER
MAY PRESCRIBE BY REGULATION, SHALL BE CONSTRUED IN A LIGHT FAVORABLE TO
THE AGGRIEVED EMPLOYEE OR REPRESENTATIVE ORGANIZATION, AND SHALL
INCLUDE:
(I) THE NAME, ADDRESS AND CONTACT INFORMATION OF THE EMPLOYER.
(II) THE NAME, ADDRESS, OCCUPATION AND CONTACT INFORMATION OF THE
AGGRIEVED EMPLOYEE.
(III) THE NAME, ADDRESS AND CONTACT INFORMATION OF THE REPRESENTATIVE
ORGANIZATION, IF THE ACTION IS BROUGHT BY A REPRESENTATIVE ORGANIZATION.
(IV) THE NAME, ADDRESS AND CONTACT INFORMATION OF THE AGGRIEVED
EMPLOYEE'S LEGAL COUNSEL, SHOULD ONE EXIST.
(V) A STATEMENT OF THE UNDERLYING CLAIM.
(VI) ESTIMATED NUMBER OF EMPLOYEES AFFECTED.
B. IF THE COMMISSIONER, AT ANY TIME PRIOR TO THE END OF THE THIRTY DAY
NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR TO
COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER, AND UPON WRITTEN NOTICE
TO THE AGGRIEVED EMPLOYEE WHO PROVIDED THE NOTICE PRESCRIBED IN PARA-
GRAPH A OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING
AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT TO THIS CHAPTER RELA-
TIVE TO THE ALLEGED VIOLATION.
C. IF THE COMMISSIONER, ON THE SAME FACTS AND THEORIES, CITES A PERSON
WITHIN THE TIMEFRAMES SET FORTH IN THIS SECTION FOR A VIOLATION OF THE
SAME SECTION OR SECTIONS OF THIS CHAPTER UNDER WHICH THE AGGRIEVED
EMPLOYEE OR REPRESENTATIVE ORGANIZATION IS ATTEMPTING TO RECOVER A CIVIL
PENALTY OR REMEDY ON BEHALF OF HIMSELF OR HERSELF OR OTHERS.
2. THE COMMISSIONER MAY INTERVENE IN THE PUBLIC ENFORCEMENT ACTION AND
PROCEED WITH ANY AND ALL CLAIMS IN THE ACTION:
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A. AS OF RIGHT WITHIN THE THIRTY DAY NOTICE PERIOD PRESCRIBED IN PARA-
GRAPH A OF SUBDIVISION ONE OF THIS SECTION; OR
B. FOR GOOD CAUSE, AS DETERMINED BY THE COURT, AFTER THE EXPIRATION OF
THE THIRTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF SUBDIVISION
ONE OF THIS SECTION.
3. A. THE AGGRIEVED EMPLOYEE OR REPRESENTATIVE ORGANIZATION SHALL,
WITHIN TEN DAYS FOLLOWING COMMENCEMENT OF A CIVIL ACTION PURSUANT TO
THIS ARTICLE, PROVIDE THE COMMISSIONER WITH A FILE-STAMPED COPY OF THE
COMPLAINT THAT INCLUDES THE CASE NUMBER ASSIGNED BY THE COURT.
B. EITHER THE COMMISSIONER OR A FEDERAL OR STATE COURT OF COMPETENT
JURISDICTION SHALL REVIEW AND APPROVE ANY SETTLEMENT OF ANY CIVIL ACTION
FILED PURSUANT TO THIS SECTION. THE COMMISSIONER OR COURT SHALL APPROVE
THE SETTLEMENT IF IT IS FAIR, REASONABLE, AND ADEQUATE, IN LIGHT OF THE
STATUTORY PURPOSE OF THE PROVISION OF THIS CHAPTER ALLEGED TO HAVE BEEN
VIOLATED AND THE PURPOSE OF THE EMPIRE WORKER PROTECTION ACT.
C. A COPY OF THE COURT'S JUDGMENT IN ANY CIVIL ACTION FILED PURSUANT
TO THIS ARTICLE AND ANY OTHER ORDER IN THAT ACTION THAT EITHER PROVIDES
FOR OR DENIES AN AWARD OF CIVIL PENALTIES UNDER THIS ARTICLE SHALL BE
SUBMITTED TO THE COMMISSIONER WITHIN TEN DAYS AFTER ENTRY OF THE JUDG-
MENT OR ORDER.
D. ITEMS REQUIRED TO BE SUBMITTED TO THE COMMISSIONER UNDER THIS
SUBDIVISION SHALL BE TRANSMITTED IN SUCH A MANNER AS THE COMMISSIONER
SHALL PRESCRIBE FOR THE FILING OF NOTICES UNDER PARAGRAPH A OF SUBDIVI-
SION ONE OF THIS SECTION.
4. IF A REPRESENTATIVE ORGANIZATION INITIATES A PUBLIC ENFORCEMENT
ACTION PURSUANT TO THIS ARTICLE, AN AGGRIEVED EMPLOYEE MUST ELECT THE
REPRESENTATIVE ORGANIZATION IN WRITING IN A FORM WHICH THE COMMISSIONER
SHALL BY REGULATION PRESCRIBE. IN SUCH CASES, THE AGGRIEVED EMPLOYEE'S
NAME AND PERSONAL IDENTIFYING INFORMATION SHALL BE KEPT CONFIDENTIAL IF
THE AGGRIEVED EMPLOYEE SO CHOOSES.
5. SUCH REGULATIONS PRESCRIBED PURSUANT TO PARAGRAPH A OF SUBDIVISION
ONE OF THIS SECTION SHALL PROVIDE FOR THE RIGHT OF THE AGGRIEVED EMPLOY-
EE OR REPRESENTATIVE ORGANIZATION TO FURNISH AN AMENDED NOTICE, AFTER
THE NOTICE BY THE COMMISSIONER TO THE AGGRIEVED EMPLOYEE OR REPRESEN-
TATIVE ORGANIZATION THAT THE ORIGINAL NOTICE WAS NOT IN COMPLIANCE WITH
THIS SECTION OR THE REGULATIONS ISSUED THEREUNDER AND SPECIFYING WITH
PARTICULARITY WHAT THE DEFICIENCIES WERE IN THE ORIGINAL NOTICE. SUCH
NOTICE AND OPPORTUNITY TO AMEND SHALL BE PROVIDED BY THE COMMISSIONER
WITHIN THIRTY DAYS OF THE ORIGINAL NOTICE OR THE ORIGINAL NOTICE SHALL
BE DEEMED IN COMPLIANCE WITH THIS SECTION. THE AGGRIEVED EMPLOYEE OR
REPRESENTATIVE ORGANIZATION SHALL HAVE THIRTY DAYS FROM RECEIVING NOTICE
FROM THE COMMISSIONER THAT THEIR ORIGINAL NOTICE WAS NOT IN COMPLIANCE
WITH THIS SECTION TO AMEND THE NOTICE.
6. FOR THE PURPOSES OF DETERMINING WHETHER THE AGGRIEVED EMPLOYEE OR
REPRESENTATIVE ORGANIZATION COMPLIED WITH THIS SECTION, THE NOTICE SHALL
BE CONSTRUED IN A LIGHT FAVORABLE TO THE EMPLOYEE OR REPRESENTATIVE
ORGANIZATION.
§ 963. CONSTRUCTION AND NON-APPLICATION. 1. THIS ARTICLE SHALL NOT
APPLY TO THE RECOVERY OF ADMINISTRATIVE AND CIVIL PENALTIES IN
CONNECTION WITH THE UNEMPLOYMENT INSURANCE LAW AS CONTAINED IN ARTICLE
EIGHTEEN OF THIS CHAPTER.
2. THIS ARTICLE SHALL NOT APPLY TO THE RECOVERY OF ADMINISTRATIVE AND
CIVIL PENALTIES IN CONNECTION WITH THE NEW YORK STATE LABOR RELATIONS
ACT AS CONTAINED IN ARTICLE TWENTY OF THIS CHAPTER.
3. SEVERABILITY. IF ANY WORD, PHRASE, CLAUSE, SENTENCE, PARAGRAPH,
SUBDIVISION, SECTION OR PART OF THIS ARTICLE OR THE APPLICATION THEREOF
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TO ANY PERSON OR CIRCUMSTANCES SHALL BE ADJUDGED INVALID BY A COURT OF
COMPETENT JURISDICTION, SUCH ORDER OR JUDGMENT SHALL BE CONFINED IN ITS
OPERATION TO THE CONTROVERSY IN WHICH IT WAS RENDERED, AND SHALL NOT
AFFECT OR INVALIDATE THE REMAINDER OF THIS ARTICLE, BUT SHALL BE
CONFINED IN ITS OPERATION TO THE WORD, PHRASE, CLAUSE, SENTENCE, PARA-
GRAPH, SUBDIVISION, SECTION OR PART THEREOF DIRECTLY INVOLVED IN THE
CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
4. THIS ARTICLE SHALL BE CONSTRUED IN LIGHT OF ITS REMEDIAL PURPOSES
TO EXPAND THE ENFORCEMENT OF THIS CHAPTER.
§ 4. This act shall take effect immediately.