S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    677
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
   when printed to be committed 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;
   § 2. Section 196-d of the labor law, as added by chapter 1007  of  the
 laws of 1968, is amended to read as follows:
   §  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02611-01-7

 S. 677                              2
 
 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-
 ees,  nor  to  the  sharing of tips by a waiter with a busboy or similar
 employee.
   § 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)

 S. 677                              3
 
 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
 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.
   § 4. Section 199 of the labor law, as added by chapter 548 of the laws
 of 1966, is amended to read as follows:
   §  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.
   § 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.