S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3534--A
                                                         Cal. No. 145
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 29, 2019
                                ___________
 
 Introduced  by M. of A. DINOWITZ, M. G. MILLER, ABINANTI, WEPRIN, COLTON
   -- Multi-Sponsored by -- M. of A. GOTTFRIED, LIFTON -- read  once  and
   referred  to the Committee on Judiciary -- ordered to a third reading,
   amended and ordered reprinted, retaining its place  on  the  order  of
   third reading
 
 AN  ACT  to  amend  the  judiciary law and the labor law, in relation to
   creating  additional  remedies  for  unlawful  discharge,  penalty  or
   discrimination  on  account  of  the exercise of a juror's right to be
   absent from employment for jury duty
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.   Section 519 of the judiciary law, as added by chapter 85
 of the laws of 1995, is amended to read as follows:
   § 519. Right of juror to be absent from employment.  Any person who is
 summoned to serve as a juror under the provisions of  this  article  and
 who  notifies  his or her employer to that effect prior to the commence-
 ment of a term of service shall not, on account of absence from  employ-
 ment  by  reason  of  such  jury  service, be subject to discharge [or],
 penalty, OR DISCRIMINATION IN ANY OTHER MANNER.  An employer may, howev-
 er, withhold wages of any such employee serving as a  juror  during  the
 period  of such service; provided that an employer who employs more than
 ten employees shall not withhold the first forty dollars of such juror's
 daily wages during the first three days of jury service. Withholding  of
 wages  in  accordance with this section shall not be deemed a penalty OR
 DISCRIMINATION IN ANY OTHER MANNER.   Violation of  this  section  shall
 constitute  a  criminal contempt of court punishable pursuant to section
 seven hundred  fifty  of  this  chapter  AND  SHALL  ALSO  CONSTITUTE  A
 VIOLATION OF SECTION TWO HUNDRED FIFTEEN OF THE LABOR LAW AND BE SUBJECT
 TO THE CIVIL PENALTIES AND CIVIL ACTION PROVIDED FOR THEREUNDER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00755-02-0
              

 A. 3534--A                          2
 
   § 2. Paragraph 7 of subdivision A of section 750 of the judiciary law,
 as  amended  by  chapter  823 of the laws of 1982, is amended to read as
 follows:
   7.  Wilful  failure  to  obey  any  mandate, process, or notice issued
 pursuant to [articles] ARTICLE sixteen[, seventeen, eighteen, eighteen-a
 or eighteen-b] of [the judiciary law] THIS CHAPTER, or to rules  adopted
 pursuant  thereto,  or to any other statute relating thereto, or refusal
 to be sworn as  provided  therein,  or  subjection  of  an  employee  to
 discharge  [or],  penalty,  OR  DISCRIMINATION  IN  ANY  OTHER MANNER on
 account of his OR HER absence from  employment  by  reason  of  jury  or
 subpoenaed  witness  service  in  violation  of  this chapter or section
 215.11 of the penal law.   Applications to  punish  the  accused  for  a
 contempt  specified  in this subdivision may be made by notice of motion
 or by order to show cause, and shall be made returnable at the  term  of
 the supreme court at which contested motions are heard, or of the county
 court if the supreme court is not in session.
   §  3.  Section  215 of the labor law, as amended by chapter 564 of the
 laws of 2010, the closing paragraph of paragraph (a) of subdivision 1 as
 added by chapter 126 of the laws of 2019, paragraph (b) of subdivision 1
 and paragraph (a) of subdivision 2 as amended by chapter 537 of the laws
 of 2014, is amended to read as follows:
   § 215. [Penalties] CIVIL PENALTIES and civil action; prohibited retal-
 iation. 1. (a) No employer or his or her agent, or the officer or  agent
 of  any  corporation,  partnership, or limited liability company, or any
 other person, shall discharge,  threaten,  penalize,  or  in  any  other
 manner  discriminate  or retaliate against any employee (i) because such
 employee has made a complaint to his or her employer, or to the  commis-
 sioner  or  his  or  her  authorized  representative, or to the attorney
 general or any other person, that the employer has  engaged  in  conduct
 that  the  employee, reasonably and in good faith, believes violates any
 provision of this chapter, or any order issued by the commissioner  (ii)
 because  such  employer or person believes that such employee has made a
 complaint to his or her employer, or to the commissioner or his  or  her
 authorized  representative,  or to the attorney general, or to any other
 person that the employer has violated any provision of this chapter,  or
 any  order  issued  by  the commissioner (iii) because such employee has
 caused to be instituted or is about to institute a proceeding  under  or
 related  to  this  chapter,  or  (iv) because such employee has provided
 information to the commissioner or his or her authorized  representative
 or  the  attorney general, or (v) because such employee has testified or
 is about to testify in an investigation or proceeding under  this  chap-
 ter,  or  (vi)  because  such  employee  has  otherwise exercised rights
 protected under this chapter, or (vii) because the employer has received
 an adverse determination from the commissioner involving  the  employee,
 OR  (VIII)  BECAUSE  SUCH  EMPLOYEE HAS EXERCISED HIS OR HER RIGHT TO BE
 ABSENT FROM EMPLOYMENT PURSUANT TO SECTION FIVE HUNDRED NINETEEN OF  THE
 JUDICIARY LAW BY REASON OF JURY SERVICE.
   An  employee  complaint  or other communication need not make explicit
 reference to any section or provision of this  chapter  to  trigger  the
 protections of this section.
   As used in this section, to threaten, penalize, or in any other manner
 discriminate  or  retaliate against any employee includes threatening to
 contact or contacting United States immigration authorities or otherwise
 reporting or threatening to report an employee's  suspected  citizenship
 or immigration status or the suspected citizenship or immigration status
 of  an  employee's family or household member, as defined in subdivision

 A. 3534--A                          3
 
 two of section four hundred fifty-nine-a of the social services law,  to
 a federal, state or local agency.
   (b)  If after investigation the commissioner finds that an employer or
 person has violated any provision of this section, the commissioner may,
 by an  order  which  shall  describe  particularly  the  nature  of  the
 violation,  assess  the  employer  or person a civil penalty of not less
 than one thousand nor more than ten thousand dollars provided,  however,
 that  if  the  commissioner  finds  that  the  employer has violated the
 provisions of this section in the preceding six years,  he  or  she  may
 assess a civil penalty of not less than one thousand nor more than twen-
 ty  thousand  dollars.  EACH ACT TAKEN IN CONTRAVENTION OF A PROHIBITION
 CONTAINED IN THIS SECTION  SHALL  CONSTITUTE  A  SEPARATE  AND  DISTINCT
 VIOLATION  OF  THIS SECTION, AND IN ASSESSING ANY SUCH CIVIL PENALTY THE
 COMMISSIONER SHALL CONSIDER, IN ADDITION TO THE NATURE OF THE VIOLATION,
 ALL PRIOR FINDINGS OF VIOLATIONS OF THE PROVISIONS OF  THIS  SECTION  BY
 THE  EMPLOYER.  The  commissioner  may also order all appropriate relief
 including enjoining the conduct of  any  person  or  employer;  ordering
 payment of liquidated damages to the employee by the person or entity in
 violation;  and,  where the person or entity in violation is an employer
 ordering rehiring or reinstatement of the employee to his or her  former
 position or an equivalent position, and an award of lost compensation or
 an  award  of  front  pay  in lieu of reinstatement and an award of lost
 compensation. Liquidated damages shall be calculated as  an  amount  not
 more  than  twenty  thousand dollars. The commissioner may assess liqui-
 dated damages on behalf of every employee aggrieved under this  section,
 in addition to any other remedies permitted by this section.
   (c)  THE  PROVISIONS  OF  SECTION TWO HUNDRED THIRTEEN OF THIS ARTICLE
 SHALL NOT APPLY TO THE VIOLATIONS SPECIFIED IN THIS SECTION.
   (D) This section shall not apply to employees  of  the  state  or  any
 municipal subdivisions or departments thereof.
   2.  (a)  [An]  IN  ADDITION  TO THE CIVIL PENALTIES PROVIDED FOR UNDER
 SUBDIVISION ONE OF THIS SECTION, AN employee may bring a civil action in
 a court of  competent  jurisdiction  against  any  employer  or  persons
 alleged to have violated the provisions of this section. The court shall
 have  jurisdiction  to  restrain  violations of this section, within two
 years after such violation, regardless of the dates of employment of the
 employee, and to order all appropriate relief, including  enjoining  the
 conduct  of  any  person  or  employer;  ordering  payment of liquidated
 damages, costs and reasonable attorneys' fees to  the  employee  by  the
 person  or  entity  in  violation;  and,  where  the person or entity in
 violation is an employer, ordering  rehiring  or  reinstatement  of  the
 employee  to his or her former position with restoration of seniority or
 an award of front pay in lieu of reinstatement, and  an  award  of  lost
 compensation  and  damages, costs and reasonable attorneys' fees. Liqui-
 dated damages shall be calculated as an  amount  not  more  than  twenty
 thousand  dollars.  The  court  shall  award liquidated damages to every
 employee aggrieved under this section, in addition to any other remedies
 permitted by this section. The statute of limitations  shall  be  tolled
 from the date an employee files a complaint with the commissioner or the
 commissioner  commences an investigation, whichever is earlier, until an
 order to comply issued by the commissioner becomes final, or  where  the
 commissioner  does  not  issue  an  order,  until  the date on which the
 commissioner  notifies  the  complainant  that  the  investigation   has
 concluded. Investigation by the commissioner shall not be a prerequisite
 to  nor  a  bar  against  a  person  bringing  a civil action under this
 section.

 A. 3534--A                          4
 
   (b) At or before the commencement of any action  under  this  section,
 notice  thereof shall be served upon the attorney general by the employ-
 ee.
   3.  Any  employer  or his or her agent, or the officer or agent of any
 corporation, partnership, or limited liability  company,  or  any  other
 person who violates subdivision one of this section shall be guilty of a
 class B misdemeanor.
   §  4.  This  act shall take effect on the thirtieth day after it shall
 have become a law.