S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1848--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 16, 2019
                                ___________
 
 Introduced  by  Sens. HOYLMAN, GIANARIS, JACKSON, KRUEGER, MAYER, MYRIE,
   RAMOS, SALAZAR, SANDERS, SERRANO -- read twice  and  ordered  printed,
   and  when  printed to be committed to the Committee on Labor -- recom-
   mitted to the Committee on Labor in accordance  with  Senate  Rule  6,
   sec.  8  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00280-03-0

 S. 1848--A                          2
 
 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-
 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.
   §  3.  The  labor law is amended by adding a new article 34 to read as
 follows:
                                ARTICLE 34
  EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
 SECTION 960. DEFINITIONS.
         961. REPRESENTATIVE CIVIL ACTION.
         962. PROCEDURE.
         963. NON-APPLICATION.
   § 960. DEFINITIONS. WHENEVER USED IN THIS ARTICLE:
   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,
 OR  WAS ALLEGED TO HAVE BEEN 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,  WHETHER  OR  NOT  THAT  PERSON  HAS RECEIVED FULL OR
 PARTIAL RELIEF FROM HARM.
   2. "RELATOR" MEANS AN AGGRIEVED PARTY, WHISTLEBLOWER, OR  A  REPRESEN-
 TATIVE  ORGANIZATION  THAT  ACTS  AS A PLAINTIFF IN A PUBLIC ENFORCEMENT
 ACTION UNDER THIS CHAPTER.
   3. "WHISTLEBLOWER" MEANS ANY CURRENT OR FORMER  EMPLOYEE,  CONTRACTOR,
 SUBCONTRACTOR,  OR  EMPLOYEE  OF  A  CONTRACTOR  OR SUBCONTRACTOR OF THE
 DEFENDANT WITH KNOWLEDGE OF THE ALLEGED VIOLATIONS THAT  IS  INDEPENDENT
 OF  AND  MATERIALLY ADDS TO ANY PUBLICLY DISCLOSED INFORMATION ABOUT THE
 ALLEGED VIOLATIONS.
   4. "EMPLOYER" MEANS ANY EMPLOYER AS DEFINED BY SECTION TWO OF  ARTICLE
 ONE  OF  THIS CHAPTER.   THE TERM "EMPLOYER" SHALL NOT INCLUDE A GOVERN-
 MENTAL AGENCY.
   5. "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 ASSISTS IN ENFORCEMENT OF THE PROVISIONS  OF  THIS
 CHAPTER AND WHICH HAS BEEN SELECTED BY AN AGGRIEVED EMPLOYEE OR WHISTLE-

 S. 1848--A                          3

 BLOWER  TO INITIATE A PUBLIC ENFORCEMENT ACTION ON THE AGGRIEVED EMPLOY-
 EE'S OR WHISTLEBLOWER'S BEHALF, IN WRITTEN NOTICE IN SUCH  A  MANNER  AS
 THE  COMMISSIONER  MAY  PRESCRIBE  BY REGULATION. WHERE A REPRESENTATIVE
 ORGANIZATION  IS  DESIGNATED  AS  THE RELATOR, THE AGGRIEVED EMPLOYEE OR
 WHISTLEBLOWER MAY ELECT TO HAVE  THEIR  NAME  AND  PERSONAL  IDENTIFYING
 INFORMATION BE KEPT CONFIDENTIAL.
   6.  "PUBLIC  ENFORCEMENT  ACTION"  MEANS  AN ACTION BROUGHT UNDER THIS
 ARTICLE INTENDED TO ENFORCE THIS CHAPTER'S  PROTECTIONS  ENFORCEABLE  BY
 THE  COMMISSIONER.    NOTHING  IN  THIS  ARTICLE SHALL BE INTERPRETED TO
 PERMIT A PUBLIC ENFORCEMENT ACTION AGAINST A GOVERNMENTAL AGENCY.
   7. "COMMUNITY-BASED ENFORCEMENT" MEANS ACTIVITIES  CONDUCTED  BY  NON-
 PROFIT  COMMUNITY-BASED  ORGANIZATIONS  TO  ASSIST  WORKERS IN ENFORCING
 THEIR EMPLOYMENT RIGHTS, INCLUDING OUTREACH, EDUCATION, TRAINING MATERI-
 ALS, TECHNICAL ASSISTANCE, COUNSELING, RESEARCH AND  REFERRAL  SERVICES,
 AS FURTHER DEFINED BY THE COMMISSIONER.
   8. "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.
   9.  "VIOLATION"  MEANS  AN  EMPLOYER'S  NONCOMPLIANCE  WITH ANY OF THE
 REQUIREMENTS OF THE FOLLOWING ARTICLES OF THIS CHAPTER  AND  WITH  REGU-
 LATIONS  AND WAGE ORDERS PROMULGATED BY THE COMMISSIONER IN IMPLEMENTING
 SUCH ARTICLES:
   A. ARTICLE TWO EXCEPT SECTIONS  TEN  THROUGH  TWENTY-FIVE-C,  SECTIONS
 TWENTY-SEVEN  THROUGH  THIRTY,  AND SECTIONS THIRTY-THREE THROUGH FORTY-
 THREE;
   B. ARTICLE FOUR EXCEPT SECTIONS ONE HUNDRED THIRTY, ONE HUNDRED  THIR-
 TY-SEVEN,  ONE  HUNDRED  FORTY,  ONE  HUNDRED FORTY-ONE, AND ONE HUNDRED
 FORTY-FIVE;
   C. ARTICLE FOUR-A EXCEPT SECTIONS ONE HUNDRED FIFTY  AND  ONE  HUNDRED
 FIFTY-THREE THROUGH ONE HUNDRED FIFTY-FOUR-A;
   D.  ARTICLE  FIVE  EXCEPT SECTIONS ONE HUNDRED SIXTY-EIGHT THROUGH ONE
 HUNDRED SIXTY-NINE-A;
   E. ARTICLE SIX EXCEPT SECTIONS ONE HUNDRED NINETY, ONE  HUNDRED  NINE-
 TY-ONE-A,  ONE HUNDRED NINETY-SIX, ONE HUNDRED NINETY-SIX-A, ONE HUNDRED
 NINETY-EIGHT-A, ONE HUNDRED NINETY-NINE AND ONE HUNDRED NINETY-NINE-A;
   F. ARTICLE SEVEN EXCEPT SECTIONS TWO HUNDRED-A, TWO HUNDRED  ONE,  TWO
 HUNDRED  TWO-B  THROUGH TWO HUNDRED TWO-G, TWO HUNDRED FOUR, TWO HUNDRED
 FOUR-B, TWO HUNDRED SIX, TWO HUNDRED SIX-B, TWO  HUNDRED  EIGHT  THROUGH
 TWO  HUNDRED  TEN, TWO HUNDRED ELEVEN, TWO HUNDRED ELEVEN-A, TWO HUNDRED
 TWELVE-C, TWO HUNDRED THIRTEEN THROUGH TWO HUNDRED FOURTEEN, TWO HUNDRED
 FIFTEEN-A, TWO HUNDRED FIFTEEN-B, TWO HUNDRED SIXTEEN, TWO HUNDRED NINE-
 TEEN-A, AND TWO HUNDRED NINETEEN-C;
   G. ARTICLE NINE EXCEPT SECTIONS TWO HUNDRED THIRTY, TWO HUNDRED  THIR-
 TY-FOUR THROUGH TWO HUNDRED THIRTY-SIX, AND TWO HUNDRED THIRTY-EIGHT;
   H. ARTICLE TEN EXCEPT SECTION TWO HUNDRED FORTY-TWO;
   I.  ARTICLE  ELEVEN  EXCEPT  SECTIONS  TWO  HUNDRED  SIXTY THROUGH TWO
 HUNDRED SIXTY-EIGHT, TWO HUNDRED SEVENTY-FIVE THROUGH TWO HUNDRED SEVEN-
 TY-SEVEN, TWO HUNDRED NINETY-SEVEN, AND THREE HUNDRED FIFTEEN;
   J. ARTICLE THIRTEEN EXCEPT SECTIONS THREE HUNDRED FIFTY THROUGH  THREE
 HUNDRED  FIFTY-THREE, AND THREE HUNDRED FIFTY-FIVE THROUGH THREE HUNDRED
 SIXTY-THREE;
   K. ARTICLE FOURTEEN;
   L. ARTICLE FIFTEEN EXCEPT SECTIONS FOUR  HUNDRED,  FOUR  HUNDRED  ONE,
 FOUR  HUNDRED TWENTY-FIVE, FOUR HUNDRED THIRTY-TWO, FOUR HUNDRED THIRTY-
 SIX AND FOUR HUNDRED THIRTY-SEVEN;

 S. 1848--A                          4
 
   M. ARTICLE SIXTEEN EXCEPT SECTIONS FOUR HUNDRED  FIFTY,  FOUR  HUNDRED
 FIFTY-ONE, FOUR HUNDRED FIFTY-SIX, FOUR HUNDRED FIFTY-EIGHT THROUGH FOUR
 HUNDRED  SIXTY,  FOUR  HUNDRED  SIXTY-TWO, FOUR HUNDRED SIXTY-THREE, AND
 FOUR HUNDRED SIXTY-FIVE;
   N.  ARTICLE SEVENTEEN EXCEPT SECTIONS FOUR HUNDRED SEVENTY-ONE THROUGH
 FOUR HUNDRED SEVENTY-FOUR-A;
   O. ARTICLE NINETEEN EXCEPT SECTIONS SIX  HUNDRED  FIFTY,  SIX  HUNDRED
 FIFTY-ONE,  SIX  HUNDRED  FIFTY-THREE  THROUGH  SIX  HUNDRED  SIXTY, SIX
 HUNDRED SIXTY-TWO, AND SIX HUNDRED SIXTY-FIVE;
   P. ARTICLE NINETEEN-A EXCEPT SECTIONS SIX HUNDRED SEVENTY THROUGH  SIX
 HUNDRED SEVENTY-TWO, SIX HUNDRED SEVENTY-FOUR THROUGH SIX HUNDRED SEVEN-
 TY-EIGHT, SIX HUNDRED EIGHTY, AND SIX HUNDRED EIGHTY-THREE;
   Q.  ARTICLE NINETEEN-B EXCEPT SECTIONS SIX HUNDRED NINETY, SIX HUNDRED
 NINETY-THREE, AND SIX HUNDRED NINETY-FOUR;
   R. ARTICLE TWENTY-B EXCEPT SECTIONS SEVEN HUNDRED THIRTY-THREE,  SEVEN
 HUNDRED THIRTY-EIGHT, AND SEVEN HUNDRED THIRTY-NINE;
   S. ARTICLE TWENTY-C;
   T.  ARTICLE  TWENTY-FIVE-A  EXCEPT SECTIONS EIGHT HUNDRED SIXTY, EIGHT
 HUNDRED SIXTY-A, EIGHT HUNDRED SIXTY-C THROUGH  EIGHT  HUNDRED  SIXTY-F,
 AND EIGHT HUNDRED SIXTY-I;
   U.  ARTICLE  TWENTY-SEVEN  EXCEPT  SECTIONS  EIGHT  HUNDRED  SEVENTY-A
 THROUGH EIGHT HUNDRED SEVENTY-F  AND  EIGHT  HUNDRED  SEVENTY-H  THROUGH
 EIGHT HUNDRED SEVENTY-O;
   V.  ARTICLE  TWENTY-EIGHT  EXCEPT SECTIONS EIGHT HUNDRED SEVENTY-FIVE,
 EIGHT HUNDRED SEVENTY-SEVEN, AND EIGHT HUNDRED EIGHTY-ONE THROUGH  EIGHT
 HUNDRED EIGHTY-THREE; AND
   W. ARTICLE THIRTY EXCEPT SECTIONS NINE HUNDRED, NINE HUNDRED ONE, NINE
 HUNDRED THREE, AND NINE HUNDRED FIVE THROUGH NINE HUNDRED EIGHT.
   § 961. REPRESENTATIVE CIVIL ACTION. 1. A RELATOR MAY INITIATE A PUBLIC
 ENFORCEMENT  ACTION  TO COLLECT CIVIL PENALTIES ON BEHALF OF THE COMMIS-
 SIONER FOR A VIOLATION 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.  A  RELATOR  MAY  ALLEGE  MULTIPLE
 VIOLATIONS  THAT  HAVE AFFECTED DIFFERENT EMPLOYEES AND MAY SEEK INJUNC-
 TIVE AND DECLARATORY RELIEF THAT THE STATE WOULD BE ENTITLED TO SEEK.
   2. A. FOR PURPOSES OF THIS  SECTION,  WHENEVER  THE  COMMISSIONER  HAS
 DISCRETION  TO ASSESS A CIVIL PENALTY, A COURT IS 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  THEREUNDER,  IN  A
 PUBLIC ENFORCEMENT ACTION, A COURT SHALL BE AUTHORIZED TO DETERMINE THAT
 AN EMPLOYER HAS COMMITTED SUCH A VIOLATION.
   B. FOR ANY VIOLATION DEFINED IN THIS ARTICLE, 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 EMPLOY-
 ER DEMONSTRATES THAT TO DO OTHERWISE WOULD RESULT IN AN  AWARD  THAT  IS
 UNJUST, ARBITRARY AND OPPRESSIVE, OR CONFISCATORY.
   C.  IN  ANY CIVIL ACTION COMMENCED PURSUANT TO THIS ARTICLE, THE COURT
 SHALL ALLOW A PREVAILING RELATOR TO RECOVER  ALL  REASONABLE  ATTORNEYS'
 FEES, EXPERT FEES AND OTHER COSTS. FOR THE PURPOSES OF THIS ARTICLE, THE
 TERM  "PREVAILING"  INCLUDES  A RELATOR WHOSE COMMENCEMENT OF LITIGATION
 HAS ACTED AS A CATALYST TO EFFECT POLICY  CHANGE  ON  THE  PART  OF  THE
 DEFENDANT, REGARDLESS OF WHETHER THAT CHANGE HAS BEEN IMPLEMENTED VOLUN-

 S. 1848--A                          5
 
 TARILY, AS A RESULT OF A SETTLEMENT OR AS A RESULT OF A JUDGMENT IN SUCH
 RELATOR'S FAVOR.
   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.
   E.  NOTHING  IN THIS SECTION SHALL OPERATE TO LIMIT THE COMMISSIONER'S
 RIGHT TO SEEK RESTITUTION AND DAMAGES, WHERE  AVAILABLE,  FOR  AGGRIEVED
 EMPLOYEES  IN  CONJUNCTION  WITH A PUBLIC ENFORCEMENT ACTION IN WHICH IT
 HAS INTERVENED.
   3. A.  CIVIL PENALTIES RECOVERED IN PUBLIC ENFORCEMENT  ACTIONS  SHALL
 BE  DISTRIBUTED  AS FOLLOWS:  WHERE THE COMMISSIONER HAS NOT INTERVENED,
 FORTY PERCENT TO THE RELATOR; AND SIXTY 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; WHERE THE  COMMISSIONER  HAS  INTERVENED,
 THIRTY  PERCENT  TO THE RELATOR; AND SEVENTY 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.
   B. TWENTY-FIVE PERCENT OF THE COMMISSIONER'S PENALTY  SHARE  SHALL  BE
 RESERVED FOR COMMUNITY-BASED ENFORCEMENT.
   C.  THE  RELATOR SHALL EQUITABLY DISTRIBUTE THE SHARE OF PENALTIES DUE
 THE RELATOR AMONG AGGRIEVED EMPLOYEES, WITH  DUE  CONSIDERATION  OF  THE
 BURDENS  AND  RISKS ASSUMED BY THE RELATOR IN PROSECUTING THE ACTION. IF
 THE RELATOR IS A REPRESENTATIVE ORGANIZATION, IT  SHALL  DISTRIBUTE  ALL
 RECOVERED  PENALTIES  TO  AGGRIEVED  WORKERS  BUT MAY RECOVER REASONABLE
 ATTORNEYS' FEES AND COSTS INCURRED IN PROSECUTING THE ACTION AND  ANCIL-
 LARY  COSTS  ASSOCIATED  WITH  SERVING  AS A RELATOR. THE RELATOR, SHALL
 SUBMIT A DISTRIBUTION SUMMARY TO THE COMMISSIONER.
   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 ALLEGED 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 A
 RELATOR 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. THE COMMISSIONER SHALL ESTABLISH A DATABASE OF  PUBLIC  ENFORCEMENT
 NOTICES  SUBMITTED  PURSUANT TO THIS ARTICLE, INCLUDING THE PARTIES, THE
 DISPOSITION AND ANY OTHER INFORMATION WHICH THE  COMMISSIONER  SHALL  BY
 REGULATION  PRESCRIBE  AND  SHALL  MAKE  SUCH  DATABASE AVAILABLE TO THE
 PUBLIC ONLINE. THE COMMISSIONER SHALL ALSO PUBLISH AN ANNUAL  REPORT  OF
 TOTAL PENALTIES RECOVERED UNDER THIS CHAPTER.
   7.  A.  NO EMPLOYER OR HIS OR HER AGENT, EMPLOYEE, CONTRACTOR, SUBCON-
 TRACTOR OR THE OFFICER OR AGENT  OF  ANY  CORPORATION,  PARTNERSHIP,  OR
 LIMITED  LIABILITY COMPANY, OR ANY OTHER PERSON SHALL DISCHARGE, DEMOTE,
 SUSPEND, THREATEN, HARASS, OR IN ANY OTHER MANNER  DISCRIMINATE  AGAINST
 ANY PERSON BECAUSE OF ANY LAWFUL ACT DONE BECAUSE:
   (I)  THE  RELATOR OR POTENTIAL RELATOR BROUGHT OR IS PERCEIVED TO HAVE
 BROUGHT A PUBLIC ENFORCEMENT ACTION;

 S. 1848--A                          6
 
   (II) THE RELATOR OR POTENTIAL RELATOR HAS PROVIDED INFORMATION, CAUSED
 INFORMATION TO BE PROVIDED, OR OTHERWISE ASSISTED IN A  PUBLIC  ENFORCE-
 MENT  ACTION  OR  PROVIDED  INFORMATION,  OR  CAUSED  INFORMATION  TO BE
 PROVIDED TO A PERSON WITH SUPERVISORY  AUTHORITY  OVER  THE  RELATOR  OR
 POTENTIAL  RELATOR REGARDING CONDUCT THAT THE RELATOR OR POTENTIAL RELA-
 TOR REASONABLY BELIEVES CONSTITUTES A VIOLATION OF THIS SECTION; OR
   (III) THE PERSON BELIEVES THAT THE RELATOR OR  POTENTIAL  RELATOR  MAY
 BRING A PUBLIC ENFORCEMENT ACTION OR COOPERATE WITH ONE.
   B. ANY PERSON AGGRIEVED BY A VIOLATION OF THIS SUBDIVISION MAY BRING A
 PUBLIC  ENFORCEMENT ACTION FOR ALL APPROPRIATE RELIEF, INCLUDING ENJOIN-
 ING THE CONDUCT OF ANY PERSON OR EMPLOYER;  ORDERING  PAYMENT  OF  CIVIL
 PENALTIES  AS  PROVIDED  BY SECTION TWO HUNDRED FIFTEEN OF THIS CHAPTER,
 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. ANY PERSON AGGRIEVED
 BY A VIOLATION OF THIS SUBDIVISION MAY ALSO BRING A CIVIL  ACTION  IN  A
 COURT  OF COMPETENT JURISDICTION AGAINST ANY EMPLOYER OR PERSONS ALLEGED
 TO HAVE VIOLATED THE PROVISIONS OF THIS SUBDIVISION PURSUANT TO SUBDIVI-
 SION TWO OF SECTION TWO HUNDRED FIFTEEN OF THIS CHAPTER.
   C. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT  ANY  ADVERSE  ACTIONS
 TAKEN AGAINST A RELATOR WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE RELATOR
 HAS  FILED  AN ACTION UNDER THIS CHAPTER IS RETALIATORY. NOTHING IN THIS
 SUBDIVISION SHALL BE INTERPRETED TO PROHIBIT AN INFERENCE OF RETALIATORY
 MOTIVE AFTER ONE HUNDRED EIGHTY DAYS AFTER  THE  RELATOR  HAS  FILED  AN
 ACTION UNDER THIS CHAPTER.
   §  962.  PROCEDURE.  1.  NO  REPRESENTATIVE  CIVIL ACTION BY A RELATOR
 PURSUANT TO SECTION NINE  HUNDRED  SIXTY-ONE  OF  THIS  ARTICLE  MAY  BE
 COMMENCED:
   A.  PRIOR  TO  THIRTY  DAYS AFTER WRITTEN NOTICE HAS BEEN GIVEN BY THE
 RELATOR TO THE COMMISSIONER.  THE RELATOR SHALL SUBMIT A FILING  FEE  OF
 SEVENTY-FIVE  DOLLARS  TO THE COMMISSIONER, AND THE TIME PERIODS IN THIS
 SECTION SHALL BEGIN WHEN NOTICE AND FILING FEE HAVE BEEN SUBMITTED.  THE
 FEES REQUIRED BY THIS PARAGRAPH ARE SUBJECT TO WAIVER IN ACCORDANCE WITH
 RULES PROMULGATED BY THE COMMISSIONER. THE 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 RELATOR, AND SHALL INCLUDE:
   (I) THE NAME, ADDRESS AND CONTACT INFORMATION OF THE EMPLOYER.
   (II) THE NAME, ADDRESS,  AND  CONTACT  INFORMATION  OF  THE  AGGRIEVED
 EMPLOYEE OR WHISTLEBLOWER.
   (III)  IF  THE ACTION IS BROUGHT BY A REPRESENTATIVE ORGANIZATION, THE
 NAME, ADDRESS AND CONTACT INFORMATION OF  THE  REPRESENTATIVE  ORGANIZA-
 TION,  IT'S QUALIFICATION AS A REPRESENTATIVE ORGANIZATION AS DEFINED IN
 THIS CHAPTER, AND THE FORM  ON  WHICH  THE  WHISTLEBLOWER  OR  AGGRIEVED
 EMPLOYEE HAS DESIGNATED THE REPRESENTATIVE ORGANIZATION.
   (IV)  THE NAME, ADDRESS AND CONTACT INFORMATION OF THE RELATOR'S LEGAL
 COUNSEL, SHOULD ONE EXIST.
   (V) A STATEMENT OF THE UNDERLYING CLAIM.
   (VI) IF THE RELATOR IS A "WHISTLEBLOWER," THE RELATOR'S  KNOWLEDGE  OF
 THE  ALLEGED  VIOLATIONS  THAT  IS INDEPENDENT OF AND MATERIALLY ADDS TO
 PUBLICLY DISCLOSED INFORMATION.
   (VII) AFTER SEARCHING THE DATABASE ESTABLISHED PURSUANT TO SUBDIVISION
 SIX OF SECTION NINE HUNDRED SIXTY-ONE OF THIS ARTICLE FOR NOTICES ALLEG-
 ING THE SAME FACTS AND LEGAL THEORIES, A  SUMMARY  OF  SUCH  NOTICES  OR
 STATEMENT  THAT NO SUCH NOTICES EXIST, PROVIDED THAT A NOTICE FILED BY A

 S. 1848--A                          7
 
 PRO SE LITIGANT MAY NOT BE  REJECTED  FOR  FAILURE  TO  CONDUCT  SUCH  A
 SEARCH.
   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 RELATOR WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A OF THIS
 SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING AN ADMINISTRATIVE
 ENFORCEMENT PROCEEDING PURSUANT TO THIS CHAPTER RELATIVE 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  RELATOR  IS
 ATTEMPTING  TO RECOVER A CIVIL PENALTY OR REMEDY ON BEHALF OF HIMSELF OR
 HERSELF OR OTHERS.
   D. IF THE VIOLATION IS OF A POSTING OR AGENCY REPORTING REQUIREMENT OR
 AGENCY FILING REQUIREMENT, EXCEPT WHERE THE FILING OF REPORTING REQUIRE-
 MENT INVOLVES MANDATORY PAYROLL OR INJURY REPORTING.
   E. IF THE VIOLATION IS FOR MINOR  VARIATIONS  IN  THE  LEGAL  NAME  OR
 ADDRESS  OF  THE  EMPLOYER  IN  A WAGE STATEMENT OR WAGE NOTICE REQUIRED
 UNDER ARTICLE SIX OF THIS CHAPTER, PROVIDED THAT THE VARIATIONS  DO  NOT
 IMPAIR A WORKER'S ABILITY TO PROMPTLY AND EASILY IDENTIFY THE EMPLOYER.
   2. THE COMMISSIONER MAY INTERVENE IN THE PUBLIC ENFORCEMENT ACTION AND
 PROCEED WITH ANY AND ALL CLAIMS IN THE ACTION:
   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. IF THE COMMISSIONER INTERVENES IN AN ACTION,  HE  OR  SHE  SHALL
 HAVE  PRIMARY  RESPONSIBILITY FOR LITIGATING THE ACTION AND SHALL NOT BE
 BOUND BY AN ACT OF THE RELATOR BRINGING THE ACTION. IN SUCH  CASES,  THE
 RELATOR SHALL REMAIN A PARTY TO THE ACTION. THE COMMISSIONER MAY DISMISS
 OR  SETTLE  THE ACTION AFTER THE RELATOR HAS BEEN NOTIFIED OF THE FILING
 OF THE MOTION AND HAS BEEN PROVIDED WITH AN OPPORTUNITY TO BE HEARD, AND
 THE  COURT  DETERMINES  THAT  SUCH  DISMISSAL  OR  SETTLEMENT  IS  FAIR,
 ADEQUATE, REASONABLE, AND IN THE PUBLIC INTEREST.
   4.  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 ARTICLE OR OF ANY CLAIM FOR WHICH A  RELATOR  HAS
 PROVIDED  NOTICE  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 THIS ARTICLE.
   5. A. THE RELATOR 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.    IF  THE COMMISSIONER SO REQUESTS, HE OR SHE SHALL BE SERVED WITH
 COPIES OF PLEADINGS FILED IN THE  ACTION  AND  SHALL  BE  SUPPLIED  WITH
 COPIES  OF  ALL  DEPOSITION TRANSCRIPTS. THE COMMISSIONER SHALL BEAR ANY
 COSTS ASSOCIATED WITH SERVICE OF SUCH PLEADINGS AND DEPOSITIONS IF THERE
 ARE SUCH COSTS.
   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

 S. 1848--A                          8
 
 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.
   6. SUCH REGULATIONS PRESCRIBED PURSUANT TO PARAGRAPH A OF  SUBDIVISION
 ONE  OF  THIS  SECTION  SHALL  PROVIDE  FOR  THE RIGHT OF THE RELATOR TO
 FURNISH AN AMENDED NOTICE, AFTER THE NOTICE BY THE COMMISSIONER  TO  THE
 RELATOR 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 RELATOR 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.
   7. A PUBLIC ENFORCEMENT ACTION SHALL BE TRIED PROMPTLY, WITHOUT REGARD
 TO CONCURRENT ADJUDICATION OF PRIVATE CLAIMS.
   8. NO PUBLIC ENFORCEMENT ACTION BROUGHT PURSUANT TO THIS ARTICLE SHALL
 BE REQUIRED TO MEET THE REQUIREMENTS OF RULE 23(A) OF THE FEDERAL  RULES
 OF CIVIL PROCEDURE OR ARTICLE NINE OF THE CIVIL PRACTICE LAW AND RULES.
   9.  THE  RULES  GOVERNING  PRETRIAL  DISCOVERY IN A PUBLIC ENFORCEMENT
 ACTION BROUGHT PURSUANT TO THIS ARTICLE  SHALL  BE  THE  SAME  AS  THOSE
 APPLICABLE  TO OTHER CIVIL ACTIONS. NO SPECIAL SHOWING OF MERIT OR OTHER
 ADDITIONAL REQUIREMENT SHALL BE IMPOSED ON A RELATOR'S DISCOVERY  RIGHTS
 IN SUCH AN ACTION.
   10.  A  RELATOR  BRINGING  AN ACTION PURSUANT TO THIS ARTICLE SHALL BE
 ENTITLED TO  DISCOVERY  REGARDING  THE  ALLEGED  VIOLATIONS  AS  TO  ALL
 AGGRIEVED EMPLOYEES AS DEFINED IN THIS ARTICLE.
   11.  WHEN  RELATED PUBLIC ENFORCEMENT ACTIONS ARE PENDING, THE PARTIES
 SHALL IMMEDIATELY NOTIFY THE COURTS OVERSEEING SUCH ACTIONS OF THE OVER-
 LAP AND SUBMIT A JOINT  STATEMENT  DESCRIBING  THE  OVERLAP,  WHICH  MAY
 PROPOSE  A  PROCESS  TO  ENSURE THE JUST, SPEEDY, AND EFFICIENT DETERMI-
 NATION OF THE ACTIONS. THE COURT MAY APPOINT  LEAD  ENFORCEMENT  COUNSEL
 WITH  SOLE RESPONSIBILITY FOR ASSERTING THE RELATED CLAIMS, WITH CONSID-
 ERATION OF THE FOLLOWING FACTORS: A. THE WORK THAT COUNSEL HAS  DONE  IN
 INVESTIGATING  THE  CLAIMS; B. COUNSEL'S EXPERIENCE LITIGATING LABOR LAW
 AND PAST PERFORMANCE IN SIMILAR CASES; C. COUNSEL'S DILIGENCE IN ADVANC-
 ING THE CASE; D. THE RESOURCES  THAT  COUNSEL  HAS  COMMITTED  AND  WILL
 COMMIT  TO PROSECUTING THE CASE, AND THE RELATIVE RESOURCES AT COUNSEL'S
 DISPOSAL; AND E. THE LENGTH OF TIME EACH ACTION HAS BEEN PENDING.
   § 963. NON-APPLICATION. 1. THIS ARTICLE SHALL NOT APPLY TO THE  RECOV-
 ERY  OF  ADMINISTRATIVE AND CIVIL PENALTIES IN CONNECTION WITH THE UNEM-
 PLOYMENT 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
 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-

 S. 1848--A                          9
 
 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.