S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5876
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2021
                                ___________
 
 Introduced  by  M.  of A. JOYNER, SIMON, COOK, AUBRY, STECK -- 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.
              

                                                            LBD03152-01-1

 A. 5876                             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.
   §  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-
 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

 A. 5876                             3
 
 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;
   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;

 A. 5876                             4

   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-
 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

 A. 5876                             5
 
 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;
   (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

 A. 5876                             6
 
 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
 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

 A. 5876                             7
 
 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
 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.

 A. 5876                             8
 
   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-
 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.