S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9355
 
                           I N  A S S E M B L Y
 
                               March 6, 2024
                                ___________
 
 Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
   tee on Labor
 
 AN ACT to amend the labor law, in relation to employers' obligations  to
   report wages for the purposes of unemployment benefits, the payment of
   unemployment benefits, and employer penalties for non-compliance
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 570 of the labor law,  as  amended
 by chapter 7 of the laws of 1985, is amended to read as follows:
   1.  Rate.  Each  employer  liable  under this article, INCLUDING THOSE
 EMPLOYERS LIABLE PURSUANT TO  THE  PRESUMPTION  IN  SUBDIVISION  ONE  OF
 SECTION  FIVE HUNDRED SEVENTY-TWO OF THIS TITLE, shall pay contributions
 on all wages paid by him at the rate of five and four-tenths per  centum
 or,  if  applicable  to  the  employer,  at  the  rate  provided  by the
 provisions of sections  five  hundred  seventy-seven  and  five  hundred
 eighty-one  OF  THIS  TITLE.  However,  if  contributions so established
 exceed five and four-tenths per centum of wages paid by  him  which  are
 subject  to  the  federal unemployment tax act, they shall be reduced by
 that part of such excess, if any, which is caused by the  provisions  of
 paragraph  (b)  of  subdivision  one of section five hundred eighteen OF
 THIS ARTICLE.
   § 2. Section 572 of the labor law, as amended by chapter  726  of  the
 laws of 1953, is amended to read as follows:
   § 572. [Notice] PRESUMPTION of liability. 1. NOTWITHSTANDING ANY OTHER
 PROVISION  OF  LAW,  UPON THE INITIAL DETERMINATION OF A CLAIM FOR BENE-
 FITS, IF THE DEPARTMENT DETERMINES THAT ANY PERSON IS OR WAS AN EMPLOYEE
 WITHIN THE MEANING OF THIS ARTICLE, THERE SHALL BE  A  PRESUMPTION  THAT
 SUCH DETERMINATION APPLIES TO ALL OTHERS PERFORMING SIMILAR SERVICES FOR
 THE  EMPLOYER  AND SUCH EMPLOYER HAS BECOME LIABLE FOR CONTRIBUTIONS FOR
 ALL SUCH EMPLOYEES UNDER SECTION FIVE  HUNDRED  SEVENTY  OF  THIS  TITLE
 AND/OR SECTION SIX HUNDRED SEVENTY-FOUR OF THE TAX LAW. UPON FINAL ADJU-
 DICATION  OF  ANY  INITIAL  DETERMINATION  FINDING  A  CLAIMANT TO BE AN
 EMPLOYEE, THE REPORTING AND  CONTRIBUTIONS  REQUIRED  UNDER  THIS  TITLE
 SHALL BE MADE ON ALL WAGES PAID TO SUCH CLAIMANT AND ALL OTHERS PERFORM-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13671-01-3
 A. 9355                             2
 
 ING  SIMILAR  SERVICES  FOR  THE  EMPLOYER. THE EMPLOYER'S OBLIGATION TO
 CONTRIBUTE FOR SUCH EMPLOYEES SHALL CONTINUE UNTIL THE EMPLOYER SUCCESS-
 FULLY REBUTS THE PRESUMPTION IN A FINAL ADJUDICATION OF A  FUTURE  CLAIM
 INVOLVING  A  CLAIMANT PERFORMING SIMILAR SERVICES FOR THE EMPLOYER. THE
 PRESUMPTION AND OBLIGATIONS IN  THIS  SUBDIVISION  SHALL  APPLY  TO  ALL
 DETERMINATIONS ALREADY RENDERED AND ALL FUTURE DETERMINATIONS.
   2.  Any  employer who has become liable for contributions shall notify
 the commissioner of [such] THE fact [immediately] and shall give  infor-
 mation  concerning  [his] THEIR operations and persons employed by [him]
 THEM TO THE COMMISSIONER NO LATER THEN FIVE  BUSINESS  DAYS  AFTER  THEY
 BECOME LIABLE.
   §  3.  Subdivision 4 of section 575 of the labor law, as renumbered by
 chapter 639 of the laws of 1954, is renumbered subdivision 3 and  a  new
 subdivision 2 is added to read as follows:
   2.  UPON  ANY  DETERMINATION BY THE DEPARTMENT, A REFEREE OF THE UNEM-
 PLOYMENT INSURANCE APPEAL BOARD, OR THE BOARD  THAT  A  CLAIMANT  IS  AN
 EMPLOYEE UNDER THIS ARTICLE, THE EMPLOYER SHALL BE CONSIDERED AN EMPLOY-
 ER  OF  SUCH  CLAIMANT AND ALL THOSE PERFORMING SIMILAR SERVICES FOR THE
 EMPLOYER.  THE EMPLOYER'S OBLIGATION TO REPORT EARNINGS PURSUANT TO THIS
 ARTICLE AND REGULATIONS OF THE COMMISSIONER SHALL  CONTINUE  UNLESS  AND
 UNTIL  REVERSED  BY  ADMINISTRATIVE  OR  JUDICIAL REVIEW AND ALL FURTHER
 APPEALS HAVE BEEN EXHAUSTED.
   § 4. Section 575-a of the labor law, as added by chapter 5 of the laws
 of 2000, is amended to read as follows:
   § 575-a. Penalties relating to wage information.  In  the  case  of  a
 failure  by  an  employer to provide complete and correct wage reporting
 information on a quarterly  combined  withholding,  wage  reporting  and
 unemployment  insurance  return required by paragraph four of subsection
 (a) of section six hundred seventy-four of the tax  law,  such  employer
 shall,  unless it is shown to the commissioner's satisfaction that there
 was good cause for such failure to comply, be liable as provided for  in
 subdivisions one and two of this section.  LACK OF KNOWLEDGE OR A MISUN-
 DERSTANDING  REGARDING THE PRESUMPTION ESTABLISHED IN SUBDIVISION ONE OF
 SECTION FIVE HUNDRED SEVENTY-TWO OF THIS TITLE SHALL NOT CONSTITUTE GOOD
 CAUSE FOR FAILURE TO COMPLY WITH THE PROVISIONS OF THIS SECTION.
   1. [When the non-compliance is discovered through an examination of an
 employer's records, the] THE employer shall be liable for a  penalty  in
 the following amount for each employee who is not included in the return
 or for whom the required information is not reported accurately:
   (a)  for  the  first  failure  for  any  calendar quarter in any eight
 consecutive calendar quarters[, one dollar for  each  employee,  not  to
 exceed one thousand dollars]:
   (I)  FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, TWENTY-FIVE DOLLARS FOR
 EACH EMPLOYEE;
   (II) FOR EMPLOYERS WITH MORE THAN TEN BUT LESS THAN  FIFTY  EMPLOYEES,
 FIFTY DOLLARS FOR EACH EMPLOYEE; AND
   (III)  FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, ONE HUNDRED DOLLARS
 FOR EACH EMPLOYEE;
   (b) for the second failure for  any  calendar  quarter  in  any  eight
 consecutive  calendar  quarters[, five dollars for each employee, not to
 exceed two thousand dollars]:
   (I) FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, FIFTY DOLLARS  FOR  EACH
 EMPLOYEE;
   (II)  FOR  EMPLOYERS WITH MORE THAN TEN BUT LESS THAN FIFTY EMPLOYEES,
 ONE HUNDRED DOLLARS FOR EACH EMPLOYEE; AND
 A. 9355                             3
 
   (III) FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, TWO HUNDRED  DOLLARS
 FOR EACH EMPLOYEE;
   (c)  for  any  subsequent failure in any calendar quarter in any eight
 consecutive calendar quarters[, twenty-five dollars for  each  employee,
 not to exceed five thousand dollars.
   2.  In  those  instances  where  a  failure to comply is discovered in
 relation to a specific claimant's claim for benefits, the penalty  shall
 be twenty-five dollars for each such occurrence.
   3. If]:
   (I)  FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, ONE HUNDRED DOLLARS FOR
 EACH EMPLOYEE;
   (II) FOR EMPLOYERS WITH MORE THAN TEN BUT LESS THAN  FIFTY  EMPLOYEES,
 TWO HUNDRED DOLLARS FOR EACH EMPLOYEE; AND
   (III) FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, FOUR HUNDRED DOLLARS
 PER EMPLOYEE.
   2. UPON AN EMPLOYER'S FIRST VIOLATION OF THIS SECTION, IF such employ-
 er provides complete and correct wage reporting information within thir-
 ty days after the department sends notice of such failure to the employ-
 er,  then  the  penalty  provided for by subdivision one of this section
 shall be abated.
   [4.]3. The penalties imposed and collected pursuant  to  this  section
 shall  be  credited  to the special fund established pursuant to section
 five hundred fifty-two of this article.
   4. UPON AN EMPLOYER'S FAILURE TO REPORT COMPLETE AND CORRECT WAGES  OF
 THEIR  EMPLOYEES,  THE  COMMISSIONER SHALL PROVIDE WRITTEN NOTICE TO THE
 EMPLOYER AS PROVIDED IN SECTION FIVE HUNDRED SEVENTY-ONE OF THIS  TITLE.
 AFTER PROVIDING SUCH NOTICE, IF THE EMPLOYER DOES NOT FILE A CORRECT AND
 SUFFICIENT  REPORT  WITHIN  THIRTY DAYS, THE COMMISSIONER SHALL APPLY TO
 THE SUPREME COURT OF THE STATE OF NEW YORK FOR AN  ORDER  REQUIRING  THE
 EMPLOYER TO PROVIDE SUCH WAGE REPORTING INFORMATION.
   5.  ANY  OF  THE  FOLLOWING  PARTIES MAY SEEK AN ORDER IN ANY COURT OF
 COMPETENT JURISDICTION REQUIRING AN EMPLOYER  TO  PROVIDE  COMPLETE  AND
 CORRECT  WAGE REPORTING INFORMATION TO THE COMMISSIONER FOR ALL OF THEIR
 EMPLOYEES:
   (A) ANY CLAIMANT, FOR WHOM THE PRESUMPTION ESTABLISHED IN  SUBDIVISION
 ONE  OF  SECTION  FIVE  HUNDRED  SEVENTY-TWO  OF THIS TITLE APPLIES, WHO
 RECEIVES A MONETARY BENEFIT DETERMINATION WHICH INDICATES  THAT  ONE  OR
 MORE OF THEIR EMPLOYERS HAS FAILED TO REPORT THEIR WAGES; AND
   (B)  ANY  EMPLOYEE  WHO  FAILS  TO  RECEIVE A NOTICE OR WAGE STATEMENT
 PURSUANT TO SECTION ONE HUNDRED NINETY-FIVE OF THIS  CHAPTER,  FOR  WHOM
 THE  PRESUMPTION  ESTABLISHED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED
 SEVENTY-TWO OF THIS TITLE APPLIES.
   ANY CLAIMANT OR EMPLOYEE WHO PREVAILS ON SUCH A CLAIM SHALL  BE  ENTI-
 TLED TO ATTORNEY'S FEES AND COSTS, BUT NO OTHER DAMAGES.
   §  5.  Subdivision  4  of  section 570 of the labor law, as amended by
 chapter 726 of the laws of 1953, is amended to read as follows:
   4. Fraud. If any part of any deficiency is due to fraud with intent to
 avoid payment of contributions to the  fund,  [fifty]  ONE  HUNDRED  per
 centum  of the total amount of the deficiency, in addition to such defi-
 ciency, shall be assessed, collected, and paid in the same manner as  if
 it  were  a deficiency.  AS USED IN THIS SECTION, THE TERM "FRAUD" SHALL
 INCLUDE ANY INSTANCE WHERE AN EMPLOYER FAILED TO PAY  CONTRIBUTIONS  AND
 THE  EMPLOYER  KNEW OR SHOULD HAVE KNOWN THAT ITS EMPLOYEES WERE COVERED
 BY THE UNEMPLOYMENT INSURANCE LAW. INSTANCES WHERE AN EMPLOYER SHALL  BE
 DEEMED  TO  HAVE  KNOWN  ITS  EMPLOYEES WERE COVERED BY THE UNEMPLOYMENT
 INSURANCE LAW SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY SITUATION WHERE:
 A. 9355                             4
 
   (A) AN EMPLOYER OR ANY OF ITS RELATED ENTITIES HAVE BEEN FOUND BY  THE
 UNEMPLOYMENT  INSURANCE  APPEAL  BOARD  TO  BE THE EMPLOYER OF EMPLOYEES
 PROVIDING SIMILAR SERVICES;
   (B)  AN EMPLOYER OR ANY OF ITS RELATED ENTITIES HAVE BEEN FOUND BY THE
 DEPARTMENT TO BE THE EMPLOYER OF EMPLOYEES PROVIDING  ANY  OF  THE  SAME
 SERVICES; AND
   (C)  AN EMPLOYER HAS FAILED TO COOPERATE WITH THE DEPARTMENT DURING AN
 AUDIT OR INVESTIGATION REGARDING ITS OBLIGATIONS UNDER THIS ARTICLE.
   § 6. Subdivision 2 of section 597 of the  labor  law,  as  amended  by
 chapter 589 of the laws of 1998, paragraph (b) as amended by chapter 413
 of  the laws of 2003, and paragraph (d) as added by section 18 of part O
 of chapter 57 of the laws of 2013, is amended to read as follows:
   2. Obtaining information necessary for determinations. (a) When filing
 an original claim, each claimant shall furnish to the  commissioner  all
 information  which  the commissioner shall require concerning his or her
 prior employment.
   (b) Whenever a claimant's base period includes  a  completed  calendar
 quarter for which a wage data report is not due or has not been received
 and  the  claimant provides information as required by the commissioner,
 the commissioner shall determine such claimant's entitlement and benefit
 rate using the information  the  claimant  provided  for  such  quarter.
 However, in those instances where the claimant is unable to provide such
 information  to  the  commissioner's  satisfaction, the commissioner may
 request the employer to provide the amount of remuneration paid to  such
 individual. The commissioner shall notify each base period employer upon
 the  establishment  of  a  valid  original  claim,  of such claim. If an
 employer provides new  or  corrected  information  in  response  to  the
 initial  notice  of  monetary entitlement, adjustments to the claimant's
 benefit rate and adjustments to the employer's experience rating account
 shall be prospective as of the date such information was received by the
 department.
   (c) THE COMMISSIONER SHALL ISSUE A MONETARY BENEFIT  DETERMINATION  TO
 THE  CLAIMANT  WITHIN ONE WEEK OF AN APPLICATION FOR BENEFITS. THE MONE-
 TARY BENEFIT DETERMINATION SHALL INCLUDE NOTICE TO THE CLAIMANT THAT, IF
 THE DETERMINED AMOUNT OF BENEFITS  PAYABLE  TO  THE  CLAIMANT  DOES  NOT
 REFLECT  THE  CLAIMANT'S  FULL  EARNINGS, SUCH DIFFERENT AMOUNT MAY HAVE
 OCCURRED BECAUSE THE EMPLOYER DID NOT REPORT OR  DID  NOT  FULLY  REPORT
 THEIR  WAGES.   THE MONETARY BENEFIT DETERMINATION SHALL ALSO NOTIFY THE
 CLAIMANT THAT THEY SHOULD PROVIDE PROOF OF  EARNINGS  FOR  THE  RELEVANT
 PERIOD  IN ORDER TO PROPERLY DETERMINE THE CLAIMANT'S MONETARY ELIGIBIL-
 ITY.  ANYTIME A CLAIMANT PROVIDES PROOF OF EARNINGS FROM A PARTY  PREVI-
 OUSLY  DETERMINED TO BE AN EMPLOYER UNDER THIS ARTICLE, THE COMMISSIONER
 SHALL ISSUE A  REVISED  DETERMINATION  WITHIN  THREE  BUSINESS  DAYS  OF
 RECEIPT  OF  THE  CLAIMANT'S  PROOF OF EARNINGS. IN ALL OTHER CASES, THE
 COMMISSIONER SHALL  COMPLETE  AN  INVESTIGATION  REGARDING  WHETHER  THE
 CLAIMANT'S  EARNINGS  ARE WAGES EARNED IN COVERED EMPLOYMENT AND ISSUE A
 DETERMINATION REGARDING THE ADDITIONAL EARNINGS WITHIN FORTY-FIVE  DAYS.
 IN  THE  EVENT  OF  AN INVESTIGATION, THE COMMISSIONER SHALL PROVIDE THE
 CLAIMANT WITH NO LESS THAN FOURTEEN DAYS' NOTICE  OF  ANY  DEADLINES  TO
 RESPOND PURSUANT TO SUCH INVESTIGATION.
   (D)  Notwithstanding paragraph (b) of this subdivision, adjustments to
 the claimant's benefit rate and  adjustment  to  the  experience  rating
 charges  to the employers' accounts will be retroactive to the beginning
 of the benefit claim in the following circumstances:
   (i) the new or corrected information results in a higher benefit rate,
 or
 A. 9355                             5
 
   (ii) the new or corrected information results in the claimant's  fail-
 ure to establish a valid original claim, or
   (iii)  the amount of the previously established benefit rate was based
 upon the claimant's willful false statement or representation.
   [(d)] (E) Notwithstanding any provisions of  this  article,  unless  a
 commissioner's  error  is shown or the failure is the direct result of a
 disaster emergency declared by the governor or president, an  employer's
 account  shall not be relieved of charges resulting in an overpayment of
 benefits when the commissioner determines that the overpayment was  made
 because  the  employer  or the agent of the employer failed to timely or
 adequately respond to a request for information in the notice of  poten-
 tial  charges or other such notice requesting information in relation to
 a claim under this article, provided,  however,  that  the  commissioner
 shall  relieve  the employer of charges the first time that the employer
 fails to  provide  timely  or  adequate  information,  if  the  employer
 provides good cause for such failure as determined by the commissioner.
   "Timely"  shall  mean a response is provided in the time period speci-
 fied in the notice as prescribed by the commissioner.
   The term "adequately" shall  mean  that  the  employer  or  its  agent
 submitted information sufficient to render a correct determination.
   This  prohibition  for  relief of charges shall apply to all employers
 under this article including  employers  electing  payment  in  lieu  of
 contributions.
   §  7.  Paragraph (b) of subdivision 1 of section 620 of the labor law,
 as amended by chapter 554 of the laws of 2010, is  amended  to  read  as
 follows:
   (b) When the initial determination of a claim for benefits, upon which
 a  hearing  has been requested, involves the question whether any person
 is or was an employer within the meaning of this article and is  or  was
 liable for the payment of contributions under this article, or the ques-
 tion whether an employer has fully complied with the obligations imposed
 by  this  article,  written notice of the hearing shall be given to such
 persons or employer, either personally or by mail, and thereupon he, she
 or such employer shall be deemed a party to the proceeding, entitled  to
 be  heard.  Upon  such  notice  having  been given, the referee may then
 decide such question or questions and any other issue  related  thereto,
 and his or her decision shall not be deemed limited in its effect to the
 immediate  claimant  making the claim for benefits but shall be deemed a
 general determination of such  questions  with  respect  to  all  [those
 employed  by]  OTHERS  PERFORMING  SIMILAR  SERVICES  FOR such person or
 employer for all the purposes of this article, and such  decision  shall
 be conclusive and binding upon the claimant and such person or employer,
 subject, however, to the right to appeal hereinafter provided.
   § 8. This act shall take effect immediately.