NY State Senate Bill 2023-S541A

Current Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 16, 2024	print number 541b
Feb 16, 2024	amend and recommit to labor
Jan 03, 2024	referred to labor
Mar 02, 2023	print number 541a
Mar 02, 2023	amend and recommit to labor
Jan 04, 2023	referred to labor

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2023-S541 - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add Art 35 §§1020 - 1023, Lab L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S6426
2019-2020: S1848
2021-2022: S12

2023-S541 - Summary

Enacts the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"; relates to the delegation of state enforcement authority to private actors; authorizes an affected employee, whistleblower, representative organization or an organizational deputy to initiate a public enforcement action on behalf of the commissioner for certain provisions of the labor law, or any regulation promulgated thereunder.

2023-S541 - Sponsor Memo

                                 
BILL NUMBER: S541

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"

 
PURPOSE:

This legislation empowers aggrieved workers to file claims on behalf of
the state against an employer for specified violations of State labor
law. The Act also allows representative organizations to file claims on
behalf of impacted workers in order to protect the public interest.

 
SUMMARY OF PROVISIONS:

The legislation adds a new Article 34 to the labor law, which estab-
lishes the right of a public enforcement action through which an
aggrieved employee or a representative organization may commence a civil
action on behalf of the commissioner of labor for the purpose of enforc-
ing any provision of the labor law. Section 961 of Article 33 specifies

that such action may provide for a civil penalty to be collected by the
commissioner and that multiple violations that have affected different
employees may be the subject of such complaint.

Section 961 Subsection 2 (a) authorizes a court to exercise the same
discretion as the commissioner in determining whether to assess a civil
penalty. Subsection 2 (b) establishes a minimum civil penalty of five
hundred dollars per period per violation. Subsection 2 (c) provides that
any aggrieved employee or representative organization which prevails
shall be entitled to reasonable attorney's. fees.  Subsection 3 estab-
lishes a schedule for the distribution of any civil penalties recovered.
Subsection 4 prohibits the use of private agreements to limit the right
of employees to pursue a public enforcement action. Section 961
Subsection 5 establishes a six year statute of limitations. Section 961
Subsection 6 establishes that public enforcement actions "belong to the
state" and shall, with some exceptions, preclude subsequent state
enforcement action. Subsection 7 requires the commissioner to establish
a publicly available data base of public enforcement actions.

Section 962 Subsection 1 establishes the process for the filing of a
public enforcement action including the requirement for thirty-day writ-
ten notice and the items that must be included in such notice.

Section 962 Subsection 2 authorizes the commissioner to intervene in a
public enforcement action and proceed with any and all claims.

Section 962 Subsection 3 requires that a federal or state court of
competent jurisdiction shall approve any settlement arrived at under
this act. Section 962 Subsection 4 a representative organization may
only initiate an action pursuant to this article if an aggrieved employ-
ee elects such organization in writing using a form approved by the
commissioner. Section 962 Subsection 5 provides representative organiza-
tions and aggrieved employees with the right to amend A.416tlon after it
has been filed. Section 962 Subsection 6 authorizes that the notice of
an action shall be construed in a light favorable to the employee or
representative organization.

Section 963 Subsection 1 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the unemployment insurance law. Section 963 Subsection 2 indicates that
this article shall not apply to the recovery of administrative and civil
penalties in connection with the New York State Labor Relations Act.
section 963 Subsection 3 incorporates a severability clause. Section 963
Subsection 4 authorizes this article to be construed in light of its
remedial purposes to expand the enforcement of this chapter. This act
shall take effect on the ninetieth day after it becomes a law.

 
JUSTIFICATION:

An estimated 2.1 million New York workers are victims of wage theft each
year, with a total of more than $3 billion stolen in wages and benefits.
Wage theft costs our State millions of dollars a year in lost revenue
and leaves law-abiding employers at a major competitive disadvantage.
The New York State Department of Labor lacks the resources needed to
effectively investigate and prosecute wage theft at scale and is heavily
reliant upon uncertain federal funding. As a result, New York's workers
may be increasingly vulnerable to exploitation.

This legislation extends the reach of the state's public enforcement
provisions in order to help ensure that exploitative employers do not
get away with wage theft and other abuses; to help establish a level
playing field on which law abiding employers can afford to compete; to
protect the public interest; and to generate revenue to fund the New
York State Department of Labor's own work. Extending the capacity and
reach of New York's public enforcement strategies is critically impor-
tant in this era for a number of reasons. The public and private
enforcement mechanisms that have played a major role in wage theft and
workers' rights enforcement for decades are being undermined in a number
of ways, including: (a) unscrupulous employers who are using this moment
of fear to intimidate and threaten workers into accepting exploitation;
(b) a lack of sufficient funding for the Department has limited its
capacity to enforce existing provisions of the Labor Law.  In addition,
private enforcement is often difficult to undertake in smaller workplac-
es and industries where workers' wage theft claims are small, and in
rural communities where workers face challenges identifying counsel.

The EMPIRE Worker Protection Act enables workers to "step into the
shoes" of the government for the purposes of enforcing the New York
Labor Law, and claims filed under the EMPIRE Worker Protection Act are
public in nature and not subject to private agreements. The EMPIRE Work-
er Protection Act builds upon recent advances in New York's labor
protections, specifically the 2015 Achieve Pay Equity bill, which
amended the law to strengthen the State's protections against pay
discrimination for women. Additionally the EMPIRE Worker Protection Act
is a proven model for strengthening labor law enforcement with Califor-
nia having enacted similar legislation.  That legislation has assisted
our nation's largest state in resolving thousands of labor violations
and generated more than $28 million in revenue for the California
Department of Labor since 2013.

 
LEGISLATIVE HISTORY:

S.12-A of 2021-2022 (Hoylman): Died in Labor

A.5876-A of 2021-2022 (Joyner): Died in Labor
S.1848-A of 2019-2020 (Hoylman): Died in Labor

A.2265-A of 2019-2020 (Joyner): Died in Labor

S.6426 of 2017-2018 (Hoylman): Died in Labor

A.7958 of 2017-2018 (Joyner): Died in Labor

 
FISCAL IMPLICATIONS:

Will result in increased revenue for the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S541 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    541
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2023
                                ___________
 
 Introduced by Sens. HOYLMAN, GIANARIS, JACKSON, KENNEDY, KRUEGER, MAYER,
   MYRIE,  RAMOS,  SALAZAR,  SANDERS,  SERRANO  -- 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 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  public  enforcement  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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02068-01-3
 S. 541                              2

 
   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  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 35  to  read  as
 follows:
                                ARTICLE 35
  EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
 SECTION 1020. DEFINITIONS.
         1021. PUBLIC ENFORCEMENT ACTION.
         1022. PROCEDURE.
         1023. NON-APPLICATION.
   § 1020. 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 EMPLOYEE, WHISTLEBLOWER, OR A REPRE-
 SENTATIVE 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  SUBSECTION  (G)  OF  SECTION  FOUR  THOUSAND FOUR HUNDRED TWO OF THE
 INSURANCE LAW AND WHICH HAS BEEN SELECTED BY AN  AGGRIEVED  EMPLOYEE  OR
 WHISTLEBLOWER  TO  INITIATE A PUBLIC ENFORCEMENT ACTION ON THE AGGRIEVED
 EMPLOYEE'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  UNTIL  THE  RELATOR,  IN  ITS  SOLE
 S. 541                              3

 DISCRETION, DEEMS SHARING SUCH INFORMATION IS  NECESSARY  TO  ESTABLISH,
 LITIGATE, MEDIATE, SETTLE, OR OTHERWISE PURSUE THE CLAIM.
   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. "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.
   8. "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 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 NINETEEN-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, AND FOUR HUNDRED SIXTY-THREE;
   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;
 S. 541                              4
 
   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.
   §  1021. PUBLIC ENFORCEMENT 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 ONE
 THOUSAND TWENTY-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.  THE COURT MAY ALSO ALLOW A PREVAIL-
 ING RELATOR TO RECOVER ALL REASONABLE ANCILLARY  COSTS  ASSOCIATED  WITH
 SERVING  AS  A  RELATOR.    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 DEFEND-
 ANT, REGARDLESS OF WHETHER THAT CHANGE HAS BEEN IMPLEMENTED VOLUNTARILY,
 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
 S. 541                              5
 
 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.  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, UNLESS SUCH AGREEMENTS ARE COLLEC-
 TIVELY BARGAINED AND THE BARGAINING AGREEMENT PROVIDES A FORUM  FOR  THE
 ENFORCEMENT  OF  RIGHTS  AND  REMEDIES  OTHERWISE ENFORCEABLE UNDER THIS
 ARTICLE.
   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
 PUBLIC  ENFORCEMENT  ACTION  UNDER THIS ARTICLE SHALL BE TOLLED FROM THE
 DATE A RELATOR FILES A NOTICE PURSUANT TO SECTION ONE  THOUSAND  TWENTY-
 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
 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.
 S. 541                              6
 
   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.
   § 1022. PROCEDURE. 1. NO PUBLIC ENFORCEMENT ACTION BY A RELATOR PURSU-
 ANT TO SECTION ONE THOUSAND TWENTY-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, ITS 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  ONE  THOUSAND  TWENTY-ONE  OF THIS ARTICLE FOR NOTICES
 ALLEGING 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
 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.
 S. 541                              7
 
   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 OR 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.
   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
 S. 541                              8
 
 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.
   § 1023. 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.

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2023-S541A - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add Art 35 §§1020 - 1023, Lab L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S6426
2019-2020: S1848
2021-2022: S12

2023-S541A - Summary

2023-S541A - Sponsor Memo

                                 
BILL NUMBER: S541A

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"

 
PURPOSE OF BILL:

This legislation empowers affected workers to file claims on behalf of
the state against an employer for specified violations of State labor
law. The Act also allows labor organizations, and labor organizations
deputized by the states to file claims on behalf of impacted workers in
order to protect the public interest.

 
SUMMARY OF PROVISIONS:

The legislation adds a new Article 35 to the labor law, which estab-
lishes the right of a public enforcement action through which an
affected employee or a representative organization or organizational
deputy may commence a civil action on behalf of the commissioner of

labor for the purpose of enforcing any provision of the labor law.

Section 1021 of Article 35 specifies that such action may provide for a
civil penalty to be collected by the commissioner and that multiple
violations that have affected different employees may be the subject of
such complaint.

Section 1021 Subsection 2 (a) authorizes a court to exercise the same
discretion as the commissioner in determining whether to assess a civil
penalty. Subsection 2 (b) establishes a minimum civil penalty of five
hundred dollars per period per violation. Subsection 2 (c) provides that
any affected employee or representative organization which prevails
shall be entitled to reasonable attorney's fees.  Subsection 3 estab-
lishes a schedule for the distribution of any civil penalties recovered.

Subsection 4 prohibits the use of private agreements to limit the right
of employees to pursue a public enforcement action unless such agree-
ments are collectively bargained and the bargaining agreement provides a
forum for the enforcement of rights enforceable under this article.

Section 1021 Subsection 5 establishes a six year statute of limitations.

Section 1021 Subsection 6 establishes that public enforcement actions
"belong to the state" and shall, with some exceptions, preclude subse-
quent state enforcement action. Subsection 7 prohibits retaliatory
action by an employer because a relator brought an enforcement action of
cooperated with one. The section also establishes that any affection
person or relator may bring a public enforcement action for all appro-
priate relief.

Section 1022 Subsection 1 establishes the process for the filing of a
public enforcement action including the requirement for sixty-day writ-
ten notice and the items that must be included in such notice.

Section 1022 Subsection 2 allows the commissioner or the Attorney Gener-
al to appoint an organizational deputy to serve as the relator.

Section 1022 Subsection 3 authorizes the commissioner or the Attorney
General to intervene in a public enforcement action and proceed with any
and all claims.

Section 1022 Subsection 4 establishes that the commissioner or the
Attorney General, whoever intervenes may take primary responsibility for
litigating the action.

Section 1022 Subsection 5 requires that either the commissioner, the
Attorney General, or a federal or state court of competent jurisdiction
shall approve any settlement arrived at under this act.

Section 1022 Subsection 6 a representative organization may only initi-
ate an action pursuant to this article if an affected employee elects
such organization in writing using a form approved by the commissioner
and the Attorney General

Section 1022 Subsection 7 provides the relator with the right to amend
the notice after it has been filed.

Section 1022 Subsection 8 ensures prompt trial.

Section 1022 Subsection 9 states that no public enforcement action
brought under this is required to meet the requirements of Rule 23(a) of
the Federal Rules of Civil Procedure.

Section 1022 Subsection 10-11 provides for the rules governing discov-
ery.

Section 1023 Subsection 1 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the unemployment insurance law.

Section 1023 Subsection 2 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the New York State Labor Relations Act.

Section 1023 Subsection 3 incorporates a severability clause.

Section 1023 Subsection 4 authorizes this article to be construed in
light of its remedial purposes to expand the enforcement of this chap-
ter.

Section 4 is the effective date. This act shall take effect immediately
and shall permit relators to bring actions that occurred within six
years prior to the act's enactment.

 
JUSTIFICATION:

An estimated 2.1 million New York workers are victims of wage theft each
year, with a total of more than $3 billion stolen in wages and benefits.
Wage theft costs our State millions of dollars a year in lost revenue
and leaves law-abiding employers at a major competitive disadvantage.
The New York State Department of Labor lacks the resources needed to
effectively investigate and prosecute wage theft at scale and is heavily
reliant upon uncertain federal funding. As a result, New York's workers
may be increasingly vulnerable to exploitation.

This legislation extends the reach of the state's public enforcement
provisions in order to help ensure that exploitative employers do not
get away with wage theft and other abuses; to help establish a level
playing field on which law abiding employers can afford to compete; to
protect the public interest; and to generate revenue to fund the New
York State Department of Labor's own work. Extending the capacity and
reach of New York's public enforcement strategies is critically impor-
tant in this era for a number of reasons. The public and private
enforcement mechanisms that have played a major role in wage theft and
workers' rights enforcement for decades are being undermined in a number
of ways, including: (a) unscrupulous employers who are using this moment
of fear to intimidate and threaten workers into accepting exploitation;
(b) a lack of sufficient funding for the Department has limited its
capacity to enforce existing provisions of the Labor Law. In addition,
private enforcement is often difficult to undertake in smaller workplac-
es and industries where workers' wage theft claims are small, and in
rural communities where workers face challenges identifying counsel.

The EMPIRE Worker Protection Act enables workers to "step into the
shoes" of the government for the purposes of enforcing the New York
Labor Law, and claims filed under the EMPIRE Worker Protection Act are
public in nature and not subject to private agreements. The EMPIRE Work-
er Protection Act builds upon recent advances in New York's labor
protections, specifically the 2015 Achieve Pay Equity bill, which
amended the law to strengthen the State's protections against pay
discrimination for women. Additionally the EMPIRE Worker Protection Act
is a proven model for strengthening labor law enforcement with Califor-
nia having enacted similar legislation. That legislation has assisted
our nation's largest state in resolving thousands of labor violations
and generated more than $28 million in revenue for the California
Department of Labor since 2013.

 
PRIOR LEGISLATIVE HISTORY:

S. 12-A of 2021-2022 (Hoylman): Died in Labor

A. 5876 of 2021-2022 (Joyner): Died in Labor

S.1848-A of 2019-2020 (Hoylman): Died in Labor

A.2265-A of 2019-2020 (Joyner): Died in Labor

S.6426 of 2017-2018 (Hoylman): Died in Labor

A.7958 of 2017-2018 (Joyner): Died in Labor

 
FISCAL IMPLICATIONS:

Will result in increased revenue for the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, and shall permit relators to
bring actions that occurred within the six years prior to the act's
enactment.

2023-S541A - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  541--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2023
                                ___________
 
 Introduced  by  Sens. HOYLMAN-SIGAL, CLEARE, GIANARIS, JACKSON, KENNEDY,
   KRUEGER, MAYER, MYRIE, RAMOS, SALAZAR, SANDERS,  SERRANO,  SKOUFIS  --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Labor -- 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, labor organiza-
 tions, and labor organizations deputized by the state  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.
 When the New York labor law is effectively  enforced,  it  protects  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02068-04-3

 S. 541--A                           2
 
 interests  of  all  New  Yorkers and the state of New York.  Such public
 enforcement  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-
 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 deter employers from  stealing  wages
 or  committing  other violations of the New York labor law and raise the
 cost of noncompliance with the New York labor law.
   7. The legislature further finds and declares that the purpose of  the
 EMPIRE  Worker  Protection  Act is to incentivize labor organizations to
 aid working people to report violations of the New York labor law.
   8. 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.
   9.  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 similar qui tam legislation enabling private citizens to
 aid in public enforcement, the resulting action is a public  enforcement
 action.
   §  3.  The  labor law is amended by adding a new article 35 to read as
 follows:
                                ARTICLE 35
  EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
 SECTION 1020. DEFINITIONS.
         1021. PUBLIC ENFORCEMENT ACTION.
         1022. PROCEDURE.
         1023. NON-APPLICATION.
   § 1020. DEFINITIONS. WHENEVER USED IN THIS ARTICLE:
   1. "AFFECTED EMPLOYEE" MEANS ANY EMPLOYEE AS DEFINED BY SECTION TWO 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  MISCLASSI-
 FICATION, WHETHER OR NOT THAT PERSON HAS RECEIVED FULL OR PARTIAL RELIEF
 FROM HARM.
   2.  "RELATOR" MEANS AN AFFECTED EMPLOYEE, A WHISTLEBLOWER, A REPRESEN-
 TATIVE ORGANIZATION, OR AN ORGANIZATIONAL DEPUTY THAT ACTS AS  A  PLAIN-
 TIFF 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. WHISTLEBLOWERS ARE NOT ALSO "AFFECTED EMPLOYEES" IF
 THEY DO NOT SEEK CIVIL PENALTIES FOR VIOLATIONS THAT PERSONALLY AFFECTED
 THEM IN A PUBLIC ENFORCEMENT ACTION UNDER THIS CHAPTER.
   4. "EMPLOYER" MEANS ANY EMPLOYER AS DEFINED BY  SECTION  TWO  OF  THIS
 CHAPTER.  THE TERM "EMPLOYER" SHALL NOT INCLUDE A GOVERNMENTAL AGENCY.
   5. "REPRESENTATIVE ORGANIZATION" MEANS A LABOR ORGANIZATION AS DEFINED
 BY  SUBSECTION  (G)  OF  SECTION  FOUR  THOUSAND FOUR HUNDRED TWO OF THE
 S. 541--A                           3
 
 INSURANCE LAW AND WHICH HAS BEEN SELECTED BY  AN  AFFECTED  EMPLOYEE  OR
 WHISTLEBLOWER  TO  INITIATE  A PUBLIC ENFORCEMENT ACTION ON THE AFFECTED
 EMPLOYEE'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  AFFECTED  EMPLOYEE  OR
 WHISTLEBLOWER  MAY  ELECT  TO  HAVE  THEIR NAME AND PERSONAL IDENTIFYING
 INFORMATION  BE  KEPT  CONFIDENTIAL  UNTIL  THE  RELATOR,  IN  ITS  SOLE
 DISCRETION,  DEEMS  SHARING  SUCH INFORMATION IS NECESSARY TO ESTABLISH,
 LITIGATE, MEDIATE, SETTLE, OR OTHERWISE PURSUE THE CLAIM.
   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. "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.
   8.  "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 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;
   B. 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;
   C. SECTIONS ONE HUNDRED SIXTY,  ONE  HUNDRED  SIXTY-ONE,  ONE  HUNDRED
 SIXTY-TWO,  ONE  HUNDRED SIXTY-THREE-A, ONE HUNDRED SIXTY-SEVEN, AND ONE
 HUNDRED SEVENTY OF ARTICLE FIVE;
   D. 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;
   E.  ARTICLE NINETEEN-B EXCEPT SECTIONS SIX HUNDRED NINETY, SIX HUNDRED
 NINETY-THREE, AND SIX HUNDRED NINETY-FOUR;
   F. ARTICLE NINE EXCEPT SECTIONS TWO HUNDRED THIRTY, TWO HUNDRED  THIR-
 TY-FOUR THROUGH TWO HUNDRED THIRTY-SIX, AND TWO HUNDRED THIRTY-EIGHT;
   G.  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;
   H.  ARTICLE  TWENTY-FIVE-B  EXCEPT  SECTIONS  EIGHT  HUNDRED SIXTY-ONE
 THROUGH EIGHT HUNDRED SIXTY-ONE-B;
   I. ARTICLE TWENTY-FIVE-C EXCEPT SECTIONS EIGHT HUNDRED  SIXTY-TWO  AND
 EIGHT HUNDRED SIXTY-TWO-A;
   J.  ARTICLE  EIGHT  EXCEPT  SECTIONS  TWO HUNDRED TWENTY-E THROUGH TWO
 HUNDRED TWENTY-FOUR, TWO HUNDRED TWENTY-FOUR-B, AND TWO HUNDRED  TWENTY-
 FOUR-C;
   K. ARTICLE TWENTY-C;
   L.  SECTIONS  TWO  HUNDRED,  TWO HUNDRED ONE-G, TWO HUNDRED SIX-C, TWO
 HUNDRED FIFTEEN, AND TWO HUNDRED EIGHTEEN-B OF ARTICLE SEVEN; AND
   M. SECTION TWENTY-SEVEN-D OF ARTICLE TWO.
   9. "ORGANIZATIONAL DEPUTY" MEANS A LABOR ORGANIZATION  AS  DEFINED  BY
 SUBSECTION   (G)   OF   SECTION   FOUR  THOUSAND FOUR HUNDRED TWO OF THE
 INSURANCE LAW THAT HAS BEEN APPOINTED BY THE COMMISSIONER OR THE  ATTOR-
 NEY GENERAL TO REPRESENT THE STATE AS THE RELATOR IN THE PUBLIC ENFORCE-
 MENT  ACTION.  THE  COMMISSIONER  OR  THE  ATTORNEY  GENERAL  SHALL HAVE
 S. 541--A                           4
 
 COMPLETE DISCRETION TO DETERMINE WHAT LABOR ORGANIZATIONS MAY  SERVE  AS
 THEIR ORGANIZATIONAL DEPUTY IN A PUBLIC ENFORCEMENT ACTION.
   §  1021. PUBLIC ENFORCEMENT ACTION. 1. A RELATOR MAY INITIATE A PUBLIC
 ENFORCEMENT ACTION TO COLLECT CIVIL PENALTIES ON BEHALF OF  THE  COMMIS-
 SIONER  FOR  A  VIOLATION  IMPACTING  AFFECTED EMPLOYEES PURSUANT TO THE
 PROCEDURES SPECIFIED IN SECTION ONE THOUSAND TWENTY-TWO OF THIS ARTICLE.
 A RELATOR MAY ALLEGE MULTIPLE VIOLATIONS THAT  HAVE  AFFECTED  DIFFERENT
 EMPLOYEES  AND MAY SEEK INJUNCTIVE 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 AFFECTED EMPLOYEE PER PAY PERI-
 OD PER VIOLATION. A COURT MAY NOT AWARD A LESSER AMOUNT,  UNLESS,  BASED
 ON  THE  FACTS  AND  CIRCUMSTANCES  OF THE PARTICULAR CASE, THE EMPLOYER
 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.  THE COURT MAY ALSO ALLOW A PREVAIL-
 ING RELATOR TO RECOVER ALL REASONABLE ANCILLARY  COSTS  ASSOCIATED  WITH
 SERVING  AS  A  RELATOR.    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 DEFEND-
 ANT, REGARDLESS OF WHETHER THAT CHANGE HAS BEEN IMPLEMENTED VOLUNTARILY,
 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 AFFECTED 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
 OR  THE  ATTORNEY GENERAL'S RIGHT TO SEEK RESTITUTION AND DAMAGES, WHERE
 AVAILABLE, FOR AFFECTED EMPLOYEES IN CONJUNCTION WITH A PUBLIC  ENFORCE-
 MENT ACTION IN WHICH IT HAS INTERVENED.
   3.  A.   CIVIL PENALTIES RECOVERED IN PUBLIC ENFORCEMENT ACTIONS SHALL
 BE DISTRIBUTED AS FOLLOWS:   WHERE  THE  COMMISSIONER  OR  THE  ATTORNEY
 GENERAL  HAS  NOT  INTERVENED, OR WHERE THE COMMISSIONER OR THE ATTORNEY
 GENERAL HAS APPOINTED AN ORGANIZATIONAL DEPUTY TO PROCEED AS  THE  RELA-
 TOR, 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 OR THE ATTORNEY
 GENERAL HAS INTERVENED, THIRTY  PERCENT  TO  THE  RELATOR;  AND  SEVENTY
 PERCENT  TO  THE COMMISSIONER FOR ENFORCEMENT OF THIS CHAPTER AND EDUCA-
 TION 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.
 S. 541--A                           5
 
   B. THE RELATOR SHALL EQUITABLY DISTRIBUTE THE SHARE OF  PENALTIES  DUE
 THE  RELATOR  AMONG  AFFECTED EMPLOYEES.   IF THE RELATOR IS AN AFFECTED
 EMPLOYEE OR WHISTLEBLOWER, THEY SHALL ALSO  BE  ENTITLED  TO  RECOVER  A
 SERVICE AWARD FROM THE PENALTIES RECOVERED, IF THEY PREVAIL IN ACHIEVING
 RELIEF,  IN WHOLE OR IN PART, FOR VIOLATIONS THAT AFFECTED OTHER EMPLOY-
 EES. THE SERVICE AWARD SHALL BE NOT LESS THAN FIVE THOUSAND DOLLARS  AND
 NOT  MORE  THAN  TWENTY THOUSAND DOLLARS, UNLESS THE AMOUNT RECOVERED AS
 CIVIL PENALTIES IS LESS THAN TWENTY THOUSAND DOLLARS.  THE  COURT  SHALL
 DETERMINE  THE  SERVICE AWARD BY TAKING DUE CONSIDERATION OF THE BURDENS
 AND RISKS ASSUMED BY THE RELATOR IN PROSECUTING THE ACTION. IF THE RELA-
 TOR  IS  A  REPRESENTATIVE  ORGANIZATION  OR  AN  ORGANIZATIONAL  DEPUTY
 APPOINTED BY THE COMMISSIONER OR THE ATTORNEY GENERAL, IT SHALL DISTRIB-
 UTE  ALL  RECOVERED  PENALTIES  TO  AFFECTED  EMPLOYEES  BUT MAY RECOVER
 REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN PROSECUTING THE  ACTION
 AND  ANCILLARY  COSTS  ASSOCIATED WITH SERVING AS A RELATOR. THE RELATOR
 SHALL SUBMIT A DISTRIBUTION SUMMARY TO THE COMMISSIONER AND THE ATTORNEY
 GENERAL.
   4. THE RIGHT TO BRING A PUBLIC ENFORCEMENT ACTION UNDER  THIS  ARTICLE
 SHALL  NOT BE SUBJECT TO PRIVATE AGREEMENTS BETWEEN AN AFFECTED EMPLOYEE
 AND AN EMPLOYER OR ALLEGED EMPLOYER, UNLESS SUCH AGREEMENTS ARE  COLLEC-
 TIVELY  BARGAINED  AND THE BARGAINING AGREEMENT PROVIDES A FORUM FOR THE
 ENFORCEMENT OF RIGHTS AND  REMEDIES  OTHERWISE  ENFORCEABLE  UNDER  THIS
 ARTICLE.    THE  RIGHT TO REPRESENT THE STATE WITH RESPECT TO VIOLATIONS
 AFFECTING OTHER WORKERS SHALL NOT  BE  WAIVABLE  BY  PRIVATE  AGREEMENT,
 UNLESS  SUCH AGREEMENTS ARE  COLLECTIVELY  BARGAINED  AND THE BARGAINING
 AGREEMENT PROVIDES A FORUM FOR THE ENFORCEMENT OF RIGHTS AND    REMEDIES
 OTHERWISE ENFORCEABLE  UNDER  THIS ARTICLE, INCLUDING AN AWARD OF PENAL-
 TIES AUTHORIZED BY THIS ARTICLE.
   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
 PUBLIC ENFORCEMENT ACTION UNDER THIS ARTICLE SHALL BE  TOLLED  FROM  THE
 DATE  A  RELATOR FILES A NOTICE PURSUANT TO SECTION ONE THOUSAND TWENTY-
 TWO OF THIS ARTICLE WITH THE COMMISSIONER AND THE ATTORNEY  GENERAL,  OR
 THE  COMMISSIONER  OR  THE  ATTORNEY GENERAL 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
 POTENTIAL  RELATOR REGARDING CONDUCT THAT THE RELATOR OR POTENTIAL RELA-
 TOR REASONABLY BELIEVES CONSTITUTES A VIOLATION OF THIS SECTION; OR
 S. 541--A                           6
 
   (III) THE PERSON BELIEVES THAT THE RELATOR OR  POTENTIAL  RELATOR  MAY
 BRING A PUBLIC ENFORCEMENT ACTION OR COOPERATE WITH ONE.
   B.  ANY  PERSON  AFFECTED  BY  A VIOLATION OF THIS SUBDIVISION, OR ANY
 AFFECTED EMPLOYEE, WHISTLEBLOWER, REPRESENTATIVE ORGANIZATION, ORGANIZA-
 TIONAL DEPUTY, OR THE COMMISSIONER, OR THE ATTORNEY GENERAL 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 AFFECTED
 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.
   § 1022. PROCEDURE. 1. NO PUBLIC ENFORCEMENT ACTION BY A RELATOR PURSU-
 ANT TO SECTION ONE THOUSAND TWENTY-ONE OF THIS ARTICLE MAY BE COMMENCED:
   A.  PRIOR  TO  SIXTY  DAYS  AFTER WRITTEN NOTICE HAS BEEN GIVEN BY THE
 RELATOR TO THE COMMISSIONER AND TO THE ATTORNEY GENERAL.    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  AFFECTED
 EMPLOYEE OR WHISTLEBLOWER.
   (III)  IF  THE ACTION IS BROUGHT BY A REPRESENTATIVE ORGANIZATION, THE
 NAME, ADDRESS AND CONTACT INFORMATION OF  THE  REPRESENTATIVE  ORGANIZA-
 TION,  ITS  QUALIFICATION AS A REPRESENTATIVE ORGANIZATION AS DEFINED IN
 THIS CHAPTER, AND THE  FORM  ON  WHICH  THE  WHISTLEBLOWER  OR  AFFECTED
 EMPLOYEE HAS DESIGNATED THE REPRESENTATIVE ORGANIZATION.
   (IV)  IF THE ACTION IS BROUGHT BY AN AFFECTED EMPLOYEE OR WHISTLEBLOW-
 ER, THE NAME, ADDRESS, AND CONTACT INFORMATION OF ANY LABOR ORGANIZATION
 THAT HAS ASSISTED WITH THE FILING OF THE WRITTEN NOTICE, AND  WHO  WOULD
 BE  AVAILABLE  TO  SERVE  AS  AN ORGANIZATIONAL DEPUTY SHOULD THEY BE SO
 APPOINTED BY THE COMMISSIONER OR THE ATTORNEY GENERAL.
   (V) THE NAME, ADDRESS AND CONTACT INFORMATION OF THE  RELATOR'S  LEGAL
 COUNSEL, SHOULD ONE EXIST.
   (VI) A STATEMENT OF THE UNDERLYING CLAIM.
   (VII)  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.
   (VIII)  AFTER  SEARCHING THE DATABASE ESTABLISHED PURSUANT TO SUBDIVI-
 SION SIX OF SECTION ONE THOUSAND TWENTY-ONE OF THIS ARTICLE FOR  NOTICES
 ALLEGING 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. 541--A                           7

 PRO SE LITIGANT MAY NOT BE  REJECTED  FOR  FAILURE  TO  CONDUCT  SUCH  A
 SEARCH.
   B.  IF  THE COMMISSIONER OR THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO
 THE END OF THE SIXTY-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 OR THE ATTORNEY GENERAL, 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 OR 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 OR THE ATTORNEY GENERAL MAY, AFTER RECEIVING THE
 NOTICE, APPOINT AN ORGANIZATIONAL DEPUTY FOR  THE  COMMISSIONER  OR  THE
 ATTORNEY  GENERAL  (BASED  ON WHO MAKES THE APPOINTMENT) TO SERVE AS THE
 RELATOR, INSTEAD OF THE PERSON WHO FILED THE NOTICE. THAT ORGANIZATIONAL
 DEPUTY MAY THEN PROCEED WITH THE PUBLIC ENFORCEMENT ACTION ON BEHALF  OF
 THE  STATE. IF THE COMMISSIONER OR THE ATTORNEY GENERAL HAS APPOINTED AN
 ORGANIZATIONAL DEPUTY AS THE RELATOR, THAT ORGANIZATIONAL  DEPUTY  SHALL
 SERVE  AS  THE  RELATOR  IN  ACCORDANCE  WITH  ALL  THE OTHER PROCEDURES
 OUTLINED IN THIS ARTICLE. THE  DECISION  TO  APPOINT  AN  ORGANIZATIONAL
 DEPUTY  SHALL  NOT  BE  CONSTRUED  AS THE COMMISSIONER'S OR THE ATTORNEY
 GENERAL'S DIRECT INTERVENING IN THE PUBLIC ENFORCEMENT ACTION.
   3. THE COMMISSIONER OR THE  ATTORNEY  GENERAL  MAY  INTERVENE  IN  THE
 PUBLIC  ENFORCEMENT  ACTION  AND  PROCEED WITH ANY AND ALL CLAIMS IN THE
 ACTION:
   A. AS OF RIGHT WITHIN THE SIXTY-DAY NOTICE PERIOD PRESCRIBED IN  PARA-
 GRAPH A OF SUBDIVISION ONE OF THIS SECTION;
   B. FOR GOOD CAUSE, AS DETERMINED BY THE COURT, AFTER THE EXPIRATION OF
 THE SIXTY-DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF SUBDIVISION ONE
 OF THIS SECTION; OR
   C.  IF  A  PREVIOUS RELATOR BECOMES UNAVAILABLE TO CONTINUE THE PUBLIC
 ENFORCEMENT ACTION, BY  APPOINTING  AN  ORGANIZATIONAL  DEPUTY  FOR  THE
 COMMISSIONER  OR  THE  ATTORNEY GENERAL (BASED ON WHO MAKES THE APPOINT-
 MENT) TO PROCEED WITH THE PUBLIC ENFORCEMENT ACTION  ON  BEHALF  OF  THE
 STATE.  IF  THE COMMISSIONER OR THE ATTORNEY GENERAL HAS SO APPOINTED AN
 ORGANIZATIONAL DEPUTY, THE ORGANIZATIONAL  DEPUTY  SHALL  SERVE  AS  THE
 RELATOR  IN  ACCORDANCE  WITH  ALL THE OTHER PROCEDURES OUTLINED IN THIS
 ARTICLE. THE DECISION TO APPOINT AN ORGANIZATIONAL DEPUTY SHALL  NOT  BE
 CONSTRUED AS THE COMMISSIONER OR THE ATTORNEY GENERAL DIRECTLY INTERVEN-
 ING IN THE PUBLIC ENFORCEMENT ACTION.
   4.  IF  THE  COMMISSIONER  OR  THE  ATTORNEY  GENERAL INTERVENES IN AN
 ACTION, HE OR SHE MAY TAKE 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  OR  THE  ATTORNEY  GENERAL  MAY ALSO INTERVENE IN THE
 ACTION FOR THE LIMITED PURPOSE OF FILING  A  STATEMENT  OF  INTEREST  OR
 S. 541--A                           8
 
 OTHERWISE  ADVANCING THE STATE'S VIEW ABOUT LEGAL ISSUES AT STAKE IN THE
 ACTION. IF THE COMMISSIONER OR THE ATTORNEY GENERAL HAS  INTERVENED  FOR
 THE  PURPOSE OF TAKING PRIMARY RESPONSIBILITY FOR LITIGATING THE ACTION,
 THE  COMMISSIONER  OR  ATTORNEY GENERAL 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.
   5.  EITHER  THE  COMMISSIONER,  THE  ATTORNEY GENERAL, 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,  THE ATTORNEY GENERAL, OR THE COURT SHALL APPROVE THE
 SETTLEMENT IF IT IS FAIR, REASONABLE AND ADEQUATE, IN LIGHT OF THE STAT-
 UTORY PURPOSE OF THE PROVISION OF THIS  CHAPTER  ALLEGED  TO  HAVE  BEEN
 VIOLATED AND THE PURPOSE OF THIS ARTICLE.
   6.  A.  THE RELATOR SHALL, WITHIN TEN DAYS FOLLOWING COMMENCEMENT OF A
 CIVIL ACTION PURSUANT TO THIS ARTICLE, PROVIDE THE COMMISSIONER AND  THE
 ATTORNEY GENERAL WITH A FILE-STAMPED COPY OF THE COMPLAINT THAT INCLUDES
 THE CASE NUMBER ASSIGNED BY THE COURT.
   B.  IF THE COMMISSIONER OR THE ATTORNEY GENERAL 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
 OR  THE ATTORNEY GENERAL 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 AND THE ATTORNEY GENERAL WITHIN TEN DAYS
 AFTER ENTRY OF THE JUDGMENT 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.
   7.  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  SIXTY
 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.
   8. A PUBLIC ENFORCEMENT ACTION SHALL BE TRIED PROMPTLY, WITHOUT REGARD
 TO CONCURRENT ADJUDICATION OF PRIVATE CLAIMS, INCLUDING  WITHOUT  REGARD
 TO CONCURRENT ADJUDICATION OF CLAIMS FOR VIOLATIONS PERSONALLY AFFECTING
 THE RELATOR.
   9. 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.
   10. 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
 S. 541--A                           9
 
 ADDITIONAL  REQUIREMENT SHALL BE IMPOSED ON A RELATOR'S DISCOVERY RIGHTS
 IN SUCH AN ACTION.
   11.  A  RELATOR  BRINGING  AN ACTION PURSUANT TO THIS ARTICLE SHALL BE
 ENTITLED TO  DISCOVERY  REGARDING  THE  ALLEGED  VIOLATIONS  AS  TO  ALL
 AFFECTED EMPLOYEES AS DEFINED IN THIS ARTICLE.
   12.  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 ADVANCING THE CASE;
   D.  THE RESOURCES THAT COUNSEL HAS COMMITTED AND WILL COMMIT TO PROSE-
 CUTING THE CASE, AND THE RELATIVE RESOURCES AT COUNSEL'S DISPOSAL; AND
   E. THE LENGTH OF TIME EACH ACTION HAS BEEN PENDING.
   § 1023. 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, and shall permit relators
 to bring actions concerning New York Labor Law violations that  occurred
 within  the  six  years  prior  to this act's effective date, unless the
 Labor Law provides a shorter statute of limitations with respect to  the
 specific  violation  in  question, in which case that shorter statute of
 limitations shall apply.

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2023-S541B (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add Art 35 §§1020 - 1023, Lab L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S6426
2019-2020: S1848
2021-2022: S12

2023-S541B (ACTIVE) - Summary

2023-S541B (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S541B

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"

 
PURPOSE OF BILL:

This legislation empowers affected workers to file claims on behalf of
the state against an employer for specified violations of State labor
law. The Act also allows labor organizations, and labor organizations
deputized by the states to file claims on behalf of impacted workers in
order to protect the public interest.

 
SUMMARY OF PROVISIONS:

The legislation adds a new Article 35 to the labor law, which estab-
lishes the right of a public enforcement action through which an
affected employee or a representative organization or organizational
deputy may commence a civil action on behalf of the commissioner of

labor for the purpose of enforcing any provision of the labor law.

Section 1021 of Article 35 specifies that such action may provide for a
civil penalty to be collected by the commissioner and that multiple
violations that have affected different employees may be the subject of
such complaint.

Section 1021 Subsection 2 (a) authorizes a court to exercise the same
discretion as the commissioner in determining whether to assess a civil
penalty. Subsection 2 (b) establishes a minimum civil penalty of five
hundred dollars per period per violation. Subsection 2 (c) provides that
any affected employee or representative organization which prevails
shall be entitled to reasonable attorney's fees.  Subsection 3 estab-
lishes a schedule for the distribution of any civil penalties recovered.

Subsection 4 prohibits the use of private agreements to limit the right
of employees to pursue a public enforcement action unless such agree-
ments are collectively bargained and the bargaining agreement provides a
forum for the enforcement of rights enforceable under this article.

Section 1021 Subsection 5 establishes a six year statute of limitations.

Section 1021 Subsection 6 establishes that public enforcement actions
"belong to the state" and shall, with some exceptions, preclude subse-
quent state enforcement action. Subsection 7 prohibits retaliatory
action by an employer because a relator brought an enforcement action of
cooperated with one. The section also establishes that any affection
person or relator may bring a public enforcement action for all appro-
priate relief.

Section 1022 Subsection 1 establishes the process for the filing of a
public enforcement action including the requirement for sixty-day writ-
ten notice and the items that must be included in such notice.

Section 1022 Subsection 2 allows the commissioner or the Attorney Gener-
al to appoint an organizational deputy to serve as the relator.

Section 1022 Subsection 3 authorizes the commissioner or the Attorney
General to intervene in a public enforcement action and proceed with any
and all claims.

Section 1022 Subsection 4 establishes that the commissioner or the
Attorney General, whoever intervenes may take primary responsibility for
litigating the action.

Section 1022 Subsection 5 requires that either the commissioner, the
Attorney General, or a federal or state court of competent jurisdiction
shall approve any settlement arrived at under this act.

Section 1022 Subsection 6 a representative organization may only initi-
ate an action pursuant to this article if an affected employee elects
such organization in writing using a form approved by the commissioner
and the Attorney General

Section 1022 Subsection 7 provides the relator with the right to amend
the notice after it has been filed.

Section 1022 Subsection 8 ensures prompt trial.

Section 1022 Subsection 9 states that no public enforcement action
brought under this is required to meet the requirements of Rule 23(a) of
the Federal Rules of Civil Procedure.

Section 1022 Subsection 10-11 provides for the rules governing discov-
ery.

Section 1023 Subsection 1 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the unemployment insurance law.

Section 1023 Subsection 2 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the New York State Labor Relations Act.

Section 1023 Subsection 3 incorporates a severability clause.

Section 1023 Subsection 4 authorizes this article to be construed in
light of its remedial purposes to expand the enforcement of this chap-
ter.

Section 4 is the effective date. This act shall take effect immediately
and shall permit relators to bring actions that occurred within six
years prior to the act's enactment.

 
JUSTIFICATION:

An estimated 2.1 million New York workers are victims of wage theft each
year, with a total of more than $3 billion stolen in wages and benefits.
Wage theft costs our State millions of dollars a year in lost revenue
and leaves law-abiding employers at a major competitive disadvantage.
The New York State Department of Labor lacks the resources needed to
effectively investigate and prosecute wage theft at scale and is heavily
reliant upon uncertain federal funding. As a result, New York's workers
may be increasingly vulnerable to exploitation.

This legislation extends the reach of the state's public enforcement
provisions in order to help ensure that exploitative employers do not
get away with wage theft and other abuses; to help establish a level
playing field on which law abiding employers can afford to compete; to
protect the public interest; and to generate revenue to fund the New
York State Department of Labor's own work. Extending the capacity and
reach of New York's public enforcement strategies is critically impor-
tant in this era for a number of reasons. The public and private
enforcement mechanisms that have played a major role in wage theft and
workers' rights enforcement for decades are being undermined in a number
of ways, including: (a) unscrupulous employers who are using this moment
of fear to intimidate and threaten workers into accepting exploitation;
(b) a lack of sufficient funding for the Department has limited its
capacity to enforce existing provisions of the Labor Law. In addition,
private enforcement is often difficult to undertake in smaller workplac-
es and industries where workers' wage theft claims are small, and in
rural communities where workers face challenges identifying counsel.

The EMPIRE Worker Protection Act enables workers to "step into the
shoes" of the government for the purposes of enforcing the New York
Labor Law, and claims filed under the EMPIRE Worker Protection Act are
public in nature and not subject to private agreements. The EMPIRE Work-
er Protection Act builds upon recent advances in New York's labor
protections, specifically the 2015 Achieve Pay Equity bill, which
amended the law to strengthen the State's protections against pay
discrimination for women. Additionally the EMPIRE Worker Protection Act
is a proven model for strengthening labor law enforcement with Califor-
nia having enacted similar legislation. That legislation has assisted
our nation's largest state in resolving thousands of labor violations
and generated more than $28 million in revenue for the California
Department of Labor since 2013.

 
PRIOR LEGISLATIVE HISTORY:

S. 12-A of 2021-2022 (Hoylman): Died in Labor A. 5876 of 2021-2022
(Joyner): Died in Labor

S.1848-A of 2019-2020 (Hoylman): Died in Labor A.2265-A of 2019-2020
(Joyner): Died in Labor

S.6426 of 2017-2018 (Hoylman): Died in Labor A.7958 of 2017-2018
(Joyner): Died in Labor

 
FISCAL IMPLICATIONS:

Will result in increased revenue for the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, and shall permit relators to
bring actions that occurred within the six years prior to the act's
enactment.

2023-S541B (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  541--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2023
                                ___________
 
 Introduced  by  Sens.  HOYLMAN-SIGAL, BRESLIN, BRISPORT, CLEARE, COMRIE,
   FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY,  JACKSON,
   KENNEDY,  KRUEGER, MAYER, MYRIE, RAMOS, RYAN, SALAZAR, SANDERS, SERRA-
   NO, SKOUFIS -- read twice and ordered printed, and when printed to  be
   committed  to  the  Committee  on  Labor -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee -- recommitted 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, labor organiza-
 tions,  and  labor  organizations deputized by the state 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02068-06-4
 S. 541--B                           2

 
   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.
 When  the  New  York  labor law is effectively enforced, it protects the
 interests of all New Yorkers and the state of New  York.    Such  public
 enforcement  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-
 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 deter employers from stealing wages
 or committing other violations of the New York labor law and  raise  the
 cost of noncompliance with the New York labor law.
   7.  The legislature further finds and declares that the purpose of the
 EMPIRE Worker Protection Act is to incentivize  labor  organizations  to
 aid working people to report violations of the New York labor law.
   8.  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.
   9. 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 similar qui tam legislation enabling private citizens to
 aid  in public enforcement, the resulting action is a public enforcement
 action.
   § 3. The labor law is amended by adding a new article 36  to  read  as
 follows:
                                ARTICLE 36
  EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
 SECTION 1020. DEFINITIONS.
         1021. PUBLIC ENFORCEMENT ACTION.
         1022. PROCEDURE.
         1023. NON-APPLICATION.
   § 1020. DEFINITIONS. WHENEVER USED IN THIS ARTICLE:
   1. "AFFECTED EMPLOYEE" MEANS ANY EMPLOYEE AS DEFINED BY SECTION TWO 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 MISCLASSI-
 FICATION, WHETHER OR NOT THAT PERSON HAS RECEIVED FULL OR PARTIAL RELIEF
 FROM HARM.
   2. "RELATOR" MEANS AN AFFECTED EMPLOYEE, A WHISTLEBLOWER, A  REPRESEN-
 TATIVE  ORGANIZATION,  OR AN ORGANIZATIONAL DEPUTY THAT ACTS AS A PLAIN-
 TIFF 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. WHISTLEBLOWERS ARE NOT ALSO "AFFECTED EMPLOYEES"  IF
 S. 541--B                           3
 
 THEY DO NOT SEEK CIVIL PENALTIES FOR VIOLATIONS THAT PERSONALLY AFFECTED
 THEM IN A PUBLIC ENFORCEMENT ACTION UNDER THIS CHAPTER.
   4.  "EMPLOYER"  MEANS  ANY  EMPLOYER AS DEFINED BY SECTION TWO OF THIS
 CHAPTER.  THE TERM "EMPLOYER" SHALL NOT INCLUDE A GOVERNMENTAL AGENCY.
   5. "REPRESENTATIVE ORGANIZATION" MEANS A LABOR ORGANIZATION AS DEFINED
 BY SUBSECTION (G) OF SECTION FOUR  THOUSAND  FOUR  HUNDRED  TWO  OF  THE
 INSURANCE  LAW  AND  WHICH  HAS BEEN SELECTED BY AN AFFECTED EMPLOYEE OR
 WHISTLEBLOWER TO INITIATE A PUBLIC ENFORCEMENT ACTION  ON  THE  AFFECTED
 EMPLOYEE'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  AFFECTED  EMPLOYEE  OR
 WHISTLEBLOWER  MAY  ELECT  TO  HAVE  THEIR NAME AND PERSONAL IDENTIFYING
 INFORMATION  BE  KEPT  CONFIDENTIAL  UNTIL  THE  RELATOR,  IN  ITS  SOLE
 DISCRETION,  DEEMS  SHARING  SUCH INFORMATION IS NECESSARY TO ESTABLISH,
 LITIGATE, MEDIATE, SETTLE, OR OTHERWISE PURSUE THE CLAIM.
   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. "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.
   8.  "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 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;
   B. 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;
   C. SECTIONS ONE HUNDRED SIXTY,  ONE  HUNDRED  SIXTY-ONE,  ONE  HUNDRED
 SIXTY-TWO,  ONE  HUNDRED SIXTY-THREE-A, ONE HUNDRED SIXTY-SEVEN, AND ONE
 HUNDRED SEVENTY OF ARTICLE FIVE;
   D. 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;
   E.  ARTICLE NINETEEN-B EXCEPT SECTIONS SIX HUNDRED NINETY, SIX HUNDRED
 NINETY-THREE, AND SIX HUNDRED NINETY-FOUR;
   F. ARTICLE NINE EXCEPT SECTIONS TWO HUNDRED THIRTY, TWO HUNDRED  THIR-
 TY-FOUR THROUGH TWO HUNDRED THIRTY-SIX, AND TWO HUNDRED THIRTY-EIGHT;
   G.  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;
   H.  ARTICLE  TWENTY-FIVE-B  EXCEPT  SECTIONS  EIGHT  HUNDRED SIXTY-ONE
 THROUGH EIGHT HUNDRED SIXTY-ONE-B;
   I. ARTICLE TWENTY-FIVE-C EXCEPT SECTIONS EIGHT HUNDRED  SIXTY-TWO  AND
 EIGHT HUNDRED SIXTY-TWO-A;
   J.  ARTICLE  EIGHT  EXCEPT  SECTIONS  TWO HUNDRED TWENTY-E THROUGH TWO
 HUNDRED TWENTY-FOUR, TWO HUNDRED TWENTY-FOUR-B, AND TWO HUNDRED  TWENTY-
 FOUR-C;
   K. ARTICLE TWENTY-C;
   L.  SECTIONS  TWO  HUNDRED,  TWO HUNDRED ONE-G, TWO HUNDRED SIX-C, TWO
 HUNDRED FIFTEEN, AND TWO HUNDRED EIGHTEEN-B OF ARTICLE SEVEN; AND
 S. 541--B                           4
 
   M. SECTION TWENTY-SEVEN-D OF ARTICLE TWO.
   9.  "ORGANIZATIONAL  DEPUTY"  MEANS A LABOR ORGANIZATION AS DEFINED BY
 SUBSECTION  (G)  OF  SECTION  FOUR   THOUSAND FOUR HUNDRED  TWO  OF  THE
 INSURANCE  LAW THAT HAS BEEN APPOINTED BY THE COMMISSIONER OR THE ATTOR-
 NEY GENERAL TO REPRESENT THE STATE AS THE RELATOR IN THE PUBLIC ENFORCE-
 MENT ACTION.  THE  COMMISSIONER  OR  THE  ATTORNEY  GENERAL  SHALL  HAVE
 COMPLETE  DISCRETION  TO DETERMINE WHAT LABOR ORGANIZATIONS MAY SERVE AS
 THEIR ORGANIZATIONAL DEPUTY IN A PUBLIC ENFORCEMENT ACTION.
   § 1021. PUBLIC ENFORCEMENT ACTION. 1. A RELATOR MAY INITIATE A  PUBLIC
 ENFORCEMENT  ACTION  TO COLLECT CIVIL PENALTIES ON BEHALF OF THE COMMIS-
 SIONER FOR A VIOLATION IMPACTING  AFFECTED  EMPLOYEES  PURSUANT  TO  THE
 PROCEDURES SPECIFIED IN SECTION ONE THOUSAND TWENTY-TWO OF THIS ARTICLE.
 A  RELATOR  MAY  ALLEGE MULTIPLE VIOLATIONS THAT HAVE AFFECTED DIFFERENT
 EMPLOYEES AND MAY SEEK INJUNCTIVE 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 AFFECTED EMPLOYEE PER PAY PERI-
 OD  PER  VIOLATION. A COURT MAY NOT AWARD A LESSER AMOUNT, UNLESS, BASED
 ON THE FACTS AND CIRCUMSTANCES OF  THE  PARTICULAR  CASE,  THE  EMPLOYER
 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.  THE COURT MAY ALSO ALLOW A  PREVAIL-
 ING  RELATOR  TO  RECOVER ALL REASONABLE ANCILLARY COSTS ASSOCIATED WITH
 SERVING AS A RELATOR.   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  DEFEND-
 ANT, REGARDLESS OF WHETHER THAT CHANGE HAS BEEN IMPLEMENTED VOLUNTARILY,
 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 AFFECTED  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
 OR THE ATTORNEY GENERAL'S RIGHT TO SEEK RESTITUTION AND  DAMAGES,  WHERE
 AVAILABLE,  FOR AFFECTED EMPLOYEES IN CONJUNCTION WITH A PUBLIC ENFORCE-
 MENT ACTION IN WHICH IT HAS INTERVENED.
   3. A.  CIVIL PENALTIES RECOVERED IN PUBLIC ENFORCEMENT  ACTIONS  SHALL
 BE  DISTRIBUTED  AS  FOLLOWS:    WHERE  THE COMMISSIONER OR THE ATTORNEY
 GENERAL HAS NOT INTERVENED, OR WHERE THE COMMISSIONER  OR  THE  ATTORNEY
 GENERAL  HAS  APPOINTED AN ORGANIZATIONAL DEPUTY TO PROCEED AS THE RELA-
 TOR, 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  OR  THE  ATTORNEY
 S. 541--B                           5
 
 GENERAL  HAS  INTERVENED,  THIRTY  PERCENT  TO  THE RELATOR; AND SEVENTY
 PERCENT TO THE COMMISSIONER FOR ENFORCEMENT OF THIS CHAPTER  AND  EDUCA-
 TION  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. THE RELATOR SHALL EQUITABLY DISTRIBUTE THE SHARE OF  PENALTIES  DUE
 THE  RELATOR  AMONG  AFFECTED EMPLOYEES.   IF THE RELATOR IS AN AFFECTED
 EMPLOYEE OR WHISTLEBLOWER, THEY SHALL ALSO  BE  ENTITLED  TO  RECOVER  A
 SERVICE AWARD FROM THE PENALTIES RECOVERED, IF THEY PREVAIL IN ACHIEVING
 RELIEF,  IN WHOLE OR IN PART, FOR VIOLATIONS THAT AFFECTED OTHER EMPLOY-
 EES. THE SERVICE AWARD SHALL BE NOT LESS THAN FIVE THOUSAND DOLLARS  AND
 NOT  MORE  THAN  TWENTY THOUSAND DOLLARS, UNLESS THE AMOUNT RECOVERED AS
 CIVIL PENALTIES IS LESS THAN TWENTY THOUSAND DOLLARS.  THE  COURT  SHALL
 DETERMINE  THE  SERVICE AWARD BY TAKING DUE CONSIDERATION OF THE BURDENS
 AND RISKS ASSUMED BY THE RELATOR IN PROSECUTING THE ACTION. IF THE RELA-
 TOR  IS  A  REPRESENTATIVE  ORGANIZATION  OR  AN  ORGANIZATIONAL  DEPUTY
 APPOINTED BY THE COMMISSIONER OR THE ATTORNEY GENERAL, IT SHALL DISTRIB-
 UTE  ALL  RECOVERED  PENALTIES  TO  AFFECTED  EMPLOYEES  BUT MAY RECOVER
 REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN PROSECUTING THE  ACTION
 AND  ANCILLARY  COSTS  ASSOCIATED WITH SERVING AS A RELATOR. THE RELATOR
 SHALL SUBMIT A DISTRIBUTION SUMMARY TO THE COMMISSIONER AND THE ATTORNEY
 GENERAL.
   4. THE RIGHT TO BRING A PUBLIC ENFORCEMENT ACTION UNDER  THIS  ARTICLE
 SHALL  NOT BE SUBJECT TO PRIVATE AGREEMENTS BETWEEN AN AFFECTED EMPLOYEE
 AND AN EMPLOYER OR ALLEGED EMPLOYER, UNLESS SUCH AGREEMENTS ARE  COLLEC-
 TIVELY  BARGAINED  AND THE BARGAINING AGREEMENT PROVIDES A FORUM FOR THE
 ENFORCEMENT OF RIGHTS AND  REMEDIES  OTHERWISE  ENFORCEABLE  UNDER  THIS
 ARTICLE.    THE  RIGHT TO REPRESENT THE STATE WITH RESPECT TO VIOLATIONS
 AFFECTING OTHER WORKERS SHALL NOT  BE  WAIVABLE  BY  PRIVATE  AGREEMENT,
 UNLESS  SUCH AGREEMENTS ARE  COLLECTIVELY  BARGAINED  AND THE BARGAINING
 AGREEMENT PROVIDES A FORUM FOR THE ENFORCEMENT OF RIGHTS AND    REMEDIES
 OTHERWISE ENFORCEABLE  UNDER  THIS ARTICLE, INCLUDING AN AWARD OF PENAL-
 TIES AUTHORIZED BY THIS ARTICLE.
   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
 PUBLIC ENFORCEMENT ACTION UNDER THIS ARTICLE SHALL BE  TOLLED  FROM  THE
 DATE  A  RELATOR FILES A NOTICE PURSUANT TO SECTION ONE THOUSAND TWENTY-
 TWO OF THIS ARTICLE WITH THE COMMISSIONER AND THE ATTORNEY  GENERAL,  OR
 THE  COMMISSIONER  OR  THE  ATTORNEY GENERAL 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-
 S. 541--B                           6
 
 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 AFFECTED BY A VIOLATION  OF  THIS  SUBDIVISION,  OR  ANY
 AFFECTED EMPLOYEE, WHISTLEBLOWER, REPRESENTATIVE ORGANIZATION, ORGANIZA-
 TIONAL  DEPUTY, OR THE COMMISSIONER, OR THE ATTORNEY GENERAL 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  AFFECTED
 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.
   § 1022. PROCEDURE. 1. NO PUBLIC ENFORCEMENT ACTION BY A RELATOR PURSU-
 ANT TO SECTION ONE THOUSAND TWENTY-ONE OF THIS ARTICLE MAY BE COMMENCED:
   A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE  HAS  BEEN  GIVEN  BY  THE
 RELATOR  TO  THE  COMMISSIONER AND TO THE ATTORNEY GENERAL.  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 AFFECTED
 EMPLOYEE OR WHISTLEBLOWER.
   (III) IF THE ACTION IS BROUGHT BY A REPRESENTATIVE  ORGANIZATION,  THE
 NAME,  ADDRESS  AND  CONTACT INFORMATION OF THE REPRESENTATIVE ORGANIZA-
 TION, ITS QUALIFICATION AS A REPRESENTATIVE ORGANIZATION AS  DEFINED  IN
 THIS  CHAPTER,  AND  THE  FORM  ON  WHICH  THE WHISTLEBLOWER OR AFFECTED
 EMPLOYEE HAS DESIGNATED THE REPRESENTATIVE ORGANIZATION.
   (IV) IF THE ACTION IS BROUGHT BY AN AFFECTED EMPLOYEE OR  WHISTLEBLOW-
 ER, THE NAME, ADDRESS, AND CONTACT INFORMATION OF ANY LABOR ORGANIZATION
 THAT  HAS  ASSISTED WITH THE FILING OF THE WRITTEN NOTICE, AND WHO WOULD
 BE AVAILABLE TO SERVE AS AN ORGANIZATIONAL  DEPUTY  SHOULD  THEY  BE  SO
 APPOINTED BY THE COMMISSIONER OR THE ATTORNEY GENERAL.
   (V)  THE  NAME, ADDRESS AND CONTACT INFORMATION OF THE RELATOR'S LEGAL
 COUNSEL, SHOULD ONE EXIST.
   (VI) A STATEMENT OF THE UNDERLYING CLAIM.
   (VII) 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.
 S. 541--B                           7
 
   (VIII) AFTER SEARCHING THE DATABASE ESTABLISHED PURSUANT  TO  SUBDIVI-
 SION  SIX OF SECTION ONE THOUSAND TWENTY-ONE OF THIS ARTICLE FOR NOTICES
 ALLEGING 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 OR THE ATTORNEY GENERAL, AT ANY TIME  PRIOR  TO
 THE END OF THE SIXTY-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 OR THE ATTORNEY GENERAL, 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 OR 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 OR THE ATTORNEY GENERAL MAY, AFTER  RECEIVING  THE
 NOTICE,  APPOINT  AN  ORGANIZATIONAL  DEPUTY FOR THE COMMISSIONER OR THE
 ATTORNEY GENERAL (BASED ON WHO MAKES THE APPOINTMENT) TO  SERVE  AS  THE
 RELATOR, INSTEAD OF THE PERSON WHO FILED THE NOTICE. THAT ORGANIZATIONAL
 DEPUTY  MAY THEN PROCEED WITH THE PUBLIC ENFORCEMENT ACTION ON BEHALF OF
 THE STATE. IF THE COMMISSIONER OR THE ATTORNEY GENERAL HAS APPOINTED  AN
 ORGANIZATIONAL  DEPUTY  AS THE RELATOR, THAT ORGANIZATIONAL DEPUTY SHALL
 SERVE AS THE  RELATOR  IN  ACCORDANCE  WITH  ALL  THE  OTHER  PROCEDURES
 OUTLINED  IN  THIS  ARTICLE.  THE  DECISION TO APPOINT AN ORGANIZATIONAL
 DEPUTY SHALL NOT BE CONSTRUED AS  THE  COMMISSIONER'S  OR  THE  ATTORNEY
 GENERAL'S DIRECT INTERVENING IN THE PUBLIC ENFORCEMENT ACTION.
   3.  THE  COMMISSIONER  OR  THE  ATTORNEY  GENERAL MAY INTERVENE IN THE
 PUBLIC ENFORCEMENT ACTION AND PROCEED WITH ANY AND  ALL  CLAIMS  IN  THE
 ACTION:
   A.  AS OF RIGHT WITHIN THE SIXTY-DAY NOTICE PERIOD PRESCRIBED IN PARA-
 GRAPH A OF SUBDIVISION ONE OF THIS SECTION;
   B. FOR GOOD CAUSE, AS DETERMINED BY THE COURT, AFTER THE EXPIRATION OF
 THE SIXTY-DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF SUBDIVISION ONE
 OF THIS SECTION; OR
   C. IF A PREVIOUS RELATOR BECOMES UNAVAILABLE TO  CONTINUE  THE  PUBLIC
 ENFORCEMENT  ACTION,  BY  APPOINTING  AN  ORGANIZATIONAL  DEPUTY FOR THE
 COMMISSIONER OR THE ATTORNEY GENERAL (BASED ON WHO  MAKES  THE  APPOINT-
 MENT)  TO  PROCEED  WITH  THE PUBLIC ENFORCEMENT ACTION ON BEHALF OF THE
 STATE. IF THE COMMISSIONER OR THE ATTORNEY GENERAL HAS SO  APPOINTED  AN
 ORGANIZATIONAL  DEPUTY,  THE  ORGANIZATIONAL  DEPUTY  SHALL SERVE AS THE
 RELATOR IN ACCORDANCE WITH ALL THE OTHER  PROCEDURES  OUTLINED  IN  THIS
 ARTICLE.  THE  DECISION TO APPOINT AN ORGANIZATIONAL DEPUTY SHALL NOT BE
 CONSTRUED AS THE COMMISSIONER OR THE ATTORNEY GENERAL DIRECTLY INTERVEN-
 ING IN THE PUBLIC ENFORCEMENT ACTION.
   4. IF THE COMMISSIONER  OR  THE  ATTORNEY  GENERAL  INTERVENES  IN  AN
 ACTION,  HE  OR  SHE  MAY TAKE PRIMARY RESPONSIBILITY FOR LITIGATING THE
 S. 541--B                           8
 
 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 OR THE ATTORNEY  GENERAL  MAY  ALSO  INTERVENE  IN  THE
 ACTION  FOR  THE  LIMITED  PURPOSE  OF FILING A STATEMENT OF INTEREST OR
 OTHERWISE ADVANCING THE STATE'S VIEW ABOUT LEGAL ISSUES AT STAKE IN  THE
 ACTION.  IF  THE COMMISSIONER OR THE ATTORNEY GENERAL HAS INTERVENED FOR
 THE PURPOSE OF TAKING PRIMARY RESPONSIBILITY FOR LITIGATING THE  ACTION,
 THE  COMMISSIONER  OR  ATTORNEY GENERAL 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.
   5.  EITHER  THE  COMMISSIONER,  THE  ATTORNEY GENERAL, 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,  THE ATTORNEY GENERAL, OR THE COURT SHALL APPROVE THE
 SETTLEMENT IF IT IS FAIR, REASONABLE AND ADEQUATE, IN LIGHT OF THE STAT-
 UTORY PURPOSE OF THE PROVISION OF THIS  CHAPTER  ALLEGED  TO  HAVE  BEEN
 VIOLATED AND THE PURPOSE OF THIS ARTICLE.
   6.  A.  THE RELATOR SHALL, WITHIN TEN DAYS FOLLOWING COMMENCEMENT OF A
 CIVIL ACTION PURSUANT TO THIS ARTICLE, PROVIDE THE COMMISSIONER AND  THE
 ATTORNEY GENERAL WITH A FILE-STAMPED COPY OF THE COMPLAINT THAT INCLUDES
 THE CASE NUMBER ASSIGNED BY THE COURT.
   B.  IF THE COMMISSIONER OR THE ATTORNEY GENERAL 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
 OR  THE ATTORNEY GENERAL 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 AND THE ATTORNEY GENERAL WITHIN TEN DAYS
 AFTER ENTRY OF THE JUDGMENT 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.
   7.  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  SIXTY
 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.
   8. A PUBLIC ENFORCEMENT ACTION SHALL BE TRIED PROMPTLY, WITHOUT REGARD
 TO CONCURRENT ADJUDICATION OF PRIVATE CLAIMS, INCLUDING  WITHOUT  REGARD
 TO CONCURRENT ADJUDICATION OF CLAIMS FOR VIOLATIONS PERSONALLY AFFECTING
 THE RELATOR.
   9. 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.
 S. 541--B                           9
 
   10. 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.
   11.  A  RELATOR  BRINGING  AN ACTION PURSUANT TO THIS ARTICLE SHALL BE
 ENTITLED TO  DISCOVERY  REGARDING  THE  ALLEGED  VIOLATIONS  AS  TO  ALL
 AFFECTED EMPLOYEES AS DEFINED IN THIS ARTICLE.
   12.  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 ADVANCING THE CASE;
   D.  THE RESOURCES THAT COUNSEL HAS COMMITTED AND WILL COMMIT TO PROSE-
 CUTING THE CASE, AND THE RELATIVE RESOURCES AT COUNSEL'S DISPOSAL; AND
   E. THE LENGTH OF TIME EACH ACTION HAS BEEN PENDING.
   § 1023. 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, and shall permit relators
 to bring actions concerning New York Labor Law violations that  occurred
 within  the  six  years  prior  to this act's effective date, unless the
 Labor Law provides a shorter statute of limitations with respect to  the
 specific  violation  in  question, in which case that shorter statute of
 limitations shall apply.

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Senate Bill S541A

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

2023-S541 - Details

2023-S541 - Summary

2023-S541 - Sponsor Memo

2023-S541 - Bill Text download pdf

co-Sponsors

2023-S541A - Details

2023-S541A - Summary

2023-S541A - Sponsor Memo

2023-S541A - Bill Text download pdf

co-Sponsors

2023-S541B (ACTIVE) - Details

2023-S541B (ACTIVE) - Summary

2023-S541B (ACTIVE) - Sponsor Memo

2023-S541B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S541A

Share this bill

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

2023-S541 - Details

2023-S541 - Summary

2023-S541 - Sponsor Memo

2023-S541 - Bill Text download pdf

co-Sponsors

2023-S541A - Details

2023-S541A - Summary

2023-S541A - Sponsor Memo

2023-S541A - Bill Text download pdf

co-Sponsors

2023-S541B (ACTIVE) - Details

2023-S541B (ACTIVE) - Summary

2023-S541B (ACTIVE) - Sponsor Memo

2023-S541B (ACTIVE) - Bill Text download pdf

Comments