NY State Senate Bill 2023-S8555

Senate Bill S8555

2023-2024 Legislative Session

Relates to employers' obligations to report wages for the purposes of unemployment benefits, the payment of unemployment benefits, and employer penalties for non-compliance

download bill text pdf

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 13, 2024	referred to labor

2023-S8555 (ACTIVE) - Details

See Assembly Version of this Bill:: A9355
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§570, 572, 575, 575-a, 597 & 620, Lab L

2023-S8555 (ACTIVE) - Summary

Requires employers to report certain employees' wages for the purposes of unemployment benefits; relates to the payment of unemployment benefits, and employer penalties for non-compliance.

2023-S8555 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8555

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law, in relation to employers' obligations to
report wages for the purposes of unemployment benefits, the payment of
unemployment benefits, and employer penalties for non-compliance

 
PURPOSE:

The purpose of this bill is to ensure that all employers that have been
ruled covered by New York's unemployment insurance laws report their
employees' wages and contribute to the UI Trust Fund.

 
SUMMARY OF PROVISIONS:

Section One. Amends section 570 of the Labor Law to include those
employers presumed liable, pursuant to the definition set out in

Section two of the bill, who are required to pay contributions to the
New York Unemployment Insurance Trust Fund (UI Trust Fund).

Section Two. States that the Department of Labor determines that any
person is an employee under the UI law, there shall be a presumption
that such determination applies to all others performing similar
services for the employer and such employer is required to report the
wages of all such employees and make contributions based on the wages of
all such employees.

Section Three. States that in any determination by the Department of
Labor or by the UI Appeal Board that a claimant is an employee under the
UI law, the employer of such claimant shall be considered an employer of
all those performing similar services for the employer.  The obligations
of such employer to report their employees' earnings shall continue
unless and until reversed by administrative or judicial review and all
further appeals have been exhausted.

Section Four. States that lack of knowledge and/or a misunderstanding
regarding the presumption of liability shall not constitute good cause
for failure to comply with the wage reporting laws. This Section also
increases the penalties for employers who provide complete and correct
wage reporting. Further, the Section also requires the DOL to apply to
the state Supreme Court for an order requiring the employer to report
their employees' wages. In addition, the Section provides a private
right of action allowing workers to require employers to report their
employees' wages. Increases the penalty for those employers who fraudu-
lently avoid contributions to the UI Trust Fund and expands the defi-
nition of fraud to include an employer who knew or should have known
that its employees were covered under the UI law.

Section Five. Amendments to Section 570 Sub-Section 4 of LL: If an
employer continues to pay employees as independent contractors after
being determined employees, it is considered fraud. This makes the defi-
nition of fraud clearer and increases the fraud fees from 50 to 100
percent.



Section Six. Amendments to Section 597 pf LL: Amends to ensure the
commissioner issued a monetary benefit determination with an explana-
tion. Suggested adding language access here.

Section Seven. Amendments to Section 620 pf LL: Amends for consistency
to include that once employee status is determined, it is established
for all similar services.

Section Eight. Effective Date

 
JUSTIFICATION:

Many NY employers have refused to pay the ordinary Unemployment Insur-
ance (UI) taxes that all other NY employers must pay. They have also
been failing to report their employees' wages to the NYS Department of
Labor (DOL), which slows down the delivery of crucial Unemployment
Insurance (UI) benefits by months. This is all despite the fact that
state courts and agencies have repeatedly ruled, for years, that many of
these corporations are covered by NY's UI law and their workers are
entitled to receive benefits. These employers' failure to pay into the
UI Trust Fund has added millions to the UI Trust Fund debt. The large UI
Trust Fund debt, currently 6.8 billion dollars, has triggered higher UI
tax rates for the rest of NY employers and has hurt workers by forcing
NY's maximum weekly benefit rate, the lowest in the Northeast Region, to
remain frozen at $504 per week since 2019. Not only is the failure of
employers to report wages bad for workers, it also creates an unequal
playing field with employers who do the right thing and pay into the
Trust Fund while others skirt the system, gaining an unfair advantage by
paying nothing.

The majority of these employers fail to make contributions because they
misclassify their workers as independent contractors instead of employ-
ees. When employers fail to report a worker's wages to New York State,
the worker is unable to collect UI if they lose their job because the
DOL does not have a record of earnings upon which to determine monetary
eligibility. The burden is then put on the unemployed worker to prove
not only the amount of their earnings but also that they are an employee
and not an independent contractor. Misclassified workers are forced to
request a reconsideration to the DOL, answer numerous questionnaires and
provide extensive documentation of wages - a process that takes at least
3 months and often more than 6 months to complete. Most misclassified
workers either don't apply for UI because they don't know they are
eligible or give up after they have applied because of the excessive
bureaucracy.

New York UI law requires employers to make contributions to the UI Trust
Fund based on the amount of wages that they pay their employees. The DOL
uses audits of employers to determine if their workers are employees
under the NY UI law and then assesses contributions and penalties.
Audits are backward-looking, which means they determine liability for
failure to contribute in the past, but do not then require the employers
to report their current workers' wages. The current audit process is
ineffective because the DOL does not require companies that have been
determined to be employers to start reporting wages and making contrib-
utions for its similarly situated employees going forward. In addition,
penalties for failing to report wages and make contributions are
extremely low, which provides little incentive for employers to follow
the law.
This bill addresses the inadequacies of the current enforcement mech-
anisms by requiring employers to report their workers' earnings and
contribute to the UI Trust Fund. It creates a presumption that DOL
determinations finding individual workers to be employees apply to all
of the employer's workers who provide similar services and makes clear
that employers must report all of their employees' earnings and make
contributions on those earnings. The bill also substantially increases
penalties for failure to report earnings and make contributions and
creates a new tool beyond audits to deal with non-complying employers by
requiring the DOL to apply to the state Supreme Court for an order
requiring the non-complying employer to report their employees' wages.
In addition, the bill provides a private right of action to allow work-
ers to require employers to report their employees' wages. Finally, the
bill makes it easier and faster to establish UI monetary eligibility for
workers of employers who fail to report their wages.

2023-S8555 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8555
 
                             I N  S E N A T E
 
                             February 13, 2024
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- 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 employers' obligations  to
   report wages for the purposes of unemployment benefits, the payment of
   unemployment benefits, and employer penalties for non-compliance

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 570 of the labor law,  as  amended
 by chapter 7 of the laws of 1985, is amended to read as follows:
   1.  Rate.  Each  employer  liable  under this article, INCLUDING THOSE
 EMPLOYERS LIABLE PURSUANT TO  THE  PRESUMPTION  IN  SUBDIVISION  ONE  OF
 SECTION  FIVE HUNDRED SEVENTY-TWO OF THIS TITLE, shall pay contributions
 on all wages paid by him at the rate of five and four-tenths per  centum
 or,  if  applicable  to  the  employer,  at  the  rate  provided  by the
 provisions of sections  five  hundred  seventy-seven  and  five  hundred
 eighty-one  OF  THIS  TITLE.  However,  if  contributions so established
 exceed five and four-tenths per centum of wages paid by  him  which  are
 subject  to  the  federal unemployment tax act, they shall be reduced by
 that part of such excess, if any, which is caused by the  provisions  of
 paragraph  (b)  of  subdivision  one of section five hundred eighteen OF
 THIS ARTICLE.
   § 2. Section 572 of the labor law, as amended by chapter  726  of  the
 laws of 1953, is amended to read as follows:
   § 572. [Notice] PRESUMPTION of liability. 1. NOTWITHSTANDING ANY OTHER
 PROVISION  OF  LAW,  UPON THE INITIAL DETERMINATION OF A CLAIM FOR BENE-
 FITS, IF THE DEPARTMENT DETERMINES THAT ANY PERSON IS OR WAS AN EMPLOYEE
 WITHIN THE MEANING OF THIS ARTICLE, THERE SHALL BE  A  PRESUMPTION  THAT
 SUCH DETERMINATION APPLIES TO ALL OTHERS PERFORMING SIMILAR SERVICES FOR
 THE  EMPLOYER  AND SUCH EMPLOYER HAS BECOME LIABLE FOR CONTRIBUTIONS FOR
 ALL SUCH EMPLOYEES UNDER SECTION FIVE  HUNDRED  SEVENTY  OF  THIS  TITLE
 AND/OR SECTION SIX HUNDRED SEVENTY-FOUR OF THE TAX LAW. UPON FINAL ADJU-
 DICATION  OF  ANY  INITIAL  DETERMINATION  FINDING  A  CLAIMANT TO BE AN
 EMPLOYEE, THE REPORTING AND  CONTRIBUTIONS  REQUIRED  UNDER  THIS  TITLE
 SHALL BE MADE ON ALL WAGES PAID TO SUCH CLAIMANT AND ALL OTHERS PERFORM-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13671-01-3
 S. 8555                             2
 
 ING  SIMILAR  SERVICES  FOR  THE  EMPLOYER. THE EMPLOYER'S OBLIGATION TO
 CONTRIBUTE FOR SUCH EMPLOYEES SHALL CONTINUE UNTIL THE EMPLOYER SUCCESS-
 FULLY REBUTS THE PRESUMPTION IN A FINAL ADJUDICATION OF A  FUTURE  CLAIM
 INVOLVING  A  CLAIMANT PERFORMING SIMILAR SERVICES FOR THE EMPLOYER. THE
 PRESUMPTION AND OBLIGATIONS IN  THIS  SUBDIVISION  SHALL  APPLY  TO  ALL
 DETERMINATIONS ALREADY RENDERED AND ALL FUTURE DETERMINATIONS.
   2.  Any  employer who has become liable for contributions shall notify
 the commissioner of [such] THE fact [immediately] and shall give  infor-
 mation  concerning  [his] THEIR operations and persons employed by [him]
 THEM TO THE COMMISSIONER NO LATER THEN FIVE  BUSINESS  DAYS  AFTER  THEY
 BECOME LIABLE.
   §  3.  Subdivision 4 of section 575 of the labor law, as renumbered by
 chapter 639 of the laws of 1954, is renumbered subdivision 3 and  a  new
 subdivision 2 is added to read as follows:
   2.  UPON  ANY  DETERMINATION BY THE DEPARTMENT, A REFEREE OF THE UNEM-
 PLOYMENT INSURANCE APPEAL BOARD, OR THE BOARD  THAT  A  CLAIMANT  IS  AN
 EMPLOYEE UNDER THIS ARTICLE, THE EMPLOYER SHALL BE CONSIDERED AN EMPLOY-
 ER  OF  SUCH  CLAIMANT AND ALL THOSE PERFORMING SIMILAR SERVICES FOR THE
 EMPLOYER.  THE EMPLOYER'S OBLIGATION TO REPORT EARNINGS PURSUANT TO THIS
 ARTICLE AND REGULATIONS OF THE COMMISSIONER SHALL  CONTINUE  UNLESS  AND
 UNTIL  REVERSED  BY  ADMINISTRATIVE  OR  JUDICIAL REVIEW AND ALL FURTHER
 APPEALS HAVE BEEN EXHAUSTED.
   § 4. Section 575-a of the labor law, as added by chapter 5 of the laws
 of 2000, is amended to read as follows:
   § 575-a. Penalties relating to wage information.  In  the  case  of  a
 failure  by  an  employer to provide complete and correct wage reporting
 information on a quarterly  combined  withholding,  wage  reporting  and
 unemployment  insurance  return required by paragraph four of subsection
 (a) of section six hundred seventy-four of the tax  law,  such  employer
 shall,  unless it is shown to the commissioner's satisfaction that there
 was good cause for such failure to comply, be liable as provided for  in
 subdivisions one and two of this section.  LACK OF KNOWLEDGE OR A MISUN-
 DERSTANDING  REGARDING THE PRESUMPTION ESTABLISHED IN SUBDIVISION ONE OF
 SECTION FIVE HUNDRED SEVENTY-TWO OF THIS TITLE SHALL NOT CONSTITUTE GOOD
 CAUSE FOR FAILURE TO COMPLY WITH THE PROVISIONS OF THIS SECTION.
   1. [When the non-compliance is discovered through an examination of an
 employer's records, the] THE employer shall be liable for a  penalty  in
 the following amount for each employee who is not included in the return
 or for whom the required information is not reported accurately:
   (a)  for  the  first  failure  for  any  calendar quarter in any eight
 consecutive calendar quarters[, one dollar for  each  employee,  not  to
 exceed one thousand dollars]:
   (I)  FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, TWENTY-FIVE DOLLARS FOR
 EACH EMPLOYEE;
   (II) FOR EMPLOYERS WITH MORE THAN TEN BUT LESS THAN  FIFTY  EMPLOYEES,
 FIFTY DOLLARS FOR EACH EMPLOYEE; AND
   (III)  FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, ONE HUNDRED DOLLARS
 FOR EACH EMPLOYEE;
   (b) for the second failure for  any  calendar  quarter  in  any  eight
 consecutive  calendar  quarters[, five dollars for each employee, not to
 exceed two thousand dollars]:
   (I) FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, FIFTY DOLLARS  FOR  EACH
 EMPLOYEE;
   (II)  FOR  EMPLOYERS WITH MORE THAN TEN BUT LESS THAN FIFTY EMPLOYEES,
 ONE HUNDRED DOLLARS FOR EACH EMPLOYEE; AND
 S. 8555                             3

   (III) FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, TWO HUNDRED  DOLLARS
 FOR EACH EMPLOYEE;
   (c)  for  any  subsequent failure in any calendar quarter in any eight
 consecutive calendar quarters[, twenty-five dollars for  each  employee,
 not to exceed five thousand dollars.
   2.  In  those  instances  where  a  failure to comply is discovered in
 relation to a specific claimant's claim for benefits, the penalty  shall
 be twenty-five dollars for each such occurrence.
   3. If]:
   (I)  FOR EMPLOYERS WITH TEN EMPLOYEES OR LESS, ONE HUNDRED DOLLARS FOR
 EACH EMPLOYEE;
   (II) FOR EMPLOYERS WITH MORE THAN TEN BUT LESS THAN  FIFTY  EMPLOYEES,
 TWO HUNDRED DOLLARS FOR EACH EMPLOYEE; AND
   (III) FOR EMPLOYERS WITH FIFTY OR MORE EMPLOYEES, FOUR HUNDRED DOLLARS
 PER EMPLOYEE.
   2. UPON AN EMPLOYER'S FIRST VIOLATION OF THIS SECTION, IF such employ-
 er provides complete and correct wage reporting information within thir-
 ty days after the department sends notice of such failure to the employ-
 er,  then  the  penalty  provided for by subdivision one of this section
 shall be abated.
   [4.]3. The penalties imposed and collected pursuant  to  this  section
 shall  be  credited  to the special fund established pursuant to section
 five hundred fifty-two of this article.
   4. UPON AN EMPLOYER'S FAILURE TO REPORT COMPLETE AND CORRECT WAGES  OF
 THEIR  EMPLOYEES,  THE  COMMISSIONER SHALL PROVIDE WRITTEN NOTICE TO THE
 EMPLOYER AS PROVIDED IN SECTION FIVE HUNDRED SEVENTY-ONE OF THIS  TITLE.
 AFTER PROVIDING SUCH NOTICE, IF THE EMPLOYER DOES NOT FILE A CORRECT AND
 SUFFICIENT  REPORT  WITHIN  THIRTY DAYS, THE COMMISSIONER SHALL APPLY TO
 THE SUPREME COURT OF THE STATE OF NEW YORK FOR AN  ORDER  REQUIRING  THE
 EMPLOYER TO PROVIDE SUCH WAGE REPORTING INFORMATION.
   5.  ANY  OF  THE  FOLLOWING  PARTIES MAY SEEK AN ORDER IN ANY COURT OF
 COMPETENT JURISDICTION REQUIRING AN EMPLOYER  TO  PROVIDE  COMPLETE  AND
 CORRECT  WAGE REPORTING INFORMATION TO THE COMMISSIONER FOR ALL OF THEIR
 EMPLOYEES:
   (A) ANY CLAIMANT, FOR WHOM THE PRESUMPTION ESTABLISHED IN  SUBDIVISION
 ONE  OF  SECTION  FIVE  HUNDRED  SEVENTY-TWO  OF THIS TITLE APPLIES, WHO
 RECEIVES A MONETARY BENEFIT DETERMINATION WHICH INDICATES  THAT  ONE  OR
 MORE OF THEIR EMPLOYERS HAS FAILED TO REPORT THEIR WAGES; AND
   (B)  ANY  EMPLOYEE  WHO  FAILS  TO  RECEIVE A NOTICE OR WAGE STATEMENT
 PURSUANT TO SECTION ONE HUNDRED NINETY-FIVE OF THIS  CHAPTER,  FOR  WHOM
 THE  PRESUMPTION  ESTABLISHED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED
 SEVENTY-TWO OF THIS TITLE APPLIES.
   ANY CLAIMANT OR EMPLOYEE WHO PREVAILS ON SUCH A CLAIM SHALL  BE  ENTI-
 TLED TO ATTORNEY'S FEES AND COSTS, BUT NO OTHER DAMAGES.
   §  5.  Subdivision  4  of  section 570 of the labor law, as amended by
 chapter 726 of the laws of 1953, is amended to read as follows:
   4. Fraud. If any part of any deficiency is due to fraud with intent to
 avoid payment of contributions to the  fund,  [fifty]  ONE  HUNDRED  per
 centum  of the total amount of the deficiency, in addition to such defi-
 ciency, shall be assessed, collected, and paid in the same manner as  if
 it  were  a deficiency.  AS USED IN THIS SECTION, THE TERM "FRAUD" SHALL
 INCLUDE ANY INSTANCE WHERE AN EMPLOYER FAILED TO PAY  CONTRIBUTIONS  AND
 THE  EMPLOYER  KNEW OR SHOULD HAVE KNOWN THAT ITS EMPLOYEES WERE COVERED
 BY THE UNEMPLOYMENT INSURANCE LAW. INSTANCES WHERE AN EMPLOYER SHALL  BE
 DEEMED  TO  HAVE  KNOWN  ITS  EMPLOYEES WERE COVERED BY THE UNEMPLOYMENT
 INSURANCE LAW SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY SITUATION WHERE:
 S. 8555                             4

   (A) AN EMPLOYER OR ANY OF ITS RELATED ENTITIES HAVE BEEN FOUND BY  THE
 UNEMPLOYMENT  INSURANCE  APPEAL  BOARD  TO  BE THE EMPLOYER OF EMPLOYEES
 PROVIDING SIMILAR SERVICES;
   (B)  AN EMPLOYER OR ANY OF ITS RELATED ENTITIES HAVE BEEN FOUND BY THE
 DEPARTMENT TO BE THE EMPLOYER OF EMPLOYEES PROVIDING  ANY  OF  THE  SAME
 SERVICES; AND
   (C)  AN EMPLOYER HAS FAILED TO COOPERATE WITH THE DEPARTMENT DURING AN
 AUDIT OR INVESTIGATION REGARDING ITS OBLIGATIONS UNDER THIS ARTICLE.
   § 6. Subdivision 2 of section 597 of the  labor  law,  as  amended  by
 chapter 589 of the laws of 1998, paragraph (b) as amended by chapter 413
 of  the laws of 2003, and paragraph (d) as added by section 18 of part O
 of chapter 57 of the laws of 2013, is amended to read as follows:
   2. Obtaining information necessary for determinations. (a) When filing
 an original claim, each claimant shall furnish to the  commissioner  all
 information  which  the commissioner shall require concerning his or her
 prior employment.
   (b) Whenever a claimant's base period includes  a  completed  calendar
 quarter for which a wage data report is not due or has not been received
 and  the  claimant provides information as required by the commissioner,
 the commissioner shall determine such claimant's entitlement and benefit
 rate using the information  the  claimant  provided  for  such  quarter.
 However, in those instances where the claimant is unable to provide such
 information  to  the  commissioner's  satisfaction, the commissioner may
 request the employer to provide the amount of remuneration paid to  such
 individual. The commissioner shall notify each base period employer upon
 the  establishment  of  a  valid  original  claim,  of such claim. If an
 employer provides new  or  corrected  information  in  response  to  the
 initial  notice  of  monetary entitlement, adjustments to the claimant's
 benefit rate and adjustments to the employer's experience rating account
 shall be prospective as of the date such information was received by the
 department.
   (c) THE COMMISSIONER SHALL ISSUE A MONETARY BENEFIT  DETERMINATION  TO
 THE  CLAIMANT  WITHIN ONE WEEK OF AN APPLICATION FOR BENEFITS. THE MONE-
 TARY BENEFIT DETERMINATION SHALL INCLUDE NOTICE TO THE CLAIMANT THAT, IF
 THE DETERMINED AMOUNT OF BENEFITS  PAYABLE  TO  THE  CLAIMANT  DOES  NOT
 REFLECT  THE  CLAIMANT'S  FULL  EARNINGS, SUCH DIFFERENT AMOUNT MAY HAVE
 OCCURRED BECAUSE THE EMPLOYER DID NOT REPORT OR  DID  NOT  FULLY  REPORT
 THEIR  WAGES.   THE MONETARY BENEFIT DETERMINATION SHALL ALSO NOTIFY THE
 CLAIMANT THAT THEY SHOULD PROVIDE PROOF OF  EARNINGS  FOR  THE  RELEVANT
 PERIOD  IN ORDER TO PROPERLY DETERMINE THE CLAIMANT'S MONETARY ELIGIBIL-
 ITY.  ANYTIME A CLAIMANT PROVIDES PROOF OF EARNINGS FROM A PARTY  PREVI-
 OUSLY  DETERMINED TO BE AN EMPLOYER UNDER THIS ARTICLE, THE COMMISSIONER
 SHALL ISSUE A  REVISED  DETERMINATION  WITHIN  THREE  BUSINESS  DAYS  OF
 RECEIPT  OF  THE  CLAIMANT'S  PROOF OF EARNINGS. IN ALL OTHER CASES, THE
 COMMISSIONER SHALL  COMPLETE  AN  INVESTIGATION  REGARDING  WHETHER  THE
 CLAIMANT'S  EARNINGS  ARE WAGES EARNED IN COVERED EMPLOYMENT AND ISSUE A
 DETERMINATION REGARDING THE ADDITIONAL EARNINGS WITHIN FORTY-FIVE  DAYS.
 IN  THE  EVENT  OF  AN INVESTIGATION, THE COMMISSIONER SHALL PROVIDE THE
 CLAIMANT WITH NO LESS THAN FOURTEEN DAYS' NOTICE  OF  ANY  DEADLINES  TO
 RESPOND PURSUANT TO SUCH INVESTIGATION.
   (D)  Notwithstanding paragraph (b) of this subdivision, adjustments to
 the claimant's benefit rate and  adjustment  to  the  experience  rating
 charges  to the employers' accounts will be retroactive to the beginning
 of the benefit claim in the following circumstances:
   (i) the new or corrected information results in a higher benefit rate,
 or
 S. 8555                             5
 
   (ii) the new or corrected information results in the claimant's  fail-
 ure to establish a valid original claim, or
   (iii)  the amount of the previously established benefit rate was based
 upon the claimant's willful false statement or representation.
   [(d)] (E) Notwithstanding any provisions of  this  article,  unless  a
 commissioner's  error  is shown or the failure is the direct result of a
 disaster emergency declared by the governor or president, an  employer's
 account  shall not be relieved of charges resulting in an overpayment of
 benefits when the commissioner determines that the overpayment was  made
 because  the  employer  or the agent of the employer failed to timely or
 adequately respond to a request for information in the notice of  poten-
 tial  charges or other such notice requesting information in relation to
 a claim under this article, provided,  however,  that  the  commissioner
 shall  relieve  the employer of charges the first time that the employer
 fails to  provide  timely  or  adequate  information,  if  the  employer
 provides good cause for such failure as determined by the commissioner.
   "Timely"  shall  mean a response is provided in the time period speci-
 fied in the notice as prescribed by the commissioner.
   The term "adequately" shall  mean  that  the  employer  or  its  agent
 submitted information sufficient to render a correct determination.
   This  prohibition  for  relief of charges shall apply to all employers
 under this article including  employers  electing  payment  in  lieu  of
 contributions.
   §  7.  Paragraph (b) of subdivision 1 of section 620 of the labor law,
 as amended by chapter 554 of the laws of 2010, is  amended  to  read  as
 follows:
   (b) When the initial determination of a claim for benefits, upon which
 a  hearing  has been requested, involves the question whether any person
 is or was an employer within the meaning of this article and is  or  was
 liable for the payment of contributions under this article, or the ques-
 tion whether an employer has fully complied with the obligations imposed
 by  this  article,  written notice of the hearing shall be given to such
 persons or employer, either personally or by mail, and thereupon he, she
 or such employer shall be deemed a party to the proceeding, entitled  to
 be  heard.  Upon  such  notice  having  been given, the referee may then
 decide such question or questions and any other issue  related  thereto,
 and his or her decision shall not be deemed limited in its effect to the
 immediate  claimant  making the claim for benefits but shall be deemed a
 general determination of such  questions  with  respect  to  all  [those
 employed  by]  OTHERS  PERFORMING  SIMILAR  SERVICES  FOR such person or
 employer for all the purposes of this article, and such  decision  shall
 be conclusive and binding upon the claimant and such person or employer,
 subject, however, to the right to appeal hereinafter provided.
   § 8. This act shall take effect immediately.

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