Bill Text: NY A01139 | 2017-2018 | General Assembly | Introduced


Bill Title: Prohibits employers from requiring low-wage employees to enter into covenants not to compete and requires employers to notify potential employees of any requirement to enter into a covenant not to compete.

Spectrum: Partisan Bill (Democrat 22-0)

Status: (Introduced - Dead) 2018-01-03 - referred to labor [A01139 Detail]

Download: New_York-2017-A01139-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1139
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 10, 2017
                                       ___________
        Introduced  by  M.  of A. DINOWITZ, FAHY, BLAKE, GOTTFRIED, ROSENTHAL --
          Multi-Sponsored by -- M. of A. GLICK, HOOPER,  JENNE,  SIMON  --  read
          once and referred to the Committee on Labor
        AN ACT to amend the labor law, in relation to prohibiting employers from
          requiring  low-wage  employees  to enter into covenants not to compete
          and requiring employers to notify potential employees of any  require-
          ment to enter into a covenant not to compete
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as the  "New  York
     2  State  mobility and opportunity for vulnerable employees act" or the "NY
     3  MOVE act".
     4    § 2. The labor law is amended by adding a new article 33  to  read  as
     5  follows:
     6                                  ARTICLE 33
     7    NEW YORK STATE MOBILITY AND OPPORTUNITY FOR VULNERABLE EMPLOYEES ACT
     8  Section 950. Definitions.
     9          951. Prohibiting  covenants  not to compete for low-wage employ-
    10                 ees.
    11          952. Disclosure requirement for covenants not to compete.
    12          953. Enforcement.
    13    § 950. Definitions. For purposes of this article, the following  terms
    14  shall have the following meanings:
    15    1.  "Commerce" has the meaning given such term in section three of the
    16  Fair Labor Standards Act of 1938 (29 U.S.C. 203).
    17    2. "Covenant not to compete" means an agreement:
    18    (a) between an employee and employer that restricts such employee from
    19  performing:
    20    (i) any work for another employer for a specified period of time;
    21    (ii) any work in a specified geographical area; or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03762-01-7

        A. 1139                             2
     1    (iii) work for another employer that is  similar  to  such  employee's
     2  work for the employer included as a party to the agreement; and
     3    (b) that is entered into after the effective date of this article.
     4    3.   "Employee",  "employer",  "enterprise",  "enterprise  engaged  in
     5  commerce or in the production of goods for commerce", and  "goods"  have
     6  the  meanings given such terms in section three of the Fair Labor Stand-
     7  ards Act of 1938 (29 U.S.C. 203).
     8    4. "Livable hourly rate" means:
     9    (a) for the fiscal year of the effective date  of  this  article,  the
    10  greater of:
    11    (i) fifteen dollars per hour; or
    12    (ii)  the hourly rate equal to the minimum wage required by the appli-
    13  cable state or local minimum wage law; and
    14    (b) for each succeeding fiscal year, the greater of:
    15    (i) the adjusted amount described in subdivision three of section nine
    16  hundred fifty-one of this article; or
    17    (ii) the hourly rate equal to the minimum wage required by the  appli-
    18  cable state or local minimum wage law.
    19    5. "Low-wage employee":
    20    (a)  means  an  employee  who,  excluding  any  overtime  compensation
    21  required under section seven of the Fair Labor Standards Act of 1938 (29
    22  U.S.C. 207) or under an applicable state law, receives from the applica-
    23  ble employer:
    24    (i) an hourly compensation that is less than the liveable hourly rate;
    25  or
    26    (ii) an annual compensation that is equal to or less than:
    27    (A) for the fiscal year of the effective date of this  article,  thir-
    28  ty-one thousand two hundred dollars per year; and
    29    (B)  for each succeeding fiscal year, the adjusted amount described in
    30  subdivision three of section nine hundred fifty-one of this article; and
    31    (b) does not include any  salaried  employee  who  receives  from  the
    32  applicable  employer  compensation  that, for two consecutive months, is
    33  greater than:
    34    (i) for the fiscal year of the effective date of this article,    five
    35  thousand dollars; and
    36    (ii) for each succeeding fiscal year, the adjusted amount described in
    37  subdivision three of section nine hundred fifty-one of this article.
    38    § 951. Prohibiting covenants not to compete for low-wage employees. 1.
    39  No employer shall enter into a covenant not to compete with any low-wage
    40  employee  of  such employer, who in any work week is engaged in commerce
    41  or in the production of goods for commerce (or is employed in an  enter-
    42  prise engaged in commerce or in the production of goods for commerce).
    43    2. An employer who employs any low-wage employee, who in any work week
    44  is engaged in commerce or in the production of goods for commerce (or is
    45  employed  in  an  enterprise engaged in commerce or in the production of
    46  goods for commerce), shall post notice of the provisions of this article
    47  in a conspicuous place on the premises of such employer.
    48    3. (a) For each fiscal year after the fiscal  year  of  the  effective
    49  date  of  this  article,  the  commissioner  shall adjust each amount in
    50  effect under subparagraph (i) of paragraph (b) of  subdivision  four  of
    51  section  nine  hundred fifty of this article, clause (B) of subparagraph
    52  (ii) of paragraph (a) of subdivision five of section nine hundred  fifty
    53  of  this  article,  or  subparagraph (i) of paragraph (b) of subdivision
    54  five of section nine hundred fifty of  this  article  for  inflation  by
    55  increasing each such amount, as in effect for the preceding fiscal year,
    56  by  the annual percentage increase in the Consumer Price Index for Urban

        A. 1139                             3
     1  Wage Earners and Clerical  Workers  (United  States  city  average,  all
     2  items, not seasonally adjusted), or its successor publication, as deter-
     3  mined by the Bureau of Labor Statistics.
     4    (b) The amounts adjusted under paragraph (a) of this subdivision shall
     5  be rounded to the nearest multiple of $0.05.
     6    §  952.  Disclosure requirement for covenants not to compete. In order
     7  for an employer to require an employee, who in any work week is  engaged
     8  in  commerce  or in the production of goods for commerce (or is employed
     9  in an enterprise engaged in commerce or in the production of  goods  for
    10  commerce)  and  is not a low-wage employee, to enter into a covenant not
    11  to compete, the employer shall, prior to the employment of such employee
    12  and at the beginning of the  process  for  hiring  such  employee,  have
    13  disclosed to such employee the requirement for entering into such coven-
    14  ant.
    15    §  953.  Enforcement.  1.  The  commissioner  shall  have the power to
    16  receive, investigate, attempt to resolve, and enforce a complaint  of  a
    17  violation  of sections nine hundred fifty-one and nine hundred fifty-two
    18  of this article, subject to subdivision two of this section.
    19    2. (a) The commissioner shall impose a civil fine:
    20    (i) with respect to any  employer  who  violates  subdivision  one  of
    21  section nine hundred fifty-one or section nine hundred fifty-two of this
    22  article, an amount not to exceed five thousand dollars for each employee
    23  who was the subject of such violation; and
    24    (ii)  with  respect  to  any  employer who violates subdivision two of
    25  section nine hundred fifty-one of this article, an amount not to  exceed
    26  five thousand dollars.
    27    (b)  In  determining  the amount of any civil fine under this section,
    28  the commissioner shall consider the appropriateness of the fine  to  the
    29  size  of the employer subject to such fine and the gravity of the appli-
    30  cable violation.
    31    § 3. This act shall take effect immediately and shall apply to employ-
    32  ees hired on and after such date.
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