Bill Text: NY A06698 | 2011-2012 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to payment of independent contractors and authorizes the department of labor to investigate complaints, make claims for compensation, assess liquid damages, civil penalties and criminal penalties; authorizes the award of attorney fees and liquidated damages; excludes construction contractors.

Spectrum: Partisan Bill (Democrat 26-0)

Status: (Engrossed - Dead) 2012-06-21 - REFERRED TO RULES [A06698 Detail]

Download: New_York-2011-A06698-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6698
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                    March 24, 2011
                                      ___________
       Introduced  by M. of A. SILVER, WRIGHT, BRENNAN, MILLMAN, LENTOL, GLICK,
         GOTTFRIED, ABBATE, KAVANAGH, LANCMAN, O'DONNELL, PRETLOW, ROSENTHAL --
         read once and referred to the Committee on Labor
       AN ACT to amend the labor law, in relation to independent contractors
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  The labor law is amended by adding two new sections 196-b
    2  and 196-c to read as follows:
    3    S 196-B. DEFINITIONS. FOR PURPOSES OF THIS SECTION THE TERM:
    4    1. "COMPENSATION" MEANS THE EARNINGS  OF  AN  INDEPENDENT  CONTRACTOR.
    5  THE TERM "COMPENSATION" ALSO INCLUDES REIMBURSEMENT FOR EXPENSES.
    6    2.  "INDEPENDENT  CONTRACTOR"  MEANS  A  SOLE PROPRIETOR WHO IS NOT AN
    7  EMPLOYEE AND WHO IS HIRED OR RETAINED BY A CLIENT FOR AN AMOUNT EQUAL TO
    8  OR GREATER THAN SIX HUNDRED DOLLARS.
    9    3. "CLIENT" INCLUDES A CORPORATION, LIMITED LIABILITY  COMPANY,  PART-
   10  NERSHIP,  ASSOCIATION  OR NON-PROFITMAKING ORGANIZATION CONTRACTING WITH
   11  AN INDEPENDENT CONTRACTOR IN ANY OCCUPATION, INDUSTRY,  TRADE,  BUSINESS
   12  OR  SERVICE  FOR  COMPENSATION  EQUAL  TO  OR  GREATER  THAN SIX HUNDRED
   13  DOLLARS.  THE TERM "CLIENT" SHALL NOT  INCLUDE  A  GOVERNMENTAL  ENTITY,
   14  INCLUDING  BUT NOT LIMITED TO, ANY AGENCY, BOARD, DEPARTMENT, COMMISSION
   15  OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF; AND CLIENT SHALL  NOT
   16  INCLUDE  A PERSON. THE TERM "CLIENT" SHALL NOT INCLUDE OWNERS OF ONE AND
   17  TWO-FAMILY DWELLINGS.
   18    S  196-C.  PAYMENT  OF  INDEPENDENT  CONTRACTORS.  1.  AN  INDEPENDENT
   19  CONTRACTOR  SHALL BE PAID THE COMPENSATION EARNED IN ACCORDANCE WITH THE
   20  AGREED WORK TERMS BUT NOT LATER THAN THE LAST DAY OF THE MONTH FOLLOWING
   21  THE MONTH IN WHICH THE COMPENSATION IS EARNED.  THE  AGREED  WORK  TERMS
   22  SHALL BE REDUCED IN WRITING, SIGNED BY BOTH THE CLIENT AND THE INDEPEND-
   23  ENT CONTRACTOR, KEPT ON FILE BY THE CLIENT FOR A PERIOD OF NOT LESS THAN
   24  SIX  YEARS  AND  MADE  AVAILABLE  TO THE COMMISSIONER UPON REQUEST. SUCH
   25  WRITING SHALL INCLUDE A DESCRIPTION OF HOW COMPENSATION EARNED AND PAYA-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10169-02-1
       A. 6698                             2
    1  BLE SHALL BE CALCULATED. THE FAILURE OF A CLIENT TO PRODUCE SUCH WRITTEN
    2  WORK TERMS, UPON REQUEST OF THE  COMMISSIONER,  SHALL  GIVE  RISE  TO  A
    3  PRESUMPTION THAT THE TERMS THAT THE INDEPENDENT CONTRACTOR HAS PRESENTED
    4  ARE THE AGREED TERMS.
    5    2.  THE COMMISSIONER SHALL INVESTIGATE AND ATTEMPT TO ADJUST EQUITABLY
    6  CONTROVERSIES BETWEEN CLIENTS AND INDEPENDENT  CONTRACTORS  RELATING  TO
    7  THIS SECTION.
    8    3. THE COMMISSIONER MAY TAKE ASSIGNMENTS OF CLAIMS FOR COMPENSATION AS
    9  DEFINED  IN  SECTION ONE HUNDRED NINETY-SIX-B OF THIS ARTICLE FROM INDE-
   10  PENDENT CONTRACTORS OR THIRD  PARTIES  IN  TRUST  FOR  SUCH  INDEPENDENT
   11  CONTRACTORS  OR  FOR THE VARIOUS FUNDS FOR SUCH INDEPENDENT CONTRACTORS.
   12  ALL SUCH ASSIGNMENTS SHALL RUN TO THE COMMISSIONER AND HIS SUCCESSOR  IN
   13  OFFICE.  THE  COMMISSIONER MAY SUE COMPANIES ON COMPENSATION CLAIMS THUS
   14  ASSIGNED. HE MAY JOIN IN A SINGLE  ACTION  ANY  NUMBER  OF  COMPENSATION
   15  CLAIMS AGAINST THE SAME COMPANY.
   16    4.  ANY  INDEPENDENT  CONTRACTOR  MAY  FILE  WITH  THE  COMMISSIONER A
   17  COMPLAINT REGARDING A VIOLATION OF THIS ARTICLE FOR AN INVESTIGATION  OF
   18  SUCH  COMPLAINT  AND  STATEMENT  SETTING THE APPROPRIATE REMEDY, IF ANY.
   19  FAILURE OF A CLIENT TO KEEP ADEQUATE RECORDS SHALL NOT OPERATE AS A  BAR
   20  TO  FILING  OF A COMPLAINT BY AN INDEPENDENT CONTRACTOR.  IN SUCH A CASE
   21  THE CLIENT IN VIOLATION SHALL  BEAR  THE  BURDEN  OF  PROVING  THAT  THE
   22  COMPLAINING INDEPENDENT CONTRACTOR WAS PAID COMPENSATION.
   23    5.  ON BEHALF OF ANY INDEPENDENT CONTRACTOR PAID LESS THAN THE COMPEN-
   24  SATION TO WHICH HE OR SHE IS ENTITLED UNDER THE AGREED WORK TERMS  UNDER
   25  THE  PROVISIONS  OF  THIS  ARTICLE, THE COMMISSIONER MAY BRING ANY LEGAL
   26  ACTION NECESSARY, INCLUDING ADMINISTRATIVE ACTION, TO COLLECT SUCH CLAIM
   27  AND AS PART OF SUCH LEGAL ACTION, IN ADDITION TO ANY OTHER REMEDIES  AND
   28  PENALTIES OTHERWISE AVAILABLE UNDER THIS ARTICLE, THE COMMISSIONER SHALL
   29  ASSESS  AGAINST  THE  CLIENT AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES,
   30  UNLESS THE CLIENT PROVES A GOOD  FAITH  BASIS  FOR  BELIEVING  THAT  ITS
   31  UNDERPAYMENT  OF COMPENSATION WAS IN COMPLIANCE WITH THE LAW. LIQUIDATED
   32  DAMAGES SHALL BE CALCULATED BY THE COMMISSIONER  AS  NO  MORE  THAN  ONE
   33  HUNDRED PERCENT OF THE TOTAL AMOUNT OF COMPENSATION FOUND TO BE DUE.  IN
   34  ANY  ACTION    INSTITUTED  IN THE COURTS UPON A COMPENSATION CLAIM BY AN
   35  INDEPENDENT CONTRACTOR OR THE  COMMISSIONER  IN  WHICH  THE  INDEPENDENT
   36  CONTRACTOR  PREVAILS,  THE COURT SHALL ALLOW SUCH INDEPENDENT CONTRACTOR
   37  ALL REASONABLE ATTORNEY'S FEES, PREJUDGMENT INTEREST AS  REQUIRED  UNDER
   38  THE  CIVIL  PRACTICE LAW AND RULES, AND, UNLESS THE CLIENT PROVES A GOOD
   39  FAITH BASIS TO BELIEVE THAT ITS  UNDERPAYMENT  OF  COMPENSATION  WAS  IN
   40  COMPLIANCE  WITH  THE  LAW,  AN  ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES
   41  EQUAL TO ONE HUNDRED PERCENT OF THE TOTAL AMOUNT OF  COMPENSATION  FOUND
   42  TO  BE DUE. THE REMEDIES PROVIDED BY THIS ARTICLE MAY BE ENFORCED SIMUL-
   43  TANEOUSLY OR CONSECUTIVELY SO FAR AS NOT INCONSISTENT WITH EACH OTHER.
   44    6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN  ACTION  TO  RECOVER
   45  UPON  A  LIABILITY  IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX
   46  YEARS.  ALL INDEPENDENT CONTRACTORS SHALL HAVE THE RIGHT TO RECOVER FULL
   47  COMPENSATION ACCRUED DURING THE SIX YEARS PREVIOUS TO THE COMMENCING  OF
   48  SUCH  ACTION,  WHETHER  SUCH  ACTION  IS  INSTITUTED  BY THE INDEPENDENT
   49  CONTRACTOR OR BY THE COMMISSIONER.
   50    7. EACH INDEPENDENT CONTRACTOR  WHO  FILES  A  COMPLAINT  REGARDING  A
   51  VIOLATION  OF A PROVISION OF THIS ARTICLE SHALL BE PROVIDED WITH A WRIT-
   52  TEN DESCRIPTION OF THE ANTICIPATED PROCESSING OF THE COMPLAINT,  INCLUD-
   53  ING  INVESTIGATION, CASE CONFERENCE, POTENTIAL CIVIL AND CRIMINAL PENAL-
   54  TIES, AND COLLECTION PROCEDURES.
       A. 6698                             3
    1    8. EACH INDEPENDENT CONTRACTOR AND HIS OR HER REPRESENTATIVE SHALL  BE
    2  NOTIFIED  IN  WRITING OF ANY CASE CONFERENCE BEFORE IT IS HELD AND GIVEN
    3  THE OPPORTUNITY TO ATTEND.
    4    9.  EACH INDEPENDENT CONTRACTOR AND HIS OR HER REPRESENTATIVE SHALL BE
    5  NOTIFIED IN WRITING OF ANY AWARD AND COLLECTION OF BACK COMPENSATION AND
    6  CIVIL PENALTIES, AND OF ANY INTENT TO SEEK CRIMINAL  PENALTIES.  IN  THE
    7  EVENT  THAT CRIMINAL PENALTIES ARE SOUGHT THE INDEPENDENT CONTRACTOR AND
    8  HIS OR HER REPRESENTATIVE SHALL BE NOTIFIED OF  THE  OUTCOME  OF  PROSE-
    9  CUTION.
   10    10.  IF  THE  COMMISSIONER  DETERMINES  THAT  A  CLIENT HAS VIOLATED A
   11  PROVISION OF THIS ARTICLE, OR A RULE OR  REGULATION  PROMULGATED  THERE-
   12  UNDER,  BY FAILING TO PAY THE COMPENSATION OF THEIR INDEPENDENT CONTRAC-
   13  TORS, THE COMMISSIONER SHALL ISSUE TO  THE  CLIENT  AN  ORDER  DIRECTING
   14  COMPLIANCE  THEREWITH,  WHICH  SHALL DESCRIBE PARTICULARLY THE NATURE OF
   15  THE ALLEGED VIOLATION, AND ORDER THE PAYMENT OF INTEREST AT THE RATE  OF
   16  INTEREST  THEN  IN EFFECTED AS PRESCRIBED BY THE SUPERINTENDENT OF BANKS
   17  PURSUANT TO SECTION FOURTEEN-A OF THE BANKING LAW  PER  ANNUM  FROM  THE
   18  DATE  OF  THE  UNDERPAYMENT  TO  THE DATE OF THE PAYMENT. IN ADDITION TO
   19  DIRECTING PAYMENT OF COMPENSATION FOUND TO BE DUE, SUCH ORDER, IF ISSUED
   20  TO A CLIENT  WHO  PREVIOUSLY  HAS  BEEN  FOUND  IN  VIOLATION  OF  THOSE
   21  PROVISIONS,  RULES  OR  REGULATIONS,  OR  TO A CLIENT WHOSE VIOLATION IS
   22  WILLFUL OR EGREGIOUS, SHALL DIRECT PAYMENT TO  THE  COMMISSIONER  OF  AN
   23  ADDITIONAL SUM AS A CIVIL PENALTY IN AN AMOUNT EQUAL TO DOUBLE THE TOTAL
   24  AMOUNT FOUND TO BE DUE.
   25    11. EVERY CLIENT WHO DOES NOT PAY THE COMPENSATION OF ALL OF ITS INDE-
   26  PENDENT  CONTRACTORS  IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER,
   27  AND THE OFFICERS AND AGENTS OF  ANY  CLIENT  WHO  KNOWINGLY  PERMIT  THE
   28  CLIENT TO VIOLATE THIS CHAPTER BY FAILING TO PAY THE COMPENSATION OF ANY
   29  OF  ITS INDEPENDENT CONTRACTORS IN ACCORDANCE WITH THE PROVISIONS THERE-
   30  OF, SHALL BE GUILTY OF A MISDEMEANOR FOR  THE  FIRST  OFFENSE  AND  UPON
   31  CONVICTION  THEREFOR  SHALL BE FINED NOT LESS THAN FIVE HUNDRED NOR MORE
   32  THAN TWENTY THOUSAND DOLLARS OR IMPRISONED FOR NOT MORE THAN  ONE  YEAR,
   33  AND,  IN  THE  EVENT THAT ANY SECOND OR SUBSEQUENT OFFENSE OCCURS WITHIN
   34  SIX YEARS OF THE DATE OF CONVICTION FOR A PRIOR OFFENSE, SHALL BE GUILTY
   35  OF A FELONY FOR THE SECOND OR SUBSEQUENT OFFENSE,  AND  UPON  CONVICTION
   36  THEREFOR, SHALL BE FINED NOT LESS THAN FIVE HUNDRED NOR MORE THAN TWENTY
   37  THOUSAND  DOLLARS OR IMPRISONED FOR NOT MORE THAN ONE YEAR PLUS ONE DAY,
   38  OR PUNISHED BY BOTH SUCH FINE AND IMPRISONMENT, FOR EACH SUCH OFFENSE.
   39    S 2. This act shall take effect immediately.