Bill Text: NY A09037 | 2021-2022 | General Assembly | Amended
Bill Title: Establishes an excluded worker unemployment program and an excluded worker unemployment program fund to provide wage replacement to workers that do not qualify for unemployment insurance or other worker wage assistance programs and who have lost a major source of income due to lost work.
Spectrum: Partisan Bill (Democrat 32-0)
Status: (Introduced - Dead) 2022-03-17 - print number 9037a [A09037 Detail]
Download: New_York-2021-A09037-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 9037--A IN ASSEMBLY January 27, 2022 ___________ Introduced by M. of A. REYES, MITAYNES, NIOU, MAMDANI, JACKSON, TAPIA, ANDERSON, CRUZ, SIMON, HEVESI, GONZALEZ-ROJAS, BURDICK, BICHOTTE HERMELYN, EPSTEIN, GALLAGHER, SEPTIMO, KELLES, GLICK, GIBBS, FORREST, WALKER, KIM, FERNANDEZ, RAMOS, WEPRIN, SEAWRIGHT, DE LOS SANTOS, L. ROSENTHAL, BARNWELL -- read once and referred 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 establishing the excluded worker unemployment program; to amend the state finance law, in relation to establishing the excluded worker unemployment program fund; and making an appropriation therefor 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 "excluded 2 worker unemployment program act". 3 § 2. The labor law is amended by adding a new section 591-b to read as 4 follows: 5 § 591-b. Excluded worker unemployment program. 1. Definitions. As used 6 in this section, the following terms shall have the following meanings: 7 (a) "Total unemployment" means a month in which the applicant has no 8 employment earnings for at least three of the four full calendar weeks 9 in that month. 10 (b) "Partial unemployment" means a month in which earnings are sixty 11 percent less than an applicant's average monthly earnings during the 12 prior taxable year, or, if the applicant did not have earnings in the 13 prior taxable year, the average monthly earnings in the current year 14 prior to the loss of work-related earnings. 15 (c) "Non-payroll check" means a personal check, check issued from a 16 business's bank account, or other check that does not indicate the hours 17 worked, pay rate, deductions, or tax withholdings or otherwise comply 18 with the requirements of section one hundred ninety-five of this chap- 19 ter. 20 (d) "Domestic worker" shall have the same meaning as defined in subdi- 21 vision sixteen of section two of this chapter. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14399-03-2A. 9037--A 2 1 (e) "Landscaping worker" means a person engaging in commercial land- 2 scaping services primarily involving the care and maintenance of yards, 3 gardens, or other outdoor landscapes for clients, including private 4 households. Such services include, but are not limited to, lawn care, 5 gardening, and the pruning or removal of trees, shrubs, or plant waste. 6 (f) "Day laborer" means an individual who provides labor or employment 7 that is occasional or irregular for which an individual is employed for 8 not longer than the time period required to complete the assignment for 9 which the individual is hired and in which wage payments are made 10 directly to the day laborer or indirectly by the day labor service agen- 11 cy or the third-party employer for work undertaken by a day laborer. Day 12 labor does not include labor or employment of a professional or clerical 13 nature. 14 (g) "Street vendor" means a person who sells food or merchandise from 15 a food truck, pushcart, stand, display, pedal-driven cart, wagon, show- 16 case, rack, other nonmotorized conveyance, or from one's person, upon a 17 public street, sidewalk or other pedestrian path. 18 (h) "Construction worker" means an individual employed to provide 19 construction labor or services. 20 (i) "Construction" means constructing, reconstructing, altering, main- 21 taining, moving, rehabilitating, repairing, renovating or demolition of 22 any building, structure, or improvement, or relating to the excavation 23 of or other development or improvement to land. 24 (j) "Construction labor provider" means a person who employs and 25 supplies a covered construction worker to a third-party client for the 26 performance of construction work or manual labor for a construction 27 project of such client on a site in the city, in exchange for compen- 28 sation from such third-party client, provided that the completion of 29 such project is directed by such client or such client's contractor and 30 not such person. The term "construction labor provider" does not mean: 31 (i) an employment agency or an employee fee paid employment agency, as 32 defined in article eleven of the general business law; or (ii) a profes- 33 sional employer organization, as defined in article thirty-one of this 34 chapter; or (iii) a construction subcontractor that is responsible for 35 and performs any of the following: (1) performing construction work on a 36 project in accordance with a written contract for a defined scope of 37 construction work at a fixed price; (2) obtaining necessary licenses to 38 perform construction services under the entity's name; (3) exclusively 39 controlling the subcontractor's workers, including having hiring and 40 firing authority and direction of methods and means of construction work 41 performed on the construction project; (4) paying wages and fringe bene- 42 fits to workers by the subcontractor and not any other person or entity, 43 and maintaining required employment and payroll records by the subcon- 44 tractor; (5) purchasing the majority of materials, supplies and tools 45 for construction work performed by the subcontractor on the project; and 46 (6) maintaining workers' compensation and unemployment insurance cover- 47 age for periods preceding, during and succeeding the term of the 48 construction project for the type and scope of construction work 49 performed by the subcontractor on the project; or (iv) a website, mobile 50 application, or other internet service. 51 (k) "Home improvement contractor" means any person, other than a bona 52 fide employee of the owner, who owns, operates, maintains, conducts, 53 controls or transacts a home improvement business and who undertakes or 54 offers to undertake or agrees to perform any home improvement or solic- 55 its any contract therefor, whether or not such person is licensed orA. 9037--A 3 1 subject to licensing requirements, and whether or not such person is a 2 prime contractor or subcontractor with respect to the owner. 3 (l) "Home improvement" means the construction, repair, replacement, 4 remodeling, alteration, conversion, rehabilitation, renovation, modern- 5 ization, improvement, or addition to any land or building, or that 6 portion thereof which is used or designed to be used as a residence or 7 dwelling place and shall include but not be limited to the construction, 8 erection, replacement, or improvement of driveways, swimming pools, 9 terraces, patios, landscaping, fences, porches, garages, fallout shel- 10 ters, basements, and other improvements to structures or upon land which 11 is adjacent to a dwelling house. "Home improvement" shall not include: 12 (i) the construction of a new home or building or work done by a 13 contractor in compliance with a guarantee of completion of a new build- 14 ing project; (ii) the sale of goods or materials by a seller who neither 15 arranges to perform nor performs directly or indirectly any work or 16 labor in connection with the installation of or application of the goods 17 or materials; (iii) residences owned by or controlled by the state or 18 any municipal subdivision thereof; or (iv) painting or decorating of a 19 building, residence, home or apartment, when not incidental or related 20 to home improvement work as herein defined. Without regard to the extent 21 of affixation, "home improvement" shall also include the installation of 22 central heating or air conditioning systems, central vacuum cleaning 23 systems, storm windows, awnings, and communication systems. 24 (m) "Contractor" means any person or salesperson, other than a bona 25 fide employee of the owner, who owns, operates, maintains, conducts, 26 controls or transacts a home improvement business and who undertakes or 27 offers to undertake or agrees to perform any home improvement or solic- 28 its any contract therefor, whether or not such person is licensed or 29 subject to the licensing requirements of this section, and whether or 30 not such person is a prime contractor or subcontractor with respect to 31 the owner. 32 (n) "Excluded worker unemployment program navigator" means a non-pro- 33 fit organization that is certified by the department to help guide 34 applicants to determine their eligibility for the excluded worker unem- 35 ployment program or unemployment insurance benefits. 36 (o) "Program year" is the twelve month period beginning April first. 37 2. The department is hereby authorized, empowered and mandated to 38 establish and operate an excluded worker unemployment program as author- 39 ized pursuant to this section. Such program shall be established by 40 April first, two thousand twenty-three. 41 3. For the purposes of this section, the term "excluded worker unem- 42 ployment program" means a program under which assistance is available to 43 applicants who reside in the state and: 44 (a) have not received unemployment insurance benefits as described in 45 this article, including benefits payable to federal civilian employees 46 and to ex-servicemen and servicewomen pursuant to Chapter 85 of the 47 United States Code, benefits authorized to be used for the self-employ- 48 ment assistance program pursuant to the Federal-State Extended Unemploy- 49 ment Compensation Act of 1970 in the twelve-month period directly prior 50 to their application for the excluded worker unemployment program; or 51 any other benefits distributed to New Yorkers through the federal unem- 52 ployment account; or 53 (b) received in error payments from the sources in paragraph (a) of 54 this subdivision and such payments were recovered or are recoverable by 55 the administering agency; andA. 9037--A 4 1 (c) are covered employees for the purposes of the excluded worker 2 unemployment program. For the purposes of this subdivision, "covered 3 employees" mean persons who: 4 (i) have performed services of employment pursuant to section five 5 hundred eleven of this article and are ineligible for benefits under 6 this article because of provisions related to subdivision nine of 7 section five hundred ninety of this article or because they are deemed 8 unavailable to work due to a lack of work authorization; or 9 (ii) have performed any of the following services of employment as 10 defined by section five hundred eleven of this article: 11 (1) domestic workers who are employed by a family or individual house- 12 hold; or 13 (2) day laborers; or 14 (3) workers employed to provide construction, landscaping, or 15 groundskeeping labor or services and hired by a construction labor 16 provider, a private household or home improvement contractor, provided 17 that: 18 (A) they were paid in cash or paid with a personal check or non-pay- 19 roll check; and 20 (B) their wages were not reported to the tax commission by an "employ- 21 er," as defined under section five hundred twelve of this article and as 22 required by paragraph four of subsection (a) of section six hundred 23 seventy-four of the tax law; and 24 (C) they did not receive a wage statement from such "employer" as 25 required under section one hundred ninety-five of this chapter; and 26 (D) they did not receive an internal revenue service form 1099-nec for 27 non-employment services for compensation earned during the most recent 28 taxable year from such employer, or performed services that are custom- 29 arily recorded through a form 1099-nec; or 30 (iii) is a bona fide self-employed worker, regardless of citizenship 31 or immigration status. For the purposes of this subparagraph, "bona 32 fide self-employed worker" means: 33 (1) the individual is free from control and direction in performing 34 the job, both under his or her contract and in fact, and 35 (2) the service is performed outside the usual course of business for 36 which the service is performed, and 37 (3) the individual is customarily engaged in an independently estab- 38 lished trade, occupation, profession, or business that is similar to the 39 labor or service at issue. 40 For the purposes of this subparagraph, street vendors shall be consid- 41 ered to be bona fide self-employed workers; 42 (d) suffered a loss of work-related earnings leading to a period of 43 total or partial unemployment during the prior calendar month; 44 (e) prior to suffering the loss of work-related earnings, had worked 45 in at least three of the previous twelve months and had earned at least 46 four thousand fifty dollars in gross earnings; provided, however, that 47 in the case of a worker described in subparagraph (iii) of paragraph (c) 48 of this subdivision such earnings shall be calculated on a net basis; 49 (f) whose reason for loss of work-related earnings would not have been 50 disqualifying under section five hundred ninety-three of this article; 51 (g) who are capable of work or who are ready, willing and able to 52 work, regardless of citizenship or immigration status, in their usual 53 employment or in any other for which they are reasonably fitted by 54 training and experience; 55 (h) whose principal place of residence is in New York state;A. 9037--A 5 1 (i) provide suitable documentation pursuant to subdivision four of 2 this section; 3 (j) have earned no more than fifty-six thousand three hundred nine- 4 ty-three dollars in the prior taxable year; provided, however, that: 5 (i) this amount shall be updated on the next January first after the 6 effective date of this section and set as the median annual employment 7 earnings for a full-time worker living in the state as calculated by the 8 United States census bureau, and updated on each January first thereaft- 9 er; 10 (ii) for the purposes of workers becoming eligible under subparagraph 11 (iii) of paragraph (c) of this subdivision, the amount shall be set as 12 forty-five thousand one hundred fourteen dollars in net earnings; and 13 (k) no state or local public benefit program shall require an appli- 14 cant or recipient to apply for the excluded worker unemployment program 15 as a condition of eligibility. 16 4. All documents submitted by an applicant to establish identity and 17 residency shall be: (i) certified by the issuing agency; (ii) unexpired 18 unless specifically noted; (iii) in English, or accompanied by an 19 English language translation; and (iv) not mutilated or damaged. Appli- 20 cants shall not be required to prove that they are lawfully present in 21 the United States. Applicants shall certify, in a form and manner the 22 commissioner of labor shall prescribe. For the purposes of paragraph (i) 23 of subdivision three of this section, "suitable documentation" means the 24 following: 25 (a) For the purposes of establishing residency, an applicant shall be 26 required to produce one or more of the following items, each of which 27 shall show the applicant's name and current residential address located 28 within New York state: 29 (i) a non-expired New York state driver's license issued by the 30 department of motor vehicles; 31 (ii) a non-expired New York state non-driver identification card 32 issued by the department of motor vehicles; 33 (iii) a non-expired New York state learner's permit issued by the 34 department of motor vehicles; 35 (iv) a non-expired IDNYC identification card; 36 (v) a state or federal tax filing or return, with a filing date not 37 more than twelve months prior to the date of application for benefits 38 under this program; 39 (vi) a document issued by an agency, authority, board or commission of 40 New York state, a government agency or authority of a political subdivi- 41 sion within New York state, including a school district, or an agency of 42 the federal government, with a date of not more than twelve months prior 43 to the date of application for benefits under this program; 44 (vii) a social security statement letter or benefit verification 45 letter, with a date of not more than twelve months prior to the date of 46 application for benefits under this program; or 47 (viii) any of the following documents, containing the name and New 48 York state address of the applicant, provided that the date is no more 49 than twelve months before the date of application for benefits under 50 this program: 51 (1) a utility bill, including a bill from a mobile service provider; 52 (2) a bank or credit card statement; 53 (3) a letter addressed to the applicant from the New York city housing 54 authority; 55 (4) a letter addressed to the applicant from a homeless shelter indi- 56 cating that the applicant currently resides at the homeless shelter;A. 9037--A 6 1 (5) a current lease or sublease, mortgage payment, or property tax 2 statement; 3 (6) a pay stub; 4 (7) an employment offer letter or notice of pay that documents employ- 5 er provided housing located in the state, including seasonal housing; 6 (8) a statement, bill, or record from a health institution or insur- 7 ance company (including health insurance, homeowner's insurance, 8 renter's insurance, life insurance, or automobile insurance); 9 (9) a jury summons, court order, or other document from a state, 10 federal, or local court or administrative law forum within New York 11 state; 12 (10) a letter from a domestic violence residential care program, or a 13 government agency, non-profit organization, or religious institution 14 that provides services to domestic violence survivors; 15 (11) a letter addressed to the applicant from a non-profit organiza- 16 tion or religious institution that provides services to homeless indi- 17 viduals; 18 (12) a letter attesting to the residency of an applicant issued by a 19 charitable organization registered with the charities bureau of the New 20 York state office of the attorney general and that provided services to 21 the applicant in the ordinary course of business of such charitable 22 organization; 23 (13) a letter attesting the residency of an applicant signed and nota- 24 rized by a co-habitant of the same residence; or 25 (14) any other document the commissioner deems acceptable. 26 (b) For the purposes of establishing identity, an applicant shall be 27 required to produce one or more of the following items to establish at 28 least four points of proof of identity: 29 (i) For four points: 30 (1) a New York state driver's license or learner's permit, issued by 31 the department of motor vehicles, which may be expired by not more than 32 two years; 33 (2) a New York state non-driver identification card issued by the 34 department of motor vehicles, which may be expired by not more than two 35 years; 36 (3) a United States or foreign passport, which may be expired by not 37 more than two years; 38 (4) a United States military ID card issued to active, reserve, and 39 retired military personnel only, which may be expired by not more than 40 two years; 41 (5) a United States employment authorization with photo, which may be 42 expired by not more than two years; 43 (6) an inpatient photo identification card issued by the New York 44 state office of mental health; 45 (7) a federal document with photo, issued by the United States Citi- 46 zenship and Immigration Services, including but not limited to Form I-94 47 or I-766 (United States employment authorization document), which may be 48 expired by not more than two years; or 49 (8) a photo identification card, issued by an agency, authority, 50 board, or commission of New York state, a government agency or authority 51 of a political subdivision within New York state, including a school 52 district, or an agency of the federal government, which may be expired 53 by not more than two years; provided, however, that identification cards 54 that are marked "not for identification purposes" or similar language 55 shall not be considered for four points. 56 (ii) For three points:A. 9037--A 7 1 (1) a photo identification card, issued by an agency, authority, 2 board, or commission of New York state, a government agency or authority 3 of a political subdivision within New York state, including a school 4 district, or an agency of the federal government, that is marked "not 5 for identification purposes" or similar language and which may be 6 expired by not more than two years; 7 (2) a photo identification card issued by an educational institution, 8 including a university, college, or post-secondary school, subject to 9 the regulation of the state education department or board of regents; 10 (3) a New York city health and hospitals patient card issued by a 11 hospital and medical clinic; 12 (4) an identification card issued by the New York state department of 13 corrections and community supervision or by any local or municipal 14 department of corrections located within New York state; 15 (5) a photo identification card issued by a charitable organization 16 registered with the charities bureau of the New York state office of the 17 attorney general relating to eligibility for services or participation 18 in the programs administered by the charitable organization in the ordi- 19 nary course of such charitable organization; or 20 (6) a photo identification card issued by a labor organization. 21 (iii) For two points: 22 (1) an NYC Care membership card; 23 (2) a federal document issued by the United States Citizenship and 24 Immigration Services, including Form I-797, I-797A, or I-797D, that does 25 not include a photo; 26 (3) a foreign driver's license with a photo, which may be expired by 27 not more than two years; 28 (4) a foreign issued identification card, including, but not limited 29 to, a consular identification card or any other photo identification 30 card issued by another country to its citizens; 31 (5) a United States individual taxpayer identification number assign- 32 ment letter; 33 (6) a marriage certificate; 34 (7) a divorce decree; 35 (8) a birth certificate issued by a foreign country; 36 (9) a Direct Express Debit Mastercard provided by the United States 37 treasury; or 38 (10) a social security statement letter or benefit verification 39 letter. 40 (iv) For one point: 41 (1) a non-expired New York city department of parks and recreation 42 membership card; 43 (2) a diploma or transcript from a high school, college, or university 44 in the United States; 45 (3) a photo identification card issued by an employer or entity asso- 46 ciated with an employer, including photo identification cards required 47 to access secure facilities and buildings; or 48 (4) a written employment offer, pay stubs, or notice of pay document 49 provided to the applicant by an employer. 50 (v) The commissioner may accept any other document the commissioner 51 deems relevant and adequate to establish the identity of the applicant 52 and may assign a reasonable point value for such document. 53 (c) Each applicant shall be required to complete and submit a ques- 54 tionnaire attesting that in the twelve months directly prior to the date 55 of application for benefits under this program the applicant worked in 56 at least three calendar months, earned at least four thousand fiftyA. 9037--A 8 1 dollars in gross wages or four thousand fifty dollars in net self-em- 2 ployment earnings, and lost their job through no fault of their own. The 3 applicant shall additionally submit the following documentation to 4 establish four points or more of proof of work history: 5 (i) For four points: 6 (1) wage statements, as set forth in section one hundred ninety-five 7 of this chapter, or, where the employer has failed to provide the appli- 8 cant with accurate wage statements meeting the requirements of section 9 one hundred ninety-five of this chapter, non-payroll checks paid by the 10 employer or employer's agent to the applicant or other records showing 11 payments from an app-based employer to the applicant. Such statements or 12 other records shall demonstrate at least four thousand fifty dollars in 13 gross wages or earnings, and payment of wages in at least three calendar 14 months within the twelve-month period directly prior to the date of 15 application for benefits under this program; 16 (2) a letter from an employer, or a client of the applicant or their 17 employer, attesting that the applicant earned at least four thousand 18 fifty dollars in gross wages or earnings and worked in at least three 19 months in the twelve months directly prior to when the applicant becomes 20 unemployed or partially unemployed. Such letter shall include: 21 (A) the employer's mailing address and the address of the site, within 22 New York state, at which the applicant was employed; 23 (B) the employer's New York state unemployment insurance account 24 number or federal employment identification number; or 25 (C) contact information, including a phone number, for a represen- 26 tative of such employer who can verify the contents of the letter; 27 (3) a letter attesting to the applicant's employment history issued by 28 a charitable organization registered with the charities bureau of the 29 New York state office of the attorney general or other entity designated 30 by the commissioner and based on direct knowledge that the applicant 31 earned at least four thousand fifty dollars in gross wages or earnings 32 and worked in at least three calendar months in the twelve months 33 directly prior to when the applicant became unemployed or partially 34 unemployed, acquired in the course of conducting intake, interviews, or 35 other standard processes related to the provision of job-related direct 36 services to the applicant; or 37 (4) a complaint, charge, or equivalent document filed with a local, 38 state, or federal agency or court, and acknowledged by such entity, 39 alleging that the applicant worked in New York state in at least three 40 calendar months and earned at least four thousand fifty dollars in gross 41 wages or earnings in the twelve-month period directly prior to the date 42 the applicant certifies that he or she became eligible for benefits. 43 (ii) For three points: 44 (1) a federal tax return for the tax year immediately prior to the 45 year in which the applicant became unemployed or partially unemployed, 46 with proof of filing with the internal revenue service using a social 47 security number or valid United States individual taxpayer identifica- 48 tion number; 49 (2) a state tax return for the tax year immediately prior to the year 50 in which the applicant became unemployed or partially unemployed, filed 51 with the department of taxation and finance using a social security 52 number or valid United States individual taxpayer identification number; 53 or 54 (3) a form W-2 or 1099 form demonstrating four thousand fifty dollars 55 or more in gross wages or earnings for the tax year immediately prior toA. 9037--A 9 1 the year in which the applicant became unemployed or partially unem- 2 ployed. 3 (iii) For two points: 4 (1) evidence, such as statements issued by a financial institution, 5 showing regular direct deposits made by the employer to the applicant, 6 or regular deposits of cash earnings or checks made by the applicant to 7 the applicant's bank account, or transfers from an entity or from an 8 unrelated individual (in each case that is not determined to not be an 9 employer) to the applicant; 10 (2) receipts from a check cashing establishment or transaction logs 11 from a payment app, of regular direct deposits, deposits, or transfers 12 from an entity or from an unrelated individual (in each case that is not 13 determined to not be an employer) to the applicant; 14 (3) an employer issued identification badge; 15 (4) emails, text messages, social media posts or messages, or other 16 written communications relating to delivery order sheets, work invoices, 17 point of sale receipts, work schedules, sign-in sheets, timesheets, 18 directions or instructions from employers or other written communi- 19 cations between an applicant and an employer or hiring party establish- 20 ing the existence of a work relationship; 21 (5) documents or materials issued by an employer to an employee, 22 including any materials containing the employer's mailing address, the 23 employer's New York state unemployment insurance account number or 24 federal employment identification number, and contact information, 25 including a phone number, from a representative of such employer; or 26 (6) receipts or records showing a consecutive pattern of commuting to 27 and from a work location, such as toll records, parking receipts, or 28 public transportation records. 29 (iv) The commissioner may, by regulation, establish alternative docu- 30 ments that sufficiently demonstrate an applicant's qualification for the 31 program, provided that such additional documents shall clearly demon- 32 strate that the applicant was employed in at least three calendar months 33 and earned at least four thousand fifty dollars in the twelve-month 34 period prior to the date the applicant certifies that he or she became 35 eligible for benefits pursuant to this section. 36 (v) Where an applicant has not received sufficient documentation of 37 their work hours, wages, or other employment records in order to meet 38 the four points required pursuant to this paragraph, the commissioner 39 shall conduct a credibility interview to determine whether the appli- 40 cant's questionnaire and/or documentation submitted reasonably demon- 41 strates that they meet the work-related eligibility requirements of this 42 program. The commissioner may establish procedures for credibility 43 interviews in cases when documents used to meet the four point eligibil- 44 ity need additional verification or clarification. 45 5. The department shall establish application procedures which shall 46 include, but not be limited to: 47 (a) creating a user-friendly, and language-accessible website for 48 application to the program. The department shall provide translation of 49 the website and application forms on the website in the ten most common 50 non-English languages spoken by individuals with limited-English profi- 51 ciency in the state of New York; 52 (b) establishing, in collaboration with the director of the budget, an 53 excluded worker unemployment program navigator grant for non-profit 54 agencies to help screen potential applicants on whether they are eligi- 55 ble for the program and to assist applicants in applying for theA. 9037--A 10 1 program. Such navigator grant shall be established by January first, 2 two thousand twenty-three; 3 (c) requiring that all applications for the program shall be processed 4 within four weeks of the receipt of a completed application. The depart- 5 ment shall provide a response to each applicant on whether such appli- 6 cant is eligible for the program, unless the local jurisdiction is 7 facing extenuating circumstances; 8 (d) providing notice to the public at least fourteen days prior to 9 closing the application process period to applicants; 10 (e) processes for reviewing applications that have been rejected, 11 either in whole or in part. Reviews shall be conducted in a manner spec- 12 ified by the commissioner. Such processes shall require the commissioner 13 to provide a detailed explanation of the reason for denial to any appli- 14 cant whose application has been denied; 15 (f) providing all notices to the applicant in the applicant's primary 16 language, as indicated in their initial application; 17 (g) issuing a written notice of determination to the applicant within 18 five calendar days of reaching a determination of the applicant's eligi- 19 bility for benefits under this program; and 20 (h) establishing procedures for denials and appeals which, at a mini- 21 mum, provide that: 22 (i) when an application is denied, the department shall include in the 23 notice of determination a specific explanation as to the reason for the 24 denial and detailed instructions as to what documentation or documented 25 justification is needed to reverse the determination; 26 (ii) the department may create an appeal form in the ten most common 27 non-English languages spoken by individuals with limited-English profi- 28 ciency in the state of New York. Such form shall be included with the 29 notice of determination and shall be in the applicant's primary 30 language, as indicated in their initial application; 31 (iii) an applicant may file an appeal within sixty days after receipt 32 of the notice of determination required pursuant to paragraph (g) of 33 this subdivision; 34 (iv) an applicant may submit the appeals form provided by the depart- 35 ment pursuant to this paragraph, in addition to any additional informa- 36 tion or documentation required to support the applicant's position in 37 filing their appeal; 38 (v) the department shall notify the applicant in writing of the deter- 39 mination on the appeal or of the need for additional information and the 40 date by which the information must be provided. Such notification shall 41 be provided to the applicant within thirty days from the date the 42 department receives the appeal and shall provide the applicant with at 43 least twenty-one days' notice to provide additional information to the 44 department; and 45 (vi) the department shall notify the applicant in writing of its final 46 determination on the appeal within thirty days following the receipt of 47 any additional information or following expiration of the period for 48 providing such information. 49 6. (a) Persons eligible to receive funding shall be given the option 50 to receive such funds via prepaid ATM card or direct deposit into a bank 51 account of their designation. 52 (b) If an applicant elects to receive funds via prepaid ATM card, such 53 card: 54 (i) shall be sent to the address the applicant provided to the depart- 55 ment. If the applicant receives funding for more than one month, such 56 funds shall be sent to the same debit card;A. 9037--A 11 1 (ii) shall be limited to two pin-based withdrawals per month. Retail 2 transactions, online transactions, and teller desk withdrawals shall be 3 unlimited. There shall be no limit for cash withdrawals made at the 4 teller desk on such cards. 5 (iii) the department, in conjunction with the department of financial 6 services, shall issue guidance to banks regarding acceptable identifica- 7 tion documents to be accepted for withdrawals. Such documentation shall 8 mirror the documentation to prove eligibility under this program to the 9 maximum extent possible. 10 (c) If an applicant chooses to receive funding via direct deposit: 11 (i) the applicant shall submit bank information while filling out the 12 application or by submitting a bank account pursuant to regulations 13 promulgated by the department. 14 (ii) the department shall conduct a review to ensure that the neces- 15 sary anti-fraud provisions for bank account direct deposits exist. The 16 department shall have the right to restrict direct deposit payments if 17 such payments violate requisite anti-fraud provisions. 18 (d) The disbursement of funds shall be accompanied by a document from 19 the department or the department of taxation and finance, that explains 20 that such funds count as income or wage replacement and are subject to 21 the payment of taxes. Such form shall also include information related 22 to the state tax rate. 23 (e) (i) The department, in coordination with the administrator of the 24 fund, shall promulgate rules and regulations necessary to create an 25 efficient and effective dispute process for charges a recipient of funds 26 under this program claims to be fraudulent. Such regulations shall 27 require a provision that a bank disbursing funds via ATM cards shall be 28 obligated to notify the recipient, by telephone call or email, when: (1) 29 a fraudulent charges claim has been received; (2) when more information 30 is needed; (3) when there is any status update; and (4) when the case 31 has been resolved and what the determination is. 32 (ii) To the extent practicable under state and federal law, as it 33 relates to claims of fraud by a recipient of funds under this program, 34 banks shall accept a signed and notarized attestation from a community 35 based organization confirming such fraud in lieu of police reports. The 36 department shall promptly communicate all information regarding the 37 disbursement of funds and any applicable fraud warnings to an applicant, 38 in such applicant's preferred language as chosen in the original appli- 39 cation. 40 7. Any person who applies for benefits under this chapter or who 41 requests documentation or evidence to support an application for bene- 42 fits under this chapter shall not be subject to retaliation, as that 43 term is used in paragraph (a) of subdivision one of section two hundred 44 fifteen of this chapter, for engaging in any of these activities. For 45 the purposes of this subdivision, retaliation shall include deliberately 46 misinforming a person or dissuading a person from applying for benefits 47 under this article. Violations of this subdivision shall be deemed to 48 be violations of paragraph (a) of subdivision one of section two hundred 49 fifteen of this chapter and the civil penalties and remedies of para- 50 graph (b) of subdivision one and paragraphs (a) and (b) of subdivision 51 two of section two hundred fifteen of this chapter shall be applicable 52 to this subdivision. 53 8. At the time of their application, each applicant shall be given the 54 option to report their employer or previous employer to the department 55 in order to initiate a labor dispute regarding wage theft, misclassi- 56 fication, retaliation, or other violations of the labor law. At theA. 9037--A 12 1 close of each calendar year, the department shall provide the applica- 2 tion documents, with any identifying information of individual appli- 3 cants redacted, but including the names of any employer of an applicant, 4 to a liaison of the department's division responsible for the enforce- 5 ment of the New York state construction industry fair play act pursuant 6 to article twenty-five-B of this chapter if: 7 (a) the employer, at the close of the year, employs ten or more 8 employees; or 9 (b) employees of the employer performed construction work of a 10 construction site in New York city which was required by code to be 11 overseen by a certified site safety manager; and 12 (c) the applicant is a covered employee for the purpose of the 13 excluded worker unemployment program, defined for these purposes as a 14 person: 15 (i) who was paid in cash or paid with a personal check or non-payroll 16 check; and 17 (ii) whose wages were not reported to the tax commission by an 18 "employer," as defined under section five hundred twelve of this article 19 and as required by paragraph four of subsection (a) of section six 20 hundred seventy-four of the tax law; and 21 (iii) who did not receive a wage statement from that employer as 22 required under section one hundred ninety-five of this chapter; or 23 (iv) who received an internal revenue service Form 1099-NEC and who 24 performed construction work which would be considered non-exempt work 25 under the New York state construction industry fair play act. 26 (d) The department shall investigate potential violations of the New 27 York state construction industry fair play act and as applicable assess 28 civil penalties and prosecute violating employers. In order to protect 29 worker confidentiality, the department shall conduct broad audits of 30 multiple employers, to the extent possible. The redacted applications 31 provided under this section shall not be a public record and shall be 32 subject to the limitations on disclosure, redisclosure, release, dissem- 33 ination, or other publication in subdivision eleven of this section. 34 9. All excluded worker unemployment program payments made pursuant to 35 this section shall be subject to the appropriation of funds therefor. 36 (a) Eligible applicants shall be eligible to receive up to six monthly 37 excluded worker unemployment program payments per program year. Such 38 payments shall be made to eligible applicants who certify that they are 39 totally or partially unemployed in the prior month and that they are 40 available for work, as required pursuant to subdivision three of this 41 section. If all monies in the excluded worker unemployment program fund 42 are exhausted prior to the end of an eligible applicant's six months of 43 eligibility, the state shall be responsible for replenishing the funds 44 needed to provide workers the funds they are owed pursuant to this 45 section. 46 (b) The allowance payable to eligible applicants shall be in the 47 amount of: (i) for the year two thousand twenty-two, one thousand two 48 hundred dollars per month; (ii) for January first, two thousand twenty- 49 three and thereafter, the benefit payment shall increase from one thou- 50 sand two hundred dollars per month at a rate equal to the annual 51 percentage change in the state's average weekly wage as determined by 52 quarter four data from the previous year's United States Bureau of Labor 53 Statistics. 54 (c) Eligible applicants may receive initial and subsequent payments 55 retroactively to their first month of partial or total unemployment; 56 provided, however, that no more than three months of retroactiveA. 9037--A 13 1 payments may be made at one time. Subsequent payments shall be contin- 2 gent upon the availability of funds. 3 (d) For the purposes of this subdivision, "subsequent payment" means a 4 payment which is made after the first month an applicant is eligible for 5 a payment from the excluded worker unemployment program. 6 (e) No more than twenty-five percent of the total funds appropriated 7 shall be paid to workers eligible pursuant to subparagraph (iii) of 8 paragraph (c) of subdivision three of this section. 9 (f) Twenty-five percent of the total funds appropriated for the 10 program shall be reserved for individuals receiving their initial 11 payments made after October first of the program year. 12 (g) (i) Individuals that have received an initial payment during the 13 prior program year can continue to apply for and receive subsequent 14 payments in the following year, subject to the availability of funds. 15 (ii) Individuals that apply for benefits in the prior program year but 16 were not eligible because all funds were appropriated when they applied 17 can receive up to six payments retroactive to their initial application 18 in the following year. 19 (iii) No more than twenty-five percent of the total funds appropriated 20 shall be paid to workers eligible pursuant to this paragraph. 21 10. (a) Excluded worker unemployment program navigators shall assist 22 applicants applying for excluded worker unemployment benefits as 23 follows: 24 (i) The navigator shall assist the potential applicant in the gather- 25 ing of required documentation of residency, identity and work history to 26 satisfy the requirements of subdivision four of this section; 27 (ii) Target underserved populations, as identified by the department, 28 to expand opportunities for employment through reemployment services, 29 education or training opportunities, apprenticeships and other models 30 that result in skill development and family-supporting careers; 31 (iii) Assist individuals with procuring food, housing, and meeting 32 other basic needs in order to help them persist in education and work; 33 (iv) Conduct outreach and provide individual assistance and education 34 to individuals applying for and making ongoing claims pursuant to the 35 excluded no more program and unemployment compensation benefits, includ- 36 ing partial unemployment benefits and assistance for dislocated or 37 marginalized workers and qualified entities. To be eligible to be certi- 38 fied by the department as an excluded worker unemployment program navi- 39 gator, an entity must: 40 (A) demonstrate existing peer relationships with the target population 41 of the excluded worker unemployment program immigrants, cash earners, 42 persons with limited English proficiency, racial and ethnic minorities, 43 persons with low literacy, persons with disabilities and others seeking 44 to gain employment; and 45 (B) demonstrate the capability to carry out the duties of this section 46 including knowledge of eligibility requirements and the application 47 process for the excluded no more program; 48 (v) Comply with existing confidentiality standards to ensure the 49 privacy of all information collected from individuals receiving naviga- 50 tor services; and 51 (vi) Provide services under this section without charge to the indi- 52 viduals receiving those services. 53 (b) The department shall establish standards for the awarding of 54 contracts to qualified entities in accordance with this subdivision. 55 (c) (i) To support the maintenance of relationships between qualified 56 entities and target populations as identified in paragraph (a) of subdi-A. 9037--A 14 1 vision three of this section and to ensure a high quality of service, 2 the department shall award contracts to qualified entities for a dura- 3 tion of three years as long as the qualified entities satisfy perform- 4 ance standards set forth in the contracts. 5 (ii) The department shall give priority for navigator contracts to 6 qualified entities that are a recognized source of support or advocacy 7 for excluded workers, especially those as described in this subdivision, 8 including but not limited to immigrants, cash earners, persons with 9 limited English proficiency, racial and ethnic minorities, persons with 10 low literacy, persons with disabilities and others seeking to gain 11 employment. Navigator services provided by qualified entities that 12 receive navigator contracts shall be coordinated with and supplement, 13 not supplant, services provided by the department. 14 (iii) The department shall ensure that selected qualified entities do 15 not perform functions that must be performed by department staff, 16 including following up on matters of individual eligibility and resolv- 17 ing such matters. 18 (d) All navigator services provided under this subdivision shall be 19 performed in a manner that is culturally and linguistically appropriate 20 to the population served, immigrants, cash earners, persons with limited 21 English proficiency, racial and ethnic minorities, persons with low 22 literacy, persons with disabilities and others seeking to gain employ- 23 ment, while recognizing the varying levels of digital literacy and 24 access to technology among individuals in need of services. 25 11. (a) (i) Except where necessary to comply with a lawful court 26 order, judicial warrant signed by a judge appointed pursuant to Article 27 III of the United States Constitution, subpoena for individual records 28 issued pursuant to the criminal procedure law or the civil practice law 29 and rules, or in accordance with this section, no record or portion 30 thereof relating to an applicant or worker who has filed an application 31 for benefits pursuant to this section shall be a public record and no 32 such record shall be disclosed, redisclosed, released, disseminated or 33 otherwise published or made available. 34 (ii) For purposes of this subdivision: 35 (1) "record" means an application, a claim file, a file regarding a 36 complaint or circumstances for which no application has been made, 37 and/or any records maintained by the department in electronic databases 38 in which individual applicants, recipients or workers are identifiable, 39 or any other information relating to any person who has heretofore or 40 hereafter filed an application for benefits pursuant to this section, 41 including a copy or oral description of a record which is or was in the 42 possession or custody of the department, its officers, members, employ- 43 ees or agents. 44 (2) "person" means any natural person, corporation, association, part- 45 nership, or other public or private entity. 46 (3) "individually identifiable information" means any data concerning 47 any application, benefit or potential application or benefit that is 48 linked to an identifiable worker or other natural person, including but 49 not limited to a photo image, social security number, tax identification 50 number, telephone number, place of birth, country of origin, place of 51 employment, school or educational institution attended, source of 52 income, status as a recipient of public benefits, customer identifica- 53 tion number associated with a public utilities account, or medical or 54 disability information. 55 (b) Records which contain individually identifiable information may, 56 unless otherwise prohibited by law, be disclosed to:A. 9037--A 15 1 (i) officers, members and employees of the department if such disclo- 2 sure is necessary to the performance of their official duties pursuant 3 to a purpose of the department required to be accomplished by statute or 4 executive order or otherwise necessary to act upon an application for 5 benefits submitted by the person who is the subject of the particular 6 record; 7 (ii) officers or employees of another governmental unit, or agent or 8 contractors of another governmental unit at the request or direction of 9 such governmental unit, if the information sought to be disclosed is 10 necessary to act upon an application for benefits submitted by the 11 person who is the subject of the particular record; 12 (iii) a judicial or administrative officer or employee in connection 13 with an administrative or judicial proceeding if the information sought 14 to be disclosed is necessary to act upon an application for benefits 15 submitted by the person who is the subject of the particular record; and 16 (iv) a person engaged in bona fide statistical research, including but 17 not limited to actuarial studies and health and safety investigations, 18 which are authorized by statute or regulation of the department or other 19 governmental agency. Individually identifiable information shall not be 20 disclosed unless the researcher has entered into an agreement not to 21 disclose any individually identifiable information which contains 22 restrictions no less restrictive than the restrictions set forth in this 23 section and which includes an agreement that any research findings shall 24 not disclose individually identifiable information. 25 (c) Notwithstanding the restrictions on disclosure set forth in para- 26 graphs (a) and (b) of this subdivision, an applicant may authorize the 27 release, re-release or publication of his or her record to a specific 28 person not otherwise authorized to receive such record, by submitting 29 written authorization for such release to the department on a form 30 prescribed by the commissioner or by a notarized original authorization 31 specifically directing the department to release the applicant's records 32 to such person; provided, however, that no such authorization directing 33 disclosure of records to a prospective employer shall be valid, nor 34 shall an authorization permitting disclosure of records in connection 35 with assessing fitness or capability for employment be valid, and no 36 disclosure of records shall be made pursuant thereto. It shall be unlaw- 37 ful for any person to consider for the purpose of assessing eligibility 38 for benefits, or as the basis for an employment-related action, an indi- 39 vidual's failure to provide authorization under this paragraph. 40 (d) For the purposes of this section, whenever disclosure of records 41 is sought pursuant to a lawful court order, judicial warrant signed by a 42 judge pursuant to Article III of the United States Constitution, or 43 subpoena for individual records properly issued pursuant to the criminal 44 procedure law or the civil practice law and rules or pursuant to this 45 subdivision, such specifically sought records may be disclosed, and any 46 such disclosure shall be limited only to such records as are necessary 47 to fulfill the purpose of such disclosure. 48 (e) The commissioner shall require any person or entity that receives 49 or has access to records to certify that, before such receipt or access, 50 such person or entity shall not: 51 (i) use such records or information for civil immigration purposes; or 52 (ii) disclose such records or information to any agency that primarily 53 enforces immigration law or to any employee or agent of any such agency 54 unless such disclosure is pursuant to a cooperative arrangement between 55 city, state and federal agencies which arrangement does not enforce 56 immigration law and which disclosure is limited to the specific recordsA. 9037--A 16 1 or information being sought pursuant to such arrangement. Violation of 2 such certification shall be a class A misdemeanor. In addition to any 3 records required to be kept pursuant to subdivision (c) of section 2721 4 of title 18 of the United States code, any person or entity certifying 5 pursuant to this paragraph shall keep for a period of five years records 6 of all uses and identifying each person or entity that primarily 7 enforces immigration law that received department records or information 8 from such certifying person or entity. Such records shall be maintained 9 in a manner and form prescribed by the commissioner and shall be avail- 10 able for inspection by the commissioner or his or her designee upon his 11 or her request. 12 (iii) For purposes of this paragraph, the term "agency that primarily 13 enforces immigration law" shall include, but not be limited to, the 14 United States immigration and customs enforcement and United States 15 customs and border protection, and any successor agencies having similar 16 duties. 17 (iv) Failure to maintain records as required by this paragraph shall 18 be a class E felony. 19 (f) Except as otherwise provided by this subdivision, any person who 20 knowingly and willfully obtains records which contain individually iden- 21 tifiable information under false pretenses or otherwise violates this 22 subdivision shall be guilty of a class E felony. 23 (g) In addition to or in lieu of any criminal proceeding available 24 pursuant to this subdivision, whenever there shall be a violation of 25 this subdivision, application may be made by the attorney general in the 26 name of the people of the state of New York to a court or justice having 27 jurisdiction by a special proceeding to issue an injunction, and upon 28 notice to the defendant of not less than five days, to enjoin and 29 restrain the continuance of such violations; and if it shall appear to 30 the satisfaction of the court or justice that the defendant has, in 31 fact, violated this subdivision, an injunction may be issued by such 32 court or justice, enjoining and restraining any further violation, with- 33 out requiring proof that any person has, in fact, been injured or 34 damaged thereby. In any such proceeding, the court may make allowances 35 to the attorney general as provided in paragraph six of subdivision (a) 36 of section eighty-three hundred three of the civil practice law and 37 rules, and direct restitution. Whenever the court shall determine that a 38 violation of this subdivision has occurred, the court may impose a civil 39 penalty of not more than five hundred dollars for the first violation, 40 and not more than one thousand dollars for the second or subsequent 41 violation within a three-year period. In connection with any such 42 proposed application, the attorney general is authorized to take proof 43 and make a determination of the relevant facts and to issue subpoenas in 44 accordance with the civil practice law and rules. 45 12. Notwithstanding any law, rule, or regulation to the contrary, 46 general operating funds required by the department shall not be reduced 47 due to monies expended from or by the excluded worker unemployment 48 program fund established pursuant to section ninety-five-k of the state 49 finance law. 50 § 3. The state finance law is amended by adding a new section 95-k to 51 read as follows: 52 § 95-k. Excluded worker unemployment program fund. 1. There is hereby 53 established in the joint custody of the commissioner of taxation and 54 finance and the state comptroller a special fund to be known as the 55 "excluded worker unemployment program fund".A. 9037--A 17 1 2. Moneys in such fund shall consist of all moneys appropriated for 2 the purposes of such fund and all moneys appropriated, credited or 3 transferred thereto from any other fund or source pursuant to law. Any 4 interest received by the comptroller on money on deposit in the fund 5 shall be retained in and become part of the fund. 6 3. All moneys collected as contributions and interest relating to wage 7 replacement to workers and families unable to access traditional worker 8 wage insurance or assistance programs shall be deposited in a bank, 9 trust company or industrial bank designated by the state comptroller. 10 Moneys so deposited shall be credited immediately to the account of the 11 excluded worker unemployment program fund and shall be used for the 12 purposes set forth in section five hundred ninety-one-b of the labor 13 law. Moneys in such fund may be invested by the state comptroller in 14 accordance with the provisions of section ninety-eight of this article, 15 and shall only be used for the purposes specified herein. 16 4. Moneys in the fund shall be used exclusively for the purpose of 17 providing wage replacement to workers that do not qualify for unemploy- 18 ment insurance or other worker wage assistance programs and who have 19 lost a major source of income due to lost work. The moneys shall be paid 20 out of the fund on the audit and warrant of the state comptroller on 21 vouchers certified or approved by such commissioner or his or her duly 22 designated officer. Any balance in such fund shall not lapse at any time 23 but shall remain continuously available for such purposes. 24 5. Moneys of the fund shall not be used in whole or in part for any 25 purpose or in any manner which would (a) permit its substitution for, or 26 a corresponding reduction in, federal funds that would be available in 27 its absence to finance expenditures for the administration of this arti- 28 cle; or (b) cause the appropriate agency of the United States government 29 to withhold any part of an administrative grant which would otherwise be 30 made. 31 § 4. The sum of eight hundred million dollars ($800,000,000) is hereby 32 appropriated from any moneys in the state treasury in the general fund 33 to the credit of the state purposes account for the excluded worker 34 unemployment program fund in carrying out the provisions of this act. 35 Such sum shall be payable on the audit and warrant of the state comp- 36 troller on vouchers certified or approved in the manner provided by law. 37 No expenditure shall be made from this appropriation until a certificate 38 of approval of availability shall have been issued by the director of 39 the budget and filed with the state comptroller and a copy filed with 40 the chairman of the senate finance committee and the chairman of the 41 assembly ways and means committee. Such certificate may be amended from 42 time to time by the director of the budget and a copy of each such 43 amendment shall be filed with the state comptroller, the chairman of the 44 senate finance committee and the chairman of the assembly ways and means 45 committee. 46 § 5. Severability Clause. If any clause, sentence, paragraph, subdivi- 47 sion, section, or part of this act shall be adjudged by any court of 48 competent jurisdiction to be invalid, such judgment shall not affect, 49 impair or invalidate the remainder thereof, but shall be confined in its 50 operation to the clause, sentence, paragraph, subdivision, section, or 51 part thereof directly involved in the controversy in which such judgment 52 shall have been rendered. It is hereby declared to be the intent of the 53 legislature that this act would have been enacted even if such invalid 54 provisions had not been included herein. 55 § 6. This act shall take effect immediately.