Bill Text: NY A09355 | 2023-2024 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2024-03-06 - referred to labor [A09355 Detail]

Download: New_York-2023-A09355-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9355

                   IN ASSEMBLY

                                      March 6, 2024
                                       ___________

        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee 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:

     1    Section 1. Subdivision 1 of section 570 of the labor law,  as  amended
     2  by chapter 7 of the laws of 1985, is amended to read as follows:
     3    1.  Rate.  Each  employer  liable  under this article, including those
     4  employers liable pursuant to  the  presumption  in  subdivision  one  of
     5  section  five hundred seventy-two of this title, shall pay contributions
     6  on all wages paid by him at the rate of five and four-tenths per  centum
     7  or,  if  applicable  to  the  employer,  at  the  rate  provided  by the
     8  provisions of sections  five  hundred  seventy-seven  and  five  hundred
     9  eighty-one  of  this  title.  However,  if  contributions so established
    10  exceed five and four-tenths per centum of wages paid by  him  which  are
    11  subject  to  the  federal unemployment tax act, they shall be reduced by
    12  that part of such excess, if any, which is caused by the  provisions  of
    13  paragraph  (b)  of  subdivision  one of section five hundred eighteen of
    14  this article.
    15    § 2. Section 572 of the labor law, as amended by chapter  726  of  the
    16  laws of 1953, is amended to read as follows:
    17    § 572. [Notice] Presumption of liability. 1. Notwithstanding any other
    18  provision  of  law,  upon the initial determination of a claim for bene-
    19  fits, if the department determines that any person is or was an employee
    20  within the meaning of this article, there shall be  a  presumption  that
    21  such determination applies to all others performing similar services for
    22  the  employer  and such employer has become liable for contributions for
    23  all such employees under section five  hundred  seventy  of  this  title
    24  and/or section six hundred seventy-four of the tax law. Upon final adju-
    25  dication  of  any  initial  determination  finding  a  claimant to be an
    26  employee, the reporting and  contributions  required  under  this  title
    27  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
        A. 9355                             2

     1  ing  similar  services  for  the  employer. The employer's obligation to
     2  contribute for such employees shall continue until the employer success-
     3  fully rebuts the presumption in a final adjudication of a  future  claim
     4  involving  a  claimant performing similar services for the employer. The
     5  presumption and obligations in  this  subdivision  shall  apply  to  all
     6  determinations already rendered and all future determinations.
     7    2.  Any  employer who has become liable for contributions shall notify
     8  the commissioner of [such] the fact [immediately] and shall give  infor-
     9  mation  concerning  [his] their operations and persons employed by [him]
    10  them to the commissioner no later then five  business  days  after  they
    11  become liable.
    12    §  3.  Subdivision 4 of section 575 of the labor law, as renumbered by
    13  chapter 639 of the laws of 1954, is renumbered subdivision 3 and  a  new
    14  subdivision 2 is added to read as follows:
    15    2.  Upon  any  determination by the department, a referee of the unem-
    16  ployment insurance appeal board, or the board  that  a  claimant  is  an
    17  employee under this article, the employer shall be considered an employ-
    18  er  of  such  claimant and all those performing similar services for the
    19  employer.  The employer's obligation to report earnings pursuant to this
    20  article and regulations of the commissioner shall  continue  unless  and
    21  until  reversed  by  administrative  or  judicial review and all further
    22  appeals have been exhausted.
    23    § 4. Section 575-a of the labor law, as added by chapter 5 of the laws
    24  of 2000, is amended to read as follows:
    25    § 575-a. Penalties relating to wage information.  In  the  case  of  a
    26  failure  by  an  employer to provide complete and correct wage reporting
    27  information on a quarterly  combined  withholding,  wage  reporting  and
    28  unemployment  insurance  return required by paragraph four of subsection
    29  (a) of section six hundred seventy-four of the tax  law,  such  employer
    30  shall,  unless it is shown to the commissioner's satisfaction that there
    31  was good cause for such failure to comply, be liable as provided for  in
    32  subdivisions one and two of this section.  Lack of knowledge or a misun-
    33  derstanding  regarding the presumption established in subdivision one of
    34  section five hundred seventy-two of this title shall not constitute good
    35  cause for failure to comply with the provisions of this section.
    36    1. [When the non-compliance is discovered through an examination of an
    37  employer's records, the] The employer shall be liable for a  penalty  in
    38  the following amount for each employee who is not included in the return
    39  or for whom the required information is not reported accurately:
    40    (a)  for  the  first  failure  for  any  calendar quarter in any eight
    41  consecutive calendar quarters[, one dollar for  each  employee,  not  to
    42  exceed one thousand dollars]:
    43    (i)  for employers with ten employees or less, twenty-five dollars for
    44  each employee;
    45    (ii) for employers with more than ten but less than  fifty  employees,
    46  fifty dollars for each employee; and
    47    (iii)  for employers with fifty or more employees, one hundred dollars
    48  for each employee;
    49    (b) for the second failure for  any  calendar  quarter  in  any  eight
    50  consecutive  calendar  quarters[, five dollars for each employee, not to
    51  exceed two thousand dollars]:
    52    (i) for employers with ten employees or less, fifty dollars  for  each
    53  employee;
    54    (ii)  for  employers with more than ten but less than fifty employees,
    55  one hundred dollars for each employee; and
        A. 9355                             3

     1    (iii) for employers with fifty or more employees, two hundred  dollars
     2  for each employee;
     3    (c)  for  any  subsequent failure in any calendar quarter in any eight
     4  consecutive calendar quarters[, twenty-five dollars for  each  employee,
     5  not to exceed five thousand dollars.
     6    2.  In  those  instances  where  a  failure to comply is discovered in
     7  relation to a specific claimant's claim for benefits, the penalty  shall
     8  be twenty-five dollars for each such occurrence.
     9    3. If]:
    10    (i)  for employers with ten employees or less, one hundred dollars for
    11  each employee;
    12    (ii) for employers with more than ten but less than  fifty  employees,
    13  two hundred dollars for each employee; and
    14    (iii) for employers with fifty or more employees, four hundred dollars
    15  per employee.
    16    2. Upon an employer's first violation of this section, if such employ-
    17  er provides complete and correct wage reporting information within thir-
    18  ty days after the department sends notice of such failure to the employ-
    19  er,  then  the  penalty  provided for by subdivision one of this section
    20  shall be abated.
    21    [4.]3. The penalties imposed and collected pursuant  to  this  section
    22  shall  be  credited  to the special fund established pursuant to section
    23  five hundred fifty-two of this article.
    24    4. Upon an employer's failure to report complete and correct wages  of
    25  their  employees,  the  commissioner shall provide written notice to the
    26  employer as provided in section five hundred seventy-one of this  title.
    27  After providing such notice, if the employer does not file a correct and
    28  sufficient  report  within  thirty days, the commissioner shall apply to
    29  the supreme court of the state of New York for an  order  requiring  the
    30  employer to provide such wage reporting information.
    31    5.  Any  of  the  following  parties may seek an order in any court of
    32  competent jurisdiction requiring an employer  to  provide  complete  and
    33  correct  wage reporting information to the commissioner for all of their
    34  employees:
    35    (a) Any claimant, for whom the presumption established in  subdivision
    36  one  of  section  five  hundred  seventy-two  of this title applies, who
    37  receives a monetary benefit determination which indicates  that  one  or
    38  more of their employers has failed to report their wages; and
    39    (b)  Any  employee  who  fails  to  receive a notice or wage statement
    40  pursuant to section one hundred ninety-five of this  chapter,  for  whom
    41  the  presumption  established in subdivision one of section five hundred
    42  seventy-two of this title applies.
    43    Any claimant or employee who prevails on such a claim shall  be  enti-
    44  tled to attorney's fees and costs, but no other damages.
    45    §  5.  Subdivision  4  of  section 570 of the labor law, as amended by
    46  chapter 726 of the laws of 1953, is amended to read as follows:
    47    4. Fraud. If any part of any deficiency is due to fraud with intent to
    48  avoid payment of contributions to the  fund,  [fifty]  one  hundred  per
    49  centum  of the total amount of the deficiency, in addition to such defi-
    50  ciency, shall be assessed, collected, and paid in the same manner as  if
    51  it  were  a deficiency.  As used in this section, the term "fraud" shall
    52  include any instance where an employer failed to pay  contributions  and
    53  the  employer  knew or should have known that its employees were covered
    54  by the unemployment insurance law. Instances where an employer shall  be
    55  deemed  to  have  known  its  employees were covered by the unemployment
    56  insurance law shall include, but not be limited to, any situation where:
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     1    (a) an employer or any of its related entities have been found by  the
     2  unemployment  insurance  appeal  board  to  be the employer of employees
     3  providing similar services;
     4    (b)  an employer or any of its related entities have been found by the
     5  department to be the employer of employees providing  any  of  the  same
     6  services; and
     7    (c)  an employer has failed to cooperate with the department during an
     8  audit or investigation regarding its obligations under this article.
     9    § 6. Subdivision 2 of section 597 of the  labor  law,  as  amended  by
    10  chapter 589 of the laws of 1998, paragraph (b) as amended by chapter 413
    11  of  the laws of 2003, and paragraph (d) as added by section 18 of part O
    12  of chapter 57 of the laws of 2013, is amended to read as follows:
    13    2. Obtaining information necessary for determinations. (a) When filing
    14  an original claim, each claimant shall furnish to the  commissioner  all
    15  information  which  the commissioner shall require concerning his or her
    16  prior employment.
    17    (b) Whenever a claimant's base period includes  a  completed  calendar
    18  quarter for which a wage data report is not due or has not been received
    19  and  the  claimant provides information as required by the commissioner,
    20  the commissioner shall determine such claimant's entitlement and benefit
    21  rate using the information  the  claimant  provided  for  such  quarter.
    22  However, in those instances where the claimant is unable to provide such
    23  information  to  the  commissioner's  satisfaction, the commissioner may
    24  request the employer to provide the amount of remuneration paid to  such
    25  individual. The commissioner shall notify each base period employer upon
    26  the  establishment  of  a  valid  original  claim,  of such claim. If an
    27  employer provides new  or  corrected  information  in  response  to  the
    28  initial  notice  of  monetary entitlement, adjustments to the claimant's
    29  benefit rate and adjustments to the employer's experience rating account
    30  shall be prospective as of the date such information was received by the
    31  department.
    32    (c) The commissioner shall issue a monetary benefit  determination  to
    33  the  claimant  within one week of an application for benefits. The mone-
    34  tary benefit determination shall include notice to the claimant that, if
    35  the determined amount of benefits  payable  to  the  claimant  does  not
    36  reflect  the  claimant's  full  earnings, such different amount may have
    37  occurred because the employer did not report or  did  not  fully  report
    38  their  wages.   The monetary benefit determination shall also notify the
    39  claimant that they should provide proof of  earnings  for  the  relevant
    40  period  in order to properly determine the claimant's monetary eligibil-
    41  ity.  Anytime a claimant provides proof of earnings from a party  previ-
    42  ously  determined to be an employer under this article, the commissioner
    43  shall issue a  revised  determination  within  three  business  days  of
    44  receipt  of  the  claimant's  proof of earnings. In all other cases, the
    45  commissioner shall  complete  an  investigation  regarding  whether  the
    46  claimant's  earnings  are wages earned in covered employment and issue a
    47  determination regarding the additional earnings within forty-five  days.
    48  In  the  event  of  an investigation, the commissioner shall provide the
    49  claimant with no less than fourteen days' notice  of  any  deadlines  to
    50  respond pursuant to such investigation.
    51    (d)  Notwithstanding paragraph (b) of this subdivision, adjustments to
    52  the claimant's benefit rate and  adjustment  to  the  experience  rating
    53  charges  to the employers' accounts will be retroactive to the beginning
    54  of the benefit claim in the following circumstances:
    55    (i) the new or corrected information results in a higher benefit rate,
    56  or
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     1    (ii) the new or corrected information results in the claimant's  fail-
     2  ure to establish a valid original claim, or
     3    (iii)  the amount of the previously established benefit rate was based
     4  upon the claimant's willful false statement or representation.
     5    [(d)] (e) Notwithstanding any provisions of  this  article,  unless  a
     6  commissioner's  error  is shown or the failure is the direct result of a
     7  disaster emergency declared by the governor or president, an  employer's
     8  account  shall not be relieved of charges resulting in an overpayment of
     9  benefits when the commissioner determines that the overpayment was  made
    10  because  the  employer  or the agent of the employer failed to timely or
    11  adequately respond to a request for information in the notice of  poten-
    12  tial  charges or other such notice requesting information in relation to
    13  a claim under this article, provided,  however,  that  the  commissioner
    14  shall  relieve  the employer of charges the first time that the employer
    15  fails to  provide  timely  or  adequate  information,  if  the  employer
    16  provides good cause for such failure as determined by the commissioner.
    17    "Timely"  shall  mean a response is provided in the time period speci-
    18  fied in the notice as prescribed by the commissioner.
    19    The term "adequately" shall  mean  that  the  employer  or  its  agent
    20  submitted information sufficient to render a correct determination.
    21    This  prohibition  for  relief of charges shall apply to all employers
    22  under this article including  employers  electing  payment  in  lieu  of
    23  contributions.
    24    §  7.  Paragraph (b) of subdivision 1 of section 620 of the labor law,
    25  as amended by chapter 554 of the laws of 2010, is  amended  to  read  as
    26  follows:
    27    (b) When the initial determination of a claim for benefits, upon which
    28  a  hearing  has been requested, involves the question whether any person
    29  is or was an employer within the meaning of this article and is  or  was
    30  liable for the payment of contributions under this article, or the ques-
    31  tion whether an employer has fully complied with the obligations imposed
    32  by  this  article,  written notice of the hearing shall be given to such
    33  persons or employer, either personally or by mail, and thereupon he, she
    34  or such employer shall be deemed a party to the proceeding, entitled  to
    35  be  heard.  Upon  such  notice  having  been given, the referee may then
    36  decide such question or questions and any other issue  related  thereto,
    37  and his or her decision shall not be deemed limited in its effect to the
    38  immediate  claimant  making the claim for benefits but shall be deemed a
    39  general determination of such  questions  with  respect  to  all  [those
    40  employed  by]  others  performing  similar  services  for such person or
    41  employer for all the purposes of this article, and such  decision  shall
    42  be conclusive and binding upon the claimant and such person or employer,
    43  subject, however, to the right to appeal hereinafter provided.
    44    § 8. This act shall take effect immediately.