Bill Text: NY S00102 | 2009-2010 | General Assembly | Introduced
Bill Title: Enhances civil penalty provisions for willful or repeat employer violations of public employee safety and health act to $300 a day; defines "willful" for purposes of such provision to mean instances where the employer is aware of the applicable requirement or regulation and the condition or practice in violation or is aware that it is hazardous to employees and "repeat" violation as being a violation where the employer had previously been issued an order to comply for a substantially similar violation at the same site; provides civil penalties be paid and deposited into the state school construction fund.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-05-11 - RECOMMIT, ENACTING CLAUSE STRICKEN [S00102 Detail]
Download: New_York-2009-S00102-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 102 2009-2010 Regular Sessions I N S E N A T E (PREFILED) January 7, 2009 ___________ Introduced by Sen. SAMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to public employee safety and health THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraphs a, c and d of subdivision 6 of section 27-a of 2 the labor law, paragraph a as amended by chapter 190 of the laws of 3 1990, paragraph c as added by chapter 729 of the laws of 1980 and para- 4 graph d as amended by chapter 145 of the laws of 1993, are amended to 5 read as follows: 6 a. If the commissioner determines that an employer has violated a 7 provision of this section, or a safety or health standard or regulation 8 promulgated under this section, he or she shall with reasonable prompt- 9 ness issue to the employer an order to comply which shall describe 10 particularly the nature of the violation including a reference to the 11 provision of this section, standard, regulation or order alleged to have 12 been violated, shall fix a reasonable time for compliance and may estab- 13 lish the penalty to be assessed for failure to correct the violation by 14 the time fixed for compliance. An employer who fails to correct a non- 15 serious violation by the time fixed for compliance may be assessed a 16 civil penalty of up to fifty dollars per day until the violation is 17 corrected. An employer who fails to correct a serious violation by the 18 time fixed for compliance may be assessed a civil penalty of up to two 19 hundred dollars per day until the violation is corrected. CIVIL PENAL- 20 TIES FOR AN EMPLOYER FOUND TO BE A WILLFUL OR REPEAT VIOLATOR MAY BE 21 ASSESSED FOR FAILURE TO CORRECT THE VIOLATION BY THE TIME FIXED FOR 22 COMPLIANCE IN AN AMOUNT UP TO THREE HUNDRED DOLLARS PER DAY, UNTIL THE 23 VIOLATION IS CORRECTED. ANY CIVIL PENALTIES ASSESSED PURSUANT TO THIS 24 SUBDIVISION SHALL BE PAID AND DEPOSITED INTO THE STATE SCHOOL 25 CONSTRUCTION FUND. Pursuant to section 18(k) of the United States Occu- 26 pational Safety and Health Act of 1970 (Public Law[,] 91-596), a serious 27 violation shall be deemed to exist in a place of employment if there is EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01923-01-9 S. 102 2 1 a substantial probability that death or serious physical harm could 2 result from a condition which exists, or from one or more practices, 3 means, methods, operations, or processes which have been adopted or are 4 in use, in such place of employment unless the employer did not, and 5 could not with the exercise of reasonable diligence, know of the pres- 6 ence of the violation. A non-serious violation shall be defined as any 7 violation that does not fall under the definition of serious violation. 8 FOR PURPOSES OF THIS ARTICLE, AN EMPLOYER SHALL HAVE COMMITTED A "WILL- 9 FUL" VIOLATION IF: 10 (I) THE EMPLOYER WAS AWARE OF THE REQUIREMENTS OF THIS ARTICLE OR THE 11 EXISTENCE OF THE APPLICABLE STANDARD OR REGULATION, AND WAS ALSO AWARE 12 OF A CONDITION OR PRACTICE IN VIOLATION OF THAT REQUIREMENT OR; 13 (II) AT THE TIME THE EMPLOYER COMMITTED THE VIOLATION, THE EMPLOYER 14 WAS NOT AWARE OF ANY LEGAL REQUIREMENT BUT WAS AWARE THAT A CONDITION OR 15 PRACTICE WAS HAZARDOUS TO THE SAFETY OR HEALTH OF EMPLOYEES. 16 AN EMPLOYER SHALL HAVE COMMITTED A "REPEAT" VIOLATION IF THE EMPLOYER 17 HAD BEEN ISSUED AN ORDER TO COMPLY PREVIOUSLY FOR A SUBSTANTIALLY SIMI- 18 LAR VIOLATION AT THE SAME SITE AND NO APPEAL OR OTHER PROCEEDING FOR 19 REVIEW PROVIDED FOR IN THIS ARTICLE SHALL THEN BE PENDING AND THE TIME 20 FOR TAKING THEREOF SHALL HAVE EXPIRED. 21 The commissioner shall not assess a penalty against an employer for 22 failure to correct a violation of a standard which is the subject of an 23 application for a PERMANENT OR temporary order granting a variance, or a 24 violation OF A STANDARD which is the subject of a petition [to modify an 25 order to comply] FOR MODIFICATION OF THE ABATEMENT DATE, provided howev- 26 er, that upon issuance by the commissioner of a determination denying 27 such variance or petition to modify, or upon expiration of a temporary 28 variance or modified compliance period, the time fixed for compliance 29 shall recommence and the employer become liable for the penalties 30 provided herein. 31 c. Any employer, or other party affected by a determination of the 32 [industrial] commissioner issued pursuant to this section may petition 33 the industrial board of appeals for review of such determination in 34 accordance with section one hundred one of this chapter. Judicial review 35 of the decision of the industrial board of appeals may be obtained by 36 any party affected by such decision by commencing a proceeding pursuant 37 to article seventy-eight of the civil practice law and rules within 38 sixty days after such decision is issued. 39 d. If the time for compliance with an order of the commissioner issued 40 pursuant to this section has elapsed, and the employer has not complied 41 with the provisions of the order, the commissioner shall seek judicial 42 enforcement of such order by commencing a proceeding pursuant to article 43 seventy-eight of the civil practice law and rules. Where an employer has 44 complied with an order in all respects other than the payment of a 45 penalty imposed pursuant to this subdivision, the commissioner may file 46 with the county clerk of the county where the employer has its place of 47 business the order of the commissioner [continuing] CONTAINING the 48 amount of civil penalty found to be due. The filing of such order shall 49 have the full force and effect of a judgment duly docketed in the office 50 of such clerk. The order or decision may be enforced by and in the same 51 manner, and with like effect, as that prescribed by the civil practice 52 law and rules for the enforcement of a money judgment. 53 S 2. This act shall take effect immediately and shall apply to all 54 violations which occur on or after such date.