S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          152
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 7, 2015
                                      ___________
       Introduced  by Sen. SQUADRON -- 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 establishing a living wage
         rate
         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 a new article 19-D to
    2  read as follows:
    3                                ARTICLE 19-D
    4                               FAIR WAGES ACT
    5  SECTION 696.   DEFINITIONS.
    6          696-A. LIVING WAGE RATE.
    7          696-B. PAYMENT OF LIVING WAGE.
    8          696-C. IMPLEMENTATION.
    9          696-D. COMMISSIONER'S POWERS OF INVESTIGATION.
   10          696-E. CIVIL ACTION.
   11    S 696. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE TERM:
   12    1. "EMPLOYER" MEANS A FORMULA RETAIL STORE, LARGE EMPLOYER,  TRANSPOR-
   13  TATION  BUSINESS, OR FRANCHISEE OR SUBCONTRACTOR, AND INCLUDES ANY INDI-
   14  VIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION, LIMITED LIABILITY  COMPA-
   15  NY,  BUSINESS  TRUST,  LEGAL  REPRESENTATIVE,  OR ANY ORGANIZED GROUP OF
   16  PERSONS ACTING AS EMPLOYER.
   17    2. "FORMULA RETAIL STORE" MEANS ANY EMPLOYER THAT  OPERATES  A  RETAIL
   18  SALES OR RESTAURANT ESTABLISHMENT EITHER DIRECTLY OR THROUGH FRANCHISEES
   19  AND  THAT,  ALONG  WITH  ELEVEN OR MORE OTHER RETAIL SALES OR RESTAURANT
   20  ESTABLISHMENTS LOCATED IN THE UNITED STATES, MAINTAINS TWO  OR  MORE  OF
   21  THE  FOLLOWING  FEATURES:  (A)  A  STANDARDIZED  ARRAY OF MERCHANDISE, A
   22  STANDARDIZED FACADE, A STANDARDIZED DECOR AND COLOR  SCHEME,  A  UNIFORM
   23  APPAREL, STANDARDIZED SIGNAGE, A TRADEMARK; OR (B) A SERVICEMARK.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00168-01-5
       S. 152                              2
    1    3.  "LARGE  EMPLOYER" MEANS ANY EMPLOYER THAT HAS ANNUAL GROSS REVENUE
    2  OF FIFTY MILLION DOLLARS OR MORE, BUT SHALL NOT INCLUDE (A) AN  EMPLOYER
    3  WHOSE  PRINCIPAL  INDUSTRY  IS  MANUFACTURING;  OR  (B) A NOT-FOR-PROFIT
    4  ORGANIZATION.  AN EMPLOYER SHALL BE DEEMED TO HAVE ANNUAL GROSS  REVENUE
    5  OF  FIFTY MILLION DOLLARS OR MORE IF IT HAD REVENUE AT OR EXCEEDING THAT
    6  LEVEL IN ANY OF THE PAST THREE FISCAL OR CALENDAR YEARS.
    7    4. "MANUFACTURING" MEANS THE PROCESS OF  WORKING  RAW  MATERIALS  INTO
    8  PRODUCTS  SUITABLE FOR USE OR WHICH GIVES NEW SHAPES, NEW QUALITY OR NEW
    9  COMBINATIONS TO MATTER WHICH HAS ALREADY GONE  THROUGH  SOME  ARTIFICIAL
   10  PROCESS  BY  THE  USE  OF MACHINERY, TOOLS, APPLIANCES, OR OTHER SIMILAR
   11  EQUIPMENT.
   12    5. "NOT-FOR-PROFIT ORGANIZATION" MEANS AN ENTITY EXEMPT FROM  TAXATION
   13  UNDER SECTION 501(C)(3) OF THE FEDERAL INTERNAL REVENUE CODE.
   14    6.  "TRANSPORTATION  BUSINESS" MEANS ANY INDUSTRY, BUSINESS, OR ESTAB-
   15  LISHMENT OPERATED FOR THE PURPOSE OF CONVEYING PERSONS OR PROPERTY  FROM
   16  ONE  PLACE  TO  ANOTHER WHETHER BY RAIL, HIGHWAY, AIR, OR WATER, AND ALL
   17  OPERATIONS AND SERVICES IN CONNECTION THEREWITH.
   18    7. "FRANCHISEE OR SUBCONTRACTOR"  MEANS  ANY  EMPLOYER  THAT  OPERATES
   19  UNDER A FRANCHISE AGREEMENT WITH A FORMULA RETAIL STORE OR LARGE EMPLOY-
   20  ER,  OR THAT PROVIDES SERVICES, INCLUDING BUT NOT LIMITED TO JANITORIAL,
   21  MAINTENANCE, SECURITY, STAFFING, PASSENGER SERVICES, FOOD  SERVICES,  OR
   22  TEMPORARY  SERVICES TO A FORMULA RETAIL STORE, LARGE EMPLOYER, OR TRANS-
   23  PORTATION BUSINESS.
   24    8. "EMPLOYEE" HAS THE MEANING PROVIDED IN SUBDIVISION FIVE OF  SECTION
   25  SIX HUNDRED FIFTY-ONE OF THIS CHAPTER.
   26    9.  "LIVING WAGE RATE" SHALL HAVE THE MEANING SET FORTH IN SECTION SIX
   27  HUNDRED NINETY-SIX-A OF THIS TITLE.
   28    S 696-A. LIVING WAGE RATE. 1. BEGINNING ON THE EFFECTIVE DATE OF  THIS
   29  ARTICLE,  THE  LIVING  WAGE  RATE  SHALL  BE  AN  HOURLY RATE OF FIFTEEN
   30  DOLLARS.
   31    2. NO LATER THAN JANUARY FIRST OF EACH SUCCESSIVE  YEAR,  THE  COMMIS-
   32  SIONER  SHALL  CALCULATE  AND  ESTABLISH AN ADJUSTED LIVING WAGE RATE BY
   33  INCREASING THE THEN CURRENT LIVING WAGE RATE BY THE  RATE  OF  INFLATION
   34  FOR  THE MOST RECENT TWELVE MONTH PERIOD AVAILABLE PRIOR TO EACH JANUARY
   35  FIRST USING THE CONSUMER PRICE INDEX-ALL URBAN CONSUMERS,  CPI-U,  OR  A
   36  SUCCESSOR  INDEX AS CALCULATED BY THE UNITED STATES DEPARTMENT OF LABOR,
   37  IF SUCH RATE OF INFLATION IS GREATER THAN ZERO PERCENT, OR, IF  GREATER,
   38  SUCH  OTHER  WAGE  AS  MAY  BE ESTABLISHED BY FEDERAL LAW PURSUANT TO 29
   39  U.S.C. SECTION 206 OR ITS SUCCESSORS OR SUCH OTHER WAGE AS MAY BE ESTAB-
   40  LISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
   41    S 696-B. PAYMENT OF LIVING WAGE. 1. AN EMPLOYER SHALL PAY EMPLOYEES AN
   42  HOURLY WAGE OF NO LESS THAN THE LIVING WAGE RATE FOR EACH HOUR THAT  THE
   43  EMPLOYEE WORKS WITHIN THE GEOGRAPHIC BOUNDARIES OF THE STATE.
   44    2.  NOTWITHSTANDING  SUBDIVISION  ONE OF THIS SECTION, EMPLOYERS SHALL
   45  PAY EMPLOYEES WHO CUSTOMARILY AND REGULARLY RECEIVE TIPS  NO  LESS  THAN
   46  SEVENTY  PERCENT  OF  THE  LIVING WAGE RATE, ROUNDED TO THE NEAREST FIVE
   47  CENTS, PROVIDED THAT AT ALL TIMES THE COMBINATION OF THE CASH WAGE  PAID
   48  BY  THE  EMPLOYER  AND  THE TIPS RECEIVED BY THE EMPLOYEE TOTALS NO LESS
   49  THAN THE LIVING WAGE RATE FOR EACH HOUR  WORKED  WITHIN  THE  GEOGRAPHIC
   50  BOUNDARIES  OF  THE  STATE.    SUCH CALCULATION MAY BE MADE BASED ON THE
   51  TOTAL WAGES AND TIPS RECEIVED BY THE EMPLOYEE OVER THE COURSE OF HIS  OR
   52  HER SHIFT.
   53    3.  FORMULA  RETAIL  STORES, LARGE EMPLOYERS, AND TRANSPORTATION BUSI-
   54  NESSES SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR ANY  VIOLATION  OF
   55  THIS  ARTICLE  BY  A  FRANCHISEE  OR SUBCONTRACTOR OF THE FORMULA RETAIL
   56  STORE, LARGE EMPLOYER OR TRANSPORTATION BUSINESS.
       S. 152                              3
    1    4. THE PROVISIONS OF THIS SECTION MAY BE WAIVED BY THE  WRITTEN  TERMS
    2  OF A BONA FIDE COLLECTIVE BARGAINING AGREEMENT.
    3    S  696-C. IMPLEMENTATION. 1. BY DECEMBER FIRST OF EACH YEAR, THE STATE
    4  SHALL PUBLISH AND MAKE AVAILABLE TO EMPLOYERS A BULLETIN ANNOUNCING  THE
    5  ADJUSTED  LIVING  WAGE  AND  BENEFITS  RATE FOR THE UPCOMING YEAR, WHICH
    6  SHALL TAKE EFFECT ON JANUARY FIRST.
    7    2. BY DECEMBER FIRST OF EACH YEAR, THE STATE SHALL  PUBLISH  AND  MAKE
    8  AVAILABLE  TO  EMPLOYERS,  IN ENGLISH AND SPANISH, AND ON-LINE, A NOTICE
    9  SUITABLE FOR POSTING IN THE WORKPLACE INFORMING EMPLOYEES OF THE CURRENT
   10  LIVING WAGE AND OF THEIR RIGHTS UNDER THIS ARTICLE.
   11    3. EVERY EMPLOYER SHALL POST IN A CONSPICUOUS PLACE AT  ANY  WORKPLACE
   12  OR  JOB  SITE  WHERE AN EMPLOYEE WORKS THE NOTICE PUBLISHED EACH YEAR BY
   13  THE AGENCY INFORMING EMPLOYEES OF THE CURRENT LIVING WAGE AND  OF  THEIR
   14  RIGHTS  UNDER THIS ARTICLE. EVERY LARGE EMPLOYER SHALL POST SUCH NOTICES
   15  IN ENGLISH AND SPANISH.
   16    4. EMPLOYERS SHALL RETAIN PAYROLL RECORDS PERTAINING TO EMPLOYEES  FOR
   17  A  PERIOD  OF  FOUR  YEARS.    EMPLOYERS  SHALL PERMIT AN EMPLOYEE OR AN
   18  EMPLOYEE'S DESIGNATED REPRESENTATIVE TO INSPECT THE  EMPLOYER'S  PAYROLL
   19  PERTAINING TO THE EMPLOYEE.
   20    S  696-D.  COMMISSIONER'S POWERS OF INVESTIGATION. THE COMMISSIONER OR
   21  HIS OR HER AUTHORIZED REPRESENTATIVE SHALL HAVE POWER:
   22    1. TO INVESTIGATE THE WAGES OF PERSONS IN ANY OCCUPATION IN THE STATE;
   23    2. TO ENTER THE PLACE OF BUSINESS OR EMPLOYMENT OF  ANY  EMPLOYER  FOR
   24  THE  PURPOSE  OF: (A) EXAMINING AND INSPECTING ANY AND ALL BOOKS, REGIS-
   25  TERS, PAYROLLS AND OTHER RECORDS THAT IN ANY WAY RELATE  TO  OR  HAVE  A
   26  BEARING  UPON  THE  WAGES PAID TO, OR THE HOURS WORKED BY ANY EMPLOYEES;
   27  (B) ASCERTAINING WHETHER THE PROVISIONS OF THIS ARTICLE AND  THE  ORDERS
   28  AND REGULATIONS PROMULGATED HEREUNDER ARE BEING COMPLIED WITH; AND
   29    3.  TO  REQUIRE  FROM  ANY  EMPLOYER  FULL  AND CORRECT STATEMENTS AND
   30  REPORTS IN WRITING, AT SUCH TIMES AS THE COMMISSIONER  MAY  DEEM  NECES-
   31  SARY, OF THE WAGES PAID TO AND THE HOURS WORKED BY HIS OR HER EMPLOYEES.
   32    S  696-E.  CIVIL  ACTION.  1.  IF  ANY  EMPLOYEE IS PAID BY HIS OR HER
   33  EMPLOYER LESS THAN THE WAGE TO WHICH HE OR SHE  IS  ENTITLED  UNDER  THE
   34  PROVISIONS  OF  THIS  ARTICLE, HE OR SHE SHALL RECOVER IN A CIVIL ACTION
   35  THE AMOUNT OF ANY SUCH UNDERPAYMENTS, TOGETHER WITH COSTS,  ALL  REASON-
   36  ABLE  ATTORNEY'S  FEES, PREJUDGMENT INTEREST AS REQUIRED UNDER THE CIVIL
   37  PRACTICE LAW AND RULES, AND UNLESS THE  EMPLOYER  PROVES  A  GOOD  FAITH
   38  BASIS  TO  BELIEVE THAT ITS UNDERPAYMENT OF WAGES WAS IN COMPLIANCE WITH
   39  THE LAW, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO ONE HUNDRED
   40  PERCENT OF THE TOTAL OF SUCH UNDERPAYMENTS FOUND TO BE DUE.  ANY  AGREE-
   41  MENT  BETWEEN  THE EMPLOYEE, AND THE EMPLOYER TO WORK FOR LESS THAN SUCH
   42  WAGE SHALL BE NO DEFENSE TO SUCH ACTION.
   43    2. ON BEHALF OF ANY EMPLOYEE PAID LESS THAN  THE  WAGE  TO  WHICH  THE
   44  EMPLOYEE  IS  ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, THE COMMIS-
   45  SIONER MAY BRING ANY LEGAL ACTION  NECESSARY,  INCLUDING  ADMINISTRATIVE
   46  ACTION, TO COLLECT SUCH CLAIM, AND THE EMPLOYER SHALL BE REQUIRED TO PAY
   47  THE FULL AMOUNT OF THE UNDERPAYMENT, PLUS COSTS, AND UNLESS THE EMPLOYER
   48  PROVES  A  GOOD  FAITH  BASIS  TO  BELIEVE  THAT ITS UNDERPAYMENT WAS IN
   49  COMPLIANCE WITH THE LAW, AN ADDITIONAL  AMOUNT  AS  LIQUIDATED  DAMAGES.
   50  LIQUIDATED  DAMAGES  SHALL  BE CALCULATED BY THE COMMISSIONER AS NO MORE
   51  THAN ONE HUNDRED PERCENT OF THE TOTAL AMOUNT OF UNDERPAYMENTS  FOUND  TO
   52  BE  DUE  THE  EMPLOYEE.  IN  ANY ACTION BROUGHT BY THE COMMISSIONER IN A
   53  COURT OF COMPETENT JURISDICTION, LIQUIDATED DAMAGES SHALL BE  CALCULATED
   54  AS  AN  AMOUNT EQUAL TO ONE HUNDRED PERCENT OF UNDERPAYMENTS FOUND TO BE
   55  DUE THE EMPLOYEE.
       S. 152                              4
    1    3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN  ACTION  TO  RECOVER
    2  UPON  A  LIABILITY  IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX
    3  YEARS.  THE STATUTE OF LIMITATIONS SHALL BE  TOLLED  FROM  THE  DATE  AN
    4  EMPLOYEE  FILES  A  COMPLAINT  WITH THE COMMISSIONER OR THE COMMISSIONER
    5  COMMENCES  AN  INVESTIGATION,  WHICHEVER  IS  EARLIER, UNTIL AN ORDER TO
    6  COMPLY ISSUED BY THE COMMISSIONER BECOMES FINAL, OR  WHERE  THE  COMMIS-
    7  SIONER DOES NOT ISSUE AN ORDER, UNTIL THE DATE ON WHICH THE COMMISSIONER
    8  NOTIFIES THE COMPLAINANT THAT THE INVESTIGATION HAS CONCLUDED.  INVESTI-
    9  GATION  BY  THE  COMMISSIONER  SHALL  NOT BE A PREREQUISITE TO NOR A BAR
   10  AGAINST A PERSON BRINGING A CIVIL ACTION UNDER THIS ARTICLE.
   11    4. IN ANY CIVIL ACTION BY AN EMPLOYEE  OR  BY  THE  COMMISSIONER,  THE
   12  EMPLOYEE OR COMMISSIONER SHALL HAVE THE RIGHT TO COLLECT ATTORNEYS' FEES
   13  AND  COSTS  INCURRED  IN  ENFORCING  ANY COURT JUDGMENT. ANY JUDGMENT OR
   14  COURT ORDER AWARDING REMEDIES UNDER THIS SECTION SHALL PROVIDE  THAT  IF
   15  ANY  AMOUNTS  REMAIN UNPAID UPON THE EXPIRATION OF NINETY DAYS FOLLOWING
   16  ISSUANCE OF JUDGMENT, OR NINETY DAYS AFTER EXPIRATION  OF  THE  TIME  TO
   17  APPEAL  AND NO APPEAL THEREFROM IS THEN PENDING, WHICHEVER IS LATER, THE
   18  TOTAL  AMOUNT  OF  JUDGMENT  SHALL  AUTOMATICALLY  INCREASE  BY  FIFTEEN
   19  PERCENT.
   20    S 2. Severability. If any clause, sentence, paragraph, section or part
   21  of  this act shall be adjudged by any court of competent jurisdiction to
   22  be invalid and after exhaustion of  all  further  judicial  review,  the
   23  judgment  shall  not affect, impair or invalidate the remainder thereof,
   24  but shall be confined in its operation to the  clause,  sentence,  para-
   25  graph,  section or part of this act directly involved in the controversy
   26  in which the judgment shall have been rendered.
   27    S 3. This act shall take effect on the ninetieth day  after  it  shall
   28  have become a law.