Bill Text: NY S01069 | 2017-2018 | General Assembly | Introduced


Bill Title: Relates to employment agencies including the creation of terms and condition forms; relates to the effectiveness thereof.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Introduced - Dead) 2017-02-13 - SUBSTITUTED BY A380 [S01069 Detail]

Download: New_York-2017-S01069-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1069
                               2017-2018 Regular Sessions
                    IN SENATE
                                     January 6, 2017
                                       ___________
        Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
        AN ACT to amend the general business  law,  in  relation  to  employment
          agencies;  and  to  amend  a chapter of the laws of 2016, amending the
          general business law relating to employment agencies, as  proposed  in
          legislative  bills  numbers  S.  8102 and A. 10672, in relation to the
          effectiveness thereof
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Paragraph b of subdivision 2 of section 173 of the general
     2  business law, as amended by a chapter of the laws of 2016, amending  the
     3  general  business  law  relating  to employment agencies, as proposed in
     4  legislative bills numbers S. 8102 and A. 10672, is amended  to  read  as
     5  follows:
     6    b.  The  application  for a license shall be accompanied by samples or
     7  accurate facsimiles of each and every form which  the  applicant  for  a
     8  license  will  require  applicants  for  employment to execute, and such
     9  forms must be approved by the  commissioner  before  a  license  may  be
    10  issued.  The  commissioner shall approve any such forms which fairly and
    11  clearly represent contractual terms and conditions between the  proposed
    12  employment  agency  and applicants for employment, such as are permitted
    13  by this article.  [The  commissioner  shall  determine  in  his  or  her
    14  discretion, which languages to provide, in addition to English, based on
    15  the size of the state population that speaks each language and any other
    16  factor  the  commissioner deems relevant. All forms shall be made avail-
    17  able to employment agencies in  such  a  manner  as  determined  by  the
    18  commissioner.]  The  commissioner shall make all forms required pursuant
    19  to this article available to employment agencies in languages other than
    20  English, including any other language that the commissioner  determines,
    21  in  his  or her discretion, based on the size of the New York population
    22  that speaks each language and any other  factor  that  the  commissioner
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07084-01-7

        S. 1069                             2
     1  deems  relevant.  An employment agency shall not be penalized for errors
     2  or omissions in the non-English portions of any forms  provided  by  the
     3  commissioner.
     4    §  2.  Subdivision  1  of  section 174 of the general business law, as
     5  amended by a chapter of the laws of 2016, amending the general  business
     6  law  relating  to  employment agencies, as proposed in legislative bills
     7  numbers S. 8102 and A. 10672, is amended to read as follows:
     8    1. Upon the receipt of an application for a license, the  commissioner
     9  shall  cause the name and address of the applicant, the name under which
    10  the employment agency is to be conducted, and the street and  number  of
    11  the  place  where  the  agency  is  to be conducted, to be posted on the
    12  commissioner's website, as well as in a conspicuous place in his  public
    13  office.  Such  agency  shall be used exclusively as an employment agency
    14  and for no other purpose, except as hereinafter  provided.  The  commis-
    15  sioner  shall  investigate or cause to be investigated the character and
    16  responsibility of the applicant and agency manager and shall examine  or
    17  cause  to be examined the premises designated in such application as the
    18  place in which it is proposed to conduct such agency.
    19    The commissioner shall require all applicants for licenses and  agency
    20  managers  to  be  fingerprinted. Such fingerprints shall be submitted to
    21  the division of criminal justice services for a state  criminal  history
    22  record  check,  as  defined in subdivision one of section three thousand
    23  thirty-five of the education law, and may be submitted  to  the  federal
    24  bureau  of  investigation  for a national criminal history record check.
    25  The criminal history information, if any, received by the [department of
    26  labor]  commissioner  shall  be  considered  in  accordance   with   the
    27  provisions  of article twenty-three-A of the correction law and subdivi-
    28  sions fifteen and sixteen of section two hundred ninety-six of the exec-
    29  utive law. A reasonable time before making a determination on the appli-
    30  cation pursuant to this subdivision, the [department] commissioner shall
    31  provide the applicant with a copy of the  applicant's  criminal  history
    32  information,   if  any.  Where  such  criminal  history  information  is
    33  provided, the [department] commissioner shall also  provide  a  copy  of
    34  article  twenty-three-A of the correction law, and inform such applicant
    35  of his or her right to seek  correction  of  any  incorrect  information
    36  contained  in  such  criminal  history information pursuant to the regu-
    37  lations and procedures established by the division of  criminal  justice
    38  services.
    39    §  3. Section 181 of the general business law, as amended by a chapter
    40  of the laws of 2016, amending  the  general  business  law  relating  to
    41  employment  agencies,  as  proposed in legislative bills numbers S. 8102
    42  and A. 10672, is amended to read as follows:
    43    § 181. Contracts, statements of terms and conditions, and receipts. It
    44  shall be the duty of every employment agency to give to  each  applicant
    45  for employment:
    46    1. A true copy of every contract executed between such agency and such
    47  applicant,  which shall have printed on it or attached to it a statement
    48  setting forth in a clear and concise manner the provisions  of  sections
    49  one hundred eighty-five, and one hundred eighty-six of this article.
    50    2.  (a) [Each contract] For class "C" theatrical employment:  informa-
    51  tion as to the name and address of the person to whom the  applicant  is
    52  to  apply  for such employment, the kind of service to be performed, the
    53  anticipated rate of wages or compensation,  the  agency's  fee  for  the
    54  applicant  based on such anticipated wages or compensation, whether such
    55  employment is permanent or temporary, the name and address of the person
    56  authorizing the hiring of such applicant, and the cost of transportation

        S. 1069                             3
     1  if the services are required outside of the city, town or village  where
     2  such  agency is located. If the job is a conditionally fee-paid job, the
     3  conditions under which the applicant will be required to pay a fee shall
     4  be clearly set forth in a separate agreement in ten-point type signed by
     5  the job applicant.
     6    (b)  for  all  other employment, including class "A" and "A-1" employ-
     7  ment, each contract shall include, but not be limited to, the following:
     8  information as to the name and address of the person to whom the  appli-
     9  cant is to apply for such employment, the name, the address, the mailing
    10  address,  and  the  telephone  number  of  the  employer; the address or
    11  addresses of employment, the kind of service to be performed; the antic-
    12  ipated rate of wages or compensation; the anticipated hours of work  per
    13  day  and  number of days to be worked per week; the agency's fee for the
    14  applicant based on such anticipated wages or compensation; any provision
    15  to the employee, and costs  associated  with  that  provision  including
    16  housing,  health insurance, healthcare, sick leave, holidays and retire-
    17  ment benefits; whether such employment is permanent  or  temporary,  the
    18  anticipated  period  of  employment,  the name and address of the person
    19  authorizing the hiring of such applicant; and the cost of transportation
    20  if the services are required outside of the city, town or village  where
    21  such  agency is located. If the job is a conditionally fee-paid job, the
    22  conditions under which the applicant will be required to pay a fee shall
    23  be clearly set forth in a separate agreement in ten-point type signed by
    24  the job applicant.
    25    [(b)] 3. (a) This paragraph shall apply to all classes  of  employment
    26  except  for class "C" theatrical employment. The employment agency shall
    27  provide  to  each  applicant,  a  separate  document  accompanying  each
    28  contract  summarizing  the  terms  and  conditions  of  the contract [in
    29  commonly understood terms]. This document shall be entitled  "terms  and
    30  conditions"  and  shall  include the language that the document is not a
    31  contract and that such document is not legally binding. [The commission-
    32  er shall promulgate rules and regulations determining  what  information
    33  shall  be  included in the terms and conditions provided by an agency to
    34  an applicant] The terms and conditions shall be provided  in  plain  and
    35  commonly understood terms and language which shall aid the job applicant
    36  in  understanding  the transaction and such document shall limit the use
    37  of technical terms whenever possible.
    38    (b) The terms and conditions shall conform  to  any  templates  estab-
    39  lished  by the commissioner and be made available to employment agencies
    40  in such manner as determined by the  commissioner.  In  developing  such
    41  templates,  the  commissioner  shall afford the public an opportunity to
    42  submit comments on such templates.
    43    (c) The commissioner may promulgate rules and regulations necessary to
    44  carry out the provisions of this section.
    45    [(c) When a job applicant identifies as his or her primary language  a
    46  language  for  which  a template is not available from the commissioner,
    47  the employment agency shall comply with this  subdivision  by  providing
    48  that employee an English-language statement.]
    49    (d)  An  employment  agency shall not be penalized for errors or omis-
    50  sions in the non-English portions of any [notice] templates provided  by
    51  the commissioner.
    52    [3.]  4.  A  receipt  for  any fee, deposit, consideration, or payment
    53  which such agency receives from such applicant, which shall have printed
    54  or written on it the name of the applicant, the name and address of  the
    55  employment  agency,  the date and amount of such fee, deposit, consider-
    56  ation or payment or portion thereof for which the receipt is given,  the

        S. 1069                             4
     1  purpose for which it was paid, and the signature of the person receiving
     2  such  payment.  If  the applicant for employment has been recruited from
     3  outside the state for domestic or household employment the receipt shall
     4  have  printed  on  it,  or attached to it, a copy of section one hundred
     5  eighty-four of this article.  The receipt shall also include, immediate-
     6  ly above the place for signature of the person  receiving  payment,  set
     7  off  in  a box and printed in bold capital letters, the following state-
     8  ment: "An employment agency may not charge you, the job applicant, a fee
     9  before referring you to a job that you accept. If you pay a  fee  before
    10  accepting  a  job  or pay a fee that otherwise violates the law, you may
    11  demand a refund, which shall be repaid within seven days".
    12    [4.] 5. The completed original or duplicate-original copy of each such
    13  contract, statement of terms and conditions,  receipts,  and  any  other
    14  documents  given  to the applicant shall be retained by every employment
    15  agency for three years following the  date  on  which  the  contract  is
    16  executed  or  the  payment  is  made,  and  shall  be made available for
    17  inspection by the commissioner or his duly authorized agent  or  inspec-
    18  tor,  upon  his  request.   Notwithstanding the other provisions of such
    19  contracts, the monetary consideration to be paid by the applicant  shall
    20  not  exceed the fee ceiling provided in subdivision eight of section one
    21  hundred eighty-five of this article.
    22    § 4. Subdivisions 2, 4 and 5 of section 189 of  the  general  business
    23  law,  as  amended by a chapter of the laws of 2016, amending the general
    24  business law relating to employment agencies, as proposed in legislative
    25  bills numbers S. 8102 and A. 10672, are amended to read as follows:
    26    2. To effectuate the purposes of this article, article  nineteen-B  of
    27  the  labor  law  and  sections  37.01,  37.03  and 37.05 of the arts and
    28  cultural affairs law, the commissioner or any duly authorized  agent  or
    29  inspector  designated  by  such  commissioner,  shall  have authority to
    30  inspect the premises, registers, contract  forms,  completed  contracts,
    31  statements  of  terms  and conditions, receipt books, application forms,
    32  referral forms, reference forms, reference reports and financial records
    33  of fees charged and refunds made of  each  employment  agency,  and  any
    34  other record that the employment agency is required to maintain pursuant
    35  to  this  article,  which are essential to the operation of such agency,
    36  and of each applicant for an employment agency license, as frequently as
    37  necessary to ensure compliance with this article and such  sections.  In
    38  no  event  shall any employment agency be inspected less frequently than
    39  once every eighteen months. Inspections may consist of in-person  visits
    40  to  employment  agencies  or  the review of records as described in this
    41  subdivision or both. The  commissioner  shall  also  have  authority  to
    42  subpoena records and witnesses or otherwise to conduct investigations of
    43  any  employer or other person where he or she has reasonable grounds for
    44  believing that such employer or person is violating or has conspired  or
    45  is  conspiring with an employment agency to violate this article or such
    46  sections.
    47    4. Complaints against any such licensed or unlicensed  person  may  be
    48  made  orally or in writing to the commissioner, or be sent in an affida-
    49  vit form without appearing in person, and  may  be  made  by  recognized
    50  employment agencies, trade associations, or others. The commissioner may
    51  hold  a  hearing  on a complaint with the powers provided by section one
    52  hundred seventy-four of this article. If a hearing is  held,  reasonable
    53  notice  thereof,  not  less than five days, shall be given in writing to
    54  said person by serving upon the person either personally, by mail, or by
    55  leaving the same with the person in charge  of  his  office,  a  concise
    56  statement of the facts constituting the complaint, and the hearing shall

        S. 1069                             5
     1  commence  before  the commissioner with reasonable speed but in no event
     2  later than two weeks from the date of the filing of the  complaint.  The
     3  commissioner  when investigating any matters pertaining to the granting,
     4  issuing,  transferring,  renewing, revoking, suspending or cancelling of
     5  any license is authorized in his discretion to take  such  testimony  as
     6  may  be  necessary  on  which  to base official action. When taking such
     7  testimony he may subpoena  witnesses  and  also  direct  the  production
     8  before  him of necessary and material books and papers. A daily calendar
     9  of all hearings shall be kept by the commissioner and shall be posted in
    10  a conspicuous place in his public office for at least one day before the
    11  date of such hearings. The commissioner shall render his decision within
    12  thirty days from the time the matter is finally submitted  to  him.  The
    13  commissioner  shall  keep  a record of all such complaints and hearings.
    14  The office of new Americans shall, pursuant to section ninety-four-b  of
    15  the   executive  law,  receive  complaints[,  attempt  to  mediate  such
    16  complaints,] and where appropriate refer such complaints to the attorney
    17  general or other federal, state or local agency  authorized  by  law  to
    18  take action on such complaint.
    19    5.  Upon  a finding that the licensed person or his agent, employee or
    20  anyone acting on his behalf is guilty of violating any provision of this
    21  article or is not a person of good  character  and  responsibility,  the
    22  commissioner  may suspend or revoke the license of such licensed person.
    23  Any employment agency found to have violated any provision of this arti-
    24  cle shall be subject, for the first offense, to a civil penalty  not  to
    25  exceed  one  thousand  dollars  per  violation, and, for each subsequent
    26  offense within six years of such previous offense, to a  civil  penalty,
    27  not  to  exceed five thousand dollars per violation.  [When] Upon notice
    28  of violation of this article or when it is  determined  that  there  has
    29  been  a  violation  of this article by an employment agency, the commis-
    30  sioner [shall] may provide the employment agency with  a  specific  time
    31  period  for  such employment agency to cure or correct such violation or
    32  take other ameliorative action as  directed  by  the  commissioner,  the
    33  successful completion of which shall prevent the imposition of penalties
    34  on  the employment agency for such violation. Whenever such commissioner
    35  shall suspend or revoke the license of any employment agency,  or  shall
    36  levy  a  fine against any agency, said determination shall be subject to
    37  judicial review in proceedings brought pursuant to article seventy-eight
    38  of the civil practice law and rules.  Whenever  an  employment  agency's
    39  license  is  revoked, another license or agency manager permit shall not
    40  be issued within three years from the date of such  revocation  to  said
    41  licensed  person  or  his  agency manager or to any person with whom the
    42  licensee has been associated in the business of furnishing employment or
    43  engagements. Deputy commissioners, or other officials designated to  act
    44  on  behalf of the commissioner, may conduct hearings and act upon appli-
    45  cations for licenses, and revoke or suspend such licenses, or levy fines
    46  against an employment agency.
    47    § 5. Section 11 of a chapter of the laws of 2016, amending the general
    48  business law relating to employment agencies, as proposed in legislative
    49  bills numbers S. 8102 and A. 10672, is amended to read as follows:
    50    § 11. This act shall take effect immediately; provided, however,  that
    51  the  amendments  to paragraph (b) of subdivision 2 of section 181 of the
    52  general business law made by section four of this act shall take  effect
    53  on the forty-fifth day after it shall have become a law.
    54    §  6.  This  act  shall take effect immediately; provided however that
    55  sections one, two, three, and four of this act shall take effect on  the
    56  same  date  and  in  the  same  manner as a chapter of the laws of 2016,

        S. 1069                             6
     1  amending the general business law relating to  employment  agencies,  as
     2  proposed  in  legislative  bills  numbers  S.  8102  and A. 10672, takes
     3  effect.
feedback