Bill Text: NY S09811 | 2023-2024 | General Assembly | Introduced

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Bill Title: Removes the requirement that an employer has employed an average of one thousand or more persons in the past three years in order to pay less frequently than weekly, but not less frequently than semi-monthly; provides for damages for violations where the employer paid the employee wages on a regular payday, no less frequently than semi-monthly.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-05-31 - REFERRED TO LABOR [S09811 Detail]

Download: New_York-2023-S09811-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9811

                    IN SENATE

                                      May 31, 2024
                                       ___________

        Introduced  by  Sen.  COONEY -- 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  payments,  costs  and
          damages

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subparagraph (ii)  of  paragraph  a  of  subdivision  1  of
     2  section  191  of  the labor law, as amended by chapter 38 of the laws of
     3  1989 and the opening paragraph as amended by chapter 168 of the laws  of
     4  1993, is amended to read as follows:
     5    (ii)  The  commissioner  may  authorize  an employer [which has in the
     6  three years preceding the application employed an average of  one  thou-
     7  sand  or  more  persons  in this state or has for one year preceding the
     8  application employed an average of one thousand or more persons in  this
     9  state  and  has  for  three  years preceding the application employed an
    10  average of three thousand or more persons outside the state] to pay less
    11  frequently than weekly but not less frequently than semi-monthly if  the
    12  employer furnishes satisfactory proof to the commissioner of its contin-
    13  uing ability to meet its payroll responsibilities. In making this deter-
    14  mination  the commissioner shall consider the following: (A) the employ-
    15  er's history meeting its payroll responsibilities in New York  state  or
    16  if  no  such  history  in  New  York state is available, other financial
    17  information, as requested by the commissioner,  which  will  assist  the
    18  commissioner  in determining the likelihood of the employer's continuing
    19  ability to meet payroll responsibilities; (B) proof  of  the  employer's
    20  coverage  for workers' compensation and disability; (C) proof that there
    21  are no outstanding warrants of the department of taxation and finance or
    22  the department of labor against the employer for failure to remit  state
    23  personal  income  tax  withholdings  or  unemployment insurance contrib-
    24  utions; and (D) proof that the employer has a computerized record  keep-
    25  ing system for payroll which, at a minimum, specifies hours worked, rate
    26  of  pay,  gross wages, deductions and date of pay for each employee.  If
    27  the employers' manual workers are represented by a  labor  organization,
    28  the  commissioner shall not grant an employer's application for authori-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15819-01-4
        S. 9811                             2

     1  zation under this subparagraph unless that labor  organization  consents
     2  thereto.
     3    §  2.  Subdivision  1-a of section 198 of the labor law, as amended by
     4  chapter 362 of the laws of 2015, is amended to read as follows:
     5    1-a. On behalf of any employee paid less than the wage to which [he or
     6  she] such employee is entitled under the provisions of this article, the
     7  commissioner may bring any legal action necessary, including administra-
     8  tive action, to collect such claim and as part of such legal action,  in
     9  addition  to  any other remedies and penalties otherwise available under
    10  this article, the commissioner shall assess  against  the  employer  the
    11  full amount of any such underpayment, and an additional amount as liqui-
    12  dated damages, unless the employer proves a good faith basis for believ-
    13  ing  that  its  underpayment  of  wages  was in compliance with the law.
    14  Liquidated damages shall be calculated by the commissioner  as  no  more
    15  than  one  hundred percent of the total amount of wages found to be due,
    16  except such liquidated damages may be up to three hundred percent of the
    17  total amount of the wages found to be due for  a  willful  violation  of
    18  section  one  hundred  ninety-four of this article.  Notwithstanding the
    19  provisions of this subdivision, liquidated damages shall not be applica-
    20  ble to violations of paragraph a  of  subdivision  one  of  section  one
    21  hundred  ninety-one of this article where the employer paid the employee
    22  wages on a regular payday, no less frequently  than  semi-monthly.  Such
    23  violations shall be subject to damages as follows:
    24    (i)  no more than one hundred percent of the lost interest found to be
    25  due for the delayed payment of wages calculated using a  daily  interest
    26  rate  for  each day payment is late based on the annual rate of interest
    27  then in  effect,  as  prescribed  by  the  superintendent  of  financial
    28  services  pursuant  to  section  fourteen-a  of  the banking law for the
    29  employer's first violation; or
    30    (ii) three hundred percent of the lost interest found to  be  due  for
    31  the  delayed payment of wages calculated using a daily interest rate for
    32  each day payment is late based on the annual rate of  interest  then  in
    33  effect, as prescribed by the superintendent of financial services pursu-
    34  ant to section fourteen-a of the banking law for any employer subject to
    35  a previous order issued under section two hundred nineteen of this chap-
    36  ter  for  violations  of  paragraph  a of subdivision one of section one
    37  hundred ninety-one of this article for which no proceeding for  adminis-
    38  trative  or  judicial  review as provided in this chapter is pending and
    39  the time for initiation of such proceeding shall have expired and relat-
    40  ing to employees performing the same work; or
    41    (iii) for a violation occurring after the effective date of the  chap-
    42  ter  of  the laws of two thousand twenty-four that amended this subdivi-
    43  sion, liquidated damages equal  to  twenty-five  percent  of  the  total
    44  amount  of  the  wages  found  to be paid in violation of paragraph a of
    45  subdivision one of section one hundred ninety-one of this article if the
    46  employer, after the effective date of the chapter of  the  laws  of  two
    47  thousand  twenty-four that amended this subdivision, has been issued two
    48  or more separate orders under section two hundred nineteen of this chap-
    49  ter for violations of paragraph a of  subdivision  one  of  section  one
    50  hundred  ninety-one of this article for which no proceeding for adminis-
    51  trative or judicial review as provided in this chapter  is  pending  and
    52  the time for initiation of such proceeding shall have expired and relat-
    53  ing to employees performing the same work.
    54    For purposes of this section, an order under section two hundred nine-
    55  teen  of  this chapter shall constitute a single order regardless of the
    56  number of employees or the time period that was subject to  such  order.
        S. 9811                             3

     1  In  any action instituted in the courts upon a wage claim by an employee
     2  or the commissioner in which the  employee  prevails,  the  court  shall
     3  allow  such employee to recover the full amount of any underpayment, all
     4  reasonable  attorney's  fees, prejudgment interest as required under the
     5  civil practice law and rules, and, unless the  employer  proves  a  good
     6  faith  basis to believe that its underpayment of wages was in compliance
     7  with the law, an additional amount as liquidated damages  equal  to  one
     8  hundred percent of the total amount of the wages found to be due, except
     9  such  liquidated damages may be up to three hundred percent of the total
    10  amount of the wages found to be due for a willful violation  of  section
    11  one hundred ninety-four of this article.
    12    §  3. This act shall take effect immediately and shall apply to causes
    13  of action pending or commenced on or after such effective date.