Enacts the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"; relates to the delegation of state enforcement authority to private actors; authorizes an aggrieved employee, whistleblower, representative organization or an organizational deputy to initiate a public enforcement action on behalf of the commissioner for certain provisions of the labor law, or any regulation promulgated thereunder.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1893A
SPONSOR: Joyner TITLE OF BILL:
An act to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"
SUMMARY OF PROVISIONS:
The legislation adds a new Article 35 to the labor law, which estab-
lishes the right of a public enforcement action through which an
affected employee or a representative organization or organizational
deputy may commence a civil action on behalf of the commissioner of
labor for the purpose of enforcing any provision of the labor law.
Section 1021 of Article 35 specifies that such action may provide for a
civil penalty to be collected by the commissioner and that multiple
violations that have affected different employees may be the subject of
such complaint.
Section 1021 Subsection 2 (a) authorizes a court to exercise the same
discretion as the commissioner in determining whether to assess a civil
penalty. Subsection 2 (b) establishes a minimum civil penalty of five
hundred dollars per period per violation. Subsection 2 (c) provides that
any affected employee or representative organization which prevails
shall be entitled to reasonable attorney's fees. Subsection 3 estab-
lishes a schedule for the distribution of any civil penalties recovered.
Subsection 4 prohibits the use of private agreements to limit the right
of employees to pursue a public enforcement action unless such agree-
ments are collectively bargained and the bargaining agreement provides a
forum for the enforcement of rights enforceable under this article.
Section 1021 Subsection 5 establishes a six year statute of limitations.
Section 1021 Subsection 6 establishes that public enforcement actions
"belong to the state" and shall, with some exceptions, preclude subse-
quent state enforcement action. Subsection 7 prohibits retaliatory
action by an employer because a relator brought an enforcement action of
cooperated with one. The section also establishes that any affection
person or relator may bring a public enforcement action for all appro-
priate relief.
Section 1022 Subsection 1 establishes the process for the filing of a
public enforcement action including the requirement for sixty-day writ-
ten notice and the items that must be included in such notice.
Section 1022 Subsection 2 allows the commissioner or the Attorney Gener-
al to appoint an organizational deputy to serve as the relator.
Section 1022 Subsection 3 authorizes the commissioner or the Attorney
General to intervene in a public enforcement action and proceed with any
and all claims.
Section 1022 Subsection 4 establishes that the commissioner or the
Attorney General, whoever intervenes may take primary responsibility for
litigating the action.
Section 1022 Subsection 5 requires that either the commissioner, the
Attorney General, or a federal or state court of competent jurisdiction
shall approve any settlement arrived at under this act.
Section 1022 Subsection 6 a representative organization may only initi-
ate an action pursuant to this article if an affected employee elects
such organization in writing using a form approved by the commissioner
and the Attorney General
Section 1022 Subsection 7 provides the relator with the right to amend
the notice after it has been filed.
Section 1022 Subsection 8 ensures prompt trial.
Section 1022 Subsection 9 states that no public enforcement action
brought under this is required to meet the requirements of Rule 23(a) of
the Federal Rules of Civil Procedure.
Section 1022 Subsection 10-11 provides for the rules governing discov-
ery.
Section 1023 Subsection 1 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the unemployment insurance law.
Section 1023 Subsection 2 indicates that this article shall not apply to
the recovery of administrative and civil penalties in connection with
the New York State Labor Relations Act.
Section 1023 Subsection 3 incorporates a severability clause.
Section 1023 Subsection 4 authorizes this article to be construed in
light of its remedial purposes to expand the enforcement of this chap-
ter.
Section 4 is the effective date. This act shall take effect immediately
and shall permit relators to bring actions that occurred within six
years prior to the act's enactment.
JUSTIFICATION:
An estimated 2.1 million New York workers are victims of wage theft each
year, with a total of more than $3 billion stolen in wages and benefits.
Wage theft costs our State millions of dollars a year in lost revenue
and leaves law-abiding employers at a major competitive disadvantage.
The New York State Department of Labor lacks the resources needed to
effectively investigate and prosecute wage theft at scale and is heavily
reliant upon uncertain federal funding. As a result, New York's workers
may be increasingly vulnerable to exploitation.
This legislation extends the reach of the state's public enforcement
provisions in order to help ensure that exploitative employers do not
get away with wage theft and other abuses; to help establish a level
playing field on which law abiding employers can afford to compete; to
protect the public interest; and to generate revenue to fund the New
York State Department of Labor's own work. Extending the capacity and
reach of New York's public enforcement strategies is critically impor-
tant in this era for a number of reasons. The public and private
enforcement mechanisms that have played a major role in wage theft and
workers' rights enforcement for decades are being undermined in a number
of ways, including: (a) unscrupulous employers who are using this moment
of fear to intimidate and threaten workers into accepting exploitation;
(b) a lack of sufficient funding for the Department has limited its
capacity to enforce existing provisions of the Labor Law. In addition,
private enforcement is often difficult to undertake in smaller workplac-
es and industries where workers' wage theft claims are small, and in
rural communities where workers face challenges identifying counsel.
The EMPIRE Worker Protection Act enables workers to "step into the
shoes" of the government for the purposes of enforcing the New York.
Labor Law, and claims filed under the EMPIRE Worker Protection Act are
public in nature and not subject to private agreements. The EMPIRE Work-
er Protection Act builds upon recent advances in New York's labor
protections, specifically the 2015 Achieve Pay Equity bill, which
amended the law to strengthen the State's protections against pay
discrimination for women. Additionally the EMPIRE Worker Protection Act
is a proven model for strengthening labor law enforcement with Califor-
nia having enacted similar legislation. That legislation has assisted
our nation's largest state in resolving thousands of labor violations
and generated more than $28 million in revenue for the California
Department of Labor since 2013.
PRIOR LEGISLATIVE HISTORY:
S. 12-A of 2021-2022 (Hoylman): Died in Labor
A. 5876 of 2021-2022 (Joyner): Died in Labor
S.1848-A of 2019-2020 (Hoylman): Died in Labor
A.2265-A of 2019-2020 (Joyner): Died in Labor
S.6426 of 2017-2018 (Hoylman): Died in Labor
A.7958 of 2017-2018 (Joyner): Died in Labor
FISCAL IMPLICATIONS:
Will result in increased revenue for the State.
EFFECTIVE DATE:
This act shall take effect immediately, and shall permit relators to
bring actions that occurred within the six years prior to the act's
enactment.
STATE OF NEW YORK
________________________________________________________________________
1893--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. JOYNER, ALVAREZ, REYES, SHRESTHA, MAMDANI, KIM,
DINOWITZ, GALLAGHER, EPSTEIN, COLTON, L. ROSENTHAL, SIMON, TAYLOR,
CRUZ, BORES, FORREST, CARROLL, CUNNINGHAM, BURDICK, DAVILA, LAVINE --
Multi-Sponsored by -- M. of A. SEAWRIGHT -- read once and referred to
the Committee on Labor -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the labor law, in relation to enacting the "Empowering
People in Rights Enforcement (EMPIRE) Worker Protection Act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection
3 Act".
4 § 2. Legislative findings. 1. The legislature finds and declares that
5 violations of the labor law are often systemic, affecting many workers.
6 2. The legislature further finds and declares that despite the labor
7 law's strong protections for workers, limits on the availability of
8 public enforcement resources have deleterious effects on the marketplace
9 by allowing abuses targeting workers to persist unprosecuted. To ensure
10 the robust enforcement of the labor law, while minimizing the outlay of
11 scarce state funds, this act allows private individuals, labor organiza-
12 tions, and labor organizations deputized by the state to bring public
13 enforcement actions in certain contexts in which the state does not have
14 the means to fully enforce labor law protections.
15 3. The legislature further finds and declares that the purpose of the
16 EMPIRE Worker Protection Act is to create a means of empowering citizens
17 as private attorneys general to enforce the New York labor law.
18 4. The legislature further finds and declares that the purpose of the
19 EMPIRE Worker Protection Act is to incentivize private parties to
20 recover civil penalties for the government that otherwise may not have
21 been assessed and collected by overburdened state enforcement agencies.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02068-05-3
A. 1893--A 2
1 When the New York labor law is effectively enforced, it protects the
2 interests of all New Yorkers and the state of New York. Such public
3 enforcement actions are an efficient mechanism to limit systemic
4 violations, will enforce the rights of more workers, and can benefit the
5 department of labor with enhanced resources.
6 5. The legislature further finds and declares that the purpose of the
7 EMPIRE Worker Protection Act is to benefit those employers who are oper-
8 ating within the labor law, and who, as a result, face unfair competi-
9 tion from individuals and entities shirking the labor law.
10 6. The legislature further finds and declares that the purpose of the
11 EMPIRE Worker Protection Act is to deter employers from stealing wages
12 or committing other violations of the New York labor law and raise the
13 cost of noncompliance with the New York labor law.
14 7. The legislature further finds and declares that the purpose of the
15 EMPIRE Worker Protection Act is to incentivize labor organizations to
16 aid working people to report violations of the New York labor law.
17 8. The legislature further finds and declares that the purpose of the
18 EMPIRE Worker Protection Act is to facilitate whistleblowers suffering
19 from violations of the New York labor law to report abuses without fear
20 of retaliation and intimidation.
21 9. The legislature further finds and declares that the EMPIRE Worker
22 Protection Act is part of a history both in New York state and in the
23 United States of laws enabling private citizens to aid in public
24 enforcement. In similar qui tam legislation enabling private citizens to
25 aid in public enforcement, the resulting action is a public enforcement
26 action.
27 § 3. The labor law is amended by adding a new article 35 to read as
28 follows:
29 ARTICLE 35
30 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT
31 Section 1020. Definitions.
32 1021. Public enforcement action.
33 1022. Procedure.
34 1023. Non-application.
35 § 1020. Definitions. Whenever used in this article:
36 1. "affected employee" means any employee as defined by section two of
37 this chapter who was employed by the alleged violator employer and
38 against whom one of the alleged violations was committed, or was alleged
39 to have been committed, as well as any person who is not classified by a
40 business as an employee but who claims to be an employee and whose
41 claims against the purported employer relate to this alleged misclassi-
42 fication, whether or not that person has received full or partial relief
43 from harm.
44 2. "relator" means an affected employee, a whistleblower, a represen-
45 tative organization, or an organizational deputy that acts as a plain-
46 tiff in a public enforcement action under this chapter.
47 3. "whistleblower" means any current or former employee, contractor,
48 subcontractor, or employee of a contractor or subcontractor of the
49 defendant with knowledge of the alleged violations that is independent
50 of and materially adds to any publicly disclosed information about the
51 alleged violations. Whistleblowers are not also "affected employees" if
52 they do not seek civil penalties for violations that personally affected
53 them in a public enforcement action under this chapter.
54 4. "employer" means any employer as defined by section two of this
55 chapter. The term "employer" shall not include a governmental agency.
A. 1893--A 3
1 5. "representative organization" means a labor organization as defined
2 by subsection (g) of section four thousand four hundred two of the
3 insurance law and which has been selected by an affected employee or
4 whistleblower to initiate a public enforcement action on the affected
5 employee's or whistleblower's behalf, in written notice in such a manner
6 as the commissioner may prescribe by regulation. Where a representative
7 organization is designated as the relator, the affected employee or
8 whistleblower may elect to have their name and personal identifying
9 information be kept confidential until the relator, in its sole
10 discretion, deems sharing such information is necessary to establish,
11 litigate, mediate, settle, or otherwise pursue the claim.
12 6. "public enforcement action" means an action brought under this
13 article intended to enforce this chapter's protections enforceable by
14 the commissioner. Nothing in this article shall be interpreted to
15 permit a public enforcement action against a governmental agency.
16 7. "commissioner" shall, for the purposes of this article, include the
17 commissioner, and any division, board, commission, or part of the
18 department authorized to impose or seek penalties or other remedies for
19 violations of this chapter.
20 8. "violation" means an employer's noncompliance with any of the
21 requirements of the following articles of this chapter and with regu-
22 lations and wage orders promulgated by the commissioner in implementing
23 such articles:
24 a. article six except sections one hundred ninety, one hundred nine-
25 ty-one-a, one hundred ninety-six, one hundred ninety-six-a, one hundred
26 ninety-eight-a, one hundred ninety-nine, and one hundred ninety-nine-a;
27 b. article nineteen except sections six hundred fifty, six hundred
28 fifty-one, six hundred fifty-three through six hundred sixty, six
29 hundred sixty-two, and six hundred sixty-five;
30 c. sections one hundred sixty, one hundred sixty-one, one hundred
31 sixty-two, one hundred sixty-three-a, one hundred sixty-seven, and one
32 hundred seventy of article five;
33 d. article nineteen-A except sections six hundred seventy through six
34 hundred seventy-two, six hundred seventy-four through six hundred seven-
35 ty-eight, six hundred eighty, and six hundred eighty-three;
36 e. article nineteen-B except sections six hundred ninety, six hundred
37 ninety-three, and six hundred ninety-four;
38 f. article nine except sections two hundred thirty, two hundred thir-
39 ty-four through two hundred thirty-six, and two hundred thirty-eight;
40 g. article twenty-five-A except sections eight hundred sixty, eight
41 hundred sixty-a, eight hundred sixty-c through eight hundred sixty-f,
42 and eight hundred sixty-i;
43 h. article twenty-five-B except sections eight hundred sixty-one
44 through eight hundred sixty-one-b;
45 i. article twenty-five-C except sections eight hundred sixty-two and
46 eight hundred sixty-two-a;
47 j. article eight except sections two hundred twenty-e through two
48 hundred twenty-four, two hundred twenty-four-b, and two hundred twenty-
49 four-c;
50 k. article twenty-C;
51 l. sections two hundred, two hundred one-g, two hundred six-c, two
52 hundred fifteen, and two hundred eighteen-b of article seven; and
53 m. section twenty-seven-d of article two.
54 9. "organizational deputy" means a labor organization as defined by
55 subsection (g) of section four thousand four hundred two of the
56 insurance law that has been appointed by the commissioner or the attor-
A. 1893--A 4
1 ney general to represent the state as the relator in the public enforce-
2 ment action. The commissioner or the attorney general shall have
3 complete discretion to determine what labor organizations may serve as
4 their organizational deputy in a public enforcement action.
5 § 1021. Public enforcement action. 1. A relator may initiate a public
6 enforcement action to collect civil penalties on behalf of the commis-
7 sioner for a violation impacting affected employees pursuant to the
8 procedures specified in section one thousand twenty-two of this article.
9 A relator may allege multiple violations that have affected different
10 employees and may seek injunctive and declaratory relief that the state
11 would be entitled to seek.
12 2. a. For purposes of this section, whenever the commissioner has
13 discretion to assess a civil penalty, a court is authorized to exercise
14 the same discretion to assess a civil penalty. To the extent that the
15 commissioner is authorized to determine that an employer has violated a
16 provision of this chapter or regulation promulgated thereunder, in a
17 public enforcement action, a court shall be authorized to determine that
18 an employer has committed such a violation.
19 b. For any violation defined in this article, except those for which a
20 civil penalty is specifically provided, there is established a civil
21 penalty of five hundred dollars for each affected employee per pay peri-
22 od per violation. A court may not award a lesser amount, unless, based
23 on the facts and circumstances of the particular case, the employer
24 demonstrates that to do otherwise would result in an award that is
25 unjust, arbitrary and oppressive, or confiscatory.
26 c. In any civil action commenced pursuant to this article, the court
27 shall allow a prevailing relator to recover all reasonable attorneys'
28 fees, expert fees and other costs. The court may also allow a prevail-
29 ing relator to recover all reasonable ancillary costs associated with
30 serving as a relator. For the purposes of this article, the term
31 "prevailing" includes a relator whose commencement of litigation has
32 acted as a catalyst to effect policy change on the part of the defend-
33 ant, regardless of whether that change has been implemented voluntarily,
34 as a result of a settlement or as a result of a judgment in such
35 relator's favor.
36 d. Nothing in this section shall operate to limit an affected employ-
37 ee's right to pursue or recover other remedies available under state or
38 federal law, either separately or concurrently with an action taken
39 under this section.
40 e. Nothing in this section shall operate to limit the commissioner's
41 or the attorney general's right to seek restitution and damages, where
42 available, for affected employees in conjunction with a public enforce-
43 ment action in which it has intervened.
44 3. a. Civil penalties recovered in public enforcement actions shall
45 be distributed as follows: where the commissioner or the attorney
46 general has not intervened, or where the commissioner or the attorney
47 general has appointed an organizational deputy to proceed as the rela-
48 tor, forty percent to the relator; and sixty percent to the commissioner
49 for enforcement of this chapter and education of employers and employees
50 about their rights and responsibilities under this chapter, to be
51 continuously appropriated to supplement and not supplant the funding to
52 the agency for those purposes; where the commissioner or the attorney
53 general has intervened, thirty percent to the relator; and seventy
54 percent to the commissioner for enforcement of this chapter and educa-
55 tion of employers and employees about their rights and responsibilities
A. 1893--A 5
1 under this chapter, to be continuously appropriated to supplement and
2 not supplant the funding to the agency for those purposes.
3 b. The relator shall equitably distribute the share of penalties due
4 the relator among affected employees. If the relator is an affected
5 employee or whistleblower, they shall also be entitled to recover a
6 service award from the penalties recovered, if they prevail in achieving
7 relief, in whole or in part, for violations that affected other employ-
8 ees. The service award shall be not less than five thousand dollars and
9 not more than twenty thousand dollars, unless the amount recovered as
10 civil penalties is less than twenty thousand dollars. The court shall
11 determine the service award by taking due consideration of the burdens
12 and risks assumed by the relator in prosecuting the action. If the rela-
13 tor is a representative organization or an organizational deputy
14 appointed by the commissioner or the attorney general, it shall distrib-
15 ute all recovered penalties to affected employees but may recover
16 reasonable attorneys' fees and costs incurred in prosecuting the action
17 and ancillary costs associated with serving as a relator. The relator
18 shall submit a distribution summary to the commissioner and the attorney
19 general.
20 4. The right to bring a public enforcement action under this article
21 shall not be subject to private agreements between an affected employee
22 and an employer or alleged employer, unless such agreements are collec-
23 tively bargained and the bargaining agreement provides a forum for the
24 enforcement of rights and remedies otherwise enforceable under this
25 article. The right to represent the state with respect to violations
26 affecting other workers shall not be waivable by private agreement,
27 unless such agreements are collectively bargained and the bargaining
28 agreement provides a forum for the enforcement of rights and remedies
29 otherwise enforceable under this article, including an award of penal-
30 ties authorized by this article.
31 5. Notwithstanding any other provision of law, a public enforcement
32 action to recover upon a penalty imposed by this article must be
33 commenced within six years. The statute of limitations for bringing a
34 public enforcement action under this article shall be tolled from the
35 date a relator files a notice pursuant to section one thousand twenty-
36 two of this article with the commissioner and the attorney general, or
37 the commissioner or the attorney general commences an investigation,
38 whichever is earlier.
39 6. The commissioner shall establish a database of public enforcement
40 notices submitted pursuant to this article, including the parties, the
41 disposition and any other information which the commissioner shall by
42 regulation prescribe and shall make such database available to the
43 public online. The commissioner shall also publish an annual report of
44 total penalties recovered under this chapter.
45 7. a. No employer or his or her agent, employee, contractor, subcon-
46 tractor or the officer or agent of any corporation, partnership, or
47 limited liability company, or any other person shall discharge, demote,
48 suspend, threaten, harass, or in any other manner discriminate against
49 any person because of any lawful act done because:
50 (i) the relator or potential relator brought or is perceived to have
51 brought a public enforcement action;
52 (ii) the relator or potential relator has provided information, caused
53 information to be provided, or otherwise assisted in a public enforce-
54 ment action or provided information, or caused information to be
55 provided to a person with supervisory authority over the relator or
A. 1893--A 6
1 potential relator regarding conduct that the relator or potential rela-
2 tor reasonably believes constitutes a violation of this section; or
3 (iii) the person believes that the relator or potential relator may
4 bring a public enforcement action or cooperate with one.
5 b. Any person affected by a violation of this subdivision, or any
6 affected employee, whistleblower, representative organization, organiza-
7 tional deputy, or the commissioner, or the attorney general may bring a
8 public enforcement action for all appropriate relief, including enjoin-
9 ing the conduct of any person or employer; ordering payment of civil
10 penalties as provided by section two hundred fifteen of this chapter,
11 costs and reasonable attorneys' fees to the employee by the person or
12 entity in violation; and, where the person or entity in violation is an
13 employer, ordering rehiring or reinstatement of the employee to his or
14 her former position with restoration of seniority. Any person affected
15 by a violation of this subdivision may also bring a civil action in a
16 court of competent jurisdiction against any employer or persons alleged
17 to have violated the provisions of this subdivision pursuant to subdivi-
18 sion two of section two hundred fifteen of this chapter.
19 c. There shall be a rebuttable presumption that any adverse actions
20 taken against a relator within one hundred eighty days after the relator
21 has filed an action under this chapter is retaliatory. Nothing in this
22 subdivision shall be interpreted to prohibit an inference of retaliatory
23 motive after one hundred eighty days after the relator has filed an
24 action under this chapter.
25 § 1022. Procedure. 1. No public enforcement action by a relator pursu-
26 ant to section one thousand twenty-one of this article may be commenced:
27 a. prior to sixty days after written notice has been given by the
28 relator to the commissioner and to the attorney general. The relator
29 shall submit a filing fee of seventy-five dollars to the commissioner,
30 and the time periods in this section shall begin when notice and filing
31 fee have been submitted. The fees required by this paragraph are subject
32 to waiver in accordance with rules promulgated by the commissioner. The
33 written notice shall be given in such a manner as the commissioner may
34 prescribe by regulation, shall be construed in a light favorable to the
35 relator, and shall include:
36 (i) the name, address and contact information of the employer.
37 (ii) the name, address, and contact information of the affected
38 employee or whistleblower.
39 (iii) if the action is brought by a representative organization, the
40 name, address and contact information of the representative organiza-
41 tion, its qualification as a representative organization as defined in
42 this chapter, and the form on which the whistleblower or affected
43 employee has designated the representative organization.
44 (iv) if the action is brought by an affected employee or whistleblow-
45 er, the name, address, and contact information of any labor organization
46 that has assisted with the filing of the written notice, and who would
47 be available to serve as an organizational deputy should they be so
48 appointed by the commissioner or the attorney general.
49 (v) the name, address and contact information of the relator's legal
50 counsel, should one exist.
51 (vi) a statement of the underlying claim.
52 (vii) if the relator is a "whistleblower", the relator's knowledge of
53 the alleged violations that is independent of and materially adds to
54 publicly disclosed information.
55 (viii) after searching the database established pursuant to subdivi-
56 sion six of section one thousand twenty-one of this article for notices
A. 1893--A 7
1 alleging the same facts and legal theories, a summary of such notices or
2 statement that no such notices exist, provided that a notice filed by a
3 pro se litigant may not be rejected for failure to conduct such a
4 search.
5 b. if the commissioner or the attorney general, at any time prior to
6 the end of the sixty-day notice period prescribed in paragraph a of this
7 subdivision or prior to commencement of such action, whichever is later,
8 and upon written notice to the relator who provided the notice
9 prescribed in paragraph a of this subdivision, has commenced and is
10 actively prosecuting an administrative enforcement proceeding pursuant
11 to this chapter relative to the alleged violation.
12 c. if the commissioner or the attorney general, on the same facts and
13 theories, cites a person within the timeframes set forth in this section
14 for a violation of the same section or sections of this chapter under
15 which the relator is attempting to recover a civil penalty or remedy on
16 behalf of himself or herself or others.
17 d. if the violation is of a posting or agency reporting requirement or
18 agency filing requirement, except where the filing or reporting require-
19 ment involves mandatory payroll or injury reporting.
20 e. if the violation is for minor variations in the legal name or
21 address of the employer in a wage statement or wage notice required
22 under article six of this chapter, provided that the variations do not
23 impair a worker's ability to promptly and easily identify the employer.
24 2. The commissioner or the attorney general may, after receiving the
25 notice, appoint an organizational deputy for the commissioner or the
26 attorney general (based on who makes the appointment) to serve as the
27 relator, instead of the person who filed the notice. That organizational
28 deputy may then proceed with the public enforcement action on behalf of
29 the state. If the commissioner or the attorney general has appointed an
30 organizational deputy as the relator, that organizational deputy shall
31 serve as the relator in accordance with all the other procedures
32 outlined in this article. The decision to appoint an organizational
33 deputy shall not be construed as the commissioner's or the attorney
34 general's direct intervening in the public enforcement action.
35 3. The commissioner or the attorney general may intervene in the
36 public enforcement action and proceed with any and all claims in the
37 action:
38 a. as of right within the sixty-day notice period prescribed in para-
39 graph a of subdivision one of this section;
40 b. for good cause, as determined by the court, after the expiration of
41 the sixty-day notice period prescribed in paragraph a of subdivision one
42 of this section; or
43 c. if a previous relator becomes unavailable to continue the public
44 enforcement action, by appointing an organizational deputy for the
45 commissioner or the attorney general (based on who makes the appoint-
46 ment) to proceed with the public enforcement action on behalf of the
47 state. If the commissioner or the attorney general has so appointed an
48 organizational deputy, the organizational deputy shall serve as the
49 relator in accordance with all the other procedures outlined in this
50 article. The decision to appoint an organizational deputy shall not be
51 construed as the commissioner or the attorney general directly interven-
52 ing in the public enforcement action.
53 4. If the commissioner or the attorney general intervenes in an
54 action, he or she may take primary responsibility for litigating the
55 action and shall not be bound by an act of the relator bringing the
56 action. In such cases, the relator shall remain a party to the action.
A. 1893--A 8
1 The commissioner or the attorney general may also intervene in the
2 action for the limited purpose of filing a statement of interest or
3 otherwise advancing the state's view about legal issues at stake in the
4 action. If the commissioner or the attorney general has intervened for
5 the purpose of taking primary responsibility for litigating the action,
6 the commissioner or attorney general may dismiss or settle the action
7 after the relator has been notified of the filing of the motion and has
8 been provided with an opportunity to be heard, and the court determines
9 that such dismissal or settlement is fair, adequate, reasonable, and in
10 the public interest.
11 5. Either the commissioner, the attorney general, or a federal or
12 state court of competent jurisdiction shall review and approve any
13 settlement of any civil action filed pursuant to this article or of any
14 claim for which a relator has provided notice pursuant to this section.
15 The commissioner, the attorney general, or the court shall approve the
16 settlement if it is fair, reasonable and adequate, in light of the stat-
17 utory purpose of the provision of this chapter alleged to have been
18 violated and the purpose of this article.
19 6. a. The relator shall, within ten days following commencement of a
20 civil action pursuant to this article, provide the commissioner and the
21 attorney general with a file-stamped copy of the complaint that includes
22 the case number assigned by the court.
23 b. If the commissioner or the attorney general so requests, he or she
24 shall be served with copies of pleadings filed in the action and shall
25 be supplied with copies of all deposition transcripts. The commissioner
26 or the attorney general shall bear any costs associated with service of
27 such pleadings and depositions if there are such costs.
28 c. A copy of the court's judgment in any civil action filed pursuant
29 to this article and any other order in that action that either provides
30 for or denies an award of civil penalties under this article shall be
31 submitted to the commissioner and the attorney general within ten days
32 after entry of the judgment or order.
33 d. Items required to be submitted to the commissioner under this
34 subdivision shall be transmitted in such a manner as the commissioner
35 shall prescribe for the filing of notices under paragraph a of subdivi-
36 sion one of this section.
37 7. Such regulations prescribed pursuant to paragraph a of subdivision
38 one of this section shall provide for the right of the relator to
39 furnish an amended notice, after the notice by the commissioner to the
40 relator that the original notice was not in compliance with this section
41 or the regulations issued thereunder and specifying with particularity
42 what the deficiencies were in the original notice. Such notice and
43 opportunity to amend shall be provided by the commissioner within sixty
44 days of the original notice or the original notice shall be deemed in
45 compliance with this section. The relator shall have thirty days from
46 receiving notice from the commissioner that their original notice was
47 not in compliance with this section to amend the notice.
48 8. A public enforcement action shall be tried promptly, without regard
49 to concurrent adjudication of private claims, including without regard
50 to concurrent adjudication of claims for violations personally affecting
51 the relator.
52 9. No public enforcement action brought pursuant to this article shall
53 be required to meet the requirements of Rule 23(a) of the Federal Rules
54 of Civil Procedure or article nine of the civil practice law and rules.
55 10. The rules governing pretrial discovery in a public enforcement
56 action brought pursuant to this article shall be the same as those
A. 1893--A 9
1 applicable to other civil actions. No special showing of merit or other
2 additional requirement shall be imposed on a relator's discovery rights
3 in such an action.
4 11. A relator bringing an action pursuant to this article shall be
5 entitled to discovery regarding the alleged violations as to all
6 affected employees as defined in this article.
7 12. When related public enforcement actions are pending, the parties
8 shall immediately notify the courts overseeing such actions of the over-
9 lap and submit a joint statement describing the overlap, which may
10 propose a process to ensure the just, speedy, and efficient determi-
11 nation of the actions. The court may appoint lead enforcement counsel
12 with sole responsibility for asserting the related claims, with consid-
13 eration of the following factors:
14 a. the work that counsel has done in investigating the claims;
15 b. counsel's experience litigating labor law and past performance in
16 similar cases;
17 c. counsel's diligence in advancing the case;
18 d. the resources that counsel has committed and will commit to prose-
19 cuting the case, and the relative resources at counsel's disposal; and
20 e. the length of time each action has been pending.
21 § 1023. Non-application. 1. This article shall not apply to the recov-
22 ery of administrative and civil penalties in connection with the unem-
23 ployment insurance law as contained in article eighteen of this chapter.
24 2. This article shall not apply to the recovery of administrative and
25 civil penalties in connection with the New York state labor relations
26 act as contained in article twenty of this chapter.
27 3. Severability. If any word, phrase, clause, sentence, paragraph,
28 subdivision, section or part of this article or the application thereof
29 to any person or circumstances shall be adjudged invalid by a court of
30 competent jurisdiction, such order or judgment shall be confined in its
31 operation to the controversy in which it was rendered, and shall not
32 affect or invalidate the remainder of this article, but shall be
33 confined in its operation to the word, phrase, clause, sentence, para-
34 graph, subdivision, section or part thereof directly involved in the
35 controversy in which such judgment shall have been rendered.
36 4. This article shall be construed in light of its remedial purposes
37 to expand the enforcement of this chapter.
38 § 4. This act shall take effect immediately, and shall permit relators
39 to bring actions concerning New York Labor Law violations that occurred
40 within the six years prior to this act's effective date, unless the
41 Labor Law provides a shorter statute of limitations with respect to the
42 specific violation in question, in which case that shorter statute of
43 limitations shall apply.
