§ 189 — Enforcement of provisions of this article

§ 189. Enforcement of provisions of this article. 1. This article,\narticle nineteen-B of the labor law and sections 37.01, 37.03 and 37.05\nof the arts and cultural affairs law shall be enforced by the\ncommissioner of labor, except that in the city of New York this article\nand such sections shall be enforced by the commissioner of consumer\naffairs of such city. In addition to the powers of the commissioner, the\nattorney general may enforce the provisions of this article to the\nextent permitted under section sixty-three of the executive law.\n 2. To effectuate the purposes of this article, article nineteen-B of\nthe labor law and sections 37.01, 37.03 and 37.05 of the arts and\ncultural affairs law, the commissioner or any duly authorized agent or\ninspector designated by such commissioner, shall have authority to\ninspect the premises, registers, contract forms, completed contracts,\nstatements of terms and conditions, receipt books, application forms,\nreferral forms, reference forms, reference reports and financial records\nof fees charged and refunds made of each employment agency, and any\nother record that the employment agency is required to maintain pursuant\nto this article, which are essential to the operation of such agency,\nand of each applicant for an employment agency license, as frequently as\nnecessary to ensure compliance with this article and such sections. In\nno event shall any employment agency be inspected less frequently than\nonce every eighteen months. Inspections may consist of in-person visits\nto employment agencies or the review of records as described in this\nsubdivision or both. The commissioner shall also have authority to\nsubpoena records and witnesses or otherwise to conduct investigations of\nany employer or other person where he or she has reasonable grounds for\nbelieving that such employer or person is violating or has conspired or\nis conspiring with an employment agency to violate this article or such\nsections.\n 3. To effectuate the purposes of this article, the commissioner may\nmake reasonable administrative rules within the standards set in this\narticle. Before such rules shall be issued, the commissioner shall\nconduct a public hearing, giving due notice thereof to all interested\nparties. No rule shall become effective until fifteen days after it has\nbeen filed in the office of the department of state, if it is a rule of\nthe industrial commissioner, or in the office of the clerk of the city\nof New York, if it is a rule of the commissioner of licenses of such\ncity, and copies thereof shall be furnished to all employment agencies\naffected at least fifteen days prior to the effective date of such rule.\n 4. Complaints against any such licensed or unlicensed person may be\nmade orally or in writing to the commissioner, or be sent in an\naffidavit form without appearing in person, and may be made by\nrecognized employment agencies, trade associations, or others. The\ncommissioner may hold a hearing on a complaint with the powers provided\nby section one hundred seventy-four of this article. If a hearing is\nheld, reasonable notice thereof, not less than five days, shall be given\nin writing to said person by serving upon the person either personally,\nby mail, or by leaving the same with the person in charge of his office,\na concise statement of the facts constituting the complaint, and the\nhearing shall commence before the commissioner with reasonable speed but\nin no event later than two weeks from the date of the filing of the\ncomplaint. The commissioner when investigating any matters pertaining to\nthe granting, issuing, transferring, renewing, revoking, suspending or\ncancelling of any license is authorized in his discretion to take such\ntestimony as may be necessary on which to base official action. When\ntaking such testimony he may subpoena witnesses and also direct the\nproduction before him of necessary and material books and papers. A\ndaily calendar of all hearings shall be kept by the commissioner and\nshall be posted in a conspicuous place in his public office for at least\none day before the date of such hearings. The commissioner shall render\nhis decision within thirty days from the time the matter is finally\nsubmitted to him. The commissioner shall keep a record of all such\ncomplaints and hearings. The office of new Americans shall, pursuant to\nsection ninety-four-b of the executive law, receive complaints and where\nappropriate refer such complaints to the attorney general or other\nfederal, state or local agency authorized by law to take action on such\ncomplaint.\n 5. Upon a finding that the licensed person or his agent, employee or\nanyone acting on his behalf is guilty of violating any provision of this\narticle or is not a person of good character and responsibility, the\ncommissioner may suspend or revoke the license of such licensed person.\nAny employment agency found to have violated any provision of this\narticle shall be subject, for the first offense, to a civil penalty not\nto exceed one thousand dollars per violation, and, for each subsequent\noffense within six years of such previous offense, to a civil penalty,\nnot to exceed five thousand dollars per violation. Upon notice of\nviolation of this article or when it is determined that there has been a\nviolation of this article by an employment agency, the commissioner may\nprovide the employment agency with a specific time period for such\nemployment agency to cure or correct such violation or take other\nameliorative action as directed by the commissioner, the successful\ncompletion of which shall prevent the imposition of penalties on the\nemployment agency for such violation. Whenever such commissioner shall\nsuspend or revoke the license of any employment agency, or shall levy a\nfine against any agency, said determination shall be subject to judicial\nreview in proceedings brought pursuant to article seventy-eight of the\ncivil practice law and rules. Whenever an employment agency's license is\nrevoked, another license or agency manager permit shall not be issued\nwithin three years from the date of such revocation to said licensed\nperson or his agency manager or to any person with whom the licensee has\nbeen associated in the business of furnishing employment or engagements.\nDeputy commissioners, or other officials designated to act on behalf of\nthe commissioner, may conduct hearings and act upon applications for\nlicenses, and revoke or suspend such licenses, or levy fines against an\nemployment agency.\n 6. If any provisions of this article or the application thereof to any\nperson or circumstances is held unconstitutional, the remainder of the\narticle and the application of that provision to other persons and\ncircumstances shall not be affected thereby.\n