§ 215 — Penalties and civil action; prohibited retaliation

§ 215. Penalties and civil action; prohibited retaliation. 1. (a) No\nemployer or his or her agent, or the officer or agent of any\ncorporation, partnership, or limited liability company, or any other\nperson, shall discharge, threaten, penalize, or in any other manner\ndiscriminate or retaliate against any employee (i) because such employee\nhas made a complaint to his or her employer, or to the commissioner or\nhis or her authorized representative, or to the attorney general or any\nother person, that the employer has engaged in conduct that the\nemployee, reasonably and in good faith, believes violates any provision\nof this chapter, or any order issued by the commissioner (ii) because\nsuch employer or person believes that such employee has made a complaint\nto his or her employer, or to the commissioner or his or her authorized\nrepresentative, or to the attorney general, or to any other person that\nthe employer has violated any provision of this chapter, or any order\nissued by the commissioner (iii) because such employee has caused to be\ninstituted or is about to institute a proceeding under or related to\nthis chapter, or (iv) because such employee has provided information to\nthe commissioner or his or her authorized representative or the attorney\ngeneral, or (v) because such employee has testified or is about to\ntestify in an investigation or proceeding under this chapter, or (vi)\nbecause such employee has otherwise exercised rights protected under\nthis chapter, or (vii) because the employer has received an adverse\ndetermination from the commissioner involving the employee, or (viii)\nbecause such employee has used any legally protected absence pursuant to\nfederal, local, or state law.\n An employee complaint or other communication need not make explicit\nreference to any section or provision of this chapter to trigger the\nprotections of this section.\n As used in this section, to threaten, penalize, or in any other manner\ndiscriminate or retaliate against any employee includes; threatening to\ncontact or contacting United States immigration authorities or otherwise\nreporting or threatening to report an employee's suspected citizenship\nor immigration status or the suspected citizenship or immigration status\nof an employee's family or household member, as defined in subdivision\ntwo of section four hundred fifty-nine-a of the social services law, to\na federal, state or local agency; or assessing any demerit, occurrence,\nany other point, or deductions from an allotted bank of time, which\nsubjects or could subject an employee to disciplinary action, which may\ninclude but not be limited to failure to receive a promotion or loss of\npay.\n (b) If after investigation the commissioner finds that an employer or\nperson has violated any provision of this section, the commissioner may,\nby an order which shall describe particularly the nature of the\nviolation, assess the employer or person a civil penalty of not less\nthan one thousand nor more than ten thousand dollars provided, however,\nthat if the commissioner finds that the employer has violated the\nprovisions of this section in the preceding six years, he or she may\nassess a civil penalty of not less than one thousand nor more than\ntwenty thousand dollars. The commissioner may also order all appropriate\nrelief including enjoining the conduct of any person or employer;\nordering payment of liquidated damages to the employee by the person or\nentity in violation; and, where the person or entity in violation is an\nemployer ordering rehiring or reinstatement of the employee to his or\nher former position or an equivalent position, and an award of lost\ncompensation or an award of front pay in lieu of reinstatement and an\naward of lost compensation. Liquidated damages shall be calculated as an\namount not more than twenty thousand dollars. The commissioner may\nassess liquidated damages on behalf of every employee aggrieved under\nthis section, in addition to any other remedies permitted by this\nsection.\n (c) This section shall not apply to employees of the state or any\nmunicipal subdivisions or departments thereof.\n 2. (a) An employee may bring a civil action in a court of competent\njurisdiction against any employer or persons alleged to have violated\nthe provisions of this section. The court shall have jurisdiction to\nrestrain violations of this section, within two years after such\nviolation, regardless of the dates of employment of the employee, and to\norder all appropriate relief, including enjoining the conduct of any\nperson or employer; ordering payment of liquidated damages, costs and\nreasonable attorneys' fees to the employee by the person or entity in\nviolation; and, where the person or entity in violation is an employer,\nordering rehiring or reinstatement of the employee to his or her former\nposition with restoration of seniority or an award of front pay in lieu\nof reinstatement, and an award of lost compensation and damages, costs\nand reasonable attorneys' fees. Liquidated damages shall be calculated\nas an amount not more than twenty thousand dollars. The court shall\naward liquidated damages to every employee aggrieved under this section,\nin addition to any other remedies permitted by this section. The statute\nof limitations shall be tolled from the date an employee files a\ncomplaint with the commissioner or the commissioner commences an\ninvestigation, whichever is earlier, until an order to comply issued by\nthe commissioner becomes final, or where the commissioner does not issue\nan order, until the date on which the commissioner notifies the\ncomplainant that the investigation has concluded. Investigation by the\ncommissioner shall not be a prerequisite to nor a bar against a person\nbringing a civil action under this section.\n (b) At or before the commencement of any action under this section,\nnotice thereof shall be served upon the attorney general by the\nemployee.\n 3. Any employer or his or her agent, or the officer or agent of any\ncorporation, partnership, or limited liability company, or any other\nperson who violates subdivision one of this section shall be guilty of a\nclass B misdemeanor.\n