§ 218 — Violations of certain provisions; civil penalties

New York § 218

• Jurisdiction: New York
• Law LAB: Labor
• Art. 7: General Provisions

Text

§ 218. Violations of certain provisions; civil penalties. 1. If the\ncommissioner determines that an employer has violated a provision of\narticle six (payment of wages), article nineteen (minimum wage act),\narticle nineteen-A (minimum wage standards and protective labor\npractices for farm workers), article twenty-one-A (warehouse worker\nprotection act), section two hundred twelve-a, section two hundred\ntwelve-b, section one hundred sixty-one (day of rest) or section one\nhundred sixty-two (meal periods) of this chapter, or a rule or\nregulation promulgated thereunder, the commissioner shall issue to the\nemployer an order directing compliance therewith, which shall describe\nparticularly the nature of the alleged violation. A copy of such order\nshall be provided to any employee who has filed a complaint and any\nauthorized representative of him or her. In addition to directing\npayment of wages, benefits or wage supplements found to be due, and\nliquidated damages in the amount of one hundred percent of unpaid wages,\nsuch order, if issued to an employer who previously has been found in\nviolation of those provisions, rules or regulations, or to an employer\nwhose violation is willful or egregious, shall direct payment to the\ncommissioner of an additional sum as a civil penalty in an amount not to\nexceed double the total amount of wages, benefits, or wage supplements\nfound to be due. In no case shall the order direct payment of an amount\nless than the total wages, benefits or wage supplements found by the\ncommissioner to be due, plus the liquidated damages in the amount of one\nhundred percent of unpaid wages, the appropriate civil penalty, and\ninterest at the rate of interest then in effect, as prescribed by the\nsuperintendent of financial services pursuant to section fourteen-a of\nthe banking law per annum from the date of the underpayment to the date\nof the payment. Where the violation is for a reason other than the\nemployer's failure to pay wages, benefits or wage supplements found to\nbe due, the order shall direct payment to the commissioner of a civil\npenalty in an amount not to exceed one thousand dollars for a first\nviolation, two thousand dollars for a second violation or three thousand\ndollars for a third or subsequent violation. In assessing the amount of\nthe penalty, the commissioner shall give due consideration to the size\nof the employer's business, the good faith basis of the employer to\nbelieve that its conduct was in compliance with the law, the gravity of\nthe violation, the history of previous violations and, in the case of\nwages, benefits or supplements violations, the failure to comply with\nrecordkeeping or other non-wage requirements.\n Where there is a violation of section one hundred ninety-eight-b of\nthis chapter, the order shall direct payment back to the employee of the\namount of wages, supplements or other thing of value unlawfully received\nplus liquidated damages in the amount of one hundred percent of unpaid\nwages, and interest at the rate of interest then in effect, as\nprescribed by the superintendent of financial services pursuant to\nsection fourteen-a of the banking law per annum from the date of the\npayback, return, donation or contribution to the date of payment, and\nshall include such other relief as may be appropriate, including\nrehiring or reinstatement of the employee to his or her former position,\nback wages, and restoration of seniority. In addition, the commissioner\nshall order payment of a civil penalty of at least twenty-five hundred\ndollars but not more than five thousand dollars per violation. In\nassessing the amount of the penalty, the commissioner shall give due\nconsideration to the size of the employer's business, the good faith\nbasis of the employer to believe that its conduct was in compliance with\nthe law, the gravity of the violation, and the history of previous\nviolations.\n At the discretion of the commissioner, the commissioner shall have\nfull authority to provide for inclusion of an automatic fifteen percent\nadditional amount of damages to come due and owing upon expiration of\nninety days from an order to comply becoming final. The commissioner\nshall provide written notice to the employer in the order to comply of\nthis additional damage.\n 2. An order issued under subdivision one of this section shall be\nfinal and not subject to review by any court or agency unless review is\nhad pursuant to section one hundred one of this chapter.\n 3. (a) Provided that no proceeding for administrative or judicial\nreview as provided in this chapter shall then be pending and the time\nfor initiation of such proceeding shall have expired, the commissioner\nmay file with the county clerk of the county where the employer resides\nor has a place of business the order of the commissioner, or the\ndecision of the industrial board of appeals containing the amount found\nto be due including the civil penalty, if any, and at the commissioner's\ndiscretion, an additional fifteen percent damages upon any outstanding\nmonies owed. Notwithstanding any provision to the contrary, in execution\nof any order or decision filed by the commissioner pursuant to this\nsection, the commissioner shall have all the powers conferred upon\nsheriffs by article twenty-five of the civil practice law and rules, but\nthe commissioner shall be entitled to no fee or compensation in excess\nof the actual expenses paid in the performance of such duty.\nAdditionally, at the request of an employee, the commissioner shall\nassign, without consideration or liability, that portion of the filed\norder that constitutes wages, wage supplements, interest on wages or\nwage supplements, or liquidated damages due that employee, to that\nemployee and may file an assignment or order in that amount in the name\nof that employee with the county clerk of the county where the employer\nresides or has a place of business. The filing of such assignment, order\nor decision shall have the full force and effect of a judgment duly\ndocketed in the office of such clerk. The assignment may be enforced by\nthe employee in the same manner, and with like effect, as that\nprescribed by the civil practice law and rules for the enforcement of a\nmoney judgment.\n (b) In addition and as an alternative to any other remedy provided by\nthis section and provided that no proceeding for administrative or\njudicial review as provided in this chapter shall then be pending and\nthe time for initiation of such proceeding shall have expired, the\ncommissioner may issue a warrant under the commissioner's official seal,\ndirected to the sheriff of any county, commanding the sheriff to levy\nupon and sell the real and personal property that may be found within\nthe sheriff's county of an employer who has defaulted in the payment of\nany sum determined to be due from such employer for the payment of such\nsum together with interest, penalties, and the cost of executing the\nwarrant, and to return such warrant to the commissioner and to pay into\nthe fund the money collected by virtue thereof within sixty days after\nthe receipt of such warrant. The sheriff shall, within five days after\nthe receipt of the warrant, file with the clerk of the county a copy\nthereof, and thereupon such clerk shall enter in the judgment docket the\nname of the employer mentioned in the warrant and the amount of the\ncontribution, interest, and penalties for which the warrant is issued\nand the date when such copy is filed. Thereupon the amount of such\nwarrant so docketed shall become a lien upon the title to and interest\nin real property and chattels of the employer against whom the warrant\nis issued in the same manner as a judgment duly docketed in the office\nof such clerk. The sheriff shall then proceed upon the warrant in the\nsame manner, and with like effect, as that provided by law in respect to\nexecutions issued against property upon judgments of a court of record,\nand the sheriff shall be entitled to the same fees, which they may\ncollect in the same manner, for the sheriff's services in executing the\nwarrant.\n (c) In the discretion of the commissioner, a warrant of like terms,\nforce, and effect may be issued and directed to any officer or employee\nof the department of labor who may file a copy of such warrant with the\nclerk of any county in the state, and thereupon each such clerk shall\ndocket it and it shall become a lien in the same manner and with the\nsame force and effect as hereinbefore provided with respect to a warrant\nissued and directed to and filed by a sheriff; and in the execution\nthereof such officer or employee shall have all the powers conferred by\nlaw upon sheriffs, but they shall be entitled to no fee or compensation\nin excess of the actual expenses paid in the performance of such duty.\nIf a warrant is returned not satisfied in full, the commissioner shall\nhave the same remedies to enforce the amount thereof as if the\ncommissioner had recovered judgment for the same.\n 4. The civil penalty provided for in this section shall be in addition\nto and may be imposed concurrently with any other remedy or penalty\nprovided for in this chapter.\n 5. An employer similar in operation and ownership to a prior employer\nwhich had been found in violation of article six, nineteen or nineteen-A\nof this chapter, shall be deemed the same employer for the purposes of\nthis section if the employees of the new employer are engaged in\nsubstantially the same work in substantially the same working conditions\nunder substantially the same supervisors, or if the subsequent employer\nhas substantially the same production process, produces substantially\nthe same products and has substantially the same body of customers. Such\nsubsequent employer shall continue to be subject to this section and\nliable for the acts of the prior employer under this section.\n