§ 219 — Violations of certain wage payment provisions; interest, filing of order as judgment

§ 219. Violations of certain wage payment provisions; interest, filing\nof order as judgment. 1. If the commissioner determines that an employer\nhas failed to pay wages, benefits or wage supplements required pursuant\nto article six (payment of wages), article nineteen (minimum wage act)\nor article nineteen-A (minimum wage standards and protective labor\npractices for farm workers) of this chapter, or a rule or regulation\npromulgated thereunder, the commissioner shall issue to the employer an\norder directing compliance therewith, which shall describe particularly\nthe nature of the alleged violation. A copy of such order shall be\nprovided to any employee who has filed a complaint and to his or her\nauthorized representative. Such order shall direct payment of wages or\nsupplements found to be due, liquidated damages in the amount of one\nhundred percent of unpaid wages, and interest at the rate of interest\nthen in effect as prescribed by the superintendent of financial services\npursuant to section fourteen-a of the banking law per annum from the\ndate of the underpayment to the date of the payment.\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 decision\nof the industrial board of appeals containing the amount found to be\ndue, including, at the commissioner's discretion, an additional fifteen\npercent damages upon any outstanding monies owed. Notwithstanding any\nprovision to the contrary, in execution of any order or decision filed\nby the commissioner pursuant to this section, the commissioner shall\nhave all the powers conferred upon sheriffs by article twenty-five of\nthe civil practice law and rules, but the commissioner shall be entitled\nto no fee or compensation in excess of the actual expenses paid in the\nperformance of such duty. Additionally, at the request of an employee,\nthe commissioner shall assign, without consideration or liability, that\nportion of the filed order that constitutes wages, wage supplements,\ninterest on wages or wage supplements, or liquidated damages due the\nemployee, to that employee and may file an assignment or order in that\namount in the name of such employee with the county clerk of the county\nwhere the employer resides or has a place of business. The filing of\nsuch assignment, order or decision shall have the full force and effect\nof a judgment duly docketed in the office of such clerk. The assignment\nmay be enforced by the employee in the same manner, and with like\neffect, as that prescribed by the civil practice law and rules for the\nenforcement of a money 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 official seal of the\ncommissioner, directed to the sheriff of any county, commanding the\nsheriff to levy upon and sell the real and personal property that may be\nfound within the sheriff's county of an employer who has defaulted in\nthe payment of any sum determined to be due from such employer for the\npayment of such sum together with interest, penalties, and the cost of\nexecuting the warrant, and to return such warrant to the commissioner\nand to pay into the fund the money collected by virtue thereof within\nsixty days after the receipt of such warrant. The sheriff shall, within\nfive days after the receipt of the warrant, file with the clerk of the\ncounty a copy thereof, and thereupon such clerk shall enter in the\njudgment docket the name of the employer mentioned in the warrant and\nthe amount of the contribution, interest, and penalties for which the\nwarrant is issued and the date when such copy is filed. Thereupon the\namount of such warrant so docketed shall become a lien upon the title to\nand interest in real property and chattels of the employer against whom\nthe warrant is issued in the same manner as a judgment duly docketed in\nthe office of such clerk. The sheriff shall then proceed upon the\nwarrant in the same manner, and with like effect, as that provided by\nlaw in respect to executions issued against property upon judgments of a\ncourt of record, and the sheriff shall be entitled to the same fees,\nwhich they may collect in the same manner, for the sheriff's services in\nexecuting the warrant.\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. An employer similar in operation and ownership to a prior employer\nfound to be in violation of article six, nineteen or nineteen-A of this\nchapter, shall be deemed the same employer for the purposes of this\nsection if the employees of the subsequent employer are engaged in\nsubstantially the same work in substantially the same working conditions\nunder substantially the same supervisors, or if the new entity has\nsubstantially the same production process, produces substantially the\nsame products and has substantially the same body of customers. Such a\nsubsequent employer will continue to be subject to this section and\nshall be liable for the acts of the prior employer under this section.\n