§ 345 — Violations, penalties, procedures

New York § 345

• Jurisdiction: New York
• Law LAB: Labor
• Art. 12-A: Special Task Force For the Apparel Industry

Text

§ 345. Violations, penalties, procedures. 1. Any manufacturer or\ncontractor in the apparel industry who has failed to comply with the\nregistration requirements of section three hundred forty-one of this\narticle shall be deemed to have violated this article.\n 2. Any manufacturer or contractor in the apparel industry who has\nfailed to comply within the time specified by law with an order issued\nby the commissioner to comply with the registration requirements of\nsection three hundred forty-one of this article shall be deemed to have\nviolated this article.\n 3. Any manufacturer or contractor in the apparel industry who\ncontracts for the performance of any apparel industry service, as\ndefined in section three hundred forty of this article, with any other\nmanufacturer or contractor who is required to register, but whom the\nmanufacturer or contractor knows has failed to register, failed to renew\nits registration or has had its registration revoked by the commissioner\nshall be deemed to have violated this article.\n 4. (a) The commissioner may impose a civil penalty upon a manufacturer\nor contractor of up to one thousand five hundred dollars for the initial\nviolation of subdivision one, two or three of this section and up to\nthree thousand dollars for the second or subsequent violation of\nsubdivision one, two or three of this section. Instead of, or in\naddition to, such civil penalty, the commissioner may assess and collect\nan administrative penalty of not more than two hundred fifty dollars for\nthe first violation and of not more than five hundred dollars for each\nsubsequent violation. No administrative penalty shall be levied pursuant\nto this paragraph unless the commissioner provides the violator with\nnotification of the violation and of the penalty by certified mail and\nwith an opportunity to request a hearing within fifteen days following\nreceipt of such notice. If a hearing is requested, the commissioner may\nissue a final order upon such hearing and a finding that a violation has\noccurred. If no hearing is requested, such notice shall become a final\norder upon the expiration of such fifteen-day period. Payment of such\nadministrative penalty is due when a final order is issued or when the\nnotice becomes a final order. Any administrative penalty imposed\npursuant to this paragraph may be recovered with costs upon an appeal to\nthe appellate division of the supreme court pursuant to article\nseventy-eight of the civil practice law and rules and upon a final\ndetermination that the finding of the commissioner was in error. Any\ncivil or administrative penalty paid pursuant to this subdivision shall\nbe applied to enforcement and administrative costs of the special task\nforce. In assessing the amount of the penalty, the commissioner shall\ngive due consideration to the size of the manufacturer's or contractor's\nbusiness, its good faith, the gravity of the violation, the history of\nprevious violations of this article and the manufacturer's or\ncontractor's compliance with the recordkeeping or other provisions of\nthis chapter.\n (b) The order imposing such civil penalty may be served personally or\nby certified mail. Such order shall be in writing and shall describe the\nnature of the violation, including reference to the provisions of\nsubdivision one, two or three of this section alleged to have been\nviolated.\n 5. (a) An order issued under this section shall be final and not\nsubject to review by any court or agency unless review is had pursuant\nto section one hundred one of this chapter.\n (b) Provided that no proceeding for administrative or judicial review\nas provided in this chapter shall then be pending and the time for\ninitiation of such proceeding shall have expired, the commissioner may\nfile with the county clerk of the county where the employer resides or\nhas a place of business the order of the commissioner or the decision of\nthe industrial board of appeals containing the amount of the civil\npenalty. The filing of such order or decision shall have the full force\nand effect of a judgment duly docketed in the office of such clerk. The\norder or decision may be enforced by and in the name of the commissioner\nin the same manner, and with like effect, as that prescribed by the\ncivil practice law and rules for the enforcement of a money judgment.\n 6. If any manufacturer or contractor shall have failed to comply\nwithin twenty days of an order by the commissioner to register or renew\nregistration, the commissioner may seek to enjoin such unlawful\nactivity, pursuant to the civil practice law and rules.\n 7. (a) No manufacturer or contractor shall perform services or hold\nitself out as being able to perform services as a registered\nmanufacturer unless such manufacturer or contractor holds a valid\nregistration pursuant to this article. The intentional failure of an\napparel manufacturer or contractor to comply with the registration\nrequirements of section three hundred forty-one of this article shall be\na class B misdemeanor. The officers and agents of any corporation who\nknowingly permit such corporation to violate the registration\nrequirements of section three hundred forty-one of this article shall be\nguilty of a class B misdemeanor.\n (b) A manufacturer or contractor which knowingly violates paragraph\n(a) of this subdivision within three years of having been found guilty\nof violating this subdivision shall be guilty of a class A misdemeanor,\nas defined in the penal law.\n 8. (a) The commissioner may, after a hearing thereon, require, as a\ncondition of continued registration, the payment of a surety bond or may\nrevoke the registration of any manufacturer or contractor for any period\nranging from thirty days to one year upon being found guilty of a second\nviolation of the same provision of this article within any two-year\nperiod. In assessing whether to require a surety bond or revoke such\nregistration, the commissioner shall give due consideration to the size\nof the manufacturer's or contractor's business, its good faith, the\ngravity of the violation, the history of previous violations and the\nmanufacturer's or contractor's compliance with the recordkeeping or\nother provisions of this chapter.\n (b) Such surety bond shall be payable to the state and shall be for\nthe benefit of production employees damaged by any failure of a\nmanufacturer or contractor to pay wages or benefits or otherwise comply\nwith the provisions of this chapter. Such surety bond shall be in the\nsum and form that the commissioner shall deem to be necessary to protect\nsuch production employees but shall in no case exceed twenty-five\nhundred dollars per production employee.\n 9. Any manufacturer or contractor who contracts, for the second time\nwithin any three year period, for the performance of any apparel\nindustry service, as defined in section three hundred forty of this\narticle, with any other manufacturer or contractor whom the manufacturer\nor contractor knows has failed to comply with the registration\nrequirements of section three hundred forty-one of this article shall,\nif such other manufacturer or contractor has failed to pay any civil\npenalty assessed under subdivision one of section three hundred\nforty-five of this article, be liable to pay a civil penalty equal to\nthe civil penalty that such other manufacturer or contractor has been\nassessed. Nothing herein shall affect the right of any manufacturer to\npossess or repossess any apparel, or sections or components of apparel,\nthat are located at any contractor with whom it has contracted.\n 10. (a) Any manufacturer or contractor in the apparel industry who\nships, delivers or sells any apparel or sections of apparel; who knew or\nshould have known that such goods were produced in violation of article\nsix or nineteen of this chapter, shall be deemed to have violated this\narticle;\n (b) Any retailer who sells any apparel or sections of apparel, who\nknew or should have known that such goods were produced in violation of\narticle six or nineteen of this chapter, shall be deemed to have\nviolated this article. Except that no violation of this article shall be\ndeemed to have occurred if the retailer acquired the apparel or sections\nof apparel without notice from the commissioner of any violations of\narticle six or nineteen of this chapter and with the written or\nelectronically transmitted assurance of such manufacturer or contractor,\ngiven before or after production, whether as part of the retailer's\nvendor approval process, purchase contract requirements, electronically\ntransmitted purchase order acknowledgments or invoices, or otherwise,\nthat such goods would be, or were, produced in compliance with this\narticle or, generally, all applicable laws; and\n (c) Subject to the exceptions in paragraph (b) of this subdivision,\nthe supreme court of the state shall have jurisdiction, upon petition of\nthe attorney general, to restrain the shipping, delivery, sale or\npurchase by any manufacturer, contractor or retailer of apparel or\nsections of apparel upon a showing that such apparel or sections of\napparel were, during the previous one hundred eighty days, produced in\nviolation of article six or nineteen of this chapter or sold in\nviolation of paragraph (a) or (b) of this subdivision. Such proceeding\nshall be brought in the county in which the violation is alleged to have\ntaken place. In any such proceeding the court may make allowances to the\nattorney general provided in paragraph six of subdivision (a) of section\neighty-three hundred three of the civil practice law and rules. In\nconnection with such application, the attorney general is authorized to\ntake proof and make a determination of the relevant facts and to issue\nsubpoenas in accordance with the civil practice law and rules.\n