On August 17, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
John L. Hyman,
and
Leeding Builders Group Llc,
for Torts - Other (NYLL wage violations)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
EXHIBIT J
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
LD #87-4
to4
Barbara C. Deinhardt
Deputy Commissioner of Labor
for Legal Affairs
AN ACT to amend the labor
law, in relation to
civil penalties for
violation of certain
provisions relating
to the payment of
wages, notice and
recordkeeping
Purpose of Bill:
To provide for civil penalties and interest
assessments against violators of notice, recordkeeping and
other non-wage requirements set forth in the labor law; to
provide for civil penalties against violators of the farm
minimum wage law.
Summary of Provisions of Bill:
The bill amends Section 218 of 'he La'lor Law to
provide a civil penalty for violation of the notice and
recordkeeping requirements imposed upon no,.-f, . minimum wage
employers and farm labor contractors, growers, processors and
commissary operators. The penalties available would be up to
$500 for a first violation, $1,500 for a second violation and
$2,000 for a third or subsequent violation. The Commissioner
is authorized to waive the penalty for a first violation
occurring before January 1, 1989 if proof of compliance is
submitted to the Commissioner within a specified time period.
The bill adds two new subdivisions to. §680 of the
Labor Law which will apply to violations of farm minimum wage
requirements as well as violations of notice, recordkeeping
and registration requirements applicable to farm employment.
These amendments also provide for graduated penalties and for
a waiver of the penalty for an initial violation upon proof of
compliance.
Amendment of S680(2) allows the Commissioner to
issue an order to a farm employer directing payment of wages,
supplements and interest found to be due under the farm
minimum wage law. In addition to directing payment of such
amounts found to be due, the Commissioner shall also assess a
•
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
2
civil penalty of up to ten percent of the amount found to be
due. For a first offense, the penalty will be waived if the
employer submits evidence of satisfactory compliance with the
other terms and conditions of the order within fifteen days.
After January 1, 1989, the first time, non-willful employer
will also have to submit proof of completion of a compliance
conference before the Commissioner will waive the penalty. A
second violation will also carry a penalty of ten percent of
the amount found to be due and a third violation will carry a
penalty of fifteen percent of the amount found to be due. A
fourth and subsequent violation will result in a penalty of
twenty-five percent of the amount found to be due.
The bill also amends 5680(3) to provide that the
commissioner may assess a civil penalty of from $500 for a
first violation to $2,000 for a fourth or subsequent violation
against farm minimum wage employers for violations of notice
and recordkeeping requirements set forth in Article 19-A of
the Labor Law. The Commissioner is authorized to waive the
penalty for a first non-willful violation if proof of
compliance is submitted to the Commissioner within a specified
time period. Subsequent to January 1, 1989, the first time,
non-willful employer will be required to submit proof of
completion of a compliance conference before the Commissioner
will waive the penalty.
All of the civil penalties provided for in the bill
are in addition to criminal penalties already provided for
under the Law.
Existing Law:
Sections 218 and 219 of the Labor Law, respectively,
provide that the Commissioner of Labor may assess a civil
penalty and interest: against an employer who has been found in
violation of Articles 6 and 19 of the Labor Law. Article 6
deals primarily with the payment of wages and benefits and
Article 19 contains the provisions of the state minimum wage
law. The violations which may be redressed under these
sections include only those involving failure to pay wages,
supplements or other benefits.
Labor Law, Section 212-a, provides that no person
shall act as a ..'farm labor contractor without holding a
certificate of registration issued by the Comissioner of
Labor. The contractor must provide information on wages,
working conditions, housing and similar matters to the
Commissioner and to the farm laborers whom he recruits. A
copy of the application must be posted in a conspicuous place
in any camp in which the farm workers are housed. The statute
•
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
3
also requires that detailed payroll records to be kept by the
contractor and to be given to each worker. If the contractor
does not comply with these notice and recordkeeping
requirements, the grower or processor must do so upon
notification from the Commissioner. The Labor Law also
forbids the operation of a farm commissary without a permit.
Following a hearing the Commissioner may refuse to
grant, suspend or revoke a farm labor certificate or a
commissary permit for violations of the law.
Statement in Support of Hill;
The only penalties currently available against farm
minimum wage employers who violate the requirements of Article
19-A and its rules and regulations are criminal in nature.
Such penalties have been viewed by the courts as onerous but
are difficult to impose and have gradually given way in other
areas of the law to more flexible civil penal',:ies. Civil
penalties have long been available against non-farm minimum
wage employers and have proven to be a useful enforcement
tool. There is no reason to exempt farm employers from
liability to such penalties when violation of the law not only
deprives workers of wages and supplements to which they are
entitled but also places farm employers who are complying with
the law in a bad competitive position.
The penalty provisions have been fashioned to allow
for consideration of factor. such as the size of the business
and its prior history before imposition of a penalty. In
addition, an employer may avoid imposition of a penalty
altogether Eor a first violation where he fully complies with
other aspects of the Commissioner's order within fifteen days
of its issuance. The required attendance at- a compliance
conference will enable the Department to inform the employer
of the legal requirements under existing law. By educating
non-willful violators in this manner, the Department will
prevent recurring non-willful violations by the same employer.
Providing a penalty for violations of recordkeeping
and other requirements found in the Labor Law will foster
compliance with these requirements. This is particularly
important since the lack of such records makes investigations
of other violations impossible and will have a serious impact
on the ability of the Department to enforce fundamental wage
and hour laws. Moreover, failure to notify employees of wage
and hour policies encourages exploitation of workers,
especially in industries such as agriculture and garment
manufacturing, where inexperienced workers are particularly
susceptible to employer abuse.
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
4
The results of a series of routine inspections
carried out by Department of Labor staff in 1986 illustrate
the scope of the problem in this regard. An analysis of the
completed farm inspections disclosed the following:
- Districts completed 186 farm inspections and
found 165 farms to be in violation of one or
more Labor. Law requirements. This represents
an 88.7% violation rate.
- There were 110 employers who failed to post a
summary of Article 19-A of the Labor Law in
accord with Section 190-6.1(1) requirements.
This represents a 59% violation rate.
- There were 132 employers who failed to post a
copy of the work agreement in accord with
Section 190-6.1(1) requirements. This
represents a 70.9% violation rate.
- There were 146 employers who failed to notify
employees in writing of the conditions of
employment (work agreement) in accord with
Section 190-6.1(2) requirements. This
represents a 78% violation rate.
- There were 67 employers who failed to provide
proper wage statements in accord with Section
190-8.1 requirements. This represents a 36%
violation rate.
- There were 74 employers who failed to keep
proper payroll records. This represents a 40%
violation rate.
There were 32 employers who were found to be in
violation of the Migrant Registration Law.
This represents a 17% violation rate.
All of the proposed penalty provisions are flexible,
since they take into consideration the size of the offender's
business, the length of time it has been in business, the
seriousness of the violation and previous violations and
conduct. The provisions which allow docketing the final order
as a judgment after exhausting the possibility of review or
appeal are comparable to the civil penalty provisions of the
Industrial Homework Law (Labor Law, Section 361-b).
r.
•
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023
Budgetary Implications:
Some additional funds may be needed to effectively
enforce this proposal.
Document Filed Date
October 18, 2023
Case Filing Date
August 17, 2023
Category
Torts - Other (NYLL wage violations)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 EXHIBIT J FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 LD #87-4 to4 Barbara C. Deinhardt Deputy Commissioner of Labor for Legal Affairs AN ACT to amend the labor law, in relation to civil penalties for violation of certain provisions relating to the payment of wages, notice and recordkeeping Purpose of Bill: To provide for civil penalties and interest assessments against violators of notice, recordkeeping and other non-wage requirements set forth in the labor law; to provide for civil penalties against violators of the farm minimum wage law. Summary of Provisions of Bill: The bill amends Section 218 of 'he La'lor Law to provide a civil penalty for violation of the notice and recordkeeping requirements imposed upon no,.-f, . minimum wage employers and farm labor contractors, growers, processors and commissary operators. The penalties available would be up to $500 for a first violation, $1,500 for a second violation and $2,000 for a third or subsequent violation. The Commissioner is authorized to waive the penalty for a first violation occurring before January 1, 1989 if proof of compliance is submitted to the Commissioner within a specified time period. The bill adds two new subdivisions to. §680 of the Labor Law which will apply to violations of farm minimum wage requirements as well as violations of notice, recordkeeping and registration requirements applicable to farm employment. These amendments also provide for graduated penalties and for a waiver of the penalty for an initial violation upon proof of compliance. Amendment of S680(2) allows the Commissioner to issue an order to a farm employer directing payment of wages, supplements and interest found to be due under the farm minimum wage law. In addition to directing payment of such amounts found to be due, the Commissioner shall also assess a • FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 2 civil penalty of up to ten percent of the amount found to be due. For a first offense, the penalty will be waived if the employer submits evidence of satisfactory compliance with the other terms and conditions of the order within fifteen days. After January 1, 1989, the first time, non-willful employer will also have to submit proof of completion of a compliance conference before the Commissioner will waive the penalty. A second violation will also carry a penalty of ten percent of the amount found to be due and a third violation will carry a penalty of fifteen percent of the amount found to be due. A fourth and subsequent violation will result in a penalty of twenty-five percent of the amount found to be due. The bill also amends 5680(3) to provide that the commissioner may assess a civil penalty of from $500 for a first violation to $2,000 for a fourth or subsequent violation against farm minimum wage employers for violations of notice and recordkeeping requirements set forth in Article 19-A of the Labor Law. The Commissioner is authorized to waive the penalty for a first non-willful violation if proof of compliance is submitted to the Commissioner within a specified time period. Subsequent to January 1, 1989, the first time, non-willful employer will be required to submit proof of completion of a compliance conference before the Commissioner will waive the penalty. All of the civil penalties provided for in the bill are in addition to criminal penalties already provided for under the Law. Existing Law: Sections 218 and 219 of the Labor Law, respectively, provide that the Commissioner of Labor may assess a civil penalty and interest: against an employer who has been found in violation of Articles 6 and 19 of the Labor Law. Article 6 deals primarily with the payment of wages and benefits and Article 19 contains the provisions of the state minimum wage law. The violations which may be redressed under these sections include only those involving failure to pay wages, supplements or other benefits. Labor Law, Section 212-a, provides that no person shall act as a ..'farm labor contractor without holding a certificate of registration issued by the Comissioner of Labor. The contractor must provide information on wages, working conditions, housing and similar matters to the Commissioner and to the farm laborers whom he recruits. A copy of the application must be posted in a conspicuous place in any camp in which the farm workers are housed. The statute • FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 3 also requires that detailed payroll records to be kept by the contractor and to be given to each worker. If the contractor does not comply with these notice and recordkeeping requirements, the grower or processor must do so upon notification from the Commissioner. The Labor Law also forbids the operation of a farm commissary without a permit. Following a hearing the Commissioner may refuse to grant, suspend or revoke a farm labor certificate or a commissary permit for violations of the law. Statement in Support of Hill; The only penalties currently available against farm minimum wage employers who violate the requirements of Article 19-A and its rules and regulations are criminal in nature. Such penalties have been viewed by the courts as onerous but are difficult to impose and have gradually given way in other areas of the law to more flexible civil penal',:ies. Civil penalties have long been available against non-farm minimum wage employers and have proven to be a useful enforcement tool. There is no reason to exempt farm employers from liability to such penalties when violation of the law not only deprives workers of wages and supplements to which they are entitled but also places farm employers who are complying with the law in a bad competitive position. The penalty provisions have been fashioned to allow for consideration of factor. such as the size of the business and its prior history before imposition of a penalty. In addition, an employer may avoid imposition of a penalty altogether Eor a first violation where he fully complies with other aspects of the Commissioner's order within fifteen days of its issuance. The required attendance at- a compliance conference will enable the Department to inform the employer of the legal requirements under existing law. By educating non-willful violators in this manner, the Department will prevent recurring non-willful violations by the same employer. Providing a penalty for violations of recordkeeping and other requirements found in the Labor Law will foster compliance with these requirements. This is particularly important since the lack of such records makes investigations of other violations impossible and will have a serious impact on the ability of the Department to enforce fundamental wage and hour laws. Moreover, failure to notify employees of wage and hour policies encourages exploitation of workers, especially in industries such as agriculture and garment manufacturing, where inexperienced workers are particularly susceptible to employer abuse. FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 4 The results of a series of routine inspections carried out by Department of Labor staff in 1986 illustrate the scope of the problem in this regard. An analysis of the completed farm inspections disclosed the following: - Districts completed 186 farm inspections and found 165 farms to be in violation of one or more Labor. Law requirements. This represents an 88.7% violation rate. - There were 110 employers who failed to post a summary of Article 19-A of the Labor Law in accord with Section 190-6.1(1) requirements. This represents a 59% violation rate. - There were 132 employers who failed to post a copy of the work agreement in accord with Section 190-6.1(1) requirements. This represents a 70.9% violation rate. - There were 146 employers who failed to notify employees in writing of the conditions of employment (work agreement) in accord with Section 190-6.1(2) requirements. This represents a 78% violation rate. - There were 67 employers who failed to provide proper wage statements in accord with Section 190-8.1 requirements. This represents a 36% violation rate. - There were 74 employers who failed to keep proper payroll records. This represents a 40% violation rate. There were 32 employers who were found to be in violation of the Migrant Registration Law. This represents a 17% violation rate. All of the proposed penalty provisions are flexible, since they take into consideration the size of the offender's business, the length of time it has been in business, the seriousness of the violation and previous violations and conduct. The provisions which allow docketing the final order as a judgment after exhausting the possibility of review or appeal are comparable to the civil penalty provisions of the Industrial Homework Law (Labor Law, Section 361-b). r. • FILED: NEW YORK COUNTY CLERK 10/18/2023 12:09 PM INDEX NO. 158194/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/18/2023 Budgetary Implications: Some additional funds may be needed to effectively enforce this proposal.