STATE OF NEW YORK ________________________________________________________________________ 1794 2017-2018 Regular Sessions IN SENATE January 10, 2017 ___________ Introduced by Sens. SQUADRON, HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to independent contractors The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding two new sections 196-b 2 and 196-c to read as follows: 3 § 196-b. Definitions. For purposes of this article the term: 4 1. "Compensation" means the earnings of an independent contractor. 5 The term "compensation" also includes reimbursement for expenses. 6 2. "Independent contractor" means a sole proprietor who is not an 7 employee and who is hired or retained by a client for an amount equal to 8 or greater than six hundred dollars. 9 3. "Client" includes a corporation, limited liability company, part- 10 nership, association or non-profitmaking organization contracting with 11 an independent contractor in any occupation, industry, trade, business 12 or service for compensation equal to or greater than six hundred 13 dollars. The term "client" shall not include a governmental entity, 14 including but not limited to, any agency, board, department, commission 15 of the state or any political subdivision thereof; and client shall not 16 include a person. The term "client" shall not include owners of one and 17 two-family dwellings. 18 § 196-c. Payment of independent contractors. 1. An independent 19 contractor shall be paid the compensation earned in accordance with the 20 agreed work terms but not later than the last day of the month following 21 the month in which the compensation is earned. The agreed work terms 22 shall be reduced in writing, signed by both the client and the independ- 23 ent contractor, kept on file by the client for a period of not less than 24 six years and made available to the commissioner upon request. Such 25 writing shall include a description of how compensation earned and paya- 26 ble shall be calculated. The failure of a client to produce such written EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04413-01-7

S. 1794 2 1 work terms, upon request of the commissioner, shall give rise to a 2 presumption that the terms that the independent contractor has presented 3 are the agreed terms. 4 2. The commissioner shall investigate and attempt to adjust equitably 5 controversies between clients and independent contractors relating to 6 this section. 7 3. The commissioner may take assignments of claims for compensation as 8 defined in section one hundred ninety-six-b of this article from inde- 9 pendent contractors or third parties in trust for such independent 10 contractors or for the various funds for such independent contractors. 11 All such assignments shall run to the commissioner and his successor in 12 office. The commissioner may sue companies on compensation claims thus 13 assigned. He may join in a single action any number of compensation 14 claims against the same company. 15 4. Any independent contractor may file with the commissioner a 16 complaint regarding a violation of this article for an investigation of 17 such complaint and statement setting the appropriate remedy, if any. 18 Failure of a client to keep adequate records shall not operate as a bar 19 to filing of a complaint by an independent contractor. In such a case 20 the client in violation shall bear the burden of proving that the 21 complaining independent contractor was paid compensation. 22 5. On behalf of any independent contractor paid less than the compen- 23 sation to which he or she is entitled under the agreed work terms under 24 the provisions of this article, the commissioner may bring any legal 25 action necessary, including administrative action, to collect such claim 26 and as part of such legal action, in addition to any other remedies and 27 penalties otherwise available under this article, the commissioner may 28 assess against the client an additional amount as liquidated damages 29 equal to twenty-five percent of the total amount of compensation found 30 to be due, unless the client proves a good faith basis for believing 31 that its underpayment of compensation was in compliance with the law. In 32 any action instituted in the courts upon a compensation claim by an 33 independent contractor or the commissioner in which the independent 34 contractor prevails, the court shall allow such independent contractor 35 reasonable attorney's fees and, unless the client proves a good faith 36 basis to believe that its underpayment of compensation was in compliance 37 with the law, an additional amount as liquidated damages equal to twen- 38 ty-five percent of the total amount of compensation found to be due. The 39 remedies provided by this article may be enforced simultaneously or 40 consecutively so far as not inconsistent with each other. 41 6. Notwithstanding any other provision of law, an action to recover 42 upon a liability imposed by this article must be commenced within six 43 years. All independent contractors shall have the right to recover full 44 compensation accrued during the six years previous to the commencing of 45 such action, whether such action is instituted by the independent 46 contractor or by the commissioner. 47 7. Each independent contractor who files a complaint regarding a 48 violation of a provision of this article shall be provided with a writ- 49 ten description of the anticipated processing of the complaint, includ- 50 ing investigation, case conference, potential civil and criminal penal- 51 ties, and collection procedures. 52 8. Each independent contractor and his or her representative shall be 53 notified in writing of any case conference before it is held and given 54 the opportunity to attend. 55 9. Each independent contractor and his or her representative shall be 56 notified in writing of any award and collection of back compensation and

S. 1794 3 1 civil penalties, and of any intent to seek criminal penalties. In the 2 event that criminal penalties are sought the independent contractor and 3 his or her representative shall be notified of the outcome of prose- 4 cution. 5 10. If the commissioner determines that a client has violated a 6 provision of this article, or a rule or regulation promulgated there- 7 under, by failing to pay the compensation of their independent contrac- 8 tors, the commissioner shall issue to the client an order directing 9 compliance therewith, which shall describe particularly the nature of 10 the alleged violation, and order the payment of interest at the rate of 11 interest then in effect as prescribed by the superintendent of financial 12 services pursuant to section fourteen-a of the banking law per annum 13 from the date of the underpayment to the date of the payment. In addi- 14 tion to directing payment of compensation found to be due, such order, 15 if issued to a client who previously has been found in violation of 16 those provisions, rules or regulations, or to a client whose violation 17 is willful or egregious, shall direct payment to the commissioner of an 18 additional sum as a civil penalty in an amount equal to double the total 19 amount found to be due. 20 11. Every client who does not pay the compensation of all of its inde- 21 pendent contractors in accordance with the provisions of this chapter, 22 and the officers and agents of any client who knowingly permit the 23 client to violate this chapter by failing to pay the compensation of any 24 of its independent contractors in accordance with the provisions there- 25 of, shall be guilty of a misdemeanor for the first offense and upon 26 conviction therefor shall be fined not less than five hundred nor more 27 than twenty thousand dollars or imprisoned for not more than one year, 28 and, in the event that any second or subsequent offense occurs within 29 six years of the date of conviction for a prior offense, shall be guilty 30 of a felony for the second or subsequent offense, and upon conviction 31 therefor, shall be fined not less than five hundred nor more than twenty 32 thousand dollars or imprisoned for not more than one year plus one day, 33 or punished by both such fine and imprisonment, for each such offense. 34 § 2. This act shall take effect immediately.

Relates to payment of independent contractors

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