What's happening
The EMPIRE Worker Protection Act allows private individuals and organizations to enforce New York labor laws through public enforcement actions when state resources are insufficient.
Why it matters
Empowers workers and advocacy groups. The bill allows not only individual workers but also labor unions and certain nonprofits to sue employers for labor law violations on behalf of the state, broadening who can take action and increasing leverage for workers.
Creates significant financial incentives for enforcement. Successful lawsuits can recover civil penalties, with a substantial share (up to 45%) going directly to affected workers, and a portion to advocacy organizations (if involved), while the majority (55%) supports state enforcement and education—potentially deterring violations and funding future oversight.
Raises the stakes for employers. The law establishes a default penalty of $500 per employee per pay period for violations not already specified elsewhere, unless the employer can prove a lesser amount is justified, which could lead to very large penalties for systemic abuses.
Limits private waivers and state redundancy. Workers cannot sign away their right to bring these actions in private agreements, and once a public enforcement action is underway, it generally precludes duplicative state enforcement on the same facts, ensuring clarity and efficiency in prosecution.
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Let Workers Sue for Violations
Plain English, a few words. Used as the page title.
Sponsors
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History
- Referred to labor
- Referred to labor
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Let Workers Enforce Labor Laws
In Assembly Committee · Labor · Sponsor Latoya Joyner
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6426
2017-2018 Regular Sessions
IN SENATE
May 18, 2017
Introduced by Sen. 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 enacting the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Short title. This act shall be known and may be cited as the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act".
§ 2. Legislative findings. 1. The legislature finds and declares that violations of the labor law are often systemic, affecting many workers.
2. The legislature further finds and declares that despite the labor law's strong protections for workers, limits on the availability of public enforcement resources have deleterious effects on the marketplace by allowing abuses targeting workers to persist unprosecuted. To ensure the robust enforcement of the labor law, while minimizing the outlay of scarce state funds, this act allows private individuals to bring public enforcement actions in certain contexts in which the state does not have the means to fully enforce labor law protections.
3. The legislature further finds and declares that the purpose of the EMPIRE Worker Protection Act is to create a means of empowering citizens as private attorneys general to enforce the New York labor law.
4. The legislature further finds and declares that the purpose of the EMPIRE Worker Protection Act is to incentivize private parties to recover civil penalties for the government that otherwise may not have been assessed and collected by overburdened state enforcement agencies. Such representative actions are an efficient mechanism to limit systemic violations, will enforce the rights of more workers, and can benefit the department of labor with enhanced resources.
5. The legislature further finds and declares that the purpose of the EMPIRE Worker Protection Act is to benefit those employers who are oper-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11483-02-7
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ating within the labor law, and who, as a result, face unfair competition from individuals and entities shirking the labor law.
6. The legislature further finds and declares that the purpose of the EMPIRE Worker Protection Act is to incentivize labor organizations and not-for-profit organizations to aid working people to report violations of the New York labor law.
7. The legislature further finds and declares that the purpose of the EMPIRE Worker Protection Act is to facilitate whistleblowers suffering from violations of the New York labor law to report abuses without fear of retaliation and intimidation.
8. The legislature further finds and declares that the EMPIRE Worker Protection Act is part of a history both in New York state and in the United States of laws enabling private citizens to aid in public enforcement in the whistleblower and more recently in the labor context. In similar qui tam legislation enabling private citizens to aid in public enforcement, the resulting action is in reality a public enforcement action.
9. The legislature further finds and declares that the EMPIRE Worker Protection Act further increases the capacity of the department of labor as almost all of the department of labor's investigatory work is complaint-driven rather than agency-driven. Moreover, the EMPIRE Worker Protection Act will help offset the loss of human capital at the department due to the decrease in senior labor investigators and stagnant numbers of labor investigators employed by the department of labor since 2008.
10. The legislature further finds and declares that the mandate of the EMPIRE Worker Protection Act is consistent with the legislature's commitment to enhance worker protections, especially for low-wage workers, as the majority of wages owed by employers according to department of labor statistics are based on minimum wage violations.
§ 3. The labor law is amended by adding a new article 33 to read as follows:
ARTICLE 33 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT Section 960. Definitions.
961. Public enforcement action.
962. Procedure.
963. Construction and non-application.
§ 960. Definitions. As used in this article, the following terms shall have the following meanings:
1. "aggrieved employee" means any employee as defined by section two of article one of this chapter who was employed by the alleged violator employer and against whom one of the alleged violations was committed, as well as any person who is not classified by a business as an employee but who claims to be an employee and whose claims against the purported employer relate to this alleged misclassification.
2. "employer" means any employer as defined by section two of article one of this chapter.
3. "representative organization" means a labor organization as defined by subdivision five of section seven hundred one of article twenty of this chapter or a not-for-profit corporation, as defined by subparagraphs five and seven of paragraph (a) of section one hundred two of article one of the not-for-profit corporation law, which not-for-profit corporation regularly advocates on behalf of workers or employees and/or regularly advocates for or assists in enforcement of the provisions of this chapter.
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4. "public enforcement action" means an action brought under this article intended to enforce this chapter's protections enforceable by the commissioner.
5. "commissioner" shall, for the purposes of this article, include the commissioner, and any division, board, commission, or part of the department authorized to impose or seek penalties or other remedies for violations of this chapter.
§ 961. Public enforcement action. 1. An aggrieved employee or employees or a representative organization may initiate a public enforcement action on behalf of the commissioner for any provision of this chapter, or any regulation promulgated thereunder, that provides for a civil penalty to be assessed and collected by the commissioner for a violation of this chapter, or any regulation promulgated thereunder, on behalf of himself or herself and other current or former employees pursuant to the procedures specified in section nine hundred sixty-two of this article. An aggrieved employee or a representative organization may allege multiple violations that have affected different employees.
2. a. For purposes of this section, whenever the commissioner has discretion to assess a civil penalty, a court shall be authorized to exercise the same discretion to assess a civil penalty. To the extent that the commissioner is authorized to determine that an employer has violated a provision of this chapter or regulation promulgated thereunder, in a public enforcement action, a court shall be authorized to determine that an employer has committed such a violation.
b. For all provisions of this chapter and regulations adopted pursuant to this chapter, except those for which a civil penalty is specifically provided, there is established a civil penalty of five hundred dollars for each aggrieved employee per pay period per violation. A court may not award a lesser amount, unless, based on the facts and circumstances of the particular case, the employer demonstrates that to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.
c. Any aggrieved employee or a representative organization who prevails in any public enforcement action shall be entitled to an award of reasonable attorney's fees and costs.
d. Nothing in this section shall operate to limit an aggrieved employee's right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this section.
3. Civil penalties recovered by aggrieved employees or a representative organization in public enforcement actions shall be distributed as follows: forty-five percent to the aggrieved employee or employees; and fifty-five percent to the commissioner for enforcement of this chapter and education of employers and employees about their rights and responsibilities under this chapter, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes. If an aggrieved employee or employees elect a representative organization to bring the public enforcement action, civil penalties recovered shall be distributed as follows: thirty percent to the aggrieved employee or employees; fifteen percent to the representative organization; fifty-five percent to the commissioner for enforcement of this chapter and education of employers and employees about their rights and responsibilities under this chapter, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes.
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4. The right to bring a public enforcement action under this article shall not be subject to private agreements between an aggrieved employee and an employer or purported employer.
5. Notwithstanding any other provision of law, a public enforcement action to recover upon a penalty imposed by this article must be commenced within six years. The statute of limitations for bringing a representative action under this article shall be tolled from the date an aggrieved employee or a representative organization files a notice pursuant to section nine hundred sixty-two of this article with the commissioner or the commissioner commences an investigation, whichever is earlier.
6. Public enforcement actions belong to the state and preclude subsequent state enforcement efforts, whether brought by the state or an aggrieved employee or representative organization; provided, however, public enforcement actions are not duplicative of private actions related to the same issues or touching the same nucleus of operative facts. Therefore, a public enforcement action brought under this article does not have any preclusive effect on private actions addressing similar wrongdoing.
7. The commissioner shall establish a publicly available database of public enforcement actions brought pursuant to this article, including the parties, the disposition and any other information which the commissioner shall by regulation prescribe.
§ 962. Procedure. 1. No public enforcement action by an aggrieved employee or a representative organization pursuant to section nine hundred sixty-one of this article alleging a violation of any provision of this chapter may be commenced:
a. prior to thirty days after written notice has been given by the aggrieved employee or a representative organization to the commissioner. Such written notice shall be given in such a manner as the commissioner may prescribe by regulation, shall be construed in a light favorable to the aggrieved employee or representative organization, and shall include:
(i) the name, address and contact information of the employer.
(ii) the name, address, occupation and contact information of the aggrieved employee.
(iii) the name, address and contact information of the representative organization, if the action is brought by a representative organization.
(iv) the name, address and contact information of the aggrieved employee's legal counsel, should one exist.
(v) a statement of the underlying claim.
(vi) estimated number of employees affected.
b. if the commissioner, at any time prior to the end of the thirty day notice period prescribed in paragraph a of this subdivision or prior to commencement of such action, whichever is later, and upon written notice to the aggrieved employee who provided the notice prescribed in paragraph a of this subdivision, has commenced and is actively prosecuting an administrative enforcement proceeding pursuant to this chapter relative to the alleged violation.
c. if the commissioner, on the same facts and theories, cites a person within the timeframes set forth in this section for a violation of the same section or sections of this chapter under which the aggrieved employee or representative organization is attempting to recover a civil penalty or remedy on behalf of himself or herself or others.
2. The commissioner may intervene in the public enforcement action and proceed with any and all claims in the action:
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a. as of right within the thirty day notice period prescribed in paragraph a of subdivision one of this section; or
b. for good cause, as determined by the court, after the expiration of the thirty day notice period prescribed in paragraph a of subdivision one of this section.
3. a. The aggrieved employee or representative organization shall, within ten days following commencement of a civil action pursuant to this article, provide the commissioner with a file-stamped copy of the complaint that includes the case number assigned by the court.
b. Either the commissioner or a federal or state court of competent jurisdiction shall review and approve any settlement of any civil action filed pursuant to this section. The commissioner or court shall approve the settlement if it is fair, reasonable, and adequate, in light of the statutory purpose of the provision of this chapter alleged to have been violated and the purpose of the EMPIRE Worker Protection Act.
c. A copy of the court's judgment in any civil action filed pursuant to this article and any other order in that action that either provides for or denies an award of civil penalties under this article shall be submitted to the commissioner within ten days after entry of the judgment or order.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the labor law, in relation to enacting the "Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act"
Purpose of bill
This legislation empowers aggrieved workers to file claims on behalf of the state against an employer for any violation of State labor law. The Act also allows representative organizations to file claims on behalf of impacted workers in order to protect the public interest.
Summary of provisions
The legislation adds a new Article 33 to the labor law, which establishes the right of a public enforcement action through which an aggrieved employee or a representative organization may commence a civil action on behalf of the commissioner of labor for the purpose of enforcing any provision of the labor law. Section 961 of Article 33 specifies that such action may provide for a civil penalty to be collected by the commissioner and that multiple violations that have affected different employees may be the subject of such complaint.
Read the full memo (1,035 words)
Section 961 Subsection 2 (a) authorizes a court to exercise the same discretion as the commissioner in determining whether to assess a civil penalty. Subsection 2 (b) establishes a minimum civil penalty of five hundred dollars per period per violation. Subsection 2 (c) provides that any aggrieved employee or representative organization which prevails shall be entitled to reasonable attorney's fees. Subsection 3 establishes a schedule for the distribution of any civil penalties recovered. Subsection 4 prohibits the use of private agreements to limit the right of employees to pursue a public enforcement action. Section 961 Subsection 5 establishes a six year statute of limitations. Section 961 Subsection 6 establishes that public enforcement actions "belong to the state" and shall, with some exceptions, preclude subsequent state enforcement action. Subsection 7 requires the commissioner to establish a publicly available data base of public enforcement actions.
Section 962 Subsection 1 establishes the process for the filing of a public enforcement action including the requirement for thirty-day written notice and the items that must be included in such notice. Section 962 Subsection 2 authorizes the commissioner to intervene in a public enforcement action and proceed with any and all claims. Section 962 Subsection 3 requires that a federal or state court of competent jurisdiction shall approve any settlement arrived at under this act. Section 962 Subsection 4 a representative organization may only initiate an action pursuant to this article if an aggrieved employee elects such organization in writing using a form approved by the commissioner. Section 962 Subsection 5 provides representative organizations and aggrieved employees with the right to amend an action after it has been filed. Section 962 Subsection 6 authorizes that the notice of an action shall be construed in a light favorable to the employee or representative organization.
Section 963 Subsection 1 indicates that this article shall not apply to the recovery of administrative and civil penalties in connection with the unemployment insurance law. Section 963 Subsection 2 indicates that this article shall not apply to the recovery of administrative and civil penalties in connection with the New York State Labor Relations Act. Section 963 Subsection 3 incorporates a severability clause. Section 963 Subsection 4 authorizes this article to be construed in light of its remedial purposes to expand the enforcement of this chapter.
This act shall take effect on the ninetieth day after it becomes a law.
Justification
An estimated 2.1 million New York workers are victims of wage theft each year, with a total of more than $3 billion stolen in wages and benefits. Wage theft costs our State millions of dollars a year in lost revenue and leaves law-abiding employers at a major competitive disadvantage. The New York State Department of Labor lacks the resources needed to effectively investigate and prosecute wage theft at scale and is heavily reliant upon uncertain federal funding. As a result, New York's workers may be increasingly vulnerable to exploitation.
This legislation extends the reach of the state's public enforcement provisions in order to help ensure that exploitative employers do not get away with wage theft and other abuses; to help establish a level playing field on which law abiding employers can afford to compete; to protect the public interest; and to generate revenue to fund the New York State Department of Labor's own work.
Extending the capacity and reach of New York's public enforcement strategies is critically important in this era for a number of reasons. The private enforcement mechanisms that have played a major role in wage theft and workers' rights enforcement for decades is being undermined in a number of ways. First, unscrupulous employers are using this moment of fear to intimidate and threaten workers into accepting exploitation. Additionally, a minimum of thirty percent of private sector employees are forced to sign pre-dispute arbitration agreements as a condition of employment. These fine print contracts force workers to waive their rights to hold employers accountable in court if they break the law; instead they must pursue remedies only via private arbitration, which often entails prohibitive expenses, limitations on discovery and other rules that make enforcement of the law impracticable. The agreements also often contain limits on workers' substantive rights, including statutes of limitation, as well as class and collective action waivers preventing workers from joining together for the purpose of enforcing their rights.
The EMPIRE Worker Protection Act enables workers to "step into the shoes" of the government for the purposes of enforcing their rights, and claims filed under the EMPIRE Worker Protection Act are public in nature and not subject to private agreements. The EMPIRE Worker Protection Act builds upon recent advances in New York's labor protections, specifically the 2015 Achieve Pay Equity bill, which amended the law to strengthen the State's protections against pay discrimination for women. Additionally the EMPIRE Worker Protection Act is a proven model for strengthening labor law enforcement with California having enacted similar legislation. That legislation has assisted our nation's largest state in resolving thousands of labor violations and generated more than $28 million in revenue for the California Department of Labor since 2013.
Prior legislative history
This is new legislation
Fiscal implications
None
Effective date
Immediately
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