Let Workers Sue for Violations

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

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD00280-03-0

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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 operating 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.

§ 3. The labor law is amended by adding a new article 34 to read as follows:

ARTICLE 34 EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT (EMPIRE) WORKER PROTECTION ACT Section 960. Definitions.

961. Representative civil action.

962. Procedure.

963. Non-application.

§ 960. Definitions. Whenever used in this article:

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, or was alleged to have been 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, whether or not that person has received full or partial relief from harm.

2. "relator" means an aggrieved party, whistleblower, or a representative organization that acts as a plaintiff in a public enforcement action under this chapter.

3. "whistleblower" means any current or former employee, contractor, subcontractor, or employee of a contractor or subcontractor of the defendant with knowledge of the alleged violations that is independent of and materially adds to any publicly disclosed information about the alleged violations.

4. "employer" means any employer as defined by section two of article one of this chapter. The term "employer" shall not include a governmental agency.

5. "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 assists in enforcement of the provisions of this chapter and which has been selected by an aggrieved employee or whistle-

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blower to initiate a public enforcement action on the aggrieved employee's or whistleblower's behalf, in written notice in such a manner as the commissioner may prescribe by regulation. Where a representative organization is designated as the relator, the aggrieved employee or whistleblower may elect to have their name and personal identifying information be kept confidential.

6. "public enforcement action" means an action brought under this article intended to enforce this chapter's protections enforceable by the commissioner. Nothing in this article shall be interpreted to permit a public enforcement action against a governmental agency.

7. "community-based enforcement" means activities conducted by nonprofit community-based organizations to assist workers in enforcing their employment rights, including outreach, education, training materials, technical assistance, counseling, research and referral services, as further defined by the commissioner.

8. "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.

9. "violation" means an employer's noncompliance with any of the requirements of the following articles of this chapter and with regulations and wage orders promulgated by the commissioner in implementing such articles:

a. article two except sections ten through twenty-five-c, sections twenty-seven through thirty, and sections thirty-three through fortythree;

b. article four except sections one hundred thirty, one hundred thirty-seven, one hundred forty, one hundred forty-one, and one hundred forty-five;

c. article four-a except sections one hundred fifty and one hundred fifty-three through one hundred fifty-four-a;

d. article five except sections one hundred sixty-eight through one hundred sixty-nine-a;

e. article six except sections one hundred ninety, one hundred ninety-one-a, one hundred ninety-six, one hundred ninety-six-a, one hundred ninety-eight-a, one hundred ninety-nine and one hundred ninety-nine-a;

f. article seven except sections two hundred-a, two hundred one, two hundred two-b through two hundred two-g, two hundred four, two hundred four-b, two hundred six, two hundred six-b, two hundred eight through two hundred ten, two hundred eleven, two hundred eleven-a, two hundred twelve-c, two hundred thirteen through two hundred fourteen, two hundred fifteen-a, two hundred fifteen-b, two hundred sixteen, two hundred nineteen-a, and two hundred nineteen-c;

g. article nine except sections two hundred thirty, two hundred thirty-four through two hundred thirty-six, and two hundred thirty-eight;

h. article ten except section two hundred forty-two;

i. article eleven except sections two hundred sixty through two hundred sixty-eight, two hundred seventy-five through two hundred seventy-seven, two hundred ninety-seven, and three hundred fifteen;

j. article thirteen except sections three hundred fifty through three hundred fifty-three, and three hundred fifty-five through three hundred sixty-three;

k. article fourteen;

l. article fifteen except sections four hundred, four hundred one, four hundred twenty-five, four hundred thirty-two, four hundred thirtysix and four hundred thirty-seven;

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m. article sixteen except sections four hundred fifty, four hundred fifty-one, four hundred fifty-six, four hundred fifty-eight through four hundred sixty, four hundred sixty-two, four hundred sixty-three, and four hundred sixty-five;

n. article seventeen except sections four hundred seventy-one through four hundred seventy-four-a;

o. article nineteen except sections six hundred fifty, six hundred fifty-one, six hundred fifty-three through six hundred sixty, six hundred sixty-two, and six hundred sixty-five;

p. article nineteen-a except sections six hundred seventy through six hundred seventy-two, six hundred seventy-four through six hundred seventy-eight, six hundred eighty, and six hundred eighty-three;

q. article nineteen-b except sections six hundred ninety, six hundred ninety-three, and six hundred ninety-four;

r. article twenty-b except sections seven hundred thirty-three, seven hundred thirty-eight, and seven hundred thirty-nine;

s. article twenty-c;

t. article twenty-five-a except sections eight hundred sixty, eight hundred sixty-a, eight hundred sixty-c through eight hundred sixty-f, and eight hundred sixty-i;

u. article twenty-seven except sections eight hundred seventy-a through eight hundred seventy-f and eight hundred seventy-h through eight hundred seventy-o;

v. article twenty-eight except sections eight hundred seventy-five, eight hundred seventy-seven, and eight hundred eighty-one through eight hundred eighty-three; and

w. article thirty except sections nine hundred, nine hundred one, nine hundred three, and nine hundred five through nine hundred eight.

§ 961. Representative civil action. 1. A relator may initiate a public enforcement action to collect civil penalties on behalf of the commissioner for a violation 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. A relator may allege multiple violations that have affected different employees and may seek injunctive and declaratory relief that the state would be entitled to seek.

2. a. For purposes of this section, whenever the commissioner has discretion to assess a civil penalty, a court is 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 any violation defined in this article, 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. In any civil action commenced pursuant to this article, the court shall allow a prevailing relator to recover all reasonable attorneys' fees, expert fees and other costs. For the purposes of this article, the term "prevailing" includes a relator whose commencement of litigation has acted as a catalyst to effect policy change on the part of the defendant, regardless of whether that change has been implemented volun-

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tarily, as a result of a settlement or as a result of a judgment in such relator's favor.

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.

e. Nothing in this section shall operate to limit the commissioner's right to seek restitution and damages, where available, for aggrieved employees in conjunction with a public enforcement action in which it has intervened.

3. a. Civil penalties recovered in public enforcement actions shall be distributed as follows: where the commissioner has not intervened, forty percent to the relator; and sixty 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; where the commissioner has intervened, thirty percent to the relator; and seventy 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.

b. Twenty-five percent of the commissioner's penalty share shall be reserved for community-based enforcement.