N.Y. Labor Law § 218: Violations of certain provisions; civil penalties

§ 218. Violations of certain provisions; civil penalties. 1. If the

commissioner determines that an employer has violated a provision of

article six (payment of wages), article nineteen (minimum wage act),

article nineteen-A (minimum wage standards and protective labor

practices for farm workers), article twenty-one-A (warehouse worker

protection act), section two hundred twelve-a, section two hundred

twelve-b, section one hundred sixty-one (day of rest) or section one

hundred sixty-two (meal periods) of this chapter, or a rule or

regulation promulgated thereunder, the commissioner shall issue to the

employer an order directing compliance therewith, which shall describe

particularly the nature of the alleged violation. A copy of such order

shall be provided to any employee who has filed a complaint and any

authorized representative of him or her. In addition to directing

payment of wages, benefits or wage supplements found to be due, and

liquidated damages in the amount of one hundred percent of unpaid wages,

such order, if issued to an employer who previously has been found in

violation of those provisions, rules or regulations, or to an employer

whose violation is willful or egregious, shall direct payment to the

commissioner of an additional sum as a civil penalty in an amount not to

exceed double the total amount of wages, benefits, or wage supplements

found to be due. In no case shall the order direct payment of an amount

less than the total wages, benefits or wage supplements found by the

commissioner to be due, plus the liquidated damages in the amount of one

hundred percent of unpaid wages, the appropriate civil penalty, and

interest at the rate of interest then in effect, as prescribed by the

superintendent of financial services pursuant to section fourteen-a of

the banking law per annum from the date of the underpayment to the date

of the payment. Where the violation is for a reason other than the

employer's failure to pay wages, benefits or wage supplements found to

be due, the order shall direct payment to the commissioner of a civil

penalty in an amount not to exceed one thousand dollars for a first

violation, two thousand dollars for a second violation or three thousand

dollars for a third or subsequent violation. In assessing the amount of

the penalty, the commissioner shall give due consideration to the size

of the employer's business, the good faith basis of the employer to

believe that its conduct was in compliance with the law, the gravity of

the violation, the history of previous violations and, in the case of

wages, benefits or supplements violations, the failure to comply with

recordkeeping or other non-wage requirements.

Where there is a violation of section one hundred ninety-eight-b of

this chapter, the order shall direct payment back to the employee of the

amount of wages, supplements or other thing of value unlawfully received

plus liquidated damages in the amount of one hundred percent of unpaid

wages, and interest at the rate of interest then in effect, as

prescribed by the superintendent of financial services pursuant to

section fourteen-a of the banking law per annum from the date of the

payback, return, donation or contribution to the date of payment, and

shall include such other relief as may be appropriate, including

rehiring or reinstatement of the employee to his or her former position,

back wages, and restoration of seniority. In addition, the commissioner

shall order payment of a civil penalty of at least twenty-five hundred

dollars but not more than five thousand dollars per violation. In

assessing the amount of the penalty, the commissioner shall give due

consideration to the size of the employer's business, the good faith

basis of the employer to believe that its conduct was in compliance with

the law, the gravity of the violation, and the history of previous

violations.

At the discretion of the commissioner, the commissioner shall have

full authority to provide for inclusion of an automatic fifteen percent

additional amount of damages to come due and owing upon expiration of

ninety days from an order to comply becoming final. The commissioner

shall provide written notice to the employer in the order to comply of

this additional damage.

2. An order issued under subdivision one of this section shall be

final and not subject to review by any court or agency unless review is

had pursuant to section one hundred one of this chapter.

3. (a) Provided that no proceeding for administrative or judicial

review as provided in this chapter shall then be pending and the time

for initiation of such proceeding shall have expired, the commissioner

may file with the county clerk of the county where the employer resides

or has a place of business the order of the commissioner, or the

decision of the industrial board of appeals containing the amount found

to be due including the civil penalty, if any, and at the commissioner's

discretion, an additional fifteen percent damages upon any outstanding

monies owed. Notwithstanding any provision to the contrary, in execution

of any order or decision filed by the commissioner pursuant to this

section, the commissioner shall have all the powers conferred upon

sheriffs by article twenty-five of the civil practice law and rules, but

the commissioner shall be entitled to no fee or compensation in excess

of the actual expenses paid in the performance of such duty.

Additionally, at the request of an employee, the commissioner shall

assign, without consideration or liability, that portion of the filed

order that constitutes wages, wage supplements, interest on wages or

wage supplements, or liquidated damages due that employee, to that

employee and may file an assignment or order in that amount in the name

of that employee with the county clerk of the county where the employer

resides or has a place of business. The filing of such assignment, order

or decision shall have the full force and effect of a judgment duly

docketed in the office of such clerk. The assignment may be enforced by

the employee in the same manner, and with like effect, as that

prescribed by the civil practice law and rules for the enforcement of a

money judgment.

(b) In addition and as an alternative to any other remedy provided by

this section and provided that no proceeding for administrative or

judicial review as provided in this chapter shall then be pending and

the time for initiation of such proceeding shall have expired, the

commissioner may issue a warrant under the commissioner's official seal,

directed to the sheriff of any county, commanding the sheriff to levy

upon and sell the real and personal property that may be found within

the sheriff's county of an employer who has defaulted in the payment of

any sum determined to be due from such employer for the payment of such

sum together with interest, penalties, and the cost of executing the

warrant, and to return such warrant to the commissioner and to pay into

the fund the money collected by virtue thereof within sixty days after

the receipt of such warrant. The sheriff shall, within five days after

the receipt of the warrant, file with the clerk of the county a copy

thereof, and thereupon such clerk shall enter in the judgment docket the

name of the employer mentioned in the warrant and the amount of the

contribution, interest, and penalties for which the warrant is issued

and the date when such copy is filed. Thereupon the amount of such

warrant so docketed shall become a lien upon the title to and interest

in real property and chattels of the employer against whom the warrant

is issued in the same manner as a judgment duly docketed in the office

of such clerk. The sheriff shall then proceed upon the warrant in the

same manner, and with like effect, as that provided by law in respect to

executions issued against property upon judgments of a court of record,

and the sheriff shall be entitled to the same fees, which they may

collect in the same manner, for the sheriff's services in executing the

warrant.

(c) In the discretion of the commissioner, a warrant of like terms,

force, and effect may be issued and directed to any officer or employee

of the department of labor who may file a copy of such warrant with the

clerk of any county in the state, and thereupon each such clerk shall

docket it and it shall become a lien in the same manner and with the

same force and effect as hereinbefore provided with respect to a warrant

issued and directed to and filed by a sheriff; and in the execution

thereof such officer or employee shall have all the powers conferred by

law upon sheriffs, but they shall be entitled to no fee or compensation

in excess of the actual expenses paid in the performance of such duty.

If a warrant is returned not satisfied in full, the commissioner shall

have the same remedies to enforce the amount thereof as if the

commissioner had recovered judgment for the same.

4. The civil penalty provided for in this section shall be in addition

to and may be imposed concurrently with any other remedy or penalty

provided for in this chapter.

5. An employer similar in operation and ownership to a prior employer

which had been found in violation of article six, nineteen or nineteen-A

of this chapter, shall be deemed the same employer for the purposes of

this section if the employees of the new employer are engaged in

substantially the same work in substantially the same working conditions

under substantially the same supervisors, or if the subsequent employer

has substantially the same production process, produces substantially

the same products and has substantially the same body of customers. Such

subsequent employer shall continue to be subject to this section and

liable for the acts of the prior employer under this section.