N.Y. Labor Law § 219: Violations of certain wage payment provisions; interest, filing of order as judgment

§ 219. Violations of certain wage payment provisions; interest, filing

of order as judgment. 1. If the commissioner determines that an employer

has failed to pay wages, benefits or wage supplements required pursuant

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

or article nineteen-A (minimum wage standards and protective labor

practices for farm workers) 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 to his or her

authorized representative. Such order shall direct payment of wages or

supplements found to be due, 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 underpayment to the date of the payment.

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, 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 the

employee, to that employee and may file an assignment or order in that

amount in the name of such 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 official seal of the

commissioner, 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. An employer similar in operation and ownership to a prior employer

found to be 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 subsequent employer are engaged in

substantially the same work in substantially the same working conditions

under substantially the same supervisors, or if the new entity has

substantially the same production process, produces substantially the

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

subsequent employer will continue to be subject to this section and

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