NY Lab L § 218 (2021)
2021 New York Laws LAB - Labor Article 7 - General Provisions 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), 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.  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. 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, order or decision   may be enforced by and in the  name  of  the  commissioner,  or  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.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.