NY Lab L § 862-D (2021)
2021 New York Laws LAB - Labor Article 25-C - The New York State Commercial Goods Transportation Industry Fair Play Act 862-D - Violations and Penalties.

§   862-d.   Violations   and   penalties.  1.  Any  commercial  goods transportation contractor who willfully fails to  properly  classify  an individual  as  an  employee  as  provided  under  section eight hundred sixty-two-b of this article shall be subject to the civil  and  criminal penalties  provided under this section. The civil penalties set forth in this section shall be imposed as follows: by the commissioner where such penalty is based on a violation of this chapter; by  the  chair  of  the workers'  compensation  board where such penalty is based on a violation of the workers' compensation law; and by the  commissioner  of  taxation and  finance  when  such penalty is based on a violation of the tax law, provided that no more than one civil penalty under this section  may  be imposed per employee per incident of misclassification.  (a)  The workers' compensation board shall provide a copy of any order relating to the misclassification of an employee,  the  intentional  and material  underpayment  or  concealment  of  payroll,  or the failure to secure workers' compensation  in  the  commercial  goods  transportation industry to the commissioner and commissioner of taxation and finance no later than seven days after the issuance of the order.  (b)  Notwithstanding  the  secrecy  provisions  contained  in articles nine-A and twenty-two of the tax law, the  department  of  taxation  and finance  shall  provide  a  copy  of  any  assessment for failure to pay business, corporate or  personal  income  tax  by  an  employer  in  the commercial   goods   transportation   industry   arising   out   of  the misclassification of an employee to the commissioner and  chair  of  the workers'  compensation board no later than seven days after the issuance of the assessment.  (c) Upon the issuance of an order or determination by the commissioner for a violation and penalties under this article, the commissioner shall provide a copy of the order to the chair of  the  workers'  compensation board  and  the commissioner of taxation and finance no later than seven days after the issuance of the order.   2. For the purposes of this section,  the  term  "willfully  violates" means  a  commercial goods transportation contractor knew or should have known that his or her conduct was prohibited by this section.   3.  Any  commercial  goods  transportation  contractor  who  willfully violates  section  eight  hundred  sixty-two-b  of this article shall be subject to a civil penalty of up to twenty-five hundred dollars for  the first  violation per misclassified employee and to a civil penalty of up to five thousand dollars for each subsequent violation per misclassified employee within a five year period.   4. In addition to civil penalties, the criminal penalties imposed on a commercial goods transportation contractor who  willfully  violates  the provisions  of  this  article shall be a misdemeanor and upon conviction shall be punished for a first offense by imprisonment for not more  than thirty days or a fine not to exceed twenty-five thousand dollars and for a  subsequent  offense by imprisonment for not more than sixty days or a fine not to exceed fifty thousand dollars.   5. If the commercial goods transportation contractor is a corporation, any officer of such corporation or shareholder who owns or  controls  at least  ten  percent  of  the  outstanding  stock of such corporation who knowingly permits the corporation to willfully violate the provisions of this article shall also be in violation of this article  and  the  civil and  criminal  penalties  herein  shall  attach  to  such  officer  upon conviction.   6. Any commercial goods transportation  contractor  subject  to  civil penalties  under  this  article  shall  also  be  subject  to  any other applicable penalties or remedies provided by law for failure to pay  any other  statutory  payment  or  coverage  obligations,  including but not  limited to, unemployment insurance, workers' compensation insurance,  or business, corporate or personal income tax, as follows:  (a)  for  failure  to  pay  unemployment  insurance tax, the penalties imposed by section five hundred seventy of this chapter.  (b) for intentional and  material  understatement  or  concealment  of payroll  or  failure  to  secure  workers'  compensation  insurance, the penalties imposed  by  paragraph  (d)  of  subdivision  one  of  section fifty-two  of  the  workers' compensation law, and for failure to keep a true and accurate record pursuant to section one hundred  thirty-one  of the  workers'  compensation  law,  the  penalties of section one hundred thirty-one of the workers' compensation law.  (c) for failure to pay business, corporate or personal income tax, the penalties imposed by section six hundred eighty-five  and  one  thousand eighty-five of the tax law.   7.  Any  commercial  goods transportation contractor or any officer or shareholder who owns or controls at least ten percent of the outstanding stock of such corporation that has been convicted of a misdemeanor shall be subject to debarment and be ineligible to  submit  a  bid  on  or  be awarded  any  public  works  contract  with  the  state,  any  municipal corporation, public benefit corporation, public authority or public body for a period of up to one year from the date of such conviction or final determination, or up to five  years  in  the  event  of  any  subsequent violation.   8.  Any  substantially  owned  affiliated entity of a commercial goods transportation contractor, as defined by paragraph g of subdivision five of section two hundred twenty of this chapter, shall be subject  to  the same  civil  penalty provided under this article for a violation of such provision.   9. Any penalties imposed under this section by the commissioner  shall be  appealed  to  the  industrial  board  of  appeals in accordance with article three of this chapter. Any penalties imposed under this  section by  the  workers'  compensation  board  or  commissioner of taxation and finance  shall  be  appealed  in  the  same  manner  as  the  underlying violation.   10.  Nothing  in  this  section  shall limit the availability of other remedies at law or in equity for a violation of this article.   11. Any fee or penalty assessed for a violation of this article  shall be deposited into the department's fee and penalty account.