2023 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),  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. 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.