2023 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.