New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle A - Governor's Office › Chapter I - Executive Orders › Part 6 - Executive Orders (Eliot Spitzer) › Section 6.17 - Executive order no. 17: establishing the joint enforcement task force on employee misclassification

Current through Register Vol. 46, No. 28, July 10, 2024
WHEREAS, an increasing number of employers in New York and
					 elsewhere are improperly classifying individuals they hire as "independent
					 contractors", even when those workers legally should be classified as
					 "employees" (hereinafter referred to as "employee misclassification");
					 and
WHEREAS, employers sometimes engage in employee
					 misclassification in an attempt to avoid the employers' legal obligations under
					 the federal and state labor, employment and tax laws, including laws governing
					 minimum wage, overtime, prevailing wage, unemployment insurance, workers'
					 compensation insurance, temporary disability insurance, wage payment and income
					 tax; and
WHEREAS, employee misclassification has a significant
					 adverse impact on the residents, businesses and economy in New York, because
					 this practice:
(1) deprives
				  vulnerable workers of protections and benefits that they need and to which they
				  are legally entitled;
(2) reduces
				  compliance with employment and safety standards;
(3) gives employers who misclassify their
				  employees an improper competitive advantage over law-abiding businesses;
(4) deprives the State of
				  substantial revenues; and
(5)
				  imposes indirect costs on the State from decreased legitimate business activity
				  and increased demand for social services; and
WHEREAS, a recent study based on audits of New York
					 employment records between 2002 and 2005 found that up to 10% of the employees
					 covered by the audits may have been misclassified; and
WHEREAS, law enforcement activities in this area
					 historically have been divided among various agencies, reducing the efficiency
					 and effectiveness of enforcement; and
WHEREAS, enforcement efforts to address the problem of
					 employee misclassification can be enhanced and made more efficient through
					 interagency cooperation, information sharing, and joint prosecution of serious
					 violators; and
WHEREAS, the creation of joint task forces has proven to be
					 an effective mechanism for coordinating and enhancing labor law enforcement,
					 including efforts by other States to address the problem of employee
					 misclassification;
NOW THEREFORE, I, Eliot Spitzer, Governor of the State of
					 New York, by virtue of the power and authority vested in me by the Constitution
					 and laws of the State of New York, do hereby order as follows:
1. There is hereby established the Joint
				  Enforcement Task Force on Employee Misclassification ( Task Force).
2. The Task Force shall consist of the
				  Commissioner of Labor, the Attorney General, the Commissioner of Taxation and
				  Finance, the Chair of the Workers' Compensation Board, the Workers'
				  Compensation Fraud Inspector General, and the Comptroller of the City of New
				  York. The Commissioner of Labor shall serve as the Chair of the Task
				  Force.
3. Any member of the Task
				  Force may designate an agency representative to act on his or her behalf. A
				  majority of the members of the Task Force shall constitute a quorum, provided
				  that the Task Force may hold meetings and conduct business even in the absence
				  of a quorum.
4. The Task Force
				  shall coordinate the investigation and enforcement of employee
				  misclassification matters by the members of the Task Force and other relevant
				  agencies. In fulfilling this mission, the Task Force shall have the power and
				  duty:
a. to facilitate the sharing among the
				  Task Force members of information relating to suspected employee
				  misclassification violations, in a timely manner and to the maximum extent
				  permitted by law;
b. to pool, focus
				  and target investigative and enforcement resources;
c. to assess existing methods, both within
				  New York and in other jurisdictions, of preventing, investigating and taking
				  enforcement action against employee misclassification violations, and to
				  recommend that participating agencies adopt appropriate measures to improve
				  their prevention and enforcement efforts;
d. to develop strategies for systematically
				  investigating employee misclassification within those industries in which
				  misclassification is most common;
e. to facilitate the filing of complaints and
				  identification of potential violators, including by soliciting referrals and
				  other relevant information from the public through an advertised telephone
				  hotline;
f. to identify significant
				  cases of employee misclassification which should be investigated jointly, and
				  to form joint enforcement teams to utilize the collective investigative and
				  enforcement capabilities of the Task Force members;
g. to establish protocols through which
				  individual Task Force agencies investigating employee misclassification matters
				  under their own statutory or administrative schemes will refer a matter to
				  other participating agencies for assessment of potential liability under all
				  their other relevant statutory or administrative schemes;
h. to solicit the cooperation and
				  participation of local district attorneys and other relevant agencies, and to
				  establish procedures for referring cases to prosecuting authorities as
				  appropriate;
i. to work
				  cooperatively with business, labor, and community groups interested in reducing
				  employee misclassification, including but not limited to:
(i) seeking ways to prevent employee
				  misclassifications, such as through the dissemination of educational materials
				  regarding the legal differences between independent contractors and employees;
				  and
(ii) enhancing mechanisms for
				  identifying and reporting employee misclassification where it does
				  occur;
j. to increase
				  public awareness of the illegal nature of and harms inflicted by employee
				  misclassification;
k. to work
				  cooperatively with federal, state, and local social services agencies to
				  provide assistance to vulnerable populations that have been exploited by
				  employee misclassification, including but not limited to immigrant workers;
				  and
l. to consult with
				  representatives of business and organized labor, and other agencies including
				  the Empire State Development Corporation, in regard to the activities of the
				  Task Force and its members, and ways of improving its operation.
5. The Task Force shall issue a
				  report to the Governor on February 1 of each year, which shall:
a. describe the record and accomplishments of
				  the Task Force, including the amounts of wages, premiums, taxes and other
				  payments or penalties collected with the assistance of Task Force activities,
				  as well as the number of employers cited for legal violations related to
				  misclassification and the approximate number of employees affected;
b. identify any administrative or legal
				  barriers impeding the more effective operation of the Task Force, including any
				  barriers to information sharing or joint action;
c. propose, after consultation with
				  representatives of business and organized labor, members of the legislature and
				  other agencies including the Empire State Development Corporation, appropriate
				  administrative, legislative, or regulatory changes to:
(i) reduce or eliminate any barriers to the
				  Task Force's operations;
(ii)
				  prevent employee misclassification from occurring;
(iii) investigate potential violations of the
				  laws governing employee misclassification; and
(iv) improve enforcement where such
				  violations are found to have occurred; and
d. identify successful mechanisms for
				  preventing employee misclassification, and thereby reducing the need for
				  greater enforcement.
6.
				  Every agency, department, office, division, or public authority of the state
				  shall cooperate with the Task Force and furnish such information and assistance
				  as the Task Force determines is reasonably necessary to accomplish its
				  purposes.
Signed: Eliot SpitzerDated: September 5,
					 2007