N.Y. Lab. Law § 218

§ 218. Violations of certain provisions; civil penalties. 1. If the\ncommissioner determines that an employer has violated a provision of\narticle six (payment of wages), article nineteen (minimum wage act),\narticle nineteen-A (minimum wage standards and protective labor\npractices for farm workers), section two hundred twelve-a, section two\nhundred twelve-b, section one hundred sixty-one (day of rest) or section\none hundred sixty-two (meal periods) of this chapter, or a rule or\nregulation promulgated thereunder, the commissioner shall issue to the\nemployer an order directing compliance therewith, which shall describe\nparticularly the nature of the alleged violation. A copy of such order\nshall be provided to any employee who has filed a complaint and any\nauthorized representative of him or her. In addition to directing\npayment of wages, benefits or wage supplements found to be due, and\nliquidated damages in the amount of one hundred percent of unpaid wages,\nsuch order, if issued to an employer who previously has been found in\nviolation of those provisions, rules or regulations, or to an employer\nwhose violation is willful or egregious, shall direct payment to the\ncommissioner of an additional sum as a civil penalty in an amount not to\nexceed double the total amount of wages, benefits, or wage supplements\nfound to be due. In no case shall the order direct payment of an amount\nless than the total wages, benefits or wage supplements found by the\ncommissioner to be due, plus the liquidated damages in the amount of one\nhundred percent of unpaid wages, the appropriate civil penalty, and\ninterest at the rate of interest then in effect, as prescribed by the\nsuperintendent of financial services pursuant to section fourteen-a of\nthe banking law per annum from the date of the underpayment to the date\nof the payment. Where the violation is for a reason other than the\nemployer's failure to pay wages, benefits or wage supplements found to\nbe due, the order shall direct payment to the commissioner of a civil\npenalty in an amount not to exceed one thousand dollars for a first\nviolation, two thousand dollars for a second violation or three thousand\ndollars for a third or subsequent violation. In assessing the amount of\nthe penalty, the commissioner shall give due consideration to the size\nof the employer's business, the good faith basis of the employer to\nbelieve that its conduct was in compliance with the law, the gravity of\nthe violation, the history of previous violations and, in the case of\nwages, benefits or supplements violations, the failure to comply with\nrecordkeeping or other non-wage requirements.\n Where there is a violation of section one hundred ninety-eight-b of\nthis chapter, the order shall direct payment back to the employee of the\namount of wages, supplements or other thing of value unlawfully received\nplus liquidated damages in the amount of one hundred percent of unpaid\nwages, and interest at the rate of interest then in effect, as\nprescribed by the superintendent of financial services pursuant to\nsection fourteen-a of the banking law per annum from the date of the\npayback, return, donation or contribution to the date of payment, and\nshall include such other relief as may be appropriate, including\nrehiring or reinstatement of the employee to his or her former position,\nback wages, and restoration of seniority. In addition, the commissioner\nshall order payment of a civil penalty of at least twenty-five hundred\ndollars but not more than five thousand dollars per violation. In\nassessing the amount of the penalty, the commissioner shall give due\nconsideration to the size of the employer's business, the good faith\nbasis of the employer to believe that its conduct was in compliance with\nthe law, the gravity of the violation, and the history of previous\nviolations.\n At the discretion of the commissioner, the commissioner shall have\nfull authority to provide for inclusion of an automatic fifteen percent\nadditional amount of damages to come due and owing upon expiration of\nninety days from an order to comply becoming final. The commissioner\nshall provide written notice to the employer in the order to comply of\nthis additional damage.\n 2. An order issued under subdivision one of this section shall be\nfinal and not subject to review by any court or agency unless review is\nhad pursuant to section one hundred one of this chapter.\n 3. Provided that no proceeding for administrative or judicial review\nas provided in this chapter shall then be pending and the time for\ninitiation of such proceeding shall have expired, the commissioner may\nfile with the county clerk of the county where the employer resides or\nhas a place of business the order of the commissioner, or the decision\nof the industrial board of appeals containing the amount found to be due\nincluding the civil penalty, if any, and at the commissioner's\ndiscretion, an additional fifteen percent damages upon any outstanding\nmonies owed. At the request of an employee, the commissioner shall\nassign, without consideration or liability, that portion of the filed\norder that constitutes wages, wage supplements, interest on wages or\nwage supplements, or liquidated damages due that employee, to that\nemployee and may file an assignment or order in that amount in the name\nof that employee with the county clerk of the county where the employer\nresides or has a place of business. The filing of such assignment, order\nor decision shall have the full force and effect of a judgment duly\ndocketed in the office of such clerk. The assignment, order or decision\nmay be enforced by and in the name of the commissioner, or by the\nemployee, in the same manner, and with like effect, as that prescribed\nby the civil practice law and rules for the enforcement of a money\njudgment.\n 4. The civil penalty provided for in this section shall be in addition\nto and may be imposed concurrently with any other remedy or penalty\nprovided for in this chapter.\n 5. An employer similar in operation and ownership to a prior employer\nwhich had been found in violation of article six, nineteen or nineteen-A\nof this chapter, shall be deemed the same employer for the purposes of\nthis section if the employees of the new employer are engaged in\nsubstantially the same work in substantially the same working conditions\nunder substantially the same supervisors, or if the subsequent employer\nhas substantially the same production process, produces substantially\nthe same products and has substantially the same body of customers. Such\nsubsequent employer shall continue to be subject to this section and\nliable for the acts of the prior employer under this section.\n