Article 07. General Provisions
Section 200. General duty to protect health and safety of employees; enforcement.
1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.
2. If the commissioner finds that any machinery, equipment, or device in any place to which this chapter applies is in a dangerous condition, or finds that any area to which this chapter applies is in a dangerous condition, he may attach a notice to such machinery, equipment, or device, or post a notice in such area warning all persons of the danger. Such notice shall prohibit the use of such machinery, equipment, or device or prohibit further work in or occupancy of such area until the dangerous condition is corrected and the notice is removed by the commissioner. Upon receipt of a written notification from the employer that the dangerous condition has been corrected, the commissioner shall make a reinspection within ten working days, and if the commissioner finds that the dangerous condition has been corrected, he shall remove the notice. The filing with the board of a petition for a review of the validity and reasonableness of the commissioner's order pursuant to section one hundred one of this chapter, shall not stay further proceedings; provided, however, that the board, in its discretion, may upon application of the petitioner stay further proceedings. The board shall grant or deny such application for a stay within seventy-two hours after the filing of the application.
3. Whenever a notice is attached or posted as provided in subdivision two of this section, the attorney general may institute a proceeding to enjoin the use of such machinery, equipment, or device or to enjoin further work in or occupancy of such area. Such proceeding shall not be stayed by the filing with the board of a petition for a review of the validity or reasonableness of a commissioner's order pursuant to section one hundred one of this chapter.
4. In the exercise of his powers to protect the health and safety of employees the commissioner shall, in municipalities which have accepted the applicability of the state building construction code, enforce the provisions of such code in factories, mercantile establishments and places of public assembly with respect to: (a) sanitation and health facilities; (b) guarding against and minimizing fire and industrial radiation hazards; (c) safety of vertical transportation; and (d) adequacy of exits.
Section 200-a. Laws to be posted at airports.
An airport, as defined in section two hundred forty of the general business law, shall permanently and prominently post signs indicating the increased penalties for interference with security personnel under 49 USC 46503. Such signs shall state an individual in an area within a commercial service airport in the United States who, by assaulting or intimidating a federal, airport, or air carrier employee who has security duties within the airport, interferes with the performance of the duties of the employee or lessens the ability of the employee to perform those duties, shall be fined under title 18 of the United States code, imprisoned for not more than ten years, or both. If the individual used a dangerous weapon in committing the assault, intimidation, or interference, the individual may be imprisoned for any term of years or life imprisonment. Signage shall include the telephone numbers of local law enforcement and the Transportation Security Administration for the purpose of reporting a violation.
Section 201. Laws and orders to be posted.
Wherever persons are employed who are affected by the provisions of this chapter or of the industrial code, the commissioner shall furnish to the employer copies or abstracts of such provisions, rules and orders as he may deem necessary affecting such persons. The copies or abstracts shall be in such language as the commissioner may require and shall be kept posted by the employer in a conspicuous place on each floor of the premises.
Section 201-a. Fingerprinting of employees prohibited.
Except as otherwise provided by law, no person, as a condition of securing employment or of continuing employment, shall be required to be fingerprinted. This provision shall not apply to employees of the state or any municipal subdivisions or departments thereof, or to the employees of legally incorporated hospitals, supported in whole or in part by public funds or private endowment, or to the employees of medical colleges affiliated with such hospitals or to employees of private proprietary hospitals.
Section 201-b. Fees for medical examination.
1. It shall be unlawful for any employer to require any applicant for employment to pay the cost of a medical examination required by the employer as a condition of original employment.
2. It shall be unlawful for any employer to require an employee, as a condition of continuation of employment, to pay the cost of any medical examination or the cost of furnishing any health certificate relating thereto where:
a. such employee is not covered by health insurance or the employee's health insurance does not cover such examination or certificate or the employer does not provide qualified medical personnel to conduct such examination without cost to the employee; and
b. such examination or certificate is not required pursuant to a state or federal statute or municipal ordinance or local law.
3. The term "employer" as used in this section shall mean and include an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.
4. Nothing contained herein shall prohibit the parties to a collective bargaining agreement from inserting therein a provision requiring:
a. an applicant for employment to pay, in the first instance, the cost of such medical examination provided that such collective bargaining agreement also provides for the repayment of such cost by the employer to the applicant after a reasonable period of employment; and
b. an employee who is otherwise protected by the provisions of subdivision two of this section, to pay in the first instance the cost of such medical examination or of furnishing the health certificate provided that such collective bargaining agreement also provides for the repayment of such cost by the employer to the employee within a reasonable time.
5. Any employer who violates the provisions of this section shall be liable to a penalty of not more than fifty dollars for each violation. It shall be the duty of the department of labor to enforce this section.
Section 201-c. Discrimination in child-care leave prohibited.
1. Whenever an employer or governmental agency permits an employee to take a leave of absence upon the birth of such employee's child, an adoptive parent, following the commencement of the parent-child relationship, shall be entitled to the same leave and upon the same terms; provided, however, that the adoptive parent shall not be entitled to such equal child care leave, or any portion thereof, at any time after the adoptive child reaches the minimum age set forth in subdivision one of section three thousand two hundred two of the education law for attendance in public school without the payment of tuition. With respect to the adoption of a hard-to-place or handicapped child as defined in section four hundred fifty-one of the social services law who is under the age of eighteen, an adoptive parent, following commencement of the parent-child relationship, shall be entitled to such leave of absence.
2. For purposes of this section, "commencement of the parent-child relationship" shall mean:
a. When the adoption occurs under sponsorship of an authorized agency, as defined in subdivision ten of section three hundred seventy-one of the social services law, the date the child is placed by the authorized agency in the home of the adoptive parents pursuant to section three hundred eighty-four of the social services law.
b. When the adoption occurs without the sponsorship of an authorized agency, the date a petition for the adoption of a child residing with the adoptive parents is filed in a court.
3. In addition to any other penalties or actions otherwise applicable pursuant to this chapter, whenever an employer or governmental agency has refused to extend available child-care leave to an adoptive parent in violation of this section, an aggrieved individual may commence an action for equitable relief and damages. In all actions brought pursuant to this section, reasonable attorney's fees, as determined by the court, shall be awarded to the prevailing plaintiff.
Section 201-d. Discrimination against the engagement in certain activities.
1. Definitions. As used in this section:
a. "Political activities" shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group;
b. "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material;
c. "Work hours" shall mean, for purposes of this section, all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. This definition shall not be referred to in determining hours worked for which an employee is entitled to compensation under any law including article nineteen of this chapter.
2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
a. an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in paragraph six of subdivision (a) of section seventy-nine-h of the civil rights law, and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to chapter 15 of title 5 and subchapter III of chapter 73 of title 5 of the USCA;
b. an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property;
c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; or
d. an individual's membership in a union or any exercise of rights granted under Title 29, USCA, Chapter 7 or under article fourteen of the civil service law.
3. The provisions of subdivision two of this section shall not be deemed to protect activity which:
a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest;
b. with respect to employees of a state agency as defined in sections seventy-three and seventy-four of the public officers law respectively, is in knowing violation of subdivision two, three, four, five, seven, eight or twelve of section seventy-three or of section seventy-four of the public officers law, or of any executive order, policy, directive, or other rule which has been issued by the attorney general regulating outside employment or activities that could conflict with employees' performance of their official duties;
c. with respect to employees of any employer as defined in section twenty-seven-a of this chapter, is in knowing violation of a provision of a collective bargaining agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties;
d. with respect to employees of any employer as defined in section twenty-seven-a of this chapter who are not subject to section seventy-three or seventy-four of the public officers law, is in knowing violation of article eighteen of the general municipal law or any local law, administrative code provision, charter provision or rule or directive of the mayor or any agency head of a city having a population of one million or more, where such law, code provision, charter provision, rule or directive concerns ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties and otherwise covers such employees; and
e. with respect to employees other than those of any employer as defined in section twenty-seven-a of this chapter, violates a collective bargaining agreement or a certified or licensed professional's contractual obligation to devote his or her entire compensated working hours to a single employer, provided however that the provisions of this paragraph shall apply only to professionals whose compensation is at least fifty thousand dollars for the year nineteen hundred ninety-two and in subsequent years is an equivalent amount adjusted by the same percentage as the annual increase or decrease in the consumer price index.
4. Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer's actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.
5. Nothing in this section shall apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual.
6. Nothing in this section shall prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action.
7. a. Where a violation of this section is alleged to have occurred, the attorney general may apply in the name of the people of the state of New York for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. In any such proceeding, the court may impose a civil penalty in the amount of three hundred dollars for the first violation and five hundred dollars for each subsequent violation.
b. In addition to any other penalties or actions otherwise applicable pursuant to this chapter, where a violation of this section is alleged to have occurred, an aggrieved individual may commence an action for equitable relief and damages.
Section 201-e. Maintenance of employee-patient records at occupational health service centers.
No person charged with the custody and care of the health records of employees treated at an on-site employer sponsored occupational health service facility shall release or disclose any employee-patient record to an employer, except upon the express authorization of the employee-patient, or as otherwise authorized by law.
Section 201-f. Posting regulations on employment of persons previously convicted of one or more crimes.
Every employer shall post in his or her establishment, in a place accessible to his or her employees and in a visually conspicuous manner, a copy of article twenty-three-A of the correction law and any regulations promulgated pursuant thereto relating to the licensure and employment of persons previously convicted of one or more criminal offenses.
Section 202. Protection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings.
The owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the board of standards and appeals. The owner, lessee, agent, manager or superintendent of any such public building and every contractor involved shall not require, permit, suffer or allow any window or exterior surface of such building to be cleaned unless such means are provided to enable such work to be done in a safe manner for the prevention of accidents and for the protection of the public and of persons engaged in such work in conformity with the requirements of this chapter and the rules of the board of standards and appeals. A person engaged at cleaning windows or exterior surfaces of a public building shall use the safety devices provided for his protection. Every employer and contractor involved shall comply with this section and the rules of the board and shall require his employee, while engaged in cleaning any window or exterior surface of a public building, to use the equipment and safety devices required by this chapter and rules of the board of standards and appeals.
The provisions of this section shall not apply to (1) multiple dwellings six stories or less in height located anywhere in this state; nor to (2) any building three stories or less in height in cities, towns or villages having a population of less than forty thousand; nor to (3) the windows or exterior surfaces of any building which may be exempted under any rule adopted by the board of standards and appeals.
The board of standards and appeals may grant variations pursuant to the provisions of section thirty of this chapter. All existing variations heretofore made by the board relating to the cleaning of windows are hereby validated and continued in full force and effect until amended or terminated by the board.
The board of standards and appeals may make rules to effectuate the purposes of this section.
Notwithstanding any other law or regulation, local or general, the provisions of this section and the rules issued thereunder shall be applicable exclusively throughout the state and the commissioner shall have exclusive authority to enforce this section and the rules issued thereunder.
Section 202-a. Leave of absence for bone marrow donations.
1. For the purposes of this section, the following terms shall have the following meanings:
(a) "Employee" means a person who performs services for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more employees at at least one site and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, county, town, city, school district, public authority or other governmental subdivision of any kind.
2. An employer must grant leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the physician, but may not exceed twenty-four work hours, unless agreed to by the employer. The employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow.
3. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section for the purpose of undergoing a medical procedure to donate bone marrow.
4. The provisions of this section shall not prevent an employer from providing leave for bone marrow donations in addition to leave allowed under any other provision of law. The provisions of this section shall not affect an employee's rights with respect to any other employee benefit otherwise provided by law.
Section 202-b. Leave for organ or bone marrow donation granted to state employees.
1. Any employee of the state of New York shall be allowed up to seven days paid leave to undergo a medical procedure to donate bone marrow and up to thirty days paid leave to serve as an organ donor, provided, however, that an employee of the state of New York shall provide his or her employer with not less than fourteen days prior written notice of an intention to utilize such leave, unless there exists a medical emergency, attested to by a physician, which would require the employee to participate in the medical procedure or organ donation for which the leave is sought within the fourteen day notification period. Such leave shall be in addition to any other sick or annual leave allowed. The employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow.
2. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section for the purpose of undergoing a medical procedure to donate bone marrow or serve as an organ donor.
3. The provisions of this section shall not prevent an employer from providing leave for bone marrow or organ donations in addition to leave allowed under any other provision of law. The provisions of this section shall not affect an employee's rights with respect to any other employee benefit otherwise provided by law.
Section 202-c. Prevention of personal injuries in the use of ski tows, other passenger tramways and downhill ski areas.
The commissioner may make rules, consistent with article eighteen of the general obligations law, guarding against personal injuries to employees and the public in the use and operation of ski tows, other passenger tramways and downhill ski areas.
Section 202-d. Coin-operated machines performing a manufacturing process.
The commissioner may make such rules governing the construction, maintenance, use, and operation of coin-operated machines which perform any manufacturing process that he or she finds necessary for the protection of the lives, health, and safety of employees and of persons lawfully using such machines. The term "manufacturing" as used in this section shall include the processes described in subdivision nine of section two of this chapter.
Section 202-e. Protection of persons employed on/in vehicular bridges and/or tunnels.
The board of standards and appeals may make such rules as may be necessary for the protection of the lives, health and safety of persons employed on/in vehicular bridges and/or tunnels by bridge and tunnel authorities subject to the public authorities law of this state.
Section 202-f. Protection of hotel and motel employees against fire hazards in employee housing facilities.
Notwithstanding any other provision of law, the board of standards and appeals shall issue a temporary rule governing fire hazards in housing facilities for hotel and motel employees, to become effective on the first day of June, nineteen hundred seventy-three. Such temporary rule shall contain such national consensus standards or standards of any governmental agency in the state relating to housing facilities as the board deems necessary for the protection of the lives, health and safety of hotel and motel employees. Notice of the adoption of such temporary rule shall be published in ten newspapers throughout the state and such temporary rule shall be filed with the secretary of state. Such temporary rule shall remain in effect until superseded by a safety and health standard promulgated in accordance with the procedure prescribed in article twelve of this chapter or until the first day of June, nineteen hundred seventy-four, whichever occurs first, provided however, that nothing in this section shall prevent any other agency of the state or subdivision thereof from enforcing a public health and safety standard promulgated pursuant to section two hundred twenty-five of the public health law.
Section 202-g. Display of fuel-connected appliances in wholesale or retail store.
No gas, gasoline or liquefied petroleum gas fueled appliances shall be displayed in a wholesale or retail store when attached to a live fuel source. This section shall not prevent a live demonstration of such appliances under the immediate supervision, and in the presence of, a responsible adult.
Section 202-h. High-voltage proximity.
1. This section may be known as the "high-voltage proximity act".
2. Definitions. For the purpose of this section:
(a) "High-voltage lines" means electrical conductors installed above ground and having a voltage differential in excess of six hundred volts between any pair of conductors or between any conductor and ground. In the case of alternating current, the voltage shall be measured in R.M.S. value. This definition shall not include approved armored cable used to supply power to portable equipment and insulated power cables enclosed in approved metallic raceways.
(b) "Dangerous proximity" means a distance within ten feet of high-voltage lines, or within such greater distances as are set forth in the current editions and any subsequent revisions of the regulations of the United States Occupational Safety and Health Administration (29 CFR parts 1910 and 1926), the New York industrial code (12 NYCRR part 23) and the national electrical safety code.
3. Prohibited activity. (a) No employer or supervising agent of an employer shall require or permit an employee to, and no self-employed individual, independent contractor having no employees or homeowner shall, participate in the operation, erection, transportation, handling, or storage of any tools, machinery, equipment, supplies, materials or apparatus, or the moving of any building, if in the course of such operation, erection, transportation, handling, storage or moving it is possible for such tools, machinery, equipment, supplies, materials, apparatus or building, to come within dangerous proximity of a high-voltage line; or participate in any activity which would cause the employee, self-employed individual, independent contractor or homeowner to come within dangerous proximity of a high-voltage line; unless precautionary action has been taken to protect against the danger from contact with such high-voltage line, either by de-energizing such high-voltage line and grounding it where necessary, or other effective methods or devices which have been approved in advance by the owner or person in charge of such high-voltage lines for the particular case and for the particular location.
(b) Employers whose employees operate, erect, transport, handle or store any tools, machinery, equipment, supplies, materials or apparatus, or move any building, which in the course of such operation, erection, transportation, handling, storing or moving might come within dangerous proximity of a high-voltage line, shall advise such employees of the dangers inherent in such work, highlight precautions which are to be taken under such circumstances and encourage employees to communicate with and advise employers or their supervising agents of conditions which would require precautionary action by the employer as required by paragraph (a) of this subdivision.
(c) In no case shall the required clearance be provided by moving or displacing any conductor, except where the same is temporarily relocated pursuant to arrangements made with the owner or person in charge of the high-voltage line, and such actions are performed by such owner or person in charge.
(d) All high-voltage lines shall be considered as energized high-voltage lines until assurance has been given that they are otherwise by qualified representatives of the owners or persons in charge of such lines.
4. Warning sign required. (a) The owner, agent, lessee, bailee, user, or employer responsible for the operations of equipment capable of coming within dangerous proximity of a high-voltage line in the course of its operation, shall post and maintain in plain view of the operator on each piece of such equipment, an approved durable warning sign legible at a distance of twelve feet reading "Danger Unlawful To Operate Any Part Of This Equipment Within 10 Feet of High-Voltage Lines". Additional warning signs shall be placed on various parts of the equipment providing similar warnings to others in the vicinity of the high-voltage lines.
Notwithstanding the foregoing, all such posted warnings shall specify the actual distance by which the term "dangerous proximity" is defined by paragraph (b) of subdivision two of this section. The owner, agent, lessee, bailee, user, or employer responsible for the operations of equipment shall provide such other warning signs on equipment or at the work site as may be required by regulations promulgated hereunder. The requirement that warning signs be posted shall not apply to railway equipment operating on railway right-of-way in relation to high-voltage conductors of such railway system under conditions for which exemption is granted under subdivision eight of this section.
(b) If for any reason and for any time period, the operator of the equipment is unable to assess visually the clearance of the equipment from overhead high-voltage lines, a second person shall be designated to observe the clearance and provide timely warning to the equipment operator.
5. Notification to power company and responsibility for safeguards. Whenever any activity is to be performed requiring precautionary action under this section, the employer, contractor or other person responsible for the activity shall promptly notify the owner or person in charge of the high-voltage line of the intended activity, such notification to be submitted at least five normal work days before the activity is to be performed. The owner or person responsible for the high-voltage line shall perform all necessary precautionary actions, and the employer, contractor or other person responsible for the activity shall be responsible for all costs of such precautionary actions. Under no circumstances shall activities requiring precautionary actions be undertaken before such precautionary actions have been completed.
6. Enforcement. The commissioner shall administer and enforce the provisions of this section and is hereby empowered to prescribe and promulgate rules and regulations consistent herewith. Such regulations shall include a requirement that clearances greater than the dangerous proximity distance must be maintained where, in the judgment of the board, safety so requires.
7. Civil penalty. (a) Any person violating any of the provisions of this section shall be liable for a penalty of not less than one hundred dollars nor more than one thousand dollars to be collected in a civil action by a summary proceeding. Any violation of this section by an officer, agent or employee shall be a violation by the employer if such employer had knowledge of and actual control over the cause of such violation. Where the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense.
(b) The commissioner is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the commissioner as may appear appropriate and equitable under the circumstances.
8. Exceptions. (a) This section shall not be construed as applying to, shall not apply to, and is not intended to apply to, the construction, reconstruction, operations, and maintenance of overhead electrical conductors and their supporting structures and associated equipment by authorized and qualified electrical workers; nor to the authorized and qualified employees of any person engaged in the construction, reconstruction, operation, and maintenance of overhead electrical circuits or conductors and their supporting structures and associated equipment of rail transportation systems, or electrical generating, transmission, distribution, and communication systems. This exception when applied to railway systems shall be construed as permitting operation of standard rail equipment, which is normally used in the transportation of freight or passengers or both and the operation of relief trains, or other equipment in emergencies, or in maintenance of way service, within dangerous proximity of and high-voltage conductor of such railway system; but this section shall be construed as prohibiting normal repair or construction operations within dangerous proximity of any high-voltage conductor by other than properly qualified and authorized persons or employees under the direct supervision of an authorized person who is familiar with the hazards involved, unless there has been compliance with the safety provisions hereof.
(b) This section shall not be construed as applying to motor vehicle transportation across or along a public road or highway where the combined vehicle and load shall not be in excess of thirteen and one-half feet high and thirteen feet wide. Nevertheless, this section shall apply to motor vehicle transportation across or along a public road or highway during such time as the combined vehicle and load shall for any reason and for any period of time be in excess of thirteen and one-half feet high and thirteen feet wide.
9. Severability. In case any provisions of this section shall be adjudged unconstitutional or void for any reason, such adjudication shall not affect any of the other provisions of this section.
Section 202-i. Leave of absence for military spouses.
1. For the purposes of this section, the following terms shall have the following meanings:
(a) "Employee" means a person who performs service for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more employees at at least one site and includes an individual, corporation, the state, county, town, city, school district, public authority or other governmental subdivision of any kind.
(c) "Period of military conflict" means a period of war declared by the United States Congress, or in which a member of a reserve component of the armed forces is ordered to active duty pursuant to sections 12301 and 12302 of title 10 of the United States Code.
2. The spouse of a member of the armed forces of the United States, national guard or reserves who has been deployed during a period of military conflict, to a combat theater or combat zone of operations shall be allowed up to ten days unpaid leave by their employer. Such leave shall only be used when such person's spouse is on leave from the armed forces of the United States, national guard or reserves while deployed during a period of military conflict to a combat theater or combat zone of operations.
3. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided in this section.
4. The provisions of this section shall not affect or prevent an employer from providing leave for military spouses in addition to leave allowed under any other provision of law. The provisions of this section shall not affect an employee's rights with respect to any other employee benefit provided by law.
Section 202-j. Leave of absence for blood donation granted to employees.
1. For the purposes of this section, the following terms shall have the following meanings:
(a) "Employee" means a person who performs services for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more employees at at least one site and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, state, county, town, city, school district, public authority or other governmental subdivision of any kind.
2. An employer must either, at its option: (a) grant three hours of leave of absence in any twelve month period to an employee who seeks to donate blood; provided that the leave of absence may not exceed three hours, unless otherwise agreed to by the employer, and must comply with the requirements established by the commissioner under subdivision five of this section; or (b) allow its employees without use of accumulated leave time to donate blood during work hours at least two times per year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at the employee's place of employment.
3. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence under this section.
4. This section shall not prevent an employer from providing leave for blood donation in addition to leave allowed under any other provision of law. This section shall not affect an employee's rights with respect to any other employee benefit otherwise provided by law.
5. The commissioner is hereby authorized and directed to establish any necessary guidelines, including requirements for notice, request and approval of leave, and documentation, for the timely implementation of the program.
Section 202-k. Protection of persons employed in the broadcast industry.
1. For the purposes of this section:
(a) "Broadcasting industry employer" includes television stations or networks, radio stations or networks, cable stations or networks, internet or satellite-based services similar to a broadcast station or network, any broadcast entities affiliated with any of the employers of this paragraph, or any other entity that provides broadcasting services such as news, weather, traffic, sports, or entertainment reports or programming.
(b) "Broadcast employee" means any on-air employee or off-air employee of a broadcasting industry employer, excluding management employees.
2. A broadcasting industry employer shall not require as a condition of employment, whether in an employment contract or otherwise, that a broadcast employee or prospective broadcast employee refrain from obtaining employment:
(a) in any specified geographic area;
(b) for a specific period of time; or
(c) with any particular employer or in any particular industry; after the conclusion of employment with such broadcasting industry employer. This section shall not apply to preventing the enforcement of such a covenant during the term of an employment contract.
3. Any person who violates this section shall be civilly liable to a broadcast employee for damages, attorney's fees and costs.
Section 203. Washrooms, washing facilities and waterclosets for elevator employees.
There shall be provided and maintained for the use of all persons employed in operating freight or passenger elevators adequate and convenient washrooms or washing facilities and a sufficient number of suitable and convenient waterclosets. Where the elevator is used in or in connection with a factory or mercantile establishment, the provisions of sections two hundred and ninety-three and two hundred and ninety-five shall apply to wash-rooms, washing facilities and waterclosets for employees mentioned in this section; and where the elevator is used in any other building or place, the provisions of such sections three hundred and seventy-eight and three hundred and eighty-one shall apply to washrooms, washing facilities and waterclosets for employees engaged in the care, custody or operation of an elevator in such building or place. For the purpose of so applying the sections last referred to, the term "mercantile establishment" as therein used shall be deemed to mean and include a building in which the elevator is located or with which it connects.
Section 203-a. Seats in certain passenger elevators or relief for the operator.
Every passenger elevator operated and maintained for use by the public shall be equipped or furnished with a seat, collapsible or otherwise, for the use of the operator when the elevator is not being operated, provided the operator thereof is not allowed a continuous recess period of at least fifteen minutes in every three hours in addition to and apart from a lunch period of at least forty-five minutes. Every passenger elevator operated in a building owned and maintained by the state shall be equipped or furnished with such a seat for the use of the operator when the elevator is not being operated, notwithstanding the operator is allowed the recess and lunch period herein specified. The provisions of this section shall not apply to elevators in factory buildings or any other building having only one passenger elevator.
Section 203-b. Seats for female employees.
A sufficient number of suitable seats, with backs where practicable, shall be provided and maintained in every factory, mercantile establishment, freight or passenger elevator, hotel and restaurant for female employees who shall be allowed to use the seats to such an extent as may be reasonable for the preservation of their health. In factories, female employees shall be allowed to use such seats whenever they are engaged in work which can be properly performed in a sitting posture. In mercantile establishments, at least one seat shall be provided for every three female employees and if the duties of such employees are to be performed principally in front of a counter, table, desk or fixture, such seats shall be placed in front thereof, or if such duties are to be performed principally behind such counter, table, desk or fixture they shall be placed behind the same.
Section 203-c. Employee privacy protection.
1. No employer may cause a video recording to be made of an employee in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order.
2. No video recording made in violation of this section may be used by an employer for any purpose.
3. In any civil action alleging a violation of this section, the court may:
(a) award damages and reasonable attorneys' fees and costs to a prevailing plaintiff; and
(b) afford injunctive relief against any employer that commits or proposes to commit a violation of this section.
4. The rights and remedies provided herein shall be in addition to, and not supersede, any other rights and remedies provided by statute or common law.
5. The provisions of this section do not apply with respect to any law enforcement personnel engaged in the conduct of his or her authorized duties.
Section 203-d. Employee personal identifying information.
1. An employer shall not unless otherwise required by law:
(a) Publicly post or display an employee's social security number;
(b) Visibly print a social security number on any identification badge or card, including any time card;
(c) Place a social security number in files with unrestricted access; or
(d) Communicate an employee's personal identifying information to the general public. For purposes of this section, "personal identifying information" shall include social security number, home address or telephone number, personal electronic mail address, Internet identification name or password, parent's surname prior to marriage, or drivers' license number.
2. A social security number shall not be used as an identification number for purposes of any occupational licensing.
3. The commissioner may impose a civil penalty of up to five hundred dollars on any employer for any knowing violation of this section. It shall be presumptive evidence that a violation of this section was knowing if the employer has not put in place any policies or procedures to safeguard against such violation, including procedures to notify relevant employees of these provisions.
Section 204. Inspection of boilers; enforcement; fees; identification; exceptions.
1. Inspection. The commissioner shall cause to be inspected at least once every two years all boilers as defined in this section, except for high pressure power boilers, antique boilers and miniature boilers, which the commissioner shall cause to be inspected at least once each year, and except for boilers inspected and insured by a duly authorized insurance company in accordance with the provisions of subdivision eight of this section and with the rules of the commissioner.
2. Enforcement. If upon inspection of a boiler the commissioner finds a violation of the provisions of this section or of the rules of the board or if the commissioner receives notice from a duly authorized insurance company that the owner or lessee of a boiler has failed, after notice from the insurance company, to comply with the provisions of this section and rules of the board, the commissioner shall issue an order to the owner or lessee directing compliance therewith. If in the judgment of the commissioner the boiler is in an unsafe or dangerous condition the commissioner shall order the use of the boiler discontinued until such dangerous and unsafe condition has been remedied. Such order shall be served upon the owner or lessee of the boiler, personally or by mail.
3. Fees. A fee of two hundred dollars shall be charged the owner or lessee of each boiler internally inspected and seventy-five dollars for each boiler externally inspected by the commissioner, provided however, that the external inspection of multiple boilers connected to a common header or of separate systems owned or leased by the same party and located in the same building, with a combined input which is 300,000 BTU/hour or less, shall be charged a single inspection fee, and further provided that, not more than two hundred seventy-five dollars shall be charged for the inspection of any one boiler for any year; except that in the case of an antique steam engine maintained as a hobby and displayed at agricultural fairs and other gatherings, a fee of twenty-five dollars only shall be charged the owner or lessee thereof for each boiler internally inspected by the commissioner and a fee of twenty-five dollars only shall be charged for each boiler externally inspected by the commissioner, but not more than fifty dollars shall be charged for the inspection of any one such boiler for any year, and except that in the case of a miniature boiler a fee of fifty dollars only shall be charged for the inspection of any one such boiler for any year. Such fee shall be payable within thirty days after inspection.
4. Identification of boilers; unfired pressure vessels.
a. Owners and lessees of boilers shall attach to such boilers the numbers assigned by the commissioner under a penalty of five dollars for each day's failure so to do after such numbers have been assigned.
b. Owners and lessees of unfired pressure vessels shall ensure that such vessels are constructed in accordance with regulations promulgated by the commissioner.
5. Exceptions. The provisions of this section shall not apply:
a. to a boiler subject to inspection by inspectors of steam vessels under the department of transportation;
b. to a boiler located on a farm and used solely for agricultural purposes;
c. to a steam or vapor boiler operating at a gauge pressure of not more than fifteen pounds per square inch, and which is located in a dwelling occupied by less than six families;
d. to a hot water boiler which is located in a dwelling occupied by less than six families;
e. to a boiler subject to inspection or control by a federal agency;
f. to the boiler of a miniature model locomotive, boat, tractor or stationary engine constructed and maintained as a hobby and not for commercial use, and having a volume of less than two cubic feet and a grate area not in excess of two square feet; and
g. to any low pressure boiler with a capacity of one hundred thousand British Thermal Units or less.
6. Definitions. a. For purposes of this section, the term "boiler" shall mean a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination thereof, under pressure or vacuum for use externally to itself by the application of heat from combustible fuels, electricity, or any other source, but shall not include a device or apparatus used solely to heat water for a hot water supply system. The term "boiler" shall include the apparatus used by which heat is generated, and all controls and devices related to such apparatus or to the closed vessel. The term "boiler" also shall include fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and are complete within themselves.
b. The term "miniature boiler" shall mean a nonelectric fired pressure vessel which does not exceed inside shell diameter of sixteen inches, forty-two inches over-all length of outside to outside of heads at center, water heating surface of twenty square feet, and maximum allowable working pressure of one hundred pounds per square inch.
c. For the purposes of this section, the term "unfired pressure vessel" shall include containers for the containment of internal or external pressure which may be obtained from an external source or by the application of heat from a direct or indirect source, or any combination thereof, provided however, that the term "unfired pressure vessel" shall not include:
(1) pressure vessels meeting the requirements of the United States department of transportation for the shipment of liquids or gases under pressure;
(2) air tanks used on vehicles used for carrying passengers or freight or used directly in the operation of trains;
(3) pressure vessels having a volume of five cubic feet or less or having an inside diameter not exceeding six inches;
(4) pressure vessels designed for pressures of less than fifteen pounds per square inch;
(5) hot water supply storage tanks, provided none of the following limitations is exceeded: (i) a heat input of two hundred thousand BTU's per hour; (ii) a water temperature of two hundred ten degrees fahrenheit; (iii) a nominal water containing capacity of one hundred twenty gallons;
(6) pressure vessels under federal control or regulation;
(7) pressure vessels containing water under pressure, including those containing air, the compression of which serves only as a cushion, when none of the following limitations are exceeded: (i) a design pressure of thirty pounds per square inch; (ii) a design temperature of two hundred ten degrees fahrenheit; and
(8) pressure vessels used for agricultural purposes.
7. Cities. a. A city which qualifies under the provisions of this subdivision shall enforce the provisions of this section and the rules of the board promulgated hereunder and for such purpose shall have the powers of the commissioner prescribed in subdivision two of this section. In order to so qualify, a city shall have enacted a local law or ordinance requiring an inspection of all boilers required to be inspected by the provisions of this section located in such city, which inspection shall be conducted with at least the same frequency as is required by this section, but in no case more often than once a year. Such boilers shall be inspected by competent inspectors employed by the city except boilers inspected and insured by a duly authorized insurance company in accordance with the provisions of subdivision eight of this section and with the rules of the commissioner.
b. The fee schedule contained in subdivision three of this section shall not apply within a city which qualifies under the provisions of this subdivision. Such a city may, by local law or ordinance, impose reasonable fees for the inspection of boilers by the inspecting agency of such city.
8. Inspection by insurance companies. a. All boilers which are inspected by a duly authorized insurance company shall be exempt from inspection by the commissioner and by cities which qualify under the provisions of subdivision seven of this section, under the following conditions: (1) that inspections by the insurance company are made with the same frequency as is required by this section except that, for all such boilers located within a city which qualifies under the provisions of subdivision seven of this section, inspections are made with the same frequency as is required by such city; (2) that the insurance company complies with the rules of the commissioner; (3) that the inspectors of the insurance company hold certificates of competency; (4) that the insurance company gives notice to the owner or lessee of each boiler inspected listing all violations of any provision of the rules of the commissioner; (5) that a certified copy of the report of each inspection is filed with the commissioner or the inspecting agency of such city, as the case may be, within twenty-one days of the inspection, on such forms and in such manner as required by the commissioner or the inspecting agency of such city, as the case may be. A copy filed with the commissioner shall be accompanied by a non-refundable fee of fifty dollars paid for each boiler inspected. If insurance is refused, cancelled or discontinued for the boiler inspected the report shall so state, together with the reasons therefor; the report shall also list any instances of the failure of an owner or lessee of the boiler to comply with the rules of the commissioner.
b. In order to satisfy the inspection requirements of this section, all inspections which are made by duly authorized insurance companies shall be made by inspectors whose competency has been certified by the commissioner in accordance with the rules of the board. The commissioner may, after a hearing upon notice, suspend or revoke a certificate of competency in accordance with the rules of the board. The commissioner may require reasonable cooperation from a city which qualifies under the provisions of subdivision seven of this section in the course of his or her investigation into the competency of a certified inspector.
9. Members of boards. Any member of a boiler inspection examining board or other board created pursuant to rules and regulations of the commissioner to implement this section shall serve without salary or other compensation.
Section 204-a. Examination of plans; fees.
1. Building plans. A fee not to exceed two hundred dollars shall be charged by the commissioner for the examination of plans submitted for approval for the construction or alteration of a building to be used or occupied as a factory, a mercantile establishment or a place of public assembly or for an elevator located therein. The commissioner is authorized to prescribe such fee based upon the estimated cost of the construction or alteration.
2. Exhaust and ventilating plans. A fee not to exceed fifty dollars shall be charged by the commissioner for the examination of plans submitted for approval for the installation or modification of an exhaust or ventilating system. The commissioner is authorized to prescribe such fee based upon the capacity of the system.
Section 204-b. Refunds.
Whenever the commissioner determines that any moneys received under the provisions of this chapter or the rules issued thereunder, or any moneys received under the provisions of article eleven of the general business law, are in excess of the amount required by law, or were paid in error, or that other justifiable circumstances exist, such moneys may, within three years from receipt thereof, be refunded upon the audit of the state comptroller, without interest.
Section 205. Prohibition against eating meals in certain workrooms.
No employee shall take or be permitted to take any food into a room of any working place where lead, arsenic or other poisonous substances or injurious or noxious fumes, dust or gases exist in harmful conditions or are present in harmful quantities as an incident or result of the business carried on in such working place. Notice to the foregoing effect shall be posted in such room. No employee, unless his presence is necessary for the proper conduct of the business, shall remain in any such room during the time allowed for meals. The employer shall provide a suitable place in such establishment in which the employees may eat.
Section 206. Prevention of personal injuries to persons engaged in tree trimming.
The board of standards and appeals may make rules guarding against personal injuries to persons engaged in cutting, trimming or removing trees or brush for hire. Such rules shall not apply to persons cutting, trimming or removing trees or brush on behalf of, or employed by, a public service corporation subject to the jurisdiction of the public service commission.
Section 206-a. Physical examinations of females.
Whenever an employer shall require a physical examination of a female by a physician or a surgeon she shall be entitled to have the examination made by one of her sex or to have another female present if a male physician or surgeon makes the examination. The employer requiring the examination shall post a notice informing the party to be examined of her rights under this section.
Section 206-b. Employment of females after child-birth prohibited.
No owner, manager, foreman or other person in authority in a factory or mercantile establishment shall knowingly employ a female, or permit her to be employed therein, within four weeks after she has given birth to a child; provided, however, that any owner, manager, foreman or other person in authority of such establishment may employ a female or permit her to be employed within a lesser period after having given birth to a child if she presents to such person, (i) a written statement expressing her desire for earlier employment and (ii) a written opinion of a qualified physician that she is physically and mentally capable of discharging the duties of her employment.
Section 206-c. Right of nursing mothers to express breast milk.
An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.
Section 207. Protection of employees at switchboards.
All buildings having installed therein a switchboard of two hundred and twenty volts or over shall have, on the floor or upon the platform or other standing place where the switchboard is located or to which it is attached, a rubber mat the length of the switchboard and of sufficient width to allow a person to walk or stand thereon while working at the switchboard or making tests.
Section 207-a. Employee safety in work on energized high voltage lines.
1. There shall be no change in the present industry work practices, procedures and standards with regard to bare-hand, live-line techniques or with insulated-glove techniques in the handling of energized high-voltage lines and equipment having a voltage differential in excess of 15 kv between any pair of conductors or grounds. Changes in industry work practices, procedures and standards relative to the handling of energized high-voltage lines and equipment having a voltage differential in excess of 15 kv between any pair of conductors or grounds shall be permitted where such changes require the utilization of "hot stick" methods. Nothing contained herein shall prevent any change in industry work practices, procedures and standards with regard to the handling of energized voltage lines and equipment having a high-voltage differential in excess of 100 kv between any pair of conductors or grounds.
2. For the purposes of this section the term "work" shall include, but not be limited to the erection, maintenance, repair, construction or installation of such energized conductors or associated equipment and lines in both emergency and non-emergency situations.
3. No provision herein is to prevent or prohibit any appropriate administrative or rule-making body from making and issuing appropriate rules and regulations concerning employee or worker safety in the work to be performed on energized or properly grounded high-voltage electric transmission and distribution lines and equipment.
Section 208. Labels, brands and marks used by labor organizations.
1. A bona fide union or association of employees which has adopted a device in the form of a label, brand, mark, name or other character for the purpose of designating the products of the labor of its members may apply to the commissioner for the registration of such device.
2. An application for such registration shall be made on a form prescribed by the commissioner and shall be accompanied by a non-refundable filing fee of ten dollars. Notice of the filing of such application shall be given by the commissioner to interested persons and unions in such manner as the commissioner shall by rule prescribe. Within twenty days following the date of such notice of application, any union or aggrieved person may submit to the commissioner a written objection to the registration of the device. If no objection is submitted, the commissioner may register the device and issue a certificate of registration. Such certificate shall not be assignable.
3. If an objection to the registration is duly filed with the commissioner, the commissioner shall promptly refer the objection to the board of standards and appeals. Upon due notice the board shall conduct a hearing to determine whether the registration should be granted or denied. The board may deny registration on any of the following grounds:
a. That the union or association of employees filing the application for registration is not a bona fide union;
b. That the union or association of employees filing the application for registration is not the rightful owner thereof;
c. That the union or association of employees filing the application for registration has made misrepresentations concerning the device; or
d. That the device sought to be registered by the union or association of employees is so similar to a device previously registered by a union or association of employees that it is calculated to deceive.
4. On petition of a union or aggrieved person, the registration of any device may be revoked by the board if it determines that the registration was granted improperly or was obtained fraudulently.
5. The determination of the board may be reviewed pursuant to the provisions of article seventy-eight of the civil practice law and rules.
6. The commissioner and the board shall promulgate appropriate rules and regulations to carry into effect the provisions of this section.
Section 209. Illegal use of labels, brands and marks; injunction proceedings.
No person shall in any way use or display the label, brand, mark, name or other character, adopted by any such union or association as provided in section two hundred eight, without the consent or authority of such union or association; or counterfeit or imitate any such label, brand, mark, name or other character, or knowingly sell, dispose of, keep or have in his possession with intent to sell or dispose of any goods, wares, merchandise or other products of labor, upon which any such counterfeit or imitation is attached, affixed, printed, stamped or impressed, or knowingly sell, dispose of, keep or have in his possession with intent to sell or dispose of any goods, wares, merchandise or other products of labor contained in any box, case, can or package, to which or on which any such counterfeit or imitation is attached, affixed, printed, painted, stamped or impressed. If such device has been registered as provided in section two hundred eight, the union or association may maintain an action to enjoin the manufacture, use, display or sale of counterfeit or colorable imitations of such device, or of goods bearing the same, or the unauthorized use or display of such device, or of goods bearing the same, and the court may restrain such wrongful manufacture, use, display or sale, and every unauthorized use or display by others of the genuine device so registered and filed, if such use or display is not authorized by the owner thereof, and may award to the plaintiff such damages resulting from such wrongful manufacture, use, display or sale as may be proved, together with the profits derived therefrom.
A union or association which has registered a device as provided in section two hundred eight may maintain in an action in the supreme court to enjoin the manufacture, use, display or sale of a device which is calculated to deceive because of its similarity with a device filed by such union or association of members. In such action if it shall appear that the manufacture, use, display or sale of such device sought to be enjoined has not been authorized by the union or association of employees which has registered the device or that such device is so similar to a device previously registered that it is calculated to deceive, the court may restrain the manufacture, use, display or sale of such device and may revoke and cancel the registration of such device.
A person violating any of the provisions of this section shall be guilty of a misdemeanor punishable by a fine of not less than one hundred dollars nor more than five hundred dollars or by imprisonment for not less than three months nor more than one year or by both such fine and imprisonment.
Section 209-a. Fraudulent representation in labor organizations.
Any person who represents himself or herself to be a member of, or who claims to represent a labor organization which does not exist within the state, at the time of such representation, or who has in his or her possession a credential, certificate or letter of introduction bearing a fraudulent seal, or bearing the seal of a labor organization which has ceased to exist, and does not exist at the time of such representation, and attempts to gain admission by the use of said credential, certificate, letter of introduction, as a member of any convention, or meeting of representatives of labor organizations of the state, shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not less than twenty dollars nor more than fifty dollars, and imprisonment for not less than ten days nor more than thirty days in the jail of the county wherein such conviction is had, or by both such fine and imprisonment.
Section 210. Proceedings for nonenforcement.
Any officer, agent or employee of this state or of a municipal corporation therein having a duty to act in the premises who violates, evades or knowingly permits the violation of any of the provisions of this chapter shall be guilty of malfeasance in office and shall be suspended or removed by the authority having power to appoint or remove such officer, agent or employee; otherwise by the governor. Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee who knowingly permits the violation of any of the provisions of this chapter.
Section 210-a. Legal duty to employees.
It shall be unlawful for any employer to refuse to hire, employ or license, or to discharge from employment, an employee in order to evade such employer's legal duty to provide workers' compensation coverage for such employee. An employer in violation of this section shall be guilty of a misdemeanor.
Section 211. Protection of employees.
The commissioner shall cooperate with any employee in the enforcement of a just claim against his employer and for his protection against frauds and other improper practices on the part of any person public or private.
Section 211-a. Prohibition against use of funds.
1. The legislature hereby finds and declares that sound fiscal management requires vigilance to ensure that funds appropriated by the legislature for the purchase of goods and provision of needed services are ultimately expended solely for the purpose for which they were appropriated. The legislature finds and declares that when public funds are appropriated for the purchase of specific goods and/or the provision of needed services, and those funds are instead used to encourage or discourage union organization, the proprietary interests of this state are adversely affected. As a result, the legislature declares that the use of state funds and property to encourage or discourage employees from union organization constitutes a misuse of the public funds and a misapplication of scarce public resources, which should be utilized solely for the public purpose for which they were appropriated.
2. Notwithstanding any other provision of law, no monies appropriated by the state for any purpose shall be used or made available to employers to: (a) train managers, supervisors or other administrative personnel regarding methods to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive; (b) hire or pay attorneys, consultants or other contractors to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive; or (c) hire employees or pay the salary and other compensation of employees whose principal job duties are to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive.
3. Any employer that utilizes funds appropriated by the state and engages in such activities shall maintain, for a period of not less than three years from the date of such activities, financial records, audited as to their validity and accuracy, sufficient to show that state funds were not used to pay for such activities. An employer shall make such financial records available to the state entity that provided such funds and the attorney general within ten business days of receipt of a request from such entity or the attorney general for such records.
4. The attorney general may apply in the name of the people of the state of New York for an order enjoining or restraining the commission or continuance of the alleged violation of this section. In any such proceeding, the court may order the return to the state of the unlawfully expended funds. Further, the court may impose a civil penalty not to exceed one thousand dollars where it has been shown that an employer engaged in a violation of subdivision two of this section; provided, however, that a court may impose a civil penalty not to exceed one thousand dollars or three times the amount of money unlawfully expended, whichever is greater, where it is shown that the employer knowingly engaged in a violation of subdivision two of this section or where the employer previously had been found to have violated subdivision two within the preceding two years. All monies collected pursuant to this section shall be deposited in the state general fund.
5. The commissioner shall promulgate regulations describing the form and content of the financial records required pursuant to this section, and the commissioner shall provide advice and guidance to state entities subject to the provisions of this section as to the implementation of contractual and administrative measures to enforce the purposes of this section.
Section 212. Drinking water for farm laborers.
Every grower or processor who employs or uses paid farm or food processing workers, whether or not he uses the services of a farm labor contractor, shall, at his own expense, provide safe drinking water, which may be in a portable container reasonably accessible to each and every site whereat laborers are working.
Section 212-a. Migrant registration law.
1. Definitions. As used in this section:
a. "Farm labor contractor" includes:
(1) Any person who, for a fee, recruits, transports, supplies or hires farm or food processing workers to work for, or under the direction, supervision, or control of, a third person; or
(2) Any person who recruits, transports, supplies, or hires farm or food processing workers and who, for a fee, directs, supervises, or controls all or any part of the work of such workers.
The term "farm labor contractor" shall not include an employment agency licensed in accordance with the provisions of article eleven of the general business law. The term "farm labor contractor" shall not include a person who is a grower or processor as defined herein who recruits or hires workers for work on his farm or in his plant.
b. "Fee" includes any money or other valuable consideration paid or promised to be paid to a farm labor contractor for the performance of any of the services enumerated in paragraph a of this subdivision.
c. "Grower or processor" means any person who is the owner or lessee of a farm or food processing plant.
d. "Person" includes any individual, firm, partnership, cooperative, association, or corporation.
2. Farm labor contractor.
a. No person shall act as a farm labor contractor unless he holds a valid certificate of registration issued by the commissioner.
b. The application for such certificate of registration shall be made on a form prescribed by the commissioner, shall contain information on wages, working conditions, housing and on such other matters as the commissioner may prescribe and shall be accompanied by a non-refundable fee of two hundred dollars. It shall be countersigned by each grower or processor who utilizes the services of such farm labor contractor, as provided in subdivision three of this section. Copies of the application, or summaries thereof containing the above information, shall be made available by the commissioner to the registrant, and the registrant shall give a copy to each worker, preferably at the time of recruitment, but in no event later than the time of arrival in this state if the worker comes from outside of the state, or the time of commencement of work if the worker does not come from outside of the state. A copy shall also be kept posted at all times in a conspicuous place in any camp in which such workers are housed. Each applicant shall submit his fingerprints with his application for a certificate of registration. Such fingerprints shall be submitted to the division of criminal justice services for a state criminal history record check, as defined in subdivision one of section three thousand thirty-five of the education law, and may be submitted to the federal bureau of investigation for a national criminal history record check.
c. Every farm labor contractor shall keep payroll records for each worker of wage rates, wages earned, number of hours worked, or if the worker is paid on a piecework basis the number of units produced, except that in the case of employees in the twelve to fourteen year-old age bracket, records of hours worked shall be kept, regardless of whether employment be on hourly or piecework basis, all withholdings from wages, and the net wages paid. Such payroll record shall be kept on a form and in a manner prescribed by the commissioner and shall be available for inspection by the commissioner or his duly authorized representative at any reasonable time.
d. Every farm labor contractor shall give to each worker with every payment of wages a written statement showing the employer's name and address, the employee's name, the worker's wage rate, wages earned, number of hours worked, or if the worker is paid on a piecework basis the number of units produced, except that in the case of employees in the twelve to fourteen year-old age bracket, the number of hours worked shall be shown, regardless of whether employment be on hourly or piecework basis, all withholdings and other deductions fully itemized and explained from wages, and the net wages paid.
e. A farm labor contractor shall keep the certificate of registration in his immediate personal possession and shall display it upon the request of the commissioner or his duly authorized representative.
3. Grower or processor who utilizes the services of a farm labor contractor.
a. No grower or processor shall utilize the services of a farm labor contractor unless such grower or processor has a certificate issued by the commissioner therefor, and the farm labor contractor is registered in accordance with the provisions of this section. The commissioner shall issue to such grower or processor a separate certificate of registration.
b. Every grower or processor who utilizes the services of a farm labor contractor shall countersign an application of the farm labor contractor for registration under subdivision two of this section, and shall state that the information contained in such application is true to the best of his knowledge and belief.
c. If a farm labor contractor fails to comply with the provisions of subdivision two of this section relating to the giving of copies of information to workers, the posting of a copy of such information, the keeping of payroll records, and the giving of wage statements to workers, the commissioner shall notify the grower or processor who utilizes the services of such farm labor contractor and responsibility for compliance shall thereafter be imposed on such grower or processor with the same force and effect as though the grower or processor were primarily responsible for compliance.
d. Notwithstanding any other provision of this section, a grower or processor may utilize the services of a registered farm labor contractor for not more than five days, provided, he shall within twenty-four hours after the beginning of such utilization, countersign the application of such farm labor contractor as provided in paragraph b of this subdivision, and immediately thereafter transmit the said application to the commissioner.
4. Grower or processor who does not utilize the services of a farm labor contractor.
a. Every grower or processor who, without utilizing the services of a farm labor contractor, brings into the state or is responsible for bringing into the state five or more out-of-state migrant farm or food processing workers shall, in each instance, prior to the importation of such workers, obtain a certificate of registration from the commissioner.
b. The application for such registration shall be made on a form prescribed by the commissioner, shall contain information on wages, working conditions, housing, and on such other matters as the commissioner may prescribe and shall be accompanied by a non-refundable fee of forty dollars. Copies of the application, or summaries thereof containing the above information, shall be made available by the commissioner to the registrant, and the registrant shall give a copy to each worker, preferably at the time of recruitment, but in no event later than the time of arrival in this state. A copy shall also be kept posted at all times in a conspicuous place in any camp in which such workers are housed.
c. Every such grower or processor shall keep payroll records for each worker of wage rates, wages earned, number of hours worked, or if the worker is paid on a piecework basis the number of units produced, except that in the case of employees in the twelve to fourteen year-old age bracket, records of hours worked shall be kept, regardless of whether employment be on hourly or piecework basis, all withholdings from wages, and the net wages paid. Such payroll records shall be kept on a form and in a manner prescribed by the commissioner and shall be available for inspection by the commissioner or his duly authorized representative at any reasonable time.
d. Every such grower or processor shall give to each worker with every payment of wages, a written statement showing the worker's wage rate, wages earned, number of hours worked, or if the worker is paid on a piecework basis the number of units produced, except that in the case of employees in the twelve to fourteen year-old age bracket, the number of hours worked shall be shown, regardless of whether employment be on hourly or piecework basis, all withholdings from wages, and the net wages paid.
5. The commissioner may refuse to grant, or suspend, or revoke a certificate of a farm labor contractor or of a grower or processor when he finds that such person:
a. Has failed to comply with any of the provisions of this chapter, or has been convicted of any crime or offense, except traffic infractions; or
b. Has made any misrepresentations or false statements in his application for a registration certificate; or
c. Has given false or misleading information concerning terms, conditions, or existence of employment to workers who are recruited or hired.
6. The commissioner shall not refuse, suspend, or revoke a certificate of a farm labor contractor or of a grower or processor unless, upon due notice, an opportunity to be heard has been given to such person; provided, however, that pending the determination of such hearing, the commissioner may temporarily suspend a certificate if, in his opinion, its suspension for such period is necessary to effectuate the purposes of this section.
7. A certificate issued under this section shall terminate on the thirty-first day of March following issuance, unless sooner revoked by the commissioner, and it may not be transferred or assigned to any other person.
8. The commissioner shall submit to each person certified under this section pertinent information concerning workmen's compensation insurance and farmers' liability insurance with medical payments, including the rates for such protection, at the time of certification.
9. The commissioner may promulgate rules and regulations necessary to carry out the provisions of this section.
Section 212-b. Farm labor camp commissaries; issuance of permit; renewal, refusal, suspension, and revocation of permit; rules and regulations.
1. No person shall operate a farm labor camp commissary, or cause or allow the operation of a farm labor camp commissary, without a permit from the commissioner to do so, and unless such permit is in full force and effect. Application for such permit shall be made on a form prescribed by the commissioner and shall be accompanied by a non-refundable fee of forty dollars.
2. A permit to operate a farm labor camp commissary must be conspiciously posted in the commissary. The permit may not be transferred or assigned, and shall run for a period not to exceed twelve months, which period shall end on the thirty-first day of March, unless sooner revoked by the commissioner. The permit may be renewed each year upon the filing of an application for renewal on a form prescribed by the commissioner.
3. A permit-holder shall post, and keep posted, in a conspicuous place in the commissary, the current prices of all goods sold or leased, and the prices charged shall not exceed the prices listed on the poster.
4. The commissioner may refuse, revoke, or suspend a permit when he finds that:
(a) the applicant or permit-holder has violated any of the provisions of this chapter or of the penal law, or has been convicted of any crime or offense, except traffic violations, or is not a person of good character or responsibility; or
(b) the applicant or permit-holder has made any misrepresentation or false statements in his application for a permit.
5. The commissioner shall not refuse, revoke, or suspend a permit unless the applicant or permit-holder, upon due notice, has been given an opportunity to be heard; provided however, that pending the determination of such hearing, the commissioner may temporarily suspend a registration if, in his opinion, its suspension for such period is necessary to effectuate the purposes of the section.
6. The commissioner may promulgate rules and regulations necessary to carry out the provisions of this section.
Section 212-c. Definitions.
As used in section two hundred twelve-b:
1. "Persons" includes any individual, firm, partnership, association, or corporation.
2. "Farm labor camp commissary" means a place where goods are offered for sale or lease and which is operated in or in connection with a farm labor camp, including meals sold to workers. "Farm labor camp commissary" includes a building, shed, or structure, or any part thereof, occupied as a farm labor camp commissary.
3. "Farm labor camp" means a property consisting of a tract of land and all tents, vehicles, buildings, or other structure pertaining thereto, any part of which may be occupied by persons employed as laborers in farm activities who are provided with sleeping facilities, in whole or in part, by the owner, lessee, or operator thereof, with or without stipulated agreement as to the duration of their stay, whether or not they are supplied with meals but who are supplied with such services or facilities as are necessary for their use of such property. The term, "farm activities" shall include the following activities in connection with vegetables and fruits and the plants, bushes, or trees producing the vegetables or fruits: fitting, planting, cultivating, harvesting, vining, sorting, grading, packing, storing, canning, freezing, dehydrating, bottling and preserving or treating by any method.
4. "Goods" includes all goods, wares, merchandise, food or any article or thing.
Section 212-d. Field sanitation for farm hand workers, farm field workers and farm food processing workers.
1. Every grower or processor who employs or uses paid farm hand workers, farm field workers or farm food processing workers, whether or not he or she uses the services of a farm labor contractor, shall, at his or her own expense, provide or make available to such workers toilet and handwashing facilities, including transportation to such facilities.
2. Where five or more paid farm handworkers, farm field workers or farm food processing workers are employed in one location at the same time, at least one toilet and handwashing facility shall be provided at such location for every twenty workers or fraction thereof. Toilet and handwashing units shall be located together. Such facilities shall be located within a one-quarter mile walk of most hand-laborers or at the closest point that may be accessible by motor vehicle.
3. Where more than twenty paid farm hand workers, farm field workers or farm food processing workers are employed in one location at the same time and fifty or more percent of such workers are women, one toilet shall be designated with appropriate signs for men and one toilet designated with appropriate signs for women. Toilet and handwashing units shall be located together. Such facilities shall be located within a one-quarter mile walk of most hand-laborers.
4. When compliance with the provisions of subdivisions one, two and three of this section is not practicable because of physical or terrain conditions, such toilet and handwashing facilities shall be located at the closest point that may be accessible by motor vehicle.
5. Any violation of this section, shall be a misdemeanor punishable by a fine of not less than five hundred dollars, nor more than one thousand dollars, or up to thirty days imprisonment, or both such fine and imprisonment. Any second or subsequent offense shall be a misdemeanor punishable by a fine of not less than one thousand dollars, nor more than three thousand dollars, or up to sixty days imprisonment, or both such fine and imprisonment.
Section 213. Violations of provisions of labor law; the rules, regulations or orders of the industrial commissioner and the industrial board of appeals.
Any person who violates or does not comply with any provision of the labor law, any rule, regulation or lawful order of the industrial commissioner or the industrial board of appeals, and the officers and agents of any corporation who knowingly permit the corporation to violate such provisions, are guilty of a misdemeanor and upon conviction shall be punished, except as in this chapter or in the penal law otherwise provided, for a first offense by a fine of not more than one hundred dollars, provided, however, that if the first offense is a violation of a rule or provision for the protection of the safety or health of employees or persons lawfully frequenting a place to which this chapter applies, the punishment shall be a fine of not more than one hundred dollars or by imprisonment for not more than fifteen days or by both such fine and imprisonment; for a second offense by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a subsequent offense by a fine of not less than three hundred dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment. This section shall not apply to any person covered by section twenty-seven-a of this chapter.
Section 213-a. Special provisions regarding the purchasing of apparel or sports equipment by the state university of New York and the city university of New York.
1. Notwithstanding any other provision of law, the various units of the state university of New York, the city university of New York and community colleges shall have the authority to:
a. Determine that a bidder on a contract for the purchase of apparel or sports equipment is not a responsible bidder as defined in section one hundred sixty-three of the state finance law based upon either of the following considerations:
(i) the labor standards applicable to the manufacture of the apparel or sports equipment, including but not limited to employee compensation, working conditions, employee rights to form unions, and the use of child labor, or
(ii) the bidder's failure to provide information sufficient for the state agency or corporation to determine the labor conditions applicable to the manufacture of the apparel or sports equipment.
b. Include in the internal policies and procedures governing procurement of apparel or sports equipment, where such procurement is not further required to be made pursuant to the competitive bidding requirements of section one hundred sixty-three of the state finance law, a prohibition against the purchase of apparel or sports equipment from any vendor based upon either or both of the following considerations:
(i) the labor standards applicable to the manufacture of the apparel or sports equipment, including but not limited to employee compensation, working conditions, employee rights to form unions, and the use of child labor, or
(ii) the bidder's failure to provide sufficient information for said state agencies to determine the labor standards applicable to the manufacture of the apparel or sports equipment.
2. For the purposes of this section the term:
a. "apparel" shall mean goods, such as, but not limited to, sports uniforms, including gym uniforms, required school uniforms, shoes, including, but not limited to, athletic shoes or sneakers, sweatshirts, caps, hats, and other clothing, whether or not imprinted with a school's name or logo, academic regalia, lab coats and staff uniforms; and
b. "sports equipment" shall mean equipment, such as, but not limited to, balls, bats and other goods intended for use by those participating in sports and games.
Section 214. Criminal prosecution.
The attorney-general may prosecute every person charged with the commission of a criminal offense in violation of this chapter, or of any rule, regulation or order made thereunder, or in violation of the laws of this state, applicable to or arising out of any provision of this chapter or any rule, regulation or order made thereunder.
Section 215. Penalties and civil action; prohibited retaliation.
1. (a) No employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person, shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner (ii) because such employer or person believes that such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general, or to any other person that the employer has violated any provision of this chapter, or any order issued by the commissioner (iii) because such employee has caused to be instituted or is about to institute a proceeding under or related to this chapter, or (iv) because such employee has provided information to the commissioner or his or her authorized representative or the attorney general, or (v) because such employee has testified or is about to testify in an investigation or proceeding under this chapter, or (vi) because such employee has otherwise exercised rights protected under this chapter, or (vii) because the employer has received an adverse determination from the commissioner involving the employee.
An employee complaint or other communication need not make explicit reference to any section or provision of this chapter to trigger the protections of this section.
(b) If after investigation the commissioner finds that an employer or person has violated any provision of this section, the commissioner may, by an order which shall describe particularly the nature of the violation, assess the employer or person a civil penalty of not less than one thousand nor more than ten thousand dollars. The commissioner may also order all appropriate relief including enjoining the conduct of any person or employer; ordering payment of liquidated damages to the employee by the person or entity in violation; and, where the person or entity in violation is an employer ordering rehiring or reinstatement of the employee to his or her former position or an equivalent position, and an award of lost compensation or an award of front pay in lieu of reinstatement and an award of lost compensation. Liquidated damages shall be calculated as an amount not more than ten thousand dollars. The commissioner may assess liquidated damages on behalf of every employee aggrieved under this section, in addition to any other remedies permitted by this section.
(c) This section shall not apply to employees of the state or any municipal subdivisions or departments thereof.
2. (a) An employee may bring a civil action in a court of competent jurisdiction against any employer or persons alleged to have violated the provisions of this section. The court shall have jurisdiction to restrain violations of this section, within two years after such violation, regardless of the dates of employment of the employee, and to order all appropriate relief, including enjoining the conduct of any person or employer; ordering payment of liquidated damages, costs and reasonable attorneys' fees to the employee by the person or entity in violation; and, where the person or entity in violation is an employer, ordering rehiring or reinstatement of the employee to his or her former position with restoration of seniority or an award of front pay in lieu of reinstatement, and an award of lost compensation and damages, costs and reasonable attorneys' fees. Liquidated damages shall be calculated as an amount not more than ten thousand dollars. The court shall award liquidated damages to every employee aggrieved under this section, in addition to any other remedies permitted by this section. The statute of limitations shall be tolled from the date an employee files a complaint with the commissioner or the commissioner commences an investigation, whichever is earlier, until an order to comply issued by the commissioner becomes final, or where the commissioner does not issue an order, until the date on which the commissioner notifies the complainant that the investigation has concluded. Investigation by the commissioner shall not be a prerequisite to nor a bar against a person bringing a civil action under this section.
(b) At or before the commencement of any action under this section, notice thereof shall be served upon the attorney general by the employee.
3. Any employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person who violates subdivision one of this section shall be guilty of a class B misdemeanor.
*Section 215-a. Discrimination against employees for failure to meet certain ticket quotas.
1. No employer or his or her duly authorized agent shall transfer or in any other manner penalize or threaten, expressly or impliedly, an employee as to his or her employment in a manner, including, but not limited to, a reassignment, a scheduling change, an adverse evaluation, a constructive dismissal, the denial of a promotion, or the denial of overtime, based in whole or in part on such employee's failure to meet a quota, established by his or her employer or his or her duly authorized agent, of (a) tickets or summonses issued within a specified period of time for violations of provisions of law for which a ticket or summons is authorized by any general, special or local law; or (b) arrests made within a specified period of time for violations of provisions of law for which such arrest is authorized by any general, special or local law; or (c) stops of individuals suspected of criminal activity within a specified period of time. Any employee so transferred or otherwise penalized may cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the civil service law if no collective bargaining agreement exists. Any employee so transferred or otherwise penalized shall be restored to his or her previously assigned position of employment and shall be compensated by his or her employer for any loss of wages arising out of such transfer or other penalty, and shall have any penalty imposed restored; provided, that if such employee shall cease to be qualified to perform the duties of his or her employment he or she shall not be entitled to such restoration; and it shall be contrary to the public policy of this state for such employer to establish or hereafter maintain a quota policy of (i) tickets or summonses issued within a specified period of time for violations of provisions of law for which a ticket or summons is authorized by any general, special or local law; or (ii) arrests made within a specified period of time for violations of provisions of law for which such arrest is authorized by any general, special or local law; or (iii) stops of individuals suspected of criminal activity within a specified period of time.
2. For the purpose of this section a quota shall mean a specific number of (a) tickets or summonses for violations of law for which a ticket or summons is authorized by any general, special or local law, which are required to be made within a specified period of time; or (b) arrests made for violations of provisions of law for which such arrest is authorized by any general, special or local law, which are required to be made within a specified period of time; or (c) stops of individuals suspected of criminal activity within a specified period of time.
* NB Effective until September 1, 2013
*Section 215-a. Discrimination against employees for failure to meet certain ticket quotas.
1. No employer or his or her duly authorized agent shall transfer or in any other manner penalize or threaten, expressly or impliedly, an employee who is a police officer as to his or her employment in a manner, including, but not limited to, a reassignment, a scheduling change, an adverse evaluation, a constructive dismissal, the denial of a promotion, or the denial of overtime based in whole or in part on such employee's failure to meet a quota, established by his or her employer or his or her duly authorized agent, of (a) tickets or summonses issued within a specified period of time of provisions of law for which a ticket or summons is authorized by any general, special or local law; or (b) arrests made within a specified period of time for violations of provisions of law for which such arrest is authorized by any general, special or local law; or (c) stops of individuals suspected of criminal activity within a specified period of time. Any employee so transferred or otherwise penalized may cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the civil service law if no collective bargaining agreement exists. Any employee so transferred or otherwise penalized shall be restored to his or her previously assigned position of employment and shall be compensated by his or her employer for any loss of wages arising out of such transfer or other penalty, and shall have any penalty imposed restored; provided, that if such employee shall cease to be qualified to perform the duties of his or her employment he or she shall not be entitled to such restoration; and it shall be contrary to the public policy of this state for such employer to establish or hereafter maintain a quota policy of (i) tickets or summonses issued within a specified period of time for violations of provisions of law for which a ticket or summons is authorized by any general, special or local law; or (ii) arrests made within a specified period of time for violations of provisions of law for which such arrest is authorized by any general, special or local law; or (iii) stops of individuals suspected of criminal activity within a specified period of time.
2. For the purpose of this section a quota shall mean a specific number of (a) tickets or summonses for violations of law for which a ticket or summons is authorized by any general, special or local law, which are required to be made within a specified period of time; or (b) arrests made for violations of provisions of law for which such arrest is authorized by any general, special or local law, which are required to be made within a specified period of time; or (c) stops of individuals suspected of criminal activity within a specified period of time.
* NB Effective September 1, 2013
Section 215-b. Children; adverse information; notification.
1. For purposes of this section, the following terms shall have the following meanings:
(a) "Child" means any person under the age of sixteen;
(b) "Parent" means the birth or adoptive parent, the guardian or other adult having legal responsibility for the child;
(c) "Person" means any individual, partnership, corporation, association or other business entity or any employee thereof which regularly maintains a place of business which is open to the public and which operates or is operated for the purpose of offering for sale, whether at wholesale, retail or otherwise, a consumer commodity for purchase by the public;
(d) "Adverse information file" means any written or other communication of any information with respect to the alleged commission by a child of an act of theft within or directly proximate to any place of business operated by such person which alleged acts had they been committed by an adult would constitute misdemeanor larcenies under the penal law. Any information contained in such file on such child that is likely to have an effect upon the ability or eligibility of such child, either while he is a child or upon attaining a legal status other than a child, to obtain credit, insurance, employment, or other benefits, goods or services for which he may seek shall be deemed to be adverse information within the meaning of such term. Any such information shall be deemed to be adverse without regard to whether any legal action as authorized by the family court act or the penal law was ever commenced against such child with regards to the alleged act of theft;
(e) "Consumer reporting agency" means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in gathering, assembling or evaluating consumer credit information or other information on, about or relating to consumers, employees or potential employees for the purpose of furnishing reports to third parties.
2. Any person who opens or causes to be opened an adverse information file shall:
(a) Open such adverse information file within seven days of the alleged commission of a theft;
(b) Notify a parent of such child by regular mail within seventy-two hours, exclusive of weekends and holidays, of the time such file is opened, and make known to such parent by such notice that an adverse information file has been opened on his child by such person and such notice shall be accompanied by copies of any documents in the file, including the written statements of admission or denial signed by his child. Such notice shall contain a telephone number for the parent to call to arrange for an appointment and an address to mail additional material for the file. Every person required to make the notification required by this paragraph shall use reasonable diligence and effort to ascertain the proper identity and location of a parent so as to assure that the provisions of this subdivision shall be complied with. In the event that a child divulges a false parent identity or location to a person, the person shall be exempted from the notification requirements of this paragraph unless the person has actual knowledge of the true identity or location of a parent. The notification requirements of this paragraph shall not apply if the child falsely reports or gives false evidence of his age to be sixteen years or over to such person unless the person has actual knowledge that such child is under the age of sixteen. The notification required in this paragraph shall be made without regard to whether any legal action as authorized by the family court act or the penal law was ever commenced against such child with regards to the alleged act of theft;
(c) Further notify the parent of such child in the notification provided for in paragraph (b) of this subdivision that such parent shall have the right to request that a written statement of two hundred and fifty words or less to be prepared by the child or parent relevant to the alleged act of theft be submitted and contained in such adverse information file. Upon such request and submission the written statement shall be attached to and included with such adverse information file.
3. No person shall provide access to, give, forward or make available any adverse information file or any part thereof to any consumer reporting agency.
4. Any person who fails to comply with the requirements of this section applicable to such person shall be liable to the child in an action commenced on behalf of such child in an amount equal to the sum of:
(a) Any actual damages sustained by the child as a result of any violation of this section;
(b) Such amount of punitive damages as the court may allow; and
(c) In the case of any successful action to enforce any liability under this section together with reasonable attorney's fees as determined by the court.
Section 215-c. Discrimination against employees for displaying the American flag.
1. No employer, public or private, or such employer's duly authorized agent shall discharge or discriminate against any employee in compensation or in terms, conditions or privileges of employment for displaying an American flag on the employee's person or work station, provided such display physically does not substantially or materially interfere with the employee's job duties. If after investigation the commissioner finds that an employer has violated any provision of this section, the commissioner may, by an order which shall describe particularly the nature of the violation, assess the employer a civil penalty of not less than two hundred nor more than two thousand dollars. Notwithstanding the provisions of section two hundred thirteen of this chapter, the penalties set forth in this section shall be the exclusive remedies available for violations of this section.
2. An employee may bring a civil action in a court of competent jurisdiction against any employer or persons alleged to have violated the provisions of this section. The court shall have jurisdiction to restrain violations of this section, within two years after such violation, and to order all appropriate relief, including rehiring or reinstatement of the employee to his former position with restoration of seniority, payment of lost compensation, damages, and reasonable attorneys' fees. At or before the commencement of any action under this section, notice thereof shall be served upon the attorney general by the employee.
Section 216. Failure to pay statutory inspection fees.
Any person who fails to pay the statutory fees for the inspection of boilers, as provided in section two hundred four, subdivision three, of this article or the statutory fees for the inspection of places of public assembly, as provided in section four hundred seventy-three, subdivision two, of this article, within thirty days after written notice that such fees are due and payable, shall pay an additional amount equal to three times the amount specified in the written notice as being due and payable.
Section 217. Employee notification and remittance of premiums; group policies of accident and health insurance.
1. Statement of public policy. The legislature finds that in today's society health and accident insurance coverage for medical care and treatment is of prime importance to all employees and their dependents within the state of New York. Adequate and prospective planning is necessary to insure that such coverage is in effect at the time of commencement of the need for medical and health care. Many employees and their dependents in New York State are covered through group policies issued to their employers, employee organizations or trustees of employee welfare funds and no statutory provision has heretofore afforded these employees and their dependents the right as certificate holders of a group accident or group health policy to receive notification of the intended termination or substitution of the group policy and to have premiums remitted to insurers on their behalf should they choose to exercise continuation privileges available under law.
Accordingly, it is the declared public policy of the state of New York that sufficient and timely notice be afforded each employee covered under a group accident or group health policy of the intended termination or substitution of such policy and that employers be required to remit premiums to insurers on behalf of individuals exercising their right to continuation coverage under the law.
2. Definitions. As used in this section:
(a) "Policyholder" shall mean any person, co-partnership, corporation, trade association, joint stock association, incorporated or unincorporated association, trustees or labor organization as defined in subsections (c) and (g), respectively, of section four thousand four hundred two of the insurance law or any other entity to whom a policy or contract of group accident, group health or group accident and health insurance has been issued.
For the purpose of this section, "policyholder" shall also include any group remitting agent.
(b) "Certificate holder" shall mean any person insured, on either a contributory or non-contributory basis, by a policy or contract of group accident, group health or group accident and health insurance, as well as persons covered by group remittance policies.
3. Notification. A policyholder shall, subsequent to receipt from the insurer of notice of termination pursuant to subsection (k) of section four thousand two hundred thirty-five of the insurance law provide written notice to the certificate holders of such policy of such termination. In any case where the policyholder is substituting such policy with another policy providing similar coverage for the same certificate holders, the policyholder shall provide certificate holders with a written notice including therein the name of the substituted insurer. Where the employees are represented by a labor organization, such notice shall be given to the representative of that labor organization. Such written notice shall be in accordance with the rules and regulations of the superintendent of insurance, promulgated pursuant to subsection (l) of section four thousand two hundred thirty-five of the insurance law.
4. Exception. The provisions of subdivision three of this section shall not be deemed to apply if, within ten days subsequent to receipt of notice of termination from the insurer, the policyholder has taken necessary steps whereby the intended termination is rendered null and void.
5. Where the policyholder has contracted with another insurer to replace the existing insurer for the providing of similar and continuous coverage for the same certificate holders he shall file an affidavit with the commissioner of labor and superintendent of insurance to that effect.
6. Remittance of premiums. Any policyholder who receives notification from an individual entitled to exercise a right to continuation of coverage by the policyholder's insurer pursuant to section three thousand two hundred twenty-one of the insurance law, shall, no later than thirty days subsequent to receipt of premiums from such individual, remit such premiums to the insurer on behalf of such individual and provide evidence to the individual that the premium has been remitted.
6-a. Residence location to accompany enrollment data. When a policyholder provides information to an insurer or health maintenance organization certified under article forty-four of the public health law or licensed pursuant to the insurance law regarding the initial or continued enrollment eligibility of a certificate holder, the policy holder must include the current united states postal service zip code and state in which the certificate holder currently resides.
7. Penalties. (a) Any policyholder who fails to comply with this section, shall forfeit to the people of the State a sum up to five thousand dollars, to be recovered by the commissioner in a civil action. Where the policyholder is a corporation, trade association, joint stock association, incorporated or unincorporated association, the president, secretary and treasurer thereof shall be liable for any forfeiture.
(b) In addition to such penalty, where the failure to comply involves the failure to notify an employee of the termination of a group accident or group health policy pursuant to subdivision three of this section or the failure to remit premiums pursuant to subdivision six of this section, or the failure to provide an individual with notice of termination pursuant to subdivision six of section one hundred ninety-five of this chapter, the policy holder shall also be liable, in a civil action brought by the individual entitled to receive the notice of termination or exercise the right to continuation of coverage in a court of competent jurisdiction, to appropriate damages which shall include reimbursement for medical expenses which were not covered by the policyholder's insurer by virtue of his termination of the policy or failure to remit such premiums.
Section 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, 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. In addition to directing payment of wages, benefits or wage supplements found to be due, 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 equal to double the total amount 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 appropriate civil penalty. 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 of the employer, 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 interest at the rate of interest then in effect, as prescribed by the superintendent of banks 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 of the employer, the gravity of the violation, the history of previous violations.
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. The filing of such order or decision shall have the full force and effect of a judgment duly docketed in the office of such clerk. The order or decision may be enforced by and in the name of the commissioner 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.
Section 218-a. Sun safety education for state employees.
1. Any state employee who spends more than a total of five hours per week outdoors shall be provided information about (a) the potential dangers of diseases caused by over-exposure of the sun, such as skin cancer, (b) the existence of available protections and their proper uses, and (c) any other information necessary to afford an employee his or her best opportunity to protect themselves from the sun.
2. An employer of any employee subject to subdivision one of this section shall ensure that any necessary information is given to each employee for his or her use during their employment, at no cost to the employee.
3. The commissioner, in consultation with the commissioner of education, shall determine the form and content of the information supplied to the state employees who are subject to the provisions of this section.
Section 219. Violations of certain wage payment provisions; interest, filing of order as judgment.
1. If the commissioner determines that an employer has failed to pay wages, benefits or wage supplements required pursuant to article six (payment of wages), article nineteen (minimum wage act) or article nineteen-a 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. Such order shall direct payment of wages or supplements found to be due, including interest at the rate of interest then in effect as prescribed by the superintendent of banks pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment.
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. The filing of such order or decision shall have the full force and effect of a judgment duly docketed in the office of such clerk. The order or decision may be enforced by and in the name of the commissioner 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.
Section 219-a. Affirmation in lieu of oath.
Notwithstanding any other provision of law, any application for a license, permit, registration, certificate or notification required by law to be filed with the department may, in lieu of being acknowledged or sworn to under oath, be subscribed by the applicant and affirmed by him or her as true under penalties of perjury.