S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3702
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 27, 2015
                                      ___________
       Introduced  by  M. of A. MOYA -- read once and referred to the Committee
         on Consumer Affairs and Protection
       AN ACT to amend the general business  law,  in  relation  to  employment
         agencies
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 171 of the  general  business  law  is  amended  by
    2  adding a new subdivision 12 to read as follows:
    3    12.  "BONA FIDE ORDER" MEANS A WRITTEN ORDER FROM AN EMPLOYER DIRECTED
    4  TO AN EMPLOYMENT AGENCY STATING THAT  THE  EMPLOYER  REQUESTS  THAT  THE
    5  EMPLOYMENT  AGENCY REFER ONE OR MORE JOB APPLICANTS FOR A SPECIFIC POSI-
    6  TION OR POSITIONS WITHIN A SPECIFIED AND LIMITED APPLICATION PERIOD.  AN
    7  EMPLOYMENT AGENCY MUST RENEW A BONA FIDE ORDER AFTER FORTY-FIVE DAYS  IF
    8  IT INTENDS TO REFER AN APPLICANT FOR THE POSITION DESCRIBED IN SUCH BONA
    9  FIDE  ORDER,  AND  THE  EMPLOYMENT  AGENCY MUST SPECIFY ON THE BONA FIDE
   10  ORDER THE NAME OF THE REPRESENTATIVE OF  THE  PROSPECTIVE  EMPLOYER  WHO
   11  AUTHORIZED THE RENEWAL AND THE DATE ON WHICH THE RENEWAL WAS AUTHORIZED.
   12  THE BONA FIDE ORDER SHALL ALSO INCLUDE A WRITTEN STATEMENT SETTING FORTH
   13  THE TERMS AND CONDITIONS OF EMPLOYMENT FOR THE POSITION DESCRIBED IN THE
   14  ORDER; SUCH WRITTEN STATEMENT SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
   15  INFORMATION:
   16    A. THE NAME OF THE EMPLOYER, ANY "DOING BUSINESS AS" NAMES USED BY THE
   17  EMPLOYER,  THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR PRINCI-
   18  PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
   19  NUMBER OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE  COMMISSIONER
   20  DEEMS MATERIAL AND NECESSARY;
   21    B. THE PLACE OR PLACES OF EMPLOYMENT;
   22    C. THE HOURS OF WORK PER DAY AND NUMBER OF DAYS PER WEEK TO BE WORKED;
   23    D.  THE  RATE  OR  RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY THE
   24  HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOWANCES,
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06774-01-5
       A. 3702                             2
    1  IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE,  INCLUDING  TIP,  MEAL,  OR
    2  LODGING ALLOWANCES;
    3    E.  THE  CIRCUMSTANCES UNDER WHICH THE EMPLOYEE WILL BE PAID A PREMIUM
    4  FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF HOURS PER  DAY,  WEEK,
    5  OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS, WEEKENDS, OR HOLIDAYS;
    6    F. THE ANTICIPATED PERIOD OF EMPLOYMENT;
    7    G.  ANY  PROVISION TO THE EMPLOYEE, AND HOW LONG THE PROVISION WILL BE
    8  PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED  WITH
    9  THE  PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
   10  WORK, HOUSING, HEALTH INSURANCE OR HEALTH  CARE,  PAID  SICK  OR  ANNUAL
   11  LEAVE  AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
   12  PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
   13  MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
   14  DENTS OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND
   15    H. THE NATURE OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
   16    S 2. Paragraph b of subdivision 2 of section 173 of the general  busi-
   17  ness  law,  as  added  by chapter 632 of the laws of 1975, is amended to
   18  read as follows:
   19    b. The application for a license shall be accompanied  by  samples  or
   20  accurate  facsimiles  of  each and every form [which the applicant for a
   21  license will require applicants for employment  to  execute],  CONTRACT,
   22  STATEMENT  OF  TERMS  AND  CONDITIONS,  AND  RECEIPT,  AS REQUIRED UNDER
   23  SECTION  ONE  HUNDRED  EIGHTY-ONE  OF  THIS  ARTICLE,  and  such  forms,
   24  CONTRACTS,  STATEMENTS  OF  TERMS  AND  CONDITIONS, AND RECEIPTS must be
   25  approved by the commissioner before a license may be issued. The commis-
   26  sioner shall approve any such forms which fairly and  clearly  represent
   27  contractual  terms and conditions between the proposed employment agency
   28  and applicants for employment, such as are permitted by this article.
   29    S 3. Subdivisions 1 and 2 of section 174 of the general business  law,
   30  subdivision 1 as amended by chapter 164 of the laws of 2003, subdivision
   31  2  as amended by chapter 632 of the laws of 1975, are amended to read as
   32  follows:
   33    1. Upon the receipt of an application for a license, the  commissioner
   34  shall  cause the name and address of the applicant, the name under which
   35  the employment agency is to be conducted, and the street and  number  of
   36  the  place  where  the  agency  is  to be conducted, to be posted ON THE
   37  COMMISSIONER'S WEBSITE, AS WELL AS in a conspicuous place in his  public
   38  office.  Such  agency  shall be used exclusively as an employment agency
   39  and for no other purpose, except as hereinafter  provided.  The  commis-
   40  sioner  shall  investigate or cause to be investigated the character and
   41  responsibility of the applicant and agency manager and shall examine  or
   42  cause  to be examined the premises designated in such application as the
   43  place in which it is proposed to conduct such agency.
   44    The commissioner shall require all applicants for licenses and  agency
   45  managers  to  be  fingerprinted. Such fingerprints shall be submitted to
   46  the division of criminal justice services for a state  criminal  history
   47  record  check,  as  defined in subdivision one of section three thousand
   48  thirty-five of the education law, and may be submitted  to  the  federal
   49  bureau  of  investigation  for a national criminal history record check.
   50  THE CRIMINAL HISTORY INFORMATION, IF ANY, RECEIVED BY THE DEPARTMENT  OF
   51  LABOR  SHALL  BE CONSIDERED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
   52  TWENTY-THREE-A OF  THE  CORRECTION  LAW  AND  SUBDIVISIONS  FIFTEEN  AND
   53  SIXTEEN  OF  SECTION  TWO  HUNDRED  NINETY-SIX  OF  THE EXECUTIVE LAW. A
   54  REASONABLE TIME BEFORE MAKING A DETERMINATION ON THE APPLICATION  PURSU-
   55  ANT  TO  THIS  SUBDIVISION,  THE  DEPARTMENT SHALL PROVIDE THE APPLICANT
   56  CRIMINAL HISTORY INFORMATION, IF ANY. WHERE SUCH CRIMINAL HISTORY INFOR-
       A. 3702                             3
    1  MATION IS PROVIDED, THE DEPARTMENT SHALL ALSO PROVIDE A COPY OF  ARTICLE
    2  TWENTY-THREE-A  OF  THE CORRECTION LAW, AND INFORM SUCH APPLICANT OF HIS
    3  OR HER RIGHT TO SEEK CORRECTION OF ANY INCORRECT  INFORMATION  CONTAINED
    4  IN  SUCH  CRIMINAL  HISTORY  INFORMATION PURSUANT TO THE REGULATIONS AND
    5  PROCEDURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
    6    2. Any person may file, within one week after such application  is  so
    7  posted  [in  the said office], a written protest against the issuance of
    8  such license. Such protest shall be in writing and signed by the  person
    9  filing  the  same  or  his authorized agent or attorney, and shall state
   10  reasons why the said license should not be granted. Upon the  filing  of
   11  such  protest  the  commissioner  shall appoint a time and place for the
   12  hearing of such application, and shall give at least five  days'  notice
   13  of  such  time  and  place  to  the applicant and the person filing such
   14  protest. The commissioner may administer oaths, subpoena  witnesses  and
   15  take  testimony  in respect to the matters contained in such application
   16  and protests or complaints of any character for violation of this  arti-
   17  cle,  and  may  receive evidence in the form of affidavits pertaining to
   18  such matters.  If  it  shall  appear  upon  such  hearing  or  from  the
   19  inspection,  examination  or investigation made by the commissioner that
   20  the applicant or agency manager is not a person  of  good  character  or
   21  responsibility;  or  that  he or the agency manager has not had at least
   22  two years experience as a placement employee, vocational  counsellor  or
   23  in  related  activities, or other satisfactory business experience which
   24  similarly tend to establish the competence of such individual to  direct
   25  and  operate  the  placement activities of the agency; or that the place
   26  where such agency is to be conducted is not a suitable  place  therefor;
   27  or that the applicant has not complied with the provisions of this arti-
   28  cle;  the  said  application  shall be denied and a license shall not be
   29  granted. Each application should be granted  or  refused  within  thirty
   30  days from the date of its filing.
   31    S  4.  Section  179 of the general business law, as amended by chapter
   32  632 of the laws of 1975, is amended to read as follows:
   33    S 179. Registers and other records to be kept. It shall be the duty of
   34  every licensed person to keep a register, approved by the  commissioner,
   35  in  which  shall  be  entered,  in the English language, the date of the
   36  application for employment, the date the applicant started work and  the
   37  name  and  address  of  every  applicant  from  whom a fee or deposit is
   38  charged, the amount of the fee or deposit and the service for  which  it
   39  is  received  or  charged.  Such licensed person shall also enter in the
   40  same or in a separate register, approved by  the  commissioner,  in  the
   41  English language, the name and address of every employer from whom a fee
   42  is  received  or charged or to whom the licensed person refers an appli-
   43  cant who has paid or is charged a  fee,  the  date  of  such  employer's
   44  request or assent that applicants be furnished, the kind of position for
   45  which  applicants  are  requested, the names of the applicants sent from
   46  whom a fee or deposit is received or charged with the designation of the
   47  one employed, the amount of the fee or deposit charged, and the rate  of
   48  salary or wages agreed upon. It shall also be the duty of every licensed
   49  person  to  keep  complete  and  accurate written records in the English
   50  language of all receipts and income received or  derived  directly  from
   51  the  operation  of his employment agency, and to keep records concerning
   52  [job] BONA FIDE orders. No such licensed person, his agent or employees,
   53  shall make any false entry in such records. It  shall  be  the  duty  of
   54  every  licensed person to communicate orally or in writing with at least
   55  one of the persons mentioned as references for every applicant for  work
   56  in private families, or employed in a fiduciary capacity, and the result
       A. 3702                             4
    1  of  such investigation shall be kept on file in such agency for a period
    2  of at least three years. Every register and all records, INCLUDING  BONA
    3  FIDE  ORDERS, kept pursuant to the requirements of this article shall be
    4  retained on the premises of the agency concerned for three years follow-
    5  ing  the  date  on  which  the last entry thereon was made [except a job
    6  order which shall be retained for one year following the date  on  which
    7  it was received].
    8    S  5. Section 181 of the general business law, as added by chapter 893
    9  of the laws of 1958, subdivision 1 as added and subdivision 2 as amended
   10  by chapter 632 of the laws of 1975, subdivision 3 as separately  amended
   11  by  chapters  1010  and  1083  of the laws of 1960, and subdivision 4 as
   12  amended by chapter 479 of the laws  of  1963,  is  amended  to  read  as
   13  follows:
   14    S 181. Contracts, STATEMENTS OF TERMS AND CONDITIONS, AND receipts. It
   15  shall  be  the duty of every employment agency to give to each applicant
   16  for employment:
   17    1. A true copy of every contract executed between such agency and such
   18  applicant, which shall have printed on it or attached to it a  statement
   19  setting  forth  in a clear and concise manner the provisions of sections
   20  one hundred eighty-five, and one hundred eighty-six of this article.
   21    2. [Information as to the name and address of the person to  whom  the
   22  applicant  is  to  apply  for such employment, the kind of service to be
   23  performed, the anticipated rate of wages or compensation,  the  agency's
   24  fee  for  the applicant based on such anticipated wages or compensation,
   25  whether such employment is permanent or temporary, the name and  address
   26  of  the person authorizing the hiring of such applicant, and the cost of
   27  transportation if the services are required outside of the city, town or
   28  village where such agency is located. If  the  job  is  a  conditionally
   29  fee-paid  job, the conditions under which the applicant will be required
   30  to pay a fee shall be clearly set forth in a separate agreement in  ten-
   31  point  type signed by the job applicant.] (A) AN EMPLOYMENT AGENCY SHALL
   32  ISSUE A WRITTEN STATEMENT OF TERMS AND CONDITIONS TO EACH JOB  APPLICANT
   33  ON  EACH  OCCASION  THAT  THE AGENCY REFERS THE APPLICANT TO A POTENTIAL
   34  EMPLOYER. THE WRITTEN STATEMENT OF TERMS  AND  CONDITIONS  SHALL  BE  IN
   35  ENGLISH  AND  IN THE LANGUAGE IDENTIFIED BY THE APPLICANT AS THE PRIMARY
   36  LANGUAGE OF SUCH APPLICANT. EVERY EMPLOYMENT AGENCY SHALL KEEP  ON  FILE
   37  IN ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A COPY OF
   38  EACH  WRITTEN STATEMENT OF TERMS AND CONDITIONS ISSUED TO EACH APPLICANT
   39  THAT IS SIGNED AND DATED BY THE APPLICANT. THE STATEMENT  OF  TERMS  AND
   40  CONDITIONS  SHALL  INCLUDE, AT A MINIMUM, THE FOLLOWING INFORMATION: (I)
   41  THE NAME OF THE EMPLOYER, ANY "DOING BUSINESS  AS"  NAMES  USED  BY  THE
   42  EMPLOYER,  THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR PRINCI-
   43  PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
   44  NUMBER OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE  COMMISSIONER
   45  DEEMS  MATERIAL  AND  NECESSARY; (II) THE PLACE OR PLACES OF EMPLOYMENT;
   46  (III) THE HOURS OF WORK PER DAY AND  NUMBER  OF  DAYS  PER  WEEK  TO  BE
   47  WORKED; (IV) THE RATE OR RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY
   48  THE  HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOW-
   49  ANCES, IF ANY, CLAIMED AS PART OF THE MINIMUM WAGE, INCLUDING TIP, MEAL,
   50  OR LODGING ALLOWANCES; (V) THE CIRCUMSTANCES UNDER  WHICH  THE  EMPLOYEE
   51  WILL BE PAID A PREMIUM FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER OF
   52  HOURS  PER  DAY,  WEEK,  OR  MONTH, OR FOR WORKING ON DESIGNATED NIGHTS,
   53  WEEKENDS, OR HOLIDAYS; (VI) THE ANTICIPATED PERIOD OF EMPLOYMENT;  (VII)
   54  ANY  PROVISION  TO  THE  EMPLOYEE,  AND  HOW  LONG THE PROVISION WILL BE
   55  PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED  WITH
   56  THE  PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
       A. 3702                             5
    1  WORK, HOUSING, HEALTH INSURANCE OR HEALTH  CARE,  PAID  SICK  OR  ANNUAL
    2  LEAVE  AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
    3  PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
    4  MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
    5  DENTS  OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND (VIII) THE NATURE
    6  OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
    7    (B) THE COMMISSIONER SHALL PREPARE  TEMPLATES  THAT  COMPLY  WITH  THE
    8  REQUIREMENTS  OF  PARAGRAPH  (A) OF THIS SUBDIVISION. EACH SUCH TEMPLATE
    9  SHALL BE DUAL-LANGUAGE, INCLUDING ENGLISH AND ONE  ADDITIONAL  LANGUAGE.
   10  THE  COMMISSIONER  SHALL  DETERMINE,  IN  HIS  OR  HER DISCRETION, WHICH
   11  LANGUAGES TO PROVIDE IN ADDITION TO ENGLISH, BASED ON THE  SIZE  OF  THE
   12  NEW YORK STATE POPULATION THAT SPEAKS EACH LANGUAGE AND ANY OTHER FACTOR
   13  THAT  THE  COMMISSIONER SHALL DEEM RELEVANT. ALL SUCH TEMPLATES SHALL BE
   14  MADE AVAILABLE TO EMPLOYMENT AGENCIES IN SUCH MANNER  AS  DETERMINED  BY
   15  THE COMMISSIONER.
   16    (C)  WHEN  A JOB APPLICANT IDENTIFIES AS HIS OR HER PRIMARY LANGUAGE A
   17  LANGUAGE FOR WHICH A TEMPLATE IS NOT AVAILABLE  FROM  THE  COMMISSIONER,
   18  THE  EMPLOYMENT  AGENCY  SHALL COMPLY WITH THIS SUBDIVISION BY PROVIDING
   19  THAT EMPLOYEE AN ENGLISH-LANGUAGE STATEMENT.
   20    (D) AN EMPLOYMENT AGENCY SHALL NOT BE PENALIZED FOR  ERRORS  OR  OMIS-
   21  SIONS  IN THE NON-ENGLISH PORTIONS OF ANY NOTICE PROVIDED BY THE COMMIS-
   22  SIONER.
   23    3. [A receipt for any fee, deposit, consideration,  or  payment  which
   24  such  agency  receives  from such applicant, which shall have printed or
   25  written on it the name of the applicant, the name  and  address  of  the
   26  employment  agency,  the date and amount of such fee, deposit, consider-
   27  ation or payment or portion thereof for which the receipt is given,  the
   28  purpose for which it was paid, and the signature of the person receiving
   29  such  payment.  If  the applicant for employment has been recruited from
   30  outside the state for domestic or household employment the receipt shall
   31  have printed on it, or attached to it, a copy  of  section  one  hundred
   32  eighty-four of this article.] EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE
   33  IN  ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A STATE-
   34  MENT, SIGNED BY THE EMPLOYER OF  EVERY  APPLICANT  WHOM  THE  EMPLOYMENT
   35  AGENCY  HAS PLACED, INDICATING THAT THE EMPLOYER HAS READ AND UNDERSTOOD
   36  THE STATEMENT OF TERMS AND CONDITIONS REQUIRED  BY  SUBDIVISION  TWO  OF
   37  THIS  SECTION  AND  THAT THE EMPLOYER HAS RECEIVED A COPY OF THAT STATE-
   38  MENT.
   39    4. [The original or duplicate-original copy of each such contract  and
   40  receipt  shall  be  retained  by every employment agency for three years
   41  following the date on which the contract is executed or the  payment  is
   42  made,  and shall be made available for inspection by the commissioner or
   43  his duly authorized agent or inspector, upon his request.  Notwithstand-
   44  ing the other provisions of such contracts, the  monetary  consideration
   45  to be paid by the applicant shall not exceed the fee ceiling provided in
   46  subdivision eight of section one hundred eighty-five.] A RECEIPT FOR ANY
   47  FEE,  CONSIDERATION,  OR PAYMENT WHICH AN AGENCY RECEIVES FROM AN APPLI-
   48  CANT. THE RECEIPT SHALL HAVE PRINTED OR WRITTEN ON IT THE  NAME  OF  THE
   49  APPLICANT,  THE  NAME AND ADDRESS OF THE EMPLOYMENT AGENCY, THE DATE AND
   50  AMOUNT OF SUCH FEE, CONSIDERATION OR  PAYMENT  OR  PORTION  THEREOF  FOR
   51  WHICH  THE  RECEIPT IS GIVEN, THE PURPOSE FOR WHICH IT WAS PAID, AND THE
   52  SIGNATURE OF THE PERSON RECEIVING SUCH PAYMENT. THE RECEIPT  SHALL  ALSO
   53  INCLUDE  IMMEDIATELY ABOVE THE PLACE FOR SIGNATURE OF THE PERSON RECEIV-
   54  ING PAYMENT, SET OFF IN A BOX AND PRINTED  IN  BOLD  AND  IN  CAPS,  THE
   55  FOLLOWING  STATEMENT:  "AN EMPLOYMENT AGENCY MAY NOT CHARGE YOU, THE JOB
   56  APPLICANT, A FEE BEFORE REFERRING YOU TO A JOB THAT YOU ACCEPT.  IF  YOU
       A. 3702                             6
    1  PAY  A  FEE  BEFORE ACCEPTING A JOB OR PAY A FEE THAT OTHERWISE VIOLATES
    2  THE LAW, YOU MAY DEMAND A REFUND, WHICH SHALL BE REPAID WITHIN SEVEN (7)
    3  DAYS." THE TEXT CONTAINED IN THIS BOX SHALL ALSO BE IN  ENGLISH  AND  IN
    4  THE  LANGUAGE  IDENTIFIED  BY  EACH APPLICANT AS THE PRIMARY LANGUAGE OF
    5  SUCH APPLICANT.
    6    5. THE ORIGINAL OR DUPLICATE-ORIGINAL COPY OF EACH  WRITTEN  CONTRACT,
    7  EACH  STATEMENT  OF  TERMS AND CONDITIONS REQUIRED BY SUBDIVISION TWO OF
    8  THIS SECTION, AND EACH RECEIPT REQUIRED  BY  SUBDIVISION  FOUR  OF  THIS
    9  SECTION  SHALL  BE  RETAINED  BY EVERY EMPLOYMENT AGENCY FOR THREE YEARS
   10  FOLLOWING THE DATE ON WHICH THE  CONTRACT  IS  EXECUTED.    THE  RECORDS
   11  REQUIRED  UNDER  THIS SUBDIVISION SHALL BE MADE AVAILABLE FOR INSPECTION
   12  BY THE COMMISSIONER OR HIS OR HER DULY AUTHORIZED  AGENT  OR  INSPECTOR,
   13  UPON SUCH REQUEST.
   14    S  6. Subdivisions 1 and 3 of section 185 of the general business law,
   15  subdivision 1 as amended by chapter 460 of the laws of 2012 and subdivi-
   16  sion 3 as amended by chapter 1010 of the laws of 1960, are amended and a
   17  new subdivision 1-a is added to read as follows:
   18    1. Circumstances permitting fee. An employment agency shall not charge
   19  or accept a fee or other consideration unless  in  accordance  with  the
   20  terms of a written contract with a job applicant[, except:
   21    (a)  for  class  "A"  and "A-1" employment, and except] AND after such
   22  agency has been responsible for  referring  such  job  applicant  to  an
   23  employer or such employer to a job applicant and where as a result ther-
   24  eof such job applicant has been employed by such employer[; and
   25    (b)],  EXCEPT  for class "C" employment: [(i)] (A) after an agency has
   26  been responsible for referring an artist to an employer or such employer
   27  to an artist and where as a result thereof such artist has been employed
   28  by such employer; or [(ii)] (B) after an agency represents an artist  in
   29  the  negotiation or renegotiation of an original or pre-existing employ-
   30  ment contract and where as a result thereof the  artist  enters  into  a
   31  negotiated or renegotiated employment contract. For class "C" employment
   32  pursuant to this paragraph, an employment agency shall provide an artist
   33  with  a  statement  setting  forth  in  a  clear  and concise manner the
   34  provisions of this section and section one hundred  eighty-six  of  this
   35  article.
   36    The  maximum  fees  provided for herein for all types of placements or
   37  employment may be charged to the job applicant and a similar fee may  be
   38  charged  to  the  employer provided, however, that with regard to place-
   39  ments in class "B" employment, a fee of up to one and one-half times the
   40  fee charged to the job applicant may be  charged  to  the  employer.  By
   41  agreement with an employment agency, the employer may voluntarily assume
   42  payment of the job applicant's fee. The fees charged to employers by any
   43  licensed  person  conducting an employment agency for rendering services
   44  in connection with, or for providing employment in  classes  "A",  "A-1"
   45  and  "B",  as  hereinafter  defined  in subdivision four of this section
   46  where the applicant is not charged a fee shall be determined  by  agree-
   47  ment  between  the  employer and the employment agency.  No fee shall be
   48  charged or accepted for the registration of applicants for employees  or
   49  employment.
   50    1-A.  FEE  REFUND.  AN EMPLOYMENT AGENCY WHO HAS CHARGED OR ACCEPTED A
   51  FEE OR OTHER CONSIDERATION FOR CLASSES "A" AND "A-1" EMPLOYMENT  WITHOUT
   52  A  CONTRACT  PRIOR  TO OCTOBER FIRST, TWO THOUSAND FIFTEEN, SHALL REFUND
   53  THE FULL AMOUNT TO THE JOB APPLICANT BY  NOVEMBER  FIRST,  TWO  THOUSAND
   54  SIXTEEN,  IF:  (A)  SUCH  FEE  OR  CONSIDERATION DID NOT LEAD TO THE JOB
   55  APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT AGENCY; OR (B) THE
       A. 3702                             7
    1  FEE OR CONSIDERATION WAS NOT APPLIED TO THE JOB APPLICANT'S ACCOUNT  FOR
    2  SERVICES RENDERED BY THE EMPLOYMENT AGENCY.
    3    3.  Deposits,  advance  fees.  Notwithstanding any other provisions of
    4  this section, an employment agency [may] SHALL not require OR  ACCEPT  a
    5  deposit or advance fee from any applicant [except an applicant for class
    6  "A" or class "A1" employment, and only to the extent of the maximum fees
    7  hereinafter  provided.  Such  deposit  or  advance  fee  shall be offset
    8  against any fee charged or accepted when such  employment  is  obtained.
    9  Any  excess above the lawful fee shall be returned without demand there-
   10  for, immediately after the employment agency has been notified that such
   11  employment has been obtained; and all of such  deposit  or  advance  fee
   12  shall  be  returned  immediately upon demand therefor, if at the time of
   13  the demand such employment has not  been  obtained].    ANY  DEPOSIT  OR
   14  ADVANCE  FEE  COLLECTED  BY AN EMPLOYMENT AGENCY PRIOR TO OCTOBER FIRST,
   15  TWO THOUSAND FIFTEEN, MUST BE REFUNDED  TO  THE  APPLICANT  BY  NOVEMBER
   16  FIRST, TWO THOUSAND SIXTEEN, IF: (A) SUCH DEPOSIT OR ADVANCE FEE DID NOT
   17  LEAD  TO  THE  JOB APPLICANT OBTAINING EMPLOYMENT THROUGH THE EMPLOYMENT
   18  AGENCY OR (B) THE DEPOSIT OR ADVANCE FEE WAS  NOT  APPLIED  TO  THE  JOB
   19  APPLICANT'S ACCOUNT FOR SERVICES RENDERED BY THE EMPLOYMENT AGENCY.
   20    S  7.  Subdivision  2  of  section 186 of the general business law, as
   21  amended by chapter 1010 of the laws of  1960,  is  amended  to  read  as
   22  follows:
   23    2. Failure to report: If a job applicant accepts employment and there-
   24  after  fails to report for work, the gross fee charged to such applicant
   25  shall not exceed twenty-five per cent of  the  maximum  fee  allowed  by
   26  section  one  hundred eighty-five of this article[, provided however, if
   27  the applicant remains with his same employer, the fee shall  not  exceed
   28  fifty  per  cent].  If  a  job applicant accepts employment and fails to
   29  report for work, no fee shall be charged to the employer.
   30    S 8. Subdivision 3 of section 187 of  the  general  business  law,  as
   31  added by chapter 893 of the laws of 1958, is amended to read as follows:
   32    (3)  Advertise  in  newspapers  or  otherwise,  or  use letterheads or
   33  receipts or other written or printed matter, unless such advertising  or
   34  other  matter  contains  the  name  and address of the employment agency
   35  [and] the word "agency", AND THE AGENCY'S LICENSE NUMBER.
   36    S 9. Section 189 of the general business law, as  amended  by  chapter
   37  479  of the laws of 1963, subdivisions 1 and 2 as amended by chapter 721
   38  of the laws of 2004, subdivisions 4 and 5 as amended by chapter  632  of
   39  the laws of 1975, is amended to read as follows:
   40    S  189.  Enforcement  of  provisions of this article. 1. This article,
   41  article nineteen-B of the labor law and sections 37.01, 37.03 and  37.05
   42  of  the  arts  and cultural affairs law shall be enforced by the commis-
   43  sioner of labor, except that in the city of New York  this  article  and
   44  such  sections shall be enforced by the commissioner of consumer affairs
   45  of such city.  IN ADDITION TO THE POWERS OF THE COMMISSIONER, THE ATTOR-
   46  NEY GENERAL SHALL HAVE THE POWER TO ENFORCE THIS  ARTICLE;  SUCH  POWERS
   47  INCLUDE,  BUT  ARE  NOT  LIMITED  TO, ACTIONS TO RESTRAIN OR ENJOIN SUCH
   48  VIOLATION.  NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR
   49  REMEDIES WHICH ARE OTHERWISE AVAILABLE TO A PERSON UNDER ANY OTHER LAW.
   50    2. To effectuate the purposes of this article, article  nineteen-B  of
   51  the  labor  law  and  sections  37.01,  37.03  and 37.05 of the arts and
   52  cultural affairs law, the commissioner or any duly authorized  agent  or
   53  inspector  designated  by  such  commissioner,  shall  have authority to
   54  inspect [the premises, registers, contract forms, receipt books,  appli-
   55  cation  forms,  referral  forms,  reference forms, reference reports and
   56  financial records of fees charged and refunds made  of  each  employment
       A. 3702                             8
    1  agency, which are essential to the operation of such agency, and of each
    2  applicant  for  an employment agency license, as frequently as necessary
    3  to ensure compliance with  this  article  and  such  sections;  but  in]
    4  EMPLOYMENT  AGENCIES  AND APPLICANTS FOR AN EMPLOYMENT AGENCY LICENSE AS
    5  FREQUENTLY AS NECESSARY TO ENSURE  COMPLIANCE  WITH  THIS  ARTICLE.  THE
    6  FOLLOWING  SHALL  BE  SUBJECT  TO  INSPECTION:  THE PREMISES; REGISTERS;
    7  CONTRACTS SIGNED BY JOB APPLICANTS; STATEMENTS OF TERMS AND  CONDITIONS;
    8  RECEIPTS;  APPLICATION  FORMS;  REFERRAL  FORMS;  BONA  FIDE ORDERS FROM
    9  PROSPECTIVE EMPLOYERS; WRITTEN NOTIFICATIONS FROM EMPLOYERS REQUIRED  BY
   10  SECTION  ONE  HUNDRED  EIGHTY-SEVEN  OF  THIS  ARTICLE; REFERENCE FORMS;
   11  REFERENCE REPORTS; RECORDS OF FEES CHARGED; RECORDS OF REFUNDS MADE; AND
   12  ANY OTHER RECORD THAT AN EMPLOYMENT AGENCY  MUST  MAINTAIN  PURSUANT  TO
   13  THIS  ARTICLE. IN no event shall any employment agency be inspected less
   14  frequently than once every eighteen months.  INSPECTIONS MAY CONSIST  OF
   15  IN-PERSON  VISITS  TO  EMPLOYMENT  AGENCIES. The commissioner shall also
   16  have authority to subpoena records and witnesses or otherwise to conduct
   17  investigations of any employer or other  person  where  he  or  she  has
   18  reasonable grounds for believing that such employer or person is violat-
   19  ing  or  has  conspired  or  is  conspiring with an employment agency to
   20  violate this article or such sections.
   21    3. To effectuate the purposes of this article,  the  commissioner  may
   22  make  reasonable  administrative  rules within the standards set in this
   23  article. Before such rules  shall  be  issued,  the  commissioner  shall
   24  conduct  a  public  hearing, giving due notice thereof to all interested
   25  parties. No rule shall become effective until fifteen days after it  has
   26  been  filed in the office of the department of state, if it is a rule of
   27  the industrial commissioner, or in the office of the clerk of  the  city
   28  of  New  York,  if  it is a rule of the commissioner of licenses of such
   29  city, and copies thereof shall be furnished to all  employment  agencies
   30  affected at least fifteen days prior to the effective date of such rule.
   31    4.  Complaints  against any such licensed OR UNLICENSED person [shall]
   32  MAY be made orally or in writing to the commissioner, or be sent  in  an
   33  affidavit  form  without  appearing in person, and may be made by recog-
   34  nized employment agencies, trade associations, or  others.  The  commis-
   35  sioner  may  hold  a  hearing on a complaint with the powers provided by
   36  section one hundred seventy-four of this article. If a hearing is  held,
   37  reasonable  notice  thereof,  not less than five days, shall be given in
   38  writing to said [licensed] person by serving upon the [licensed]  person
   39  either  personally,  by  mail, or by leaving the same with the person in
   40  charge of his office, a concise statement of the facts constituting  the
   41  complaint,  and  the hearing shall commence before the commissioner with
   42  reasonable speed but in no event later than two weeks from the  date  of
   43  the  filing  of  the  complaint. The commissioner when investigating any
   44  matters pertaining to the  granting,  issuing,  transferring,  renewing,
   45  revoking,  suspending  or cancelling of any license is authorized in his
   46  discretion to take such testimony as may be necessary on which  to  base
   47  official  action.  When  taking such testimony he may subpoena witnesses
   48  and also direct the production before  him  of  necessary  and  material
   49  books  and papers. A daily calendar of all hearings shall be kept by the
   50  commissioner and shall be posted in a conspicuous place  in  his  public
   51  office  for  at  least  one  day  before  the date of such hearings. The
   52  commissioner shall render his decision within thirty days from the  time
   53  the  matter  is  finally submitted to him. The commissioner shall keep a
   54  record of all such complaints and hearings.  IN ADDITION TO  THE  POWERS
   55  OF  THE  COMMISSIONER,  THE ATTORNEY GENERAL MAY BRING AN ACTION AGAINST
   56  ANYONE WHO IS ALLEGED TO HAVE VIOLATED THIS ARTICLE.
       A. 3702                             9
    1    5. [Following such hearing if it has been shown] UPON A  FINDING  that
    2  the  licensed  person  or  his  agent,  employee or anyone acting on his
    3  behalf is guilty of violating any provision of this article or is not  a
    4  person  of  good  character  and  responsibility,  the  commissioner may
    5  suspend  or  revoke  the  license of such licensed person [and/or levy a
    6  fine against such licensed person for each violation not to exceed  five
    7  hundred  dollars].  ANY  EMPLOYMENT  AGENCY  FOUND  TO HAVE VIOLATED ANY
    8  PROVISION OF THIS ARTICLE SHALL BE SUBJECT, FOR THE FIRST OFFENSE, TO  A
    9  CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS PER VIOLATION, AND, FOR
   10  EACH  SUBSEQUENT OFFENSE WITHIN SIX YEARS OF SUCH PREVIOUS OFFENSE, TO A
   11  CIVIL PENALTY, NOT TO EXCEED FIVE THOUSAND DOLLARS PER VIOLATION. IF THE
   12  PERSON SUBJECT TO THIS ARTICLE FAILS TO PAY THE DAMAGES,  FINES,  ATTOR-
   13  NEY'S  FEES,  COSTS,  OR  PENALTIES  AWARDED,  THE AMOUNT AWARDED MAY BE
   14  SATISFIED OUT OF THE BOND AMOUNT REQUIRED BY THIS ARTICLE. Whenever such
   15  commissioner shall suspend or revoke the license of any employment agen-
   16  cy, or shall levy a fine against [such] ANY agency,  said  determination
   17  shall  be  subject to judicial review in proceedings brought pursuant to
   18  article seventy-eight of the civil  practice  law  and  rules.  Whenever
   19  [such]  AN  EMPLOYMENT  AGENCY'S  license is revoked, another license or
   20  agency manager permit shall not be issued within three  years  from  the
   21  date of such revocation to said licensed person or his agency manager or
   22  to any person with whom the licensee has been associated in the business
   23  of  furnishing employment or engagements. Deputy commissioners, or other
   24  officials designated to act on behalf of the commissioner,  may  conduct
   25  hearings  and  act upon applications for licenses, and revoke or suspend
   26  such licenses, or levy fines AGAINST AN EMPLOYMENT AGENCY.
   27    6. IF ANY PERSON USES ANY UNTRUE OR MISLEADING STATEMENT, INFORMATION,
   28  OR ADVERTISEMENT TO SELL ITS EMPLOYMENT  AGENCY  SERVICES  OR  FAILS  TO
   29  COMPLY  WITH  THE APPLICABLE PROVISIONS OF THIS ARTICLE, OR THE CONTRACT
   30  DOES NOT COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, THEN THE
   31  CONTRACT SHALL BE VOID AND UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY.
   32    7. ANY PERSON AGGRIEVED BY A VIOLATION OF THIS  ARTICLE  MAY  BRING  A
   33  CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION AGAINST ANY EMPLOYMENT
   34  AGENCY  OR PERSONS ALLEGED TO HAVE VIOLATED THE PROVISIONS OF THIS ARTI-
   35  CLE. THE COURT SHALL HAVE JURISDICTION TO RESTRAIN  VIOLATIONS  OF  THIS
   36  SECTION  AND  TO  ORDER  ALL APPROPRIATE RELIEF, INCLUDING ENJOINING THE
   37  CONDUCT OF ANY PERSON OR EMPLOYMENT AGENCY; ORDERING PAYMENT OF DAMAGES,
   38  COSTS AND REASONABLE ATTORNEYS' FEES TO THE AGGRIEVED INDIVIDUAL BY  THE
   39  PERSON OR ENTITY FOUND TO BE IN VIOLATION OF THIS ARTICLE.
   40    8.  THE  REMEDIES PROVIDED IN THIS ARTICLE ARE NOT EXCLUSIVE AND SHALL
   41  BE IN ADDITION TO ANY OTHER REMEDIES OR PROCEDURES PROVIDED IN ANY OTHER
   42  LAW.
   43    9. IF ANY PROVISIONS OF THIS ARTICLE OR THE APPLICATION THEREOF TO ANY
   44  PERSON OR CIRCUMSTANCES IS HELD UNCONSTITUTIONAL, THE REMAINDER  OF  THE
   45  ARTICLE  AND  THE  APPLICATION  OF  THAT  PROVISION TO OTHER PERSONS AND
   46  CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
   47    10. IF AN EMPLOYMENT AGENCY FAILS  TO  MAINTAIN  RECORDS  AS  REQUIRED
   48  UNDER  THIS  ARTICLE,  THE CREDIBLE TESTIMONY OF AN APPLICANT SHALL FORM
   49  THE PROPER BASIS FOR THE CALCULATION OF  UNPAID  WAGES  AND/OR  UNLAWFUL
   50  FEES.
   51    S  10.  Section 190 of the general business law, as amended by chapter
   52  632 of the laws of 1975, is amended to read as follows:
   53    S 190. Penalties for violations. Any person who violates and the offi-
   54  cers of a corporation and stockholders holding ten percent  or  more  of
   55  the  stock  of a corporation which is not publicly traded, who knowingly
   56  permit the corporation to violate sections one hundred seventy-two,  one
       A. 3702                            10
    1  hundred seventy-three, one hundred seventy-six, one hundred eighty-four,
    2  one  hundred eighty-four-a, one hundred eighty-five, one hundred eighty-
    3  five-a, one hundred eighty-six, or  one  hundred  eighty-seven  of  this
    4  article  shall  be  guilty of a misdemeanor and upon conviction shall be
    5  subject to a fine not to exceed [one thousand] TWO THOUSAND FIVE HUNDRED
    6  dollars PER VIOLATION, or imprisonment for not more than  one  year,  or
    7  both, by any court of competent jurisdiction. The violation of any other
    8  provision  of  this  article shall be punishable by a fine not to exceed
    9  [one] FIVE hundred dollars or imprisonment  for  not  more  than  thirty
   10  days. Criminal proceedings based upon violations of these sections shall
   11  be  instituted  by the commissioner, THE ATTORNEY GENERAL, OR A DISTRICT
   12  ATTORNEY and  may  be  instituted  by  any  persons  aggrieved  by  such
   13  violations.
   14    S  11. The general business law is amended by adding a new section 195
   15  to read as follows:
   16    S 195. PROTECTION FROM RETALIATION.   IT SHALL  BE  UNLAWFUL  FOR  ANY
   17  EMPLOYMENT  AGENCY  TO  RETALIATE  OR  DISCRIMINATE  AGAINST  ANY PERSON
   18  BECAUSE HE OR SHE HAS OPPOSED ANY PRACTICE OR PRACTICES FORBIDDEN  UNDER
   19  THIS  ARTICLE OR BECAUSE THAT PERSON HAS FILED A COMPLAINT, TESTIFIED OR
   20  ASSISTED IN ANY PROCEEDING UNDER THIS ARTICLE.
   21    S 12. This act shall take effect immediately.