S T A T E O F N E W Y O R K
________________________________________________________________________
5968
2015-2016 Regular Sessions
I N A S S E M B L Y
March 9, 2015
___________
Introduced by M. of A. TITUS -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to authorizing and regulating
the use of payroll cards
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 190 of the labor law is amended by adding eight new
2 subdivisions 10, 11, 12, 13, 14, 15, 16 and 17 to read as follows:
3 10. "ACCOUNT" MEANS A DEMAND DEPOSIT (CHECKING), SAVINGS, OR OTHER
4 CONSUMER ASSET ACCOUNT (OTHER THAN AN OCCASIONAL OR INCIDENTAL CREDIT
5 BALANCE IN A CREDIT PLAN) HELD DIRECTLY OR INDIRECTLY BY A FINANCIAL
6 INSTITUTION AND ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD
7 PURPOSES.
8 11. "ELECTRONIC FUND TRANSFER" MEANS ANY TRANSFER OF FUNDS THAT IS
9 INITIATED THROUGH AN ELECTRONIC TERMINAL, TELEPHONE, COMPUTER, OR
10 MAGNETIC TAPE FOR THE PURPOSE OF ORDERING, INSTRUCTING, OR AUTHORIZING A
11 FINANCIAL INSTITUTION TO DEBIT OR CREDIT AN EMPLOYEE'S PAYROLL CARD
12 ACCOUNT. ELECTRONIC FUND TRANSFER INCLUDES, BUT IS NOT LIMITED TO:
13 A. POINT-OF-SALE TRANSFERS;
14 B. AUTOMATED TELLER MACHINE TRANSFERS;
15 C. DIRECT DEPOSITS OR WITHDRAWALS OF FUNDS;
16 D. TRANSFERS INITIATED BY TELEPHONE; AND
17 E. TRANSFERS RESULTING FROM DEBIT CARD TRANSACTIONS, WHETHER OR NOT
18 INITIATED THROUGH AN ELECTRONIC TERMINAL.
19 12. "PAYROLL CARD ACCOUNT" MEANS AN ACCOUNT THAT IS DIRECTLY OR INDI-
20 RECTLY ESTABLISHED THROUGH OR BY AN EMPLOYER AND INTO WHICH AN EMPLOYER
21 DIRECTLY OR INDIRECTLY DEPOSITS AN EMPLOYEE'S WAGES THROUGH AN ELECTRON-
22 IC FUNDS TRANSFER.
23 13. "PAYROLL CARD ISSUER" MEANS ANY BANK, FINANCIAL INSTITUTION,
24 THIRD-PARTY PAYROLL PROCESSOR, OR ANY OTHER PERSON OR ENTITY THAT ISSUES
25 A PAYROLL CARD TO AN EMPLOYEE ON BEHALF OF AN EMPLOYER.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08769-02-5
A. 5968 2
1 14. "PAYROLL CARD" MEANS A CARD ISSUED TO AN EMPLOYEE BY AN EMPLOYER
2 OR OTHER PAYROLL CARD ISSUER AS A MEANS OF ACCESSING THE EMPLOYEE'S
3 PAYROLL CARD ACCOUNT.
4 15. "CARDHOLDER EMPLOYEE" MEANS ANY EMPLOYEE THAT HAS PROVIDED HIS OR
5 HER EMPLOYER WITH ADVANCE WRITTEN CONSENT AND HAS ELECTED TO RECEIVE HIS
6 OR HER WAGES THROUGH A PAYROLL CARD ACCOUNT.
7 16. "PAYMENT OF WAGES THROUGH A PAYROLL CARD ACCOUNT" MEANS PAYMENT OF
8 WAGES BY MEANS OF ELECTRONIC FUND TRANSFER, OR DEPOSIT OR TRANSFER
9 THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
10 17. "RECEIPT OF WAGES THROUGH A PAYROLL CARD ACCOUNT" MEANS THE
11 RECEIPT OF WAGES BY MEANS OF ELECTRONIC FUND TRANSFER, OR DEPOSIT OR
12 TRANSFER THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
13 S 2. Section 192 of the labor law, as amended by chapter 301 of the
14 laws of 1974, subdivision 1 as added by chapter 475 of the laws of 1981
15 and as renumbered by chapter 170 of the laws of 1994 and subdivision 2
16 as amended by chapter 304 of the laws of 2007, is amended to read as
17 follows:
18 S 192. [Cash payment] PAYMENT of wages. 1. [No] AN EMPLOYER MAY PAY OR
19 TRANSFER THE NET WAGE OR SALARY OF AN EMPLOYEE IN THE FORM OF CASH, A
20 PAPER CHECK, A DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL INSTITUTION,
21 OR A DIRECT DEPOSIT TO A PAYROLL CARD ACCOUNT, PROVIDED, HOWEVER, NO
22 employer shall, without the advance written OR ELECTRONIC consent of any
23 employee [directly], pay or [deposit] TRANSFER the net wage or salary of
24 such employee in THE FORM OF A DIRECT DEPOSIT TO a bank or other finan-
25 cial institution OR TO A PAYROLL CARD ACCOUNT.
26 2. AN EMPLOYER SHALL NOT INITIATE PAYMENT OF WAGES TO THE EMPLOYEE BY
27 ELECTRONIC FUNDS TRANSFER TO A PAYROLL CARD ACCOUNT UNLESS THE EMPLOYER
28 ALSO OFFERS THE EMPLOYEE THE OPTIONS OF PAYMENT BY PAPER CHECK AND BY
29 DIRECT DEPOSIT TO A DEPOSITORY ACCOUNT DESIGNATED BY THE EMPLOYEE. FOR
30 PURPOSES OF THIS ARTICLE, A PAPER CHECK SHALL NOT INCLUDE A CONVENIENCE
31 CHECK OR ANY OTHER CHECK DRAWN UPON AN EMPLOYEE'S PAYROLL CARD ACCOUNT
32 AND WHICH MUST BE COMPLETED BY THE EMPLOYEE, UNLESS THE EMPLOYER TAKES
33 ALL STEPS TO RENDER THE CONVENIENCE CHECK ABLE TO BE IMMEDIATELY DEPOS-
34 ITED OR CASHED, INCLUDING FILLING OUT THE CHECK ITSELF PROPERLY AND
35 ACCURATELY WITH THE CORRECT NET WAGE DOLLAR AMOUNT.
36 3. AT ANY TIME, AN EMPLOYEE MAY, IN WRITING, WITHDRAW PREVIOUSLY
37 GRANTED WRITTEN CONSENT TO BE PAID HIS OR HER WAGES IN THE FORM OF A
38 DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL INSTITUTION OR TO A PAYROLL
39 CARD ACCOUNT. AN EMPLOYER SHALL, WITHIN TWO PAY PERIODS OF SUCH EMPLOY-
40 EE'S WRITTEN NOTIFICATION, CEASE PAYING THE EMPLOYEE'S WAGES IN THE FORM
41 OF A DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL INSTITUTION OR TO A
42 PAYROLL CARD ACCOUNT.
43 4. AN EMPLOYER SHALL MAINTAIN AND PRESERVE, FOR THE TIME PERIOD
44 PRESCRIBED FOR PAYROLL RECORDS UNDER SUBDIVISION FOUR OF SECTION ONE
45 HUNDRED NINETY-FIVE OF THIS ARTICLE, A COPY OF ANY WRITTEN AUTHORIZATION
46 OBTAINED UNDER THIS SECTION.
47 5. This section shall not apply to any person employed in a bona fide
48 executive, administrative, or professional capacity whose earnings are
49 in excess of nine hundred dollars a week[, nor to employees working on a
50 farm not connected with a factory].
51 S 3. The labor law is amended by adding three new sections 192-a,
52 192-b and 192-c to read as follows:
53 S 192-A. PAYMENT OF WAGES TO A PAYROLL CARD ACCOUNT. 1. EVEN WHERE AN
54 EMPLOYER MEETS THE REQUIREMENTS OF SECTION ONE HUNDRED NINETY-TWO OF
55 THIS ARTICLE, AN EMPLOYER MUST, PRIOR TO OBTAINING AN EMPLOYEE'S WRITTEN
56 CONSENT AS REQUIRED BY SECTION ONE HUNDRED NINETY-TWO OF THIS ARTICLE,
A. 5968 3
1 PROVIDE SUCH EMPLOYEE WITH WRITTEN NOTICE OF THE TERMS AND CONDITIONS OF
2 THE PAYROLL CARD PROGRAM IN ENGLISH AND IN THE LANGUAGES THAT THE
3 EMPLOYER PRIMARILY USES TO COMMUNICATE EMPLOYMENT RELATED POLICIES TO
4 ITS EMPLOYEES. SUCH NOTICE MUST INCLUDE, BUT IS NOT LIMITED TO:
5 A. A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 12 POINT FONT,
6 OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THE PAYROLL CARD ISSUER;
7 B. A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 12 POINT FONT,
8 OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THIRD PARTIES;
9 C. A PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE TO A
10 CARDHOLDER EMPLOYEE TO ACCESS HIS OR HER WAGES WITHOUT INCURRING A FEE;
11 D. A PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE TO A
12 CARDHOLDER EMPLOYEE TO CHECK THE BALANCE OF HIS OR HER PAYROLL CARD
13 ACCOUNT WITHOUT INCURRING A FEE;
14 E. A LIST OF FIVE LOCATIONS REASONABLY PROXIMATE TO THE PLACE OF
15 EMPLOYMENT WHERE A CARDHOLDER EMPLOYEE MAY ACCESS HIS OR HER WAGES WITH-
16 OUT INCURRING A FEE;
17 F. TIME LIMITATIONS TO DISPUTE A CHARGE OR EXPENDITURE TO AN EMPLOY-
18 EE'S PAYROLL CARD ACCOUNT; AND
19 G. A PLAIN LANGUAGE DESCRIPTION OF THE METHODS AVAILABLE TO A CARD-
20 HOLDER EMPLOYEE TO CLOSE HIS OR HER PAYROLL CARD ACCOUNT AND OBTAIN ALL
21 FUNDS AT NO CHARGE.
22 2. AN EMPLOYER SHALL PROVIDE A CARDHOLDER EMPLOYEE WITH THIRTY DAYS OF
23 WRITTEN NOTICE PRIOR TO ANY CHANGES IN THE TERMS AND CONDITIONS, INCLUD-
24 ING ANY CHANGES IN FEES, TO HIS OR HER PAYROLL CARD ACCOUNT. SUCH NOTICE
25 SHALL BE IN ADDITION TO ANY OTHER NOTICE REQUIREMENT IN THIS ARTICLE AND
26 SHALL INCLUDE ALL INFORMATION PROVIDED IN SUBDIVISION ONE OF THIS
27 SECTION.
28 3. AN EMPLOYER SHALL NOT PAY ITS EMPLOYEES THROUGH A PAYROLL CARD
29 ACCOUNT UNLESS CARDHOLDER EMPLOYEES ARE PROVIDED WITH:
30 A. AT LEAST ONE NETWORK OF ATMS, LOCATED IN REASONABLE PROXIMITY TO
31 THE CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR PLACE OF RESIDENCE.
32 SUCH A NETWORK OF ATMS MUST PERMIT:
33 (I) UNLIMITED CASH WITHDRAWALS AT NO COST TO THE CARDHOLDER EMPLOYEE;
34 AND
35 (II) UNLIMITED BALANCE INQUIRIES AT NO COST TO THE CARDHOLDER EMPLOY-
36 EE.
37 B. AT LEAST ONE REASONABLY CONVENIENT METHOD, IN ADDITION TO THE
38 REQUIREMENT OF PARAGRAPH A OF THIS SUBDIVISION, FOR A CARDHOLDER EMPLOY-
39 EE TO WITHDRAW HIS OR HER ENTIRE NET PAY, AS STATED ON AN EMPLOYEE'S
40 EARNING STATEMENT, FOR EACH PAY PERIOD WITHOUT INCURRING A FEE. SUCH
41 METHOD SHALL BE AVAILABLE TO THE CARDHOLDER EMPLOYEE ON AND AFTER SUCH
42 EMPLOYEE'S REGULAR PAYDAY AND LOCATED IN REASONABLE PROXIMITY TO THE
43 CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR PLACE OF RESIDENCE;
44 C. A HARD COPY PERIODIC STATEMENT, FREE OF CHARGE, FOR EACH MONTHLY
45 CYCLE IN WHICH ELECTRONIC FUNDS TRANSFER HAS OCCURRED; AND A PERIODIC
46 STATEMENT FREE OF CHARGE, AT LEAST QUARTERLY IF NO TRANSFER HAS
47 OCCURRED. IN THE ALTERNATIVE, AN EMPLOYER MAY COMPLY WITH THIS SECTION
48 IF THE PAYROLL CARD ISSUED MAKES ACCOUNT INFORMATION AVAILABLE TO CARD-
49 HOLDER EMPLOYEES FREE OF CHARGE THROUGH THE FOLLOWING MEANS:
50 (I) A READILY AVAILABLE TELEPHONE LINE OPERATED TWENTY-FOUR HOURS PER
51 DAY, SEVEN DAYS PER WEEK. SUCH LINE MAY BE AUTOMATED, PROVIDED, HOWEVER;
52 SUCH AUTOMATION SHALL BE AVAILABLE IN THE LANGUAGE OR LANGUAGES THE
53 EMPLOYER NORMALLY COMMUNICATES HIS OR HER EMPLOYMENT-RELATED POLICIES TO
54 HIS OR HER EMPLOYEES;
55 (II) AN ELECTRONIC HISTORY OF A CARDHOLDER'S PAYROLL CARD ACCOUNT
56 TRANSACTIONS, SUCH AS THROUGH AN INTERNET WEBSITE, THAT COVERS AT LEAST
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1 TWENTY-FOUR MONTHS PRECEDING THE DATE OF A CARDHOLDER'S ACCESS TO HIS OR
2 HER PAYROLL CARD ACCOUNT ELECTRONIC HISTORY; AND
3 (III) A NON-ELECTRONIC, WRITTEN HISTORY OF A CARDHOLDER PAYROLL CARD
4 ACCOUNT TRANSACTIONS THAT IS PROVIDED PROMPTLY IN RESPONSE TO AN ORAL OR
5 WRITTEN REQUEST AND THAT COVERS AT LEAST SIXTY DAYS PRECEDING THE DATE
6 THAT A PAYROLL CARD ISSUER RECEIVES THE CARDHOLDER EMPLOYEE'S REQUEST;
7 D. FREE CUSTOMER SERVICE, VIA A LIVE AGENT;
8 E. ONE FREE REPLACEMENT PAYROLL CARD PER YEAR UPON REQUEST OF THE
9 CARDHOLDER EMPLOYEE, PROVIDED, HOWEVER; A FEE MAY BE CHARGED FOR THE
10 COST OF AN EXPEDITED DELIVERY OF A REPLACEMENT PAYROLL CARD, IF A CARD-
11 HOLDER EMPLOYEE REQUESTS SUCH DELIVERY.
12 4. AN EMPLOYER MAY PAY WAGES THROUGH A PAYROLL CARD ACCOUNT ONLY IF
13 THE PAYROLL CARD ACCOUNT IS:
14 A. FULLY INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
15 NATIONAL CREDIT UNION ADMINISTRATION, OR ANY OTHER INSURER RECOGNIZED BY
16 THE DEPARTMENT OF FINANCIAL SERVICES, ON A PASS THROUGH BASIS TO THE
17 EMPLOYEE;
18 B. HELD AT A DEPOSITORY INSTITUTION OR OTHER ENTITY WHICH HAS IN PLACE
19 A WRITTEN IDENTITY THEFT PROGRAM TO DETECT, PREVENT, AND MITIGATE IDEN-
20 TITY THEFT IN CONNECTION WITH PAYROLL CARD ACCOUNTS, AS REQUIRED BY 12
21 C.F.R. S 41.90; AND
22 C. IN COMPLIANCE WITH THE REQUIREMENTS OF FEDERAL RESERVE REGULATION
23 E, 12 C.F.R. PARTS 205 AND 1005, TO THE EXTENT REQUIRED FOR PAYROLL CARD
24 ACCOUNTS AS SET FORTH IN 12 C.F.R. SS 205.18 AND 1005.18.
25 5. AN EMPLOYER MAY NOT USE A PAYROLL CARD PROGRAM IN WHICH THE PAYROLL
26 CARD OR PAYROLL CARD ACCOUNT IS LINKED TO ANY FORM OF CREDIT INCLUDING,
27 BUT NOT LIMITED TO, A LOAN AGAINST FUTURE PAY OR A CASH ADVANCE ON
28 FUTURE PAY.
29 6. AN EMPLOYER MAY USE A PAYROLL CARD PROGRAM THAT ALLOWS FOR THE
30 PROVISION OF A SECOND, ADDITIONAL PAYROLL CARD TO A CARDHOLDER EMPLOYEE
31 UPON THE CARDHOLDER EMPLOYEE'S WRITTEN REQUEST. A SINGLE, ONE-TIME FEE,
32 NOT TO EXCEED FIVE DOLLARS, MAY BE CHARGED FOR ISSUANCE AND MAINTENANCE
33 OF A SECONDARY CARD.
34 7. UPON TERMINATION OF A CARDHOLDER EMPLOYEE'S EMPLOYMENT, OR UPON
35 RECEIVING NOTICE OF THE CARDHOLDER EMPLOYEE'S SEPARATION FROM EMPLOY-
36 MENT, THE EMPLOYER SHALL PROVIDE THE EMPLOYEE WITH A WRITTEN NOTICE
37 ADVISING THE EMPLOYEE THAT HE OR SHE MAY, AT NO COST, TERMINATE THE
38 PAYROLL CARD AND RECEIVE THE FULL BALANCE PAYABLE BY CHECK WITHIN FIVE
39 BUSINESS DAYS. THE EMPLOYER SHALL DISCLOSE, IN THE MANNER PROVIDED BY
40 THIS SECTION, THE TERMS AND CONDITIONS, INCLUDING ANY AND ALL FEES AND
41 COSTS, RELATED TO MAINTAINING A PAYROLL CARD ACCOUNT THE UPON THE TERMI-
42 NATION OF THE EMPLOYMENT RELATIONSHIP.
43 S 192-B. CONFIDENTIALITY OF EMPLOYEE INFORMATION. 1. AN EMPLOYER SHALL
44 NOT DISCLOSE AN EMPLOYEE'S PERSONAL IDENTIFYING INFORMATION TO A PAYROLL
45 CARD ISSUER UNLESS SUCH EMPLOYER HAS RECEIVED ADVANCE WRITTEN CONSENT
46 FROM SUCH EMPLOYEE. FOR THE PURPOSES OF THIS SUBDIVISION, "PERSONAL
47 IDENTIFYING INFORMATION" SHALL INCLUDE THE EMPLOYEE'S NAME, SOCIAL SECU-
48 RITY NUMBER, HOME ADDRESS, TELEPHONE NUMBER (HOME, MOBILE, OR OTHER),
49 PERSONAL ELECTRONIC MAIL ADDRESS, INTERNET IDENTIFICATION NAME OR PASS-
50 WORD, EMPLOYEE'S OR PARENT'S SURNAME PRIOR TO MARRIAGE, OR DRIVER'S
51 LICENSE NUMBER.
52 2. NO EMPLOYER SHALL RECEIVE, ACCEPT, MAINTAIN, OR POSSESS ANY INFOR-
53 MATION OBTAINED BY THE PAYROLL CARD ISSUER REGARDING ANY TRANSACTION
54 MADE BY AN EMPLOYEE CARDHOLDER INCLUDING, BUT NOT LIMITED TO:
55 A. SERVICES OR GOODS PURCHASED;
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1 B. THE NAME OR TYPE OF THE BUSINESS IN WHICH A SERVICE OR GOOD IS
2 PURCHASED;
3 C. TIME, DATE OR LOCATION OF ANY AND ALL PURCHASES, WITHDRAWALS OR
4 BALANCE INQUIRIES; AND
5 D. FEES OR PENALTIES ASSESSED BY THE PAYROLL CARD ISSUER. HOWEVER,
6 THIS INFORMATION MAY BE PROVIDED IN THE AGGREGATE OR SUMMARIZED FORM
7 WITHOUT IDENTIFYING INDIVIDUAL EMPLOYEES.
8 3. EACH CARDHOLDER EMPLOYEE SHALL BE PROVIDED WITH A COPY OF ANY AND
9 ALL "CONSUMER PRIVACY" POLICIES AND/OR NOTICES REQUIRED BY LAW. CARD-
10 HOLDER EMPLOYEES MAY NOT BE AUTOMATICALLY SENT ANY DIRECT MARKETING
11 MATERIALS OR ENROLLED IN ANY MARKETING PROGRAMS, ALTHOUGH THEY MAY BE
12 GIVEN THE OPTION TO "OPT IN" TO RECEIVING DIRECT MARKETING MATERIALS.
13 4. A PAYROLL CARD ISSUER SHALL DISCLOSE ANY BREACH OF SECURITY TO ALL
14 AFFECTED CARDHOLDER EMPLOYEES AND THE EMPLOYER OF SUCH EMPLOYEES WITHIN
15 TWENTY-FOUR HOURS OF SUCH BREACH, OR AS SOON AS REASONABLY PRACTICABLE.
16 S 192-C. PROHIBITED ACTS. NO EMPLOYER SHALL:
17 1. INTIMIDATE, THREATEN, COERCE, OR OTHERWISE PRESSURE AN EMPLOYEE
18 INTO CONSENTING TO BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
19 2. OBTAIN AN EMPLOYEE'S CONSENT TO BE PAID THROUGH A PAYROLL CARD
20 ACCOUNT THROUGH MEANS THAT ARE UNFAIR, DECEPTIVE, OR ABUSIVE;
21 3. REQUIRE AS A CONDITION OF ANY EMPLOYEE'S HIRE OR CONTINUED EMPLOY-
22 MENT THAT SUCH EMPLOYEE BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
23 4. RETALIATE OR TAKE ADVERSE EMPLOYMENT ACTION AGAINST ANY EMPLOYEE
24 WHO DOES NOT CHOOSE TO BE PAID THROUGH A PAYROLL CARD ACCOUNT;
25 5. RETALIATE OR TAKE ADVERSE EMPLOYMENT ACTION AGAINST ANY CARDHOLDER
26 EMPLOYEE BASED UPON ANY CARDHOLDER EMPLOYEE TRANSACTIONS MADE THROUGH OR
27 ANY INFORMATION GENERATED BY THE CARDHOLDER EMPLOYEE'S POSSESSION OR USE
28 OF A PAYROLL CARD;
29 6. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
30 ES A FEE TO A CARDHOLDER EMPLOYEE FOR ANY OF THE FOLLOWING:
31 A. INITIATION, PARTICIPATION, LOADING, OR OTHER FEES TO RECEIVE WAGES
32 PAYABLE IN AN ELECTRONIC FUND TRANSFER TO A PAYROLL CARD ACCOUNT;
33 B. INACTIVITY, DORMANCY, OR OTHER FEE RESULTING FROM A CARDHOLDER
34 EMPLOYEE'S NON-USE OF HIS OR HER PAYROLL CARD ACCOUNT;
35 C. ACCOUNT MAINTENANCE OR MONTHLY MAINTENANCE;
36 D. ANY POINT OF SALE DEBIT OR SIGNATURE TRANSACTION;
37 E. THE FIRST TWO DECLINED SALES OR ATM TRANSACTIONS OF EACH MONTH;
38 F. CLOSING AN ACCOUNT;
39 G. THE ISSUANCE OF A REPLACEMENT CARD IN ACCORDANCE WITH PARAGRAPH E
40 OF SUBDIVISION THREE OF SECTION ONE HUNDRED NINETY-TWO-A OF THIS ARTI-
41 CLE; OR
42 H. UNDISCLOSED FEES IMPOSED BY THE EMPLOYER OR PAYROLL CARD ISSUER
43 THAT WERE NOT PREVIOUSLY DISCLOSED TO THE CARDHOLDER EMPLOYEE;
44 7. RECEIVE ANY CONSIDERATION FROM A PAYROLL CARD ISSUER INCLUDING, BUT
45 NOT LIMITED TO COMPENSATION, BONUS, OR REWARD BASED UPON:
46 A. A PORTION OF ANY PAYROLL CARD-RELATED FEES PAID BY SUCH EMPLOYER'S
47 CARDHOLDER EMPLOYEES, OR
48 B. THE NUMBER OF EMPLOYEES WHO ARE PAID WAGES THROUGH A PAYROLL CARD
49 ACCOUNT. NOTHING IN THIS SECTION SHALL PRECLUDE EMPLOYERS FROM RECEIV-
50 ING A BULK RATE OR VOLUME DISCOUNT BASED ON THE NUMBER OF EMPLOYEES THAT
51 CHOOSE TO RECEIVE WAGES THROUGH A PAYROLL CARD ACCOUNT;
52 8. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
53 ES ANY CARDHOLDER EMPLOYEE AN OVERDRAFT FEE UNDER ANY CIRCUMSTANCES.
54 S 4. Subdivisions 1-a and 3 of section 198 of the labor law, subdivi-
55 sion 1-a as amended by chapter 564 of the laws of 2010 and subdivision 3
A. 5968 6
1 as amended by chapter 2 of the laws of 2015, are amended and a new
2 subdivision 5 is added to read as follows:
3 1-a. On behalf of any employee paid less than the wage to which he or
4 she is entitled under the provisions of this article, OR ALLEGING ANY
5 OTHER VIOLATION OF THIS ARTICLE, the commissioner may bring any legal
6 action necessary, including administrative action, to collect such claim
7 and as part of such legal action, in addition to any other remedies and
8 penalties otherwise available under this article, the commissioner shall
9 assess against the employer the full amount of any such underpayment,
10 and an additional amount as liquidated damages, unless the employer
11 proves a good faith basis for believing that its underpayment of wages
12 was in compliance with the law. Liquidated damages shall be calculated
13 by the commissioner as no more than one hundred percent of the total
14 amount of wages found to be due. In any action instituted in the courts
15 [upon a wage claim] by an employee or the commissioner FOR A VIOLATION
16 OF THIS ARTICLE in which the employee prevails, the court shall allow
17 such employee to recover the full amount of any underpayment, ANY OTHER
18 APPROPRIATE RELIEF, INCLUDING INJUNCTIVE RELIEF, all reasonable attor-
19 ney's fees, prejudgment interest as required under the civil practice
20 law and rules, and, unless the employer proves a good faith basis to
21 believe that its underpayment of wages was in compliance with the law,
22 an additional amount as liquidated damages equal to one hundred percent
23 of the total amount of the wages found to be due.
24 3. Notwithstanding any other provision of law, an action to recover
25 upon a liability imposed by this article must be commenced within six
26 years. The statute of limitations shall be tolled from the date an
27 employee files a complaint with the commissioner or the commissioner
28 commences an investigation, whichever is earlier, until an order to
29 comply issued by the commissioner becomes final, or where the commis-
30 sioner does not issue an order, until the date on which the commissioner
31 notifies the complainant that the investigation has concluded. Investi-
32 gation by the commissioner shall not be a prerequisite to nor a bar
33 against a person bringing a civil action under this section. All employ-
34 ees shall have the right to recover full wages, DAMAGES, benefits and
35 wage supplements and liquidated damages accrued during the six years
36 previous to the commencing of such action, whether such action is insti-
37 tuted by the employee or by the commissioner.
38 5. A COURT OF COMPETENT JURISDICTION MAY ENJOIN AN EMPLOYER WHO HAS
39 COMMITTED REPEAT OR WILLFUL VIOLATIONS OF ANY PROVISION OF SECTION ONE
40 HUNDRED NINETY-TWO-A, ONE HUNDRED NINETY-TWO-B OR ONE HUNDRED
41 NINETY-TWO-C OF THIS ARTICLE FROM PAYING EMPLOYEES' WAGES BY PAYROLL
42 CARD FOR A PERIOD OF TWO YEARS. THE COMMISSIONER MAY ISSUE AN ORDER
43 PROHIBITING AN EMPLOYER WHO HAS COMMITTED REPEAT OR WILLFUL VIOLATIONS
44 OF ANY PROVISIONS OF THIS SECTION FROM PAYING EMPLOYEES' WAGES BY
45 PAYROLL CARD FOR A PERIOD OF TWO YEARS. THE TWO YEAR PERIOD OF PROHIBI-
46 TION SHALL COMMENCE SIXTY DAYS FROM THE DATE OF THE COMMISSIONER'S
47 ORDER, OR SIXTY DAYS AFTER FINAL DISPOSITION OF ANY APPEAL, WHICHEVER IS
48 LATER.
49 S 5. Severability clause. The provisions of this act are severable. If
50 any phrase, clause, sentence, or provision of this act is declared to be
51 invalid or preempted in whole or in part by any federal law or regu-
52 lation, the validity of the remainder of this act shall not be affected.
53 S 6. This act shall take effect on the one hundred eightieth day after
54 it shall have become a law.