S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4685
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     April 7, 2015
                                      ___________
       Introduced  by  Sen. GALLIVAN -- (at request of the Attorney General) --
         read twice and ordered printed, and when printed to  be  committed  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.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08769-01-5
       S. 4685                             2
    1    13.  "PAYROLL  CARD  ISSUER"  MEANS  ANY  BANK, FINANCIAL INSTITUTION,
    2  THIRD-PARTY PAYROLL PROCESSOR, OR ANY OTHER PERSON OR ENTITY THAT ISSUES
    3  A PAYROLL CARD TO AN EMPLOYEE ON BEHALF OF AN EMPLOYER.
    4    14.  "PAYROLL  CARD" MEANS A CARD ISSUED TO AN EMPLOYEE BY AN EMPLOYER
    5  OR OTHER PAYROLL CARD ISSUER AS A  MEANS  OF  ACCESSING  THE  EMPLOYEE'S
    6  PAYROLL CARD ACCOUNT.
    7    15.  "CARDHOLDER EMPLOYEE" MEANS ANY EMPLOYEE THAT HAS PROVIDED HIS OR
    8  HER EMPLOYER WITH ADVANCE WRITTEN CONSENT AND HAS ELECTED TO RECEIVE HIS
    9  OR HER WAGES THROUGH A PAYROLL CARD ACCOUNT.
   10    16. "PAYMENT OF WAGES THROUGH A PAYROLL CARD ACCOUNT" MEANS PAYMENT OF
   11  WAGES BY MEANS OF ELECTRONIC  FUND  TRANSFER,  OR  DEPOSIT  OR  TRANSFER
   12  THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
   13    17.  "RECEIPT  OF  WAGES  THROUGH  A  PAYROLL  CARD ACCOUNT" MEANS THE
   14  RECEIPT OF WAGES BY MEANS OF ELECTRONIC FUND  TRANSFER,  OR  DEPOSIT  OR
   15  TRANSFER THROUGH OTHER MEANS, TO A PAYROLL CARD ACCOUNT.
   16    S  2.  Section  192 of the labor law, as amended by chapter 301 of the
   17  laws of 1974, subdivision 1 as added by chapter 475 of the laws of  1981
   18  and  as  renumbered by chapter 170 of the laws of 1994 and subdivision 2
   19  as amended by chapter 304 of the laws of 2007, is  amended  to  read  as
   20  follows:
   21    S 192. [Cash payment] PAYMENT of wages. 1. [No] AN EMPLOYER MAY PAY OR
   22  TRANSFER  THE  NET  WAGE OR SALARY OF AN EMPLOYEE IN THE FORM OF CASH, A
   23  PAPER CHECK, A DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL  INSTITUTION,
   24  OR  A  DIRECT  DEPOSIT  TO A PAYROLL CARD ACCOUNT, PROVIDED, HOWEVER, NO
   25  employer shall, without the advance written OR ELECTRONIC consent of any
   26  employee [directly], pay or [deposit] TRANSFER the net wage or salary of
   27  such employee in THE FORM OF A DIRECT DEPOSIT TO a bank or other  finan-
   28  cial institution OR TO A PAYROLL CARD ACCOUNT.
   29    2.  AN EMPLOYER SHALL NOT INITIATE PAYMENT OF WAGES TO THE EMPLOYEE BY
   30  ELECTRONIC FUNDS TRANSFER TO A PAYROLL CARD ACCOUNT UNLESS THE  EMPLOYER
   31  ALSO  OFFERS  THE  EMPLOYEE THE OPTIONS OF PAYMENT BY PAPER CHECK AND BY
   32  DIRECT DEPOSIT TO A DEPOSITORY ACCOUNT DESIGNATED BY THE  EMPLOYEE.  FOR
   33  PURPOSES  OF THIS ARTICLE, A PAPER CHECK SHALL NOT INCLUDE A CONVENIENCE
   34  CHECK OR ANY OTHER CHECK DRAWN UPON AN EMPLOYEE'S PAYROLL  CARD  ACCOUNT
   35  AND  WHICH  MUST BE COMPLETED BY THE EMPLOYEE, UNLESS THE EMPLOYER TAKES
   36  ALL STEPS TO RENDER THE CONVENIENCE CHECK ABLE TO BE IMMEDIATELY  DEPOS-
   37  ITED  OR  CASHED,  INCLUDING  FILLING  OUT THE CHECK ITSELF PROPERLY AND
   38  ACCURATELY WITH THE CORRECT NET WAGE DOLLAR AMOUNT.
   39    3.  AT ANY TIME, AN EMPLOYEE  MAY,  IN  WRITING,  WITHDRAW  PREVIOUSLY
   40  GRANTED  WRITTEN  CONSENT  TO  BE PAID HIS OR HER WAGES IN THE FORM OF A
   41  DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL INSTITUTION OR TO A  PAYROLL
   42  CARD  ACCOUNT. AN EMPLOYER SHALL, WITHIN TWO PAY PERIODS OF SUCH EMPLOY-
   43  EE'S WRITTEN NOTIFICATION, CEASE PAYING THE EMPLOYEE'S WAGES IN THE FORM
   44  OF A DIRECT DEPOSIT TO A BANK OR OTHER FINANCIAL  INSTITUTION  OR  TO  A
   45  PAYROLL CARD ACCOUNT.
   46    4.  AN  EMPLOYER  SHALL  MAINTAIN  AND  PRESERVE,  FOR THE TIME PERIOD
   47  PRESCRIBED FOR PAYROLL RECORDS UNDER SUBDIVISION  FOUR  OF  SECTION  ONE
   48  HUNDRED NINETY-FIVE OF THIS ARTICLE, A COPY OF ANY WRITTEN AUTHORIZATION
   49  OBTAINED UNDER THIS SECTION.
   50    5.  This section shall not apply to any person employed in a bona fide
   51  executive, administrative, or professional capacity whose  earnings  are
   52  in excess of nine hundred dollars a week[, nor to employees working on a
   53  farm not connected with a factory].
   54    S  3.  The  labor  law  is amended by adding three new sections 192-a,
   55  192-b and 192-c to read as follows:
       S. 4685                             3
    1    S 192-A. PAYMENT OF WAGES TO A PAYROLL CARD ACCOUNT. 1.  EVEN WHERE AN
    2  EMPLOYER MEETS THE REQUIREMENTS OF SECTION  ONE  HUNDRED  NINETY-TWO  OF
    3  THIS ARTICLE, AN EMPLOYER MUST, PRIOR TO OBTAINING AN EMPLOYEE'S WRITTEN
    4  CONSENT  AS  REQUIRED BY SECTION ONE HUNDRED NINETY-TWO OF THIS ARTICLE,
    5  PROVIDE SUCH EMPLOYEE WITH WRITTEN NOTICE OF THE TERMS AND CONDITIONS OF
    6  THE  PAYROLL  CARD  PROGRAM  IN  ENGLISH  AND  IN THE LANGUAGES THAT THE
    7  EMPLOYER PRIMARILY USES TO COMMUNICATE EMPLOYMENT  RELATED  POLICIES  TO
    8  ITS EMPLOYEES. SUCH NOTICE MUST INCLUDE, BUT IS NOT LIMITED TO:
    9    A.  A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 12 POINT FONT,
   10  OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THE PAYROLL CARD ISSUER;
   11    B.  A CLEAR, CONSPICUOUS AND ITEMIZED LIST, IN AT LEAST 12 POINT FONT,
   12  OF ANY AND ALL FEES THAT MAY BE ASSESSED BY THIRD PARTIES;
   13    C.  A  PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE TO A
   14  CARDHOLDER EMPLOYEE TO ACCESS HIS OR HER WAGES WITHOUT INCURRING A FEE;
   15    D. A PLAIN LANGUAGE DESCRIPTION OF ALL OF THE METHODS AVAILABLE  TO  A
   16  CARDHOLDER  EMPLOYEE  TO  CHECK  THE  BALANCE OF HIS OR HER PAYROLL CARD
   17  ACCOUNT WITHOUT INCURRING A FEE;
   18    E. A LIST OF FIVE LOCATIONS  REASONABLY  PROXIMATE  TO  THE  PLACE  OF
   19  EMPLOYMENT WHERE A CARDHOLDER EMPLOYEE MAY ACCESS HIS OR HER WAGES WITH-
   20  OUT INCURRING A FEE;
   21    F.  TIME  LIMITATIONS TO DISPUTE A CHARGE OR EXPENDITURE TO AN EMPLOY-
   22  EE'S PAYROLL CARD ACCOUNT; AND
   23    G.  A PLAIN LANGUAGE DESCRIPTION OF THE METHODS AVAILABLE TO  A  CARD-
   24  HOLDER  EMPLOYEE TO CLOSE HIS OR HER PAYROLL CARD ACCOUNT AND OBTAIN ALL
   25  FUNDS AT NO CHARGE.
   26    2. AN EMPLOYER SHALL PROVIDE A CARDHOLDER EMPLOYEE WITH THIRTY DAYS OF
   27  WRITTEN NOTICE PRIOR TO ANY CHANGES IN THE TERMS AND CONDITIONS, INCLUD-
   28  ING ANY CHANGES IN FEES, TO HIS OR HER PAYROLL CARD ACCOUNT. SUCH NOTICE
   29  SHALL BE IN ADDITION TO ANY OTHER NOTICE REQUIREMENT IN THIS ARTICLE AND
   30  SHALL INCLUDE ALL  INFORMATION  PROVIDED  IN  SUBDIVISION  ONE  OF  THIS
   31  SECTION.
   32    3.  AN  EMPLOYER  SHALL  NOT  PAY ITS EMPLOYEES THROUGH A PAYROLL CARD
   33  ACCOUNT UNLESS CARDHOLDER EMPLOYEES ARE PROVIDED WITH:
   34    A. AT LEAST ONE NETWORK OF ATMS, LOCATED IN  REASONABLE  PROXIMITY  TO
   35  THE  CARDHOLDER  EMPLOYEE'S  PLACE  OF EMPLOYMENT OR PLACE OF RESIDENCE.
   36  SUCH A NETWORK OF ATMS MUST PERMIT:
   37    (I) UNLIMITED CASH WITHDRAWALS AT NO COST TO THE CARDHOLDER  EMPLOYEE;
   38  AND
   39    (II)  UNLIMITED BALANCE INQUIRIES AT NO COST TO THE CARDHOLDER EMPLOY-
   40  EE.
   41    B. AT LEAST ONE REASONABLY  CONVENIENT  METHOD,  IN  ADDITION  TO  THE
   42  REQUIREMENT OF PARAGRAPH A OF THIS SUBDIVISION, FOR A CARDHOLDER EMPLOY-
   43  EE  TO  WITHDRAW  HIS  OR HER ENTIRE NET PAY, AS STATED ON AN EMPLOYEE'S
   44  EARNING STATEMENT, FOR EACH PAY PERIOD WITHOUT  INCURRING  A  FEE.  SUCH
   45  METHOD  SHALL  BE AVAILABLE TO THE CARDHOLDER EMPLOYEE ON AND AFTER SUCH
   46  EMPLOYEE'S REGULAR PAYDAY AND LOCATED IN  REASONABLE  PROXIMITY  TO  THE
   47  CARDHOLDER EMPLOYEE'S PLACE OF EMPLOYMENT OR PLACE OF RESIDENCE;
   48    C.  A  HARD  COPY PERIODIC STATEMENT, FREE OF CHARGE, FOR EACH MONTHLY
   49  CYCLE IN WHICH ELECTRONIC FUNDS TRANSFER HAS OCCURRED;  AND  A  PERIODIC
   50  STATEMENT  FREE  OF  CHARGE,  AT  LEAST  QUARTERLY  IF  NO  TRANSFER HAS
   51  OCCURRED. IN THE ALTERNATIVE, AN EMPLOYER MAY COMPLY WITH  THIS  SECTION
   52  IF  THE PAYROLL CARD ISSUED MAKES ACCOUNT INFORMATION AVAILABLE TO CARD-
   53  HOLDER EMPLOYEES FREE OF CHARGE THROUGH THE FOLLOWING MEANS:
   54    (I) A READILY AVAILABLE TELEPHONE LINE OPERATED TWENTY-FOUR HOURS  PER
   55  DAY, SEVEN DAYS PER WEEK. SUCH LINE MAY BE AUTOMATED, PROVIDED, HOWEVER;
   56  SUCH  AUTOMATION  SHALL  BE  AVAILABLE  IN THE LANGUAGE OR LANGUAGES THE
       S. 4685                             4
    1  EMPLOYER NORMALLY COMMUNICATES HIS OR HER EMPLOYMENT-RELATED POLICIES TO
    2  HIS OR HER EMPLOYEES;
    3    (II)  AN  ELECTRONIC  HISTORY  OF  A CARDHOLDER'S PAYROLL CARD ACCOUNT
    4  TRANSACTIONS, SUCH AS THROUGH AN INTERNET WEBSITE, THAT COVERS AT  LEAST
    5  TWENTY-FOUR MONTHS PRECEDING THE DATE OF A CARDHOLDER'S ACCESS TO HIS OR
    6  HER PAYROLL CARD ACCOUNT ELECTRONIC HISTORY; AND
    7    (III)  A  NON-ELECTRONIC, WRITTEN HISTORY OF A CARDHOLDER PAYROLL CARD
    8  ACCOUNT TRANSACTIONS THAT IS PROVIDED PROMPTLY IN RESPONSE TO AN ORAL OR
    9  WRITTEN REQUEST AND THAT COVERS AT LEAST SIXTY DAYS PRECEDING  THE  DATE
   10  THAT A PAYROLL CARD ISSUER RECEIVES THE CARDHOLDER EMPLOYEE'S REQUEST;
   11    D. FREE CUSTOMER SERVICE, VIA A LIVE AGENT;
   12    E.  ONE  FREE  REPLACEMENT  PAYROLL  CARD PER YEAR UPON REQUEST OF THE
   13  CARDHOLDER EMPLOYEE, PROVIDED, HOWEVER; A FEE MAY  BE  CHARGED  FOR  THE
   14  COST  OF AN EXPEDITED DELIVERY OF A REPLACEMENT PAYROLL CARD, IF A CARD-
   15  HOLDER EMPLOYEE REQUESTS SUCH DELIVERY.
   16    4.  AN EMPLOYER MAY PAY WAGES THROUGH A PAYROLL CARD ACCOUNT  ONLY  IF
   17  THE PAYROLL CARD ACCOUNT IS:
   18    A.  FULLY  INSURED  BY  THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
   19  NATIONAL CREDIT UNION ADMINISTRATION, OR ANY OTHER INSURER RECOGNIZED BY
   20  THE DEPARTMENT OF FINANCIAL SERVICES, ON A PASS  THROUGH  BASIS  TO  THE
   21  EMPLOYEE;
   22    B. HELD AT A DEPOSITORY INSTITUTION OR OTHER ENTITY WHICH HAS IN PLACE
   23  A  WRITTEN IDENTITY THEFT PROGRAM TO DETECT, PREVENT, AND MITIGATE IDEN-
   24  TITY THEFT IN CONNECTION WITH PAYROLL CARD ACCOUNTS, AS REQUIRED  BY  12
   25  C.F.R. S 41.90; AND
   26    C.  IN  COMPLIANCE WITH THE REQUIREMENTS OF FEDERAL RESERVE REGULATION
   27  E, 12 C.F.R. PARTS 205 AND 1005, TO THE EXTENT REQUIRED FOR PAYROLL CARD
   28  ACCOUNTS AS SET FORTH IN 12 C.F.R. SS 205.18 AND 1005.18.
   29    5. AN EMPLOYER MAY NOT USE A PAYROLL CARD PROGRAM IN WHICH THE PAYROLL
   30  CARD OR PAYROLL CARD ACCOUNT IS LINKED TO ANY FORM OF CREDIT  INCLUDING,
   31  BUT  NOT  LIMITED  TO,  A  LOAN  AGAINST FUTURE PAY OR A CASH ADVANCE ON
   32  FUTURE PAY.
   33    6. AN EMPLOYER MAY USE A PAYROLL CARD  PROGRAM  THAT  ALLOWS  FOR  THE
   34  PROVISION  OF A SECOND, ADDITIONAL PAYROLL CARD TO A CARDHOLDER EMPLOYEE
   35  UPON THE CARDHOLDER EMPLOYEE'S WRITTEN REQUEST. A SINGLE, ONE-TIME  FEE,
   36  NOT  TO EXCEED FIVE DOLLARS, MAY BE CHARGED FOR ISSUANCE AND MAINTENANCE
   37  OF A SECONDARY CARD.
   38    7. UPON TERMINATION OF A CARDHOLDER  EMPLOYEE'S  EMPLOYMENT,  OR  UPON
   39  RECEIVING  NOTICE  OF  THE CARDHOLDER EMPLOYEE'S SEPARATION FROM EMPLOY-
   40  MENT, THE EMPLOYER SHALL PROVIDE THE  EMPLOYEE  WITH  A  WRITTEN  NOTICE
   41  ADVISING  THE  EMPLOYEE  THAT  HE  OR SHE MAY, AT NO COST, TERMINATE THE
   42  PAYROLL CARD AND RECEIVE THE FULL BALANCE PAYABLE BY CHECK  WITHIN  FIVE
   43  BUSINESS  DAYS.  THE  EMPLOYER SHALL DISCLOSE, IN THE MANNER PROVIDED BY
   44  THIS SECTION, THE TERMS AND CONDITIONS, INCLUDING ANY AND ALL  FEES  AND
   45  COSTS, RELATED TO MAINTAINING A PAYROLL CARD ACCOUNT THE UPON THE TERMI-
   46  NATION OF THE EMPLOYMENT RELATIONSHIP.
   47    S 192-B. CONFIDENTIALITY OF EMPLOYEE INFORMATION. 1. AN EMPLOYER SHALL
   48  NOT DISCLOSE AN EMPLOYEE'S PERSONAL IDENTIFYING INFORMATION TO A PAYROLL
   49  CARD  ISSUER  UNLESS  SUCH EMPLOYER HAS RECEIVED ADVANCE WRITTEN CONSENT
   50  FROM SUCH EMPLOYEE.   FOR THE PURPOSES OF  THIS  SUBDIVISION,  "PERSONAL
   51  IDENTIFYING INFORMATION" SHALL INCLUDE THE EMPLOYEE'S NAME, SOCIAL SECU-
   52  RITY  NUMBER,  HOME  ADDRESS, TELEPHONE NUMBER (HOME, MOBILE, OR OTHER),
   53  PERSONAL ELECTRONIC MAIL ADDRESS, INTERNET IDENTIFICATION NAME OR  PASS-
   54  WORD,  EMPLOYEE'S  OR  PARENT'S  SURNAME  PRIOR TO MARRIAGE, OR DRIVER'S
   55  LICENSE NUMBER.
       S. 4685                             5
    1    2. NO EMPLOYER SHALL RECEIVE, ACCEPT, MAINTAIN, OR POSSESS ANY  INFOR-
    2  MATION  OBTAINED  BY  THE  PAYROLL CARD ISSUER REGARDING ANY TRANSACTION
    3  MADE BY AN EMPLOYEE CARDHOLDER INCLUDING, BUT NOT LIMITED TO:
    4    A. SERVICES OR GOODS PURCHASED;
    5    B.  THE  NAME  OR  TYPE  OF THE BUSINESS IN WHICH A SERVICE OR GOOD IS
    6  PURCHASED;
    7    C. TIME, DATE OR LOCATION OF ANY AND  ALL  PURCHASES,  WITHDRAWALS  OR
    8  BALANCE INQUIRIES; AND
    9    D.  FEES  OR  PENALTIES ASSESSED BY THE PAYROLL CARD ISSUER.  HOWEVER,
   10  THIS INFORMATION MAY BE PROVIDED IN THE  AGGREGATE  OR  SUMMARIZED  FORM
   11  WITHOUT IDENTIFYING INDIVIDUAL EMPLOYEES.
   12    3.  EACH  CARDHOLDER EMPLOYEE SHALL BE PROVIDED WITH A COPY OF ANY AND
   13  ALL "CONSUMER PRIVACY" POLICIES AND/OR NOTICES REQUIRED BY LAW.    CARD-
   14  HOLDER  EMPLOYEES  MAY  NOT  BE  AUTOMATICALLY SENT ANY DIRECT MARKETING
   15  MATERIALS OR ENROLLED IN ANY MARKETING PROGRAMS, ALTHOUGH  THEY  MAY  BE
   16  GIVEN THE OPTION TO "OPT IN" TO RECEIVING DIRECT MARKETING MATERIALS.
   17    4.  A PAYROLL CARD ISSUER SHALL DISCLOSE ANY BREACH OF SECURITY TO ALL
   18  AFFECTED CARDHOLDER EMPLOYEES AND THE EMPLOYER OF SUCH EMPLOYEES  WITHIN
   19  TWENTY-FOUR HOURS OF SUCH BREACH, OR AS SOON AS REASONABLY PRACTICABLE.
   20    S 192-C. PROHIBITED ACTS. NO EMPLOYER SHALL:
   21    1.  INTIMIDATE,  THREATEN,  COERCE,  OR OTHERWISE PRESSURE AN EMPLOYEE
   22  INTO CONSENTING TO BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
   23    2. OBTAIN AN EMPLOYEE'S CONSENT TO BE  PAID  THROUGH  A  PAYROLL  CARD
   24  ACCOUNT THROUGH MEANS THAT ARE UNFAIR, DECEPTIVE, OR ABUSIVE;
   25    3.  REQUIRE AS A CONDITION OF ANY EMPLOYEE'S HIRE OR CONTINUED EMPLOY-
   26  MENT THAT SUCH EMPLOYEE BE PAID WAGES THROUGH A PAYROLL CARD ACCOUNT;
   27    4. RETALIATE OR TAKE ADVERSE EMPLOYMENT ACTION  AGAINST  ANY  EMPLOYEE
   28  WHO DOES NOT CHOOSE TO BE PAID THROUGH A PAYROLL CARD ACCOUNT;
   29    5.  RETALIATE OR TAKE ADVERSE EMPLOYMENT ACTION AGAINST ANY CARDHOLDER
   30  EMPLOYEE BASED UPON ANY CARDHOLDER EMPLOYEE TRANSACTIONS MADE THROUGH OR
   31  ANY INFORMATION GENERATED BY THE CARDHOLDER EMPLOYEE'S POSSESSION OR USE
   32  OF A PAYROLL CARD;
   33    6. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
   34  ES A FEE TO A CARDHOLDER EMPLOYEE FOR ANY OF THE FOLLOWING:
   35    A. INITIATION, PARTICIPATION, LOADING, OR OTHER FEES TO RECEIVE  WAGES
   36  PAYABLE IN AN ELECTRONIC FUND TRANSFER TO A PAYROLL CARD ACCOUNT;
   37    B.  INACTIVITY,  DORMANCY,  OR  OTHER  FEE RESULTING FROM A CARDHOLDER
   38  EMPLOYEE'S NON-USE OF HIS OR HER PAYROLL CARD ACCOUNT;
   39    C. ACCOUNT MAINTENANCE OR MONTHLY MAINTENANCE;
   40    D. ANY POINT OF SALE DEBIT OR SIGNATURE TRANSACTION;
   41    E. THE FIRST TWO DECLINED SALES OR ATM TRANSACTIONS OF EACH MONTH;
   42    F. CLOSING AN ACCOUNT;
   43    G. THE ISSUANCE OF A REPLACEMENT CARD IN ACCORDANCE WITH  PARAGRAPH  E
   44  OF  SUBDIVISION  THREE OF SECTION ONE HUNDRED NINETY-TWO-A OF THIS ARTI-
   45  CLE; OR
   46    H. UNDISCLOSED FEES IMPOSED BY THE EMPLOYER  OR  PAYROLL  CARD  ISSUER
   47  THAT WERE NOT PREVIOUSLY DISCLOSED TO THE CARDHOLDER EMPLOYEE;
   48    7. RECEIVE ANY CONSIDERATION FROM A PAYROLL CARD ISSUER INCLUDING, BUT
   49  NOT LIMITED TO COMPENSATION, BONUS, OR REWARD BASED UPON:
   50    A.  A PORTION OF ANY PAYROLL CARD-RELATED FEES PAID BY SUCH EMPLOYER'S
   51  CARDHOLDER EMPLOYEES, OR
   52    B. THE NUMBER OF EMPLOYEES WHO ARE PAID WAGES THROUGH A  PAYROLL  CARD
   53  ACCOUNT.   NOTHING IN THIS SECTION SHALL PRECLUDE EMPLOYERS FROM RECEIV-
   54  ING A BULK RATE OR VOLUME DISCOUNT BASED ON THE NUMBER OF EMPLOYEES THAT
   55  CHOOSE TO RECEIVE WAGES THROUGH A PAYROLL CARD ACCOUNT;
       S. 4685                             6
    1    8. PAY WAGES TO AN EMPLOYEE THROUGH A PAYROLL CARD ACCOUNT THAT CHARG-
    2  ES ANY CARDHOLDER EMPLOYEE AN OVERDRAFT FEE UNDER ANY CIRCUMSTANCES.
    3    S  4.    Subdivisions  1-a  and  3 of section 198 of the labor law, as
    4  amended by chapter 564 of the laws of 2010, are amended and a new subdi-
    5  vision 5 is added to read as follows:
    6    1-a. On behalf of any employee paid less than the wage to which he  or
    7  she  is  entitled  under the provisions of this article, OR ALLEGING ANY
    8  OTHER VIOLATION OF THIS ARTICLE, the commissioner may  bring  any  legal
    9  action necessary, including administrative action, to collect such claim
   10  and  as part of such legal action, in addition to any other remedies and
   11  penalties otherwise available under this article, the commissioner shall
   12  assess against the employer the full amount of  any  such  underpayment,
   13  and  an  additional  amount  as  liquidated damages, unless the employer
   14  proves a good faith basis for believing that its underpayment  of  wages
   15  was  in  compliance with the law. Liquidated damages shall be calculated
   16  by the commissioner as no more than one hundred  percent  of  the  total
   17  amount  of wages found to be due. In any action instituted in the courts
   18  [upon a wage claim] by an employee or the commissioner FOR  A  VIOLATION
   19  OF  THIS  ARTICLE  in which the employee prevails, the court shall allow
   20  such employee to recover the full amount of any underpayment, ANY  OTHER
   21  APPROPRIATE  RELIEF,  INCLUDING INJUNCTIVE RELIEF, all reasonable attor-
   22  ney's fees, prejudgment interest as required under  the  civil  practice
   23  law  and  rules,  and,  unless the employer proves a good faith basis to
   24  believe that its underpayment of wages was in compliance with  the  law,
   25  an  additional amount as liquidated damages equal to one hundred percent
   26  of the total amount of the wages found to be due.
   27    3. Notwithstanding any other provision of law, an  action  to  recover
   28  upon  a  liability  imposed by this article must be commenced within six
   29  years.  The statute of limitations shall be  tolled  from  the  date  an
   30  employee  files  a  complaint  with the commissioner or the commissioner
   31  commences an investigation, whichever is  earlier,  until  an  order  to
   32  comply  issued  by  the commissioner becomes final, or where the commis-
   33  sioner does not issue an order, until the date on which the commissioner
   34  notifies the complainant that the investigation has concluded.  Investi-
   35  gation  by  the  commissioner  shall  not be a prerequisite to nor a bar
   36  against a person bringing a civil action under this section. All employ-
   37  ees shall have the right to recover full wages,  DAMAGES,  benefits  and
   38  wage  supplements  and  liquidated  damages accrued during the six years
   39  previous to the commencing of such action, whether such action is insti-
   40  tuted by the employee or by the commissioner.
   41    5. A COURT OF COMPETENT JURISDICTION MAY ENJOIN AN  EMPLOYER  WHO  HAS
   42  COMMITTED  REPEAT  OR WILLFUL VIOLATIONS OF ANY PROVISION OF SECTION ONE
   43  HUNDRED  NINETY-TWO-A,  ONE  HUNDRED   NINETY-TWO-B   OR   ONE   HUNDRED
   44  NINETY-TWO-C  OF  THIS  ARTICLE  FROM PAYING EMPLOYEES' WAGES BY PAYROLL
   45  CARD FOR A PERIOD OF TWO YEARS. THE  COMMISSIONER  MAY  ISSUE  AN  ORDER
   46  PROHIBITING  AN  EMPLOYER WHO HAS COMMITTED REPEAT OR WILLFUL VIOLATIONS
   47  OF ANY PROVISIONS OF  THIS  SECTION  FROM  PAYING  EMPLOYEES'  WAGES  BY
   48  PAYROLL  CARD FOR A PERIOD OF TWO YEARS. THE TWO YEAR PERIOD OF PROHIBI-
   49  TION SHALL COMMENCE SIXTY DAYS  FROM  THE  DATE  OF  THE  COMMISSIONER'S
   50  ORDER, OR SIXTY DAYS AFTER FINAL DISPOSITION OF ANY APPEAL, WHICHEVER IS
   51  LATER.
   52    S  5.  Subdivision  3  of  section 198 of the labor law, as amended by
   53  chapter 537 of the laws of 2014, is amended to read as follows:
   54    3. Notwithstanding any other provision of law, an  action  to  recover
   55  upon  a  liability  imposed by this article must be commenced within six
   56  years. The statute of limitations shall  be  tolled  from  the  date  an
       S. 4685                             7
    1  employee  files  a  complaint  with the commissioner or the commissioner
    2  commences an investigation, whichever is  earlier,  until  an  order  to
    3  comply  issued  by  the commissioner becomes final, or where the commis-
    4  sioner does not issue an order, until the date on which the commissioner
    5  notifies  the complainant that the investigation has concluded. Investi-
    6  gation by the commissioner shall not be a  prerequisite  to  nor  a  bar
    7  against a person bringing a civil action under this section. All employ-
    8  ees  shall  have  the right to recover full wages, DAMAGES, benefits and
    9  wage supplements and liquidated damages accrued  during  the  six  years
   10  previous to the commencing of such action, whether such action is insti-
   11  tuted  by the employee or by the commissioner. The commissioner's inves-
   12  tigation shall cover the entire six-year statute of  limitations  period
   13  unless the commissioner otherwise notifies all affected employees.
   14    S 6. Severability clause. The provisions of this act are severable. If
   15  any phrase, clause, sentence, or provision of this act is declared to be
   16  invalid  or  preempted  in  whole or in part by any federal law or regu-
   17  lation, the validity of the remainder of this act shall not be affected.
   18    S 7. This act shall take effect on the one hundred eightieth day after
   19  it shall have become a law; provided, however, that if  chapter  537  of
   20  the  laws  of  2014  is not in effect on such date, then section five of
   21  this act shall take effect on the same date and in the  same  manner  as
   22  such chapter of the laws of 2014 takes effect.