S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5981
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     June 15, 2015
                                      ___________
       Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Rules
       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.  AN EMPLOYMENT AGENCY MUST RENEW A  BONA  FIDE  ORDER
    7  AFTER  FORTY-FIVE DAYS IF IT INTENDS TO REFER AN APPLICANT FOR THE POSI-
    8  TION DESCRIBED IN SUCH BONA FIDE ORDER, AND THE EMPLOYMENT  AGENCY  MUST
    9  SPECIFY  ON  THE  BONA  FIDE ORDER THE NAME OF THE REPRESENTATIVE OF THE
   10  PROSPECTIVE EMPLOYER WHO AUTHORIZED THE RENEWAL AND THE  DATE  ON  WHICH
   11  THE  RENEWAL  WAS AUTHORIZED.   THE BONA FIDE ORDER SHALL ALSO INCLUDE A
   12  WRITTEN STATEMENT SETTING FORTH THE TERMS AND CONDITIONS  OF  EMPLOYMENT
   13  FOR  THE  POSITION  DESCRIBED IN THE ORDER; SUCH WRITTEN STATEMENT SHALL
   14  INCLUDE, AT A MINIMUM, THE FOLLOWING INFORMATION:
   15    A. THE NAME OF THE EMPLOYER, ANY "DOING BUSINESS AS" NAMES USED BY THE
   16  EMPLOYER, THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR  PRINCI-
   17  PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
   18  NUMBER  OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE COMMISSIONER
   19  DEEMS MATERIAL AND NECESSARY;
   20    B. ADDRESSES OF EMPLOYMENT;
   21    C. THE HOURS OF WORK PER DAY AND NUMBER OF DAYS PER WEEK TO BE WORKED;
   22    D. THE RATE OR RATES OF PAY AND BASIS THEREOF,  WHETHER  PAID  BY  THE
   23  HOUR, SHIFT, DAY, WEEK, SALARY, PIECE, COMMISSION, OR OTHER, ALLOWANCES,
   24  IF  ANY,  CLAIMED  AS  PART OF THE MINIMUM WAGE, INCLUDING TIP, MEAL, OR
   25  LODGING ALLOWANCES;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11688-03-5
       S. 5981                             2
    1    E. THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE WILL BE PAID  A  PREMIUM
    2  FOR  WORKING  IN EXCESS OF AN ESTABLISHED NUMBER OF HOURS PER DAY, WEEK,
    3  OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS, WEEKENDS, OR HOLIDAYS;
    4    F. THE ANTICIPATED PERIOD OF EMPLOYMENT;
    5    G.  ANY  PROVISION TO THE EMPLOYEE, AND HOW LONG THE PROVISION WILL BE
    6  PROVIDED BY THE EMPLOYER, AND ANY COSTS TO THE EMPLOYEE ASSOCIATED  WITH
    7  THE  PROVISION, INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM
    8  WORK, HOUSING, HEALTH INSURANCE OR HEALTH  CARE,  PAID  SICK  OR  ANNUAL
    9  LEAVE  AND HOLIDAY OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL
   10  PROTECTIVE EQUIPMENT REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFOR-
   11  MATION ABOUT THE INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCI-
   12  DENTS OR INJURIES, AND UNEMPLOYMENT COMPENSATION; AND
   13    H. THE NATURE OF THE WORK TO BE PERFORMED BY THE EMPLOYEE.
   14    S 2. Paragraph b of subdivision 2 of section 173 of the general  busi-
   15  ness  law,  as  added  by chapter 632 of the laws of 1975, is amended to
   16  read as follows:
   17    b. The application for a license shall be accompanied  by  samples  or
   18  accurate  facsimiles  of  each and every form [which the applicant for a
   19  license will require applicants for employment  to  execute],  CONTRACT,
   20  STATEMENT  OF  TERMS  AND  CONDITIONS,  AND  RECEIPT,  AS REQUIRED UNDER
   21  SECTION  ONE  HUNDRED  EIGHTY-ONE  OF  THIS  ARTICLE,  and  such  forms,
   22  CONTRACTS,  STATEMENTS  OF  TERMS  AND  CONDITIONS, AND RECEIPTS must be
   23  approved by the commissioner before a license may be issued. The commis-
   24  sioner shall approve any such forms which fairly and  clearly  represent
   25  contractual  terms and conditions between the proposed employment agency
   26  and applicants for employment, such as are permitted by this article.
   27    S 3. Subdivisions 1 and 2 of section 174 of the general business  law,
   28  subdivision 1 as amended by chapter 164 of the laws of 2003, subdivision
   29  2  as amended by chapter 632 of the laws of 1975, are amended to read as
   30  follows:
   31    1. Upon the receipt of an application for a license, the  commissioner
   32  shall  cause the name and address of the applicant, the name under which
   33  the employment agency is to be conducted, and the street and  number  of
   34  the  place  where  the  agency  is  to be conducted, to be posted ON THE
   35  COMMISSIONER'S WEBSITE, AS WELL AS in a conspicuous place in his  public
   36  office.  Such  agency  shall be used exclusively as an employment agency
   37  and for no other purpose, except as hereinafter  provided.  The  commis-
   38  sioner  shall  investigate or cause to be investigated the character and
   39  responsibility of the applicant and agency manager and shall examine  or
   40  cause  to be examined the premises designated in such application as the
   41  place in which it is proposed to conduct such agency.
   42    The commissioner shall require all applicants for licenses and  agency
   43  managers  to  be  fingerprinted. Such fingerprints shall be submitted to
   44  the division of criminal justice services for a state  criminal  history
   45  record  check,  as  defined in subdivision one of section three thousand
   46  thirty-five of the education law, and may be submitted  to  the  federal
   47  bureau  of  investigation  for a national criminal history record check.
   48  THE CRIMINAL HISTORY INFORMATION, IF ANY, RECEIVED BY THE DEPARTMENT  OF
   49  LABOR  SHALL  BE CONSIDERED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
   50  TWENTY-THREE-A OF  THE  CORRECTION  LAW  AND  SUBDIVISIONS  FIFTEEN  AND
   51  SIXTEEN  OF  SECTION  TWO  HUNDRED  NINETY-SIX  OF  THE EXECUTIVE LAW. A
   52  REASONABLE TIME BEFORE MAKING A DETERMINATION ON THE APPLICATION  PURSU-
   53  ANT  TO  THIS  SUBDIVISION,  THE  DEPARTMENT SHALL PROVIDE THE APPLICANT
   54  CRIMINAL HISTORY INFORMATION, IF ANY. WHERE SUCH CRIMINAL HISTORY INFOR-
   55  MATION IS PROVIDED, THE DEPARTMENT SHALL ALSO PROVIDE A COPY OF  ARTICLE
   56  TWENTY-THREE-A  OF  THE CORRECTION LAW, AND INFORM SUCH APPLICANT OF HIS
       S. 5981                             3
    1  OR HER RIGHT TO SEEK CORRECTION OF ANY INCORRECT  INFORMATION  CONTAINED
    2  IN  SUCH  CRIMINAL  HISTORY  INFORMATION PURSUANT TO THE REGULATIONS AND
    3  PROCEDURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
    4    2.  Any  person may file, within one week after such application is so
    5  posted [in the said office], a written protest against the  issuance  of
    6  such  license. Such protest shall be in writing and signed by the person
    7  filing the same or his authorized agent or  attorney,  and  shall  state
    8  reasons  why  the said license should not be granted. Upon the filing of
    9  such protest the commissioner shall appoint a time  and  place  for  the
   10  hearing  of  such application, and shall give at least five days' notice
   11  of such time and place to the  applicant  and  the  person  filing  such
   12  protest.  The  commissioner may administer oaths, subpoena witnesses and
   13  take testimony in respect to the matters contained in  such  application
   14  and  protests or complaints of any character for violation of this arti-
   15  cle, and may receive evidence in the form of  affidavits  pertaining  to
   16  such  matters.  If  it  shall  appear  upon  such  hearing  or  from the
   17  inspection, examination or investigation made by the  commissioner  that
   18  the  applicant  or  agency  manager is not a person of good character or
   19  responsibility; or that he or the agency manager has not  had  at  least
   20  two  years  experience as a placement employee, vocational counsellor or
   21  in related activities, or other satisfactory business  experience  which
   22  similarly  tend to establish the competence of such individual to direct
   23  and operate the placement activities of the agency; or  that  the  place
   24  where  such  agency is to be conducted is not a suitable place therefor;
   25  or that the applicant has not complied with the provisions of this arti-
   26  cle; the said application shall be denied and a  license  shall  not  be
   27  granted.  Each  application  should  be granted or refused within thirty
   28  days from the date of its filing.
   29    S 4. Section 179 of the general business law, as  amended  by  chapter
   30  632 of the laws of 1975, is amended to read as follows:
   31    S 179. Registers and other records to be kept. It shall be the duty of
   32  every  licensed person to keep a register, approved by the commissioner,
   33  in which shall be entered, in the English  language,  the  date  of  the
   34  application  for employment, the date the applicant started work and the
   35  name and address of every applicant  from  whom  a  fee  or  deposit  is
   36  charged,  the  amount of the fee or deposit and the service for which it
   37  is received or charged. Such licensed person shall  also  enter  in  the
   38  same  or  in  a  separate register, approved by the commissioner, in the
   39  English language, the name and address of every employer from whom a fee
   40  is received or charged or to whom the licensed person refers  an  appli-
   41  cant  who  has  paid  or  is  charged a fee, the date of such employer's
   42  request or assent that applicants be furnished, the kind of position for
   43  which applicants are requested, the names of the  applicants  sent  from
   44  whom a fee or deposit is received or charged with the designation of the
   45  one  employed, the amount of the fee or deposit charged, and the rate of
   46  salary or wages agreed upon. It shall also be the duty of every licensed
   47  person to keep complete and accurate  written  records  in  the  English
   48  language  of  all  receipts and income received or derived directly from
   49  the operation of his employment agency, and to keep  records  concerning
   50  [job] BONA FIDE orders. No such licensed person, his agent or employees,
   51  shall  make  any  false  entry  in such records. It shall be the duty of
   52  every licensed person to communicate orally or in writing with at  least
   53  one  of the persons mentioned as references for every applicant for work
   54  in private families, or employed in a fiduciary capacity, and the result
   55  of such investigation shall be kept on file in such agency for a  period
   56  of  at least three years. Every register and all records, INCLUDING BONA
       S. 5981                             4
    1  FIDE ORDERS, kept pursuant to the requirements of this article shall  be
    2  retained on the premises of the agency concerned for three years follow-
    3  ing  the  date  on  which  the last entry thereon was made [except a job
    4  order  which  shall be retained for one year following the date on which
    5  it was received].
    6    S 5. Section 181 of the general business law, as added by chapter  893
    7  of the laws of 1958, subdivision 1 as added and subdivision 2 as amended
    8  by  chapter 632 of the laws of 1975, subdivision 3 as separately amended
    9  by chapters 1010 and 1083 of the laws of  1960,  and  subdivision  4  as
   10  amended  by  chapter  479  of  the  laws  of 1963, is amended to read as
   11  follows:
   12    S 181. Contracts, STATEMENTS OF TERMS AND CONDITIONS, AND receipts. It
   13  shall be the duty of every employment agency to give to  each  applicant
   14  for employment:
   15    1. A true copy of every contract executed between such agency and such
   16  applicant,  which shall have printed on it or attached to it a statement
   17  setting forth in a clear and concise manner the provisions  of  sections
   18  one hundred eighty-five, and one hundred eighty-six of this article.
   19    2.  [Information  as to the name and address of the person to whom the
   20  applicant is to apply for such employment, the kind  of  service  to  be
   21  performed,  the  anticipated rate of wages or compensation, the agency's
   22  fee for the applicant based on such anticipated wages  or  compensation,
   23  whether  such employment is permanent or temporary, the name and address
   24  of the person authorizing the hiring of such applicant, and the cost  of
   25  transportation if the services are required outside of the city, town or
   26  village  where  such  agency  is  located. If the job is a conditionally
   27  fee-paid job, the conditions under which the applicant will be  required
   28  to  pay a fee shall be clearly set forth in a separate agreement in ten-
   29  point type signed by the job applicant.] (A) AN EMPLOYMENT AGENCY  SHALL
   30  ISSUE  A WRITTEN STATEMENT OF TERMS AND CONDITIONS TO EACH JOB APPLICANT
   31  ON EACH OCCASION THAT THE AGENCY REFERS THE  APPLICANT  TO  A  POTENTIAL
   32  EMPLOYER.  THE  WRITTEN  STATEMENT  OF  TERMS AND CONDITIONS SHALL BE IN
   33  ENGLISH AND IN THE LANGUAGE IDENTIFIED BY THE APPLICANT AS  THE  PRIMARY
   34  LANGUAGE  OF  SUCH APPLICANT. EVERY EMPLOYMENT AGENCY SHALL KEEP ON FILE
   35  IN ITS PRINCIPAL PLACE OF BUSINESS FOR A PERIOD OF THREE YEARS A COPY OF
   36  EACH WRITTEN STATEMENT OF TERMS AND CONDITIONS ISSUED TO EACH  APPLICANT
   37  THAT  IS  SIGNED  AND DATED BY THE APPLICANT. THE STATEMENT OF TERMS AND
   38  CONDITIONS SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING  INFORMATION:  (I)
   39  THE  NAME  OF  THE  EMPLOYER,  ANY "DOING BUSINESS AS" NAMES USED BY THE
   40  EMPLOYER, THE PHYSICAL ADDRESS OF THE EMPLOYER'S MAIN OFFICE OR  PRINCI-
   41  PAL PLACE OF BUSINESS, AND A MAILING ADDRESS IF DIFFERENT, THE TELEPHONE
   42  NUMBER  OF THE EMPLOYER, PLUS SUCH OTHER INFORMATION AS THE COMMISSIONER
   43  DEEMS MATERIAL AND NECESSARY; (II) ADDRESSES OF  EMPLOYMENT;  (III)  THE
   44  HOURS OF WORK PER DAY AND NUMBER OF DAYS PER WEEK TO BE WORKED; (IV) THE
   45  RATE OR RATES OF PAY AND BASIS THEREOF, WHETHER PAID BY THE HOUR, SHIFT,
   46  DAY,  WEEK,  SALARY,  PIECE,  COMMISSION,  OR OTHER, ALLOWANCES, IF ANY,
   47  CLAIMED AS PART OF THE MINIMUM WAGE, INCLUDING  TIP,  MEAL,  OR  LODGING
   48  ALLOWANCES;  (V) THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE WILL BE PAID
   49  A PREMIUM FOR WORKING IN EXCESS OF AN ESTABLISHED NUMBER  OF  HOURS  PER
   50  DAY,  WEEK,  OR MONTH, OR FOR WORKING ON DESIGNATED NIGHTS, WEEKENDS, OR
   51  HOLIDAYS; (VI) THE ANTICIPATED PERIOD OF EMPLOYMENT; (VII) ANY PROVISION
   52  TO THE EMPLOYEE, AND HOW LONG THE PROVISION  WILL  BE  PROVIDED  BY  THE
   53  EMPLOYER,  AND  ANY COSTS TO THE EMPLOYEE ASSOCIATED WITH THE PROVISION,
   54  INCLUDING BUT NOT LIMITED TO, TRANSPORTATION TO AND FROM WORK,  HOUSING,
   55  HEALTH  INSURANCE  OR HEALTH CARE, PAID SICK OR ANNUAL LEAVE AND HOLIDAY
   56  OR HOLIDAYS, PENSION OR RETIREMENT BENEFITS, PERSONAL PROTECTIVE  EQUIP-
       S. 5981                             5
    1  MENT  REQUIRED FOR WORK, WORKERS' COMPENSATION AND INFORMATION ABOUT THE
    2  INSURANCE POLICY AND RULES REGARDING REPORTING OF ACCIDENTS OR INJURIES,
    3  AND UNEMPLOYMENT COMPENSATION; AND (VIII) THE NATURE OF THE WORK  TO  BE
    4  PERFORMED BY THE EMPLOYEE.
    5    (B)  THE  COMMISSIONER  SHALL  PREPARE  TEMPLATES THAT COMPLY WITH THE
    6  REQUIREMENTS OF PARAGRAPH (A) OF THIS SUBDIVISION.  EACH  SUCH  TEMPLATE
    7  SHALL  BE  PROVIDED  IN ENGLISH AND IN THE DISCRETION OF THE COMMISSION,
    8  OTHER LANGUAGES IN ADDITION TO ENGLISH, BASED ON THE  SIZE  OF  THE  NEW
    9  YORK  STATE  POPULATION  THAT  SPEAKS EACH LANGUAGE AND ANY OTHER FACTOR
   10  THAT THE COMMISSIONER SHALL DEEM RELEVANT. ALL SUCH TEMPLATES  SHALL  BE
   11  MADE  AVAILABLE  TO  EMPLOYMENT AGENCIES IN SUCH MANNER AS DETERMINED BY
   12  THE COMMISSIONER.
   13    (C) WHEN A JOB APPLICANT IDENTIFIES AS HIS OR HER PRIMARY  LANGUAGE  A
   14  LANGUAGE  FOR  WHICH  A TEMPLATE IS NOT AVAILABLE FROM THE COMMISSIONER,
   15  THE EMPLOYMENT AGENCY SHALL COMPLY WITH THIS  SUBDIVISION  BY  PROVIDING
   16  THAT EMPLOYEE AN ENGLISH-LANGUAGE STATEMENT.
   17    (D)  AN  EMPLOYMENT  AGENCY SHALL NOT BE PENALIZED FOR ERRORS OR OMIS-
   18  SIONS IN THE NON-ENGLISH PORTIONS OF ANY NOTICE PROVIDED BY THE  COMMIS-
   19  SIONER.
   20    3.  [A  receipt  for any fee, deposit, consideration, or payment which
   21  such agency receives from such applicant, which shall  have  printed  or
   22  written  on  it  the  name of the applicant, the name and address of the
   23  employment agency, the date and amount of such fee,  deposit,  consider-
   24  ation  or payment or portion thereof for which the receipt is given, the
   25  purpose for which it was paid, and the signature of the person receiving
   26  such payment. If the applicant for employment has  been  recruited  from
   27  outside the state for domestic or household employment the receipt shall
   28  have  printed  on  it,  or attached to it, a copy of section one hundred
   29  eighty-four of this article.
   30    4. The original or duplicate-original copy of each such  contract  and
   31  receipt  shall  be  retained  by every employment agency for three years
   32  following the date on which the contract is executed or the  payment  is
   33  made,  and shall be made available for inspection by the commissioner or
   34  his duly authorized agent or inspector, upon his request.  Notwithstand-
   35  ing the other provisions of such contracts, the  monetary  consideration
   36  to be paid by the applicant shall not exceed the fee ceiling provided in
   37  subdivision eight of section one hundred eighty-five.] A RECEIPT FOR ANY
   38  FEE,  CONSIDERATION,  OR PAYMENT WHICH AN AGENCY RECEIVES FROM AN APPLI-
   39  CANT. THE RECEIPT SHALL HAVE PRINTED OR WRITTEN ON IT THE  NAME  OF  THE
   40  APPLICANT,  THE  NAME AND ADDRESS OF THE EMPLOYMENT AGENCY, THE DATE AND
   41  AMOUNT OF SUCH FEE, CONSIDERATION OR  PAYMENT  OR  PORTION  THEREOF  FOR
   42  WHICH  THE  RECEIPT IS GIVEN, THE PURPOSE FOR WHICH IT WAS PAID, AND THE
   43  SIGNATURE OF THE PERSON RECEIVING SUCH PAYMENT. THE RECEIPT  SHALL  ALSO
   44  INCLUDE  IMMEDIATELY ABOVE THE PLACE FOR SIGNATURE OF THE PERSON RECEIV-
   45  ING PAYMENT, SET OFF IN A BOX AND PRINTED  IN  BOLD  AND  IN  CAPS,  THE
   46  FOLLOWING  STATEMENT:  "AN EMPLOYMENT AGENCY MAY NOT CHARGE YOU, THE JOB
   47  APPLICANT, A FEE BEFORE REFERRING YOU TO A JOB THAT YOU ACCEPT.  IF  YOU
   48  PAY  A  FEE  BEFORE ACCEPTING A JOB OR PAY A FEE THAT OTHERWISE VIOLATES
   49  THE LAW, YOU MAY DEMAND A REFUND, WHICH SHALL BE REPAID WITHIN SEVEN (7)
   50  DAYS." THE TEXT CONTAINED IN THIS BOX SHALL ALSO BE IN  ENGLISH  AND  IN
   51  THE  LANGUAGE  IDENTIFIED  BY  EACH APPLICANT AS THE PRIMARY LANGUAGE OF
   52  SUCH APPLICANT.
   53    4. THE ORIGINAL OR DUPLICATE-ORIGINAL COPY OF EACH  WRITTEN  CONTRACT,
   54  EACH  STATEMENT  OF  TERMS AND CONDITIONS REQUIRED BY SUBDIVISION TWO OF
   55  THIS SECTION, AND EACH RECEIPT REQUIRED BY  SUBDIVISION  THREE  OF  THIS
   56  SECTION  SHALL  BE  RETAINED  BY EVERY EMPLOYMENT AGENCY FOR THREE YEARS
       S. 5981                             6
    1  FOLLOWING THE DATE ON WHICH THE  CONTRACT  IS  EXECUTED.    THE  RECORDS
    2  REQUIRED  UNDER  THIS SUBDIVISION SHALL BE MADE AVAILABLE FOR INSPECTION
    3  BY THE COMMISSIONER OR HIS OR HER DULY AUTHORIZED  AGENT  OR  INSPECTOR,
    4  UPON SUCH REQUEST.
    5    S  6. Subdivisions 1 and 3 of section 185 of the general business law,
    6  subdivision 1 as amended by chapter 460 of the laws of 2012 and subdivi-
    7  sion 3 as amended by chapter 1010 of the laws of 1960,  are  amended  to
    8  read as follows:
    9    1. Circumstances permitting fee. An employment agency shall not charge
   10  or  accept  a  fee  or other consideration unless in accordance with the
   11  terms of a written contract with a job applicant[, except:
   12    (a) for class "A" and "A-1" employment, and  except]  AND  after  such
   13  agency  has  been  responsible  for  referring  such job applicant to an
   14  employer or such employer to a job applicant and where as a result ther-
   15  eof such job applicant has been employed by such employer[; and
   16    (b)], EXCEPT for class "C" employment: [(i)] (A) after an  agency  has
   17  been responsible for referring an artist to an employer or such employer
   18  to an artist and where as a result thereof such artist has been employed
   19  by  such employer; or [(ii)] (B) after an agency represents an artist in
   20  the negotiation or renegotiation of an original or pre-existing  employ-
   21  ment  contract  and  where  as a result thereof the artist enters into a
   22  negotiated or renegotiated employment contract. For class "C" employment
   23  pursuant to this paragraph, an employment agency shall provide an artist
   24  with a statement setting  forth  in  a  clear  and  concise  manner  the
   25  provisions  of  this  section and section one hundred eighty-six of this
   26  article.
   27    The maximum fees provided for herein for all types  of  placements  or
   28  employment  may be charged to the job applicant and a similar fee may be
   29  charged to the employer provided, however, that with  regard  to  place-
   30  ments in class "B" employment, a fee of up to one and one-half times the
   31  fee  charged  to  the  job  applicant may be charged to the employer. By
   32  agreement with an employment agency, the employer may voluntarily assume
   33  payment of the job applicant's fee. The fees charged to employers by any
   34  licensed person conducting an employment agency for  rendering  services
   35  in  connection  with,  or for providing employment in classes "A", "A-1"
   36  and "B", as hereinafter defined in  subdivision  four  of  this  section
   37  where  the  applicant is not charged a fee shall be determined by agree-
   38  ment between the employer and the employment agency.   No fee  shall  be
   39  charged  or accepted for the registration of applicants for employees or
   40  employment.
   41    3. Deposits, advance fees. Notwithstanding  any  other  provisions  of
   42  this  section,  an employment agency [may] SHALL not require OR ACCEPT a
   43  deposit or advance fee from any applicant [except an applicant for class
   44  "A" or class "A1" employment, and only to the extent of the maximum fees
   45  hereinafter provided. Such  deposit  or  advance  fee  shall  be  offset
   46  against  any  fee  charged or accepted when such employment is obtained.
   47  Any excess above the lawful fee shall be returned without demand  there-
   48  for, immediately after the employment agency has been notified that such
   49  employment  has  been  obtained;  and all of such deposit or advance fee
   50  shall be returned immediately upon demand therefor, if at  the  time  of
   51  the demand such employment has not been obtained].
   52    S  7.  Subdivision  2  of  section 186 of the general business law, as
   53  amended by chapter 1010 of the laws of  1960,  is  amended  to  read  as
   54  follows:
   55    2. Failure to report: If a job applicant accepts employment and there-
   56  after  fails to report for work, the gross fee charged to such applicant
       S. 5981                             7
    1  shall not exceed twenty-five per cent of  the  maximum  fee  allowed  by
    2  section  one  hundred eighty-five of this article[, provided however, if
    3  the applicant remains with his same employer, the fee shall  not  exceed
    4  fifty  per  cent].  If  a  job applicant accepts employment and fails to
    5  report for work, no fee shall be charged to the employer.
    6    S 8. Subdivision 3 of section 187 of  the  general  business  law,  as
    7  added by chapter 893 of the laws of 1958, is amended to read as follows:
    8    (3)  Advertise  in  newspapers  or  otherwise,  or  use letterheads or
    9  receipts or other written or printed matter, unless such advertising  or
   10  other  matter  contains  the  name  and address of the employment agency
   11  [and], the word "agency" AND THE AGENCY'S LICENSE NUMBER.
   12    S 9. Section 189 of the general business law, as  amended  by  chapter
   13  479  of the laws of 1963, subdivisions 1 and 2 as amended by chapter 721
   14  of the laws of 2004, subdivisions 4 and 5 as amended by chapter  632  of
   15  the laws of 1975, is amended to read as follows:
   16    S  189.  Enforcement  of  provisions of this article. 1. This article,
   17  article nineteen-B of the labor law and sections 37.01, 37.03 and  37.05
   18  of  the  arts  and cultural affairs law shall be enforced by the commis-
   19  sioner of labor, except that in the city of New York  this  article  and
   20  such  sections shall be enforced by the commissioner of consumer affairs
   21  of such city.  IN ADDITION TO THE POWERS OF THE COMMISSIONER, THE ATTOR-
   22  NEY GENERAL SHALL HAVE THE POWER TO ENFORCE THIS  ARTICLE;  SUCH  POWERS
   23  INCLUDE,  BUT  ARE  NOT  LIMITED  TO, ACTIONS TO RESTRAIN OR ENJOIN SUCH
   24  VIOLATION.  NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR
   25  REMEDIES WHICH ARE OTHERWISE AVAILABLE TO A PERSON UNDER ANY OTHER LAW.
   26    2. To effectuate the purposes of this article, article  nineteen-B  of
   27  the  labor  law  and  sections  37.01,  37.03  and 37.05 of the arts and
   28  cultural affairs law, the commissioner or any duly authorized  agent  or
   29  inspector  designated  by  such  commissioner,  shall  have authority to
   30  inspect [the premises, registers, contract forms, receipt books,  appli-
   31  cation  forms,  referral  forms,  reference forms, reference reports and
   32  financial records of fees charged and refunds made  of  each  employment
   33  agency, which are essential to the operation of such agency, and of each
   34  applicant  for  an employment agency license, as frequently as necessary
   35  to ensure compliance with  this  article  and  such  sections;  but  in]
   36  EMPLOYMENT  AGENCIES  AND APPLICANTS FOR AN EMPLOYMENT AGENCY LICENSE AS
   37  FREQUENTLY AS NECESSARY TO ENSURE  COMPLIANCE  WITH  THIS  ARTICLE.  THE
   38  FOLLOWING  SHALL  BE  SUBJECT  TO  INSPECTION:  THE PREMISES; REGISTERS;
   39  CONTRACTS SIGNED BY JOB APPLICANTS; STATEMENTS OF TERMS AND  CONDITIONS;
   40  RECEIPTS;  APPLICATION  FORMS;  REFERRAL  FORMS;  BONA  FIDE ORDERS FROM
   41  PROSPECTIVE EMPLOYERS; WRITTEN NOTIFICATIONS FROM EMPLOYERS REQUIRED  BY
   42  SECTION  ONE  HUNDRED  EIGHTY-SEVEN  OF  THIS  ARTICLE; REFERENCE FORMS;
   43  REFERENCE REPORTS; RECORDS OF FEES CHARGED; RECORDS OF REFUNDS MADE; AND
   44  ANY OTHER RECORD THAT AN EMPLOYMENT AGENCY  MUST  MAINTAIN  PURSUANT  TO
   45  THIS  ARTICLE. IN no event shall any employment agency be inspected less
   46  frequently than once every eighteen months.  INSPECTIONS MAY CONSIST  OF
   47  IN-PERSON  VISITS  TO  EMPLOYMENT  AGENCIES. The commissioner shall also
   48  have authority to subpoena records and witnesses or otherwise to conduct
   49  investigations of any employer or other  person  where  he  or  she  has
   50  reasonable grounds for believing that such employer or person is violat-
   51  ing  or  has  conspired  or  is  conspiring with an employment agency to
   52  violate this article or such sections.
   53    3. To effectuate the purposes of this article,  the  commissioner  may
   54  make  reasonable  administrative  rules within the standards set in this
   55  article. Before such rules  shall  be  issued,  the  commissioner  shall
   56  conduct  a  public  hearing, giving due notice thereof to all interested
       S. 5981                             8
    1  parties. No rule shall become effective until fifteen days after it  has
    2  been  filed in the office of the department of state, if it is a rule of
    3  the industrial commissioner, or in the office of the clerk of  the  city
    4  of  New  York,  if  it is a rule of the commissioner of licenses of such
    5  city, and copies thereof shall be furnished to all  employment  agencies
    6  affected at least fifteen days prior to the effective date of such rule.
    7    4.  Complaints against any such licensed OR UNLICENSED person shall be
    8  made orally or in writing to the commissioner, or be sent in an  affida-
    9  vit  form  without  appearing  in  person, and may be made by recognized
   10  employment agencies, trade associations, or others. The commissioner may
   11  hold a hearing on a complaint with the powers provided  by  section  one
   12  hundred  seventy-four  of this article. If a hearing is held, reasonable
   13  notice thereof, not less than five days, shall be given  in  writing  to
   14  said  [licensed]  person  by  serving  upon the [licensed] person either
   15  personally, by mail, or by leaving the same with the person in charge of
   16  his office, a concise statement of the facts constituting the complaint,
   17  and the hearing shall commence before the commissioner  with  reasonable
   18  speed  but  in no event later than two weeks from the date of the filing
   19  of the  complaint.  The  commissioner  when  investigating  any  matters
   20  pertaining  to  the granting, issuing, transferring, renewing, revoking,
   21  suspending or cancelling of any license is authorized in his  discretion
   22  to  take  such  testimony  as may be necessary on which to base official
   23  action. When taking such testimony he may subpoena  witnesses  and  also
   24  direct  the  production  before  him of necessary and material books and
   25  papers. A daily calendar of all hearings shall be kept  by  the  commis-
   26  sioner  and  shall be posted in a conspicuous place in his public office
   27  for at least one day before the date of such hearings. The  commissioner
   28  shall render his decision within thirty days from the time the matter is
   29  finally  submitted  to  him. The commissioner shall keep a record of all
   30  such complaints and hearings.  IN ADDITION TO THE POWERS OF THE  COMMIS-
   31  SIONER,  THE  ATTORNEY GENERAL MAY BRING AN ACTION AGAINST ANYONE WHO IS
   32  ALLEGED TO HAVE VIOLATED THIS ARTICLE.
   33    5. [Following such hearing if it has been shown] UPON A  FINDING  that
   34  the  licensed  person  or  his  agent,  employee or anyone acting on his
   35  behalf is guilty of violating any provision of this article or is not  a
   36  person  of  good  character  and  responsibility,  the  commissioner may
   37  suspend or revoke the license of such licensed  person  [and/or  levy  a
   38  fine  against such licensed person for each violation not to exceed five
   39  hundred dollars]. ANY EMPLOYMENT  AGENCY  FOUND  TO  HAVE  VIOLATED  ANY
   40  PROVISION  OF THIS ARTICLE SHALL BE SUBJECT, FOR THE FIRST OFFENSE, TO A
   41  CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS PER VIOLATION, AND, FOR
   42  EACH SUBSEQUENT OFFENSE WITHIN SIX YEARS OF SUCH PREVIOUS OFFENSE, TO  A
   43  CIVIL PENALTY, NOT TO EXCEED FIVE THOUSAND DOLLARS PER VIOLATION. IF THE
   44  PERSON  SUBJECT  TO THIS ARTICLE FAILS TO PAY THE DAMAGES, FINES, ATTOR-
   45  NEY'S FEES, COSTS, OR PENALTIES  AWARDED,  THE  AMOUNT  AWARDED  MAY  BE
   46  SATISFIED OUT OF THE BOND AMOUNT REQUIRED BY THIS ARTICLE. Whenever such
   47  commissioner shall suspend or revoke the license of any employment agen-
   48  cy,  or  shall levy a fine against [such] ANY agency, said determination
   49  shall be subject to judicial review in proceedings brought  pursuant  to
   50  article  seventy-eight  of  the  civil  practice law and rules. Whenever
   51  [such] AN EMPLOYMENT AGENCY'S license is  revoked,  another  license  or
   52  agency  manager  permit  shall not be issued within three years from the
   53  date of such revocation to said licensed person or his agency manager or
   54  to any person with whom the licensee has been associated in the business
   55  of furnishing employment or engagements. Deputy commissioners, or  other
   56  officials  designated  to act on behalf of the commissioner, may conduct
       S. 5981                             9
    1  hearings and act upon applications for licenses, and revoke  or  suspend
    2  such licenses, or levy fines AGAINST AN EMPLOYMENT AGENCY.
    3    6. IF ANY PERSON USES ANY UNTRUE OR MISLEADING STATEMENT, INFORMATION,
    4  OR  ADVERTISEMENT  TO  SELL  ITS  EMPLOYMENT AGENCY SERVICES OR FAILS TO
    5  COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, OR  THE  CONTRACT
    6  DOES NOT COMPLY WITH THE APPLICABLE PROVISIONS OF THIS ARTICLE, THEN THE
    7  CONTRACT SHALL BE VOID AND UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY.
    8    7.  THE  REMEDIES PROVIDED IN THIS ARTICLE ARE NOT EXCLUSIVE AND SHALL
    9  BE IN ADDITION TO ANY OTHER REMEDIES OR PROCEDURES PROVIDED IN ANY OTHER
   10  LAW.
   11    8. IF ANY PROVISIONS OF THIS ARTICLE OR THE APPLICATION THEREOF TO ANY
   12  PERSON OR CIRCUMSTANCES IS HELD UNCONSTITUTIONAL, THE REMAINDER  OF  THE
   13  ARTICLE  AND  THE  APPLICATION  OF  THAT  PROVISION TO OTHER PERSONS AND
   14  CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
   15    9. IF AN EMPLOYMENT AGENCY FAILS TO MAINTAIN RECORDS AS REQUIRED UNDER
   16  THIS ARTICLE, THE CREDIBLE TESTIMONY OF  AN  APPLICANT  SHALL  FORM  THE
   17  PROPER BASIS FOR THE CALCULATION OF UNPAID WAGES AND/OR UNLAWFUL FEES.
   18    S  10.  Section 190 of the general business law, as amended by chapter
   19  632 of the laws of 1975, is amended to read as follows:
   20    S 190. Penalties for violations. Any person who violates and the offi-
   21  cers of a corporation and stockholders holding ten percent  or  more  of
   22  the  stock  of a corporation which is not publicly traded, who knowingly
   23  permit the corporation to violate sections one hundred seventy-two,  one
   24  hundred seventy-three, one hundred seventy-six, one hundred eighty-four,
   25  one  hundred eighty-four-a, one hundred eighty-five, one hundred eighty-
   26  five-a, one hundred eighty-six, or  one  hundred  eighty-seven  of  this
   27  article  shall  be  guilty of a misdemeanor and upon conviction shall be
   28  subject to a fine not to exceed [one thousand] TWO THOUSAND FIVE HUNDRED
   29  dollars PER VIOLATION, or imprisonment for not more than  one  year,  or
   30  both, by any court of competent jurisdiction. The violation of any other
   31  provision  of  this  article shall be punishable by a fine not to exceed
   32  [one] FIVE hundred dollars or imprisonment  for  not  more  than  thirty
   33  days. Criminal proceedings based upon violations of these sections shall
   34  be  instituted  by the commissioner, THE ATTORNEY GENERAL, OR A DISTRICT
   35  ATTORNEY and  may  be  instituted  by  any  persons  aggrieved  by  such
   36  violations.
   37    S  11. The general business law is amended by adding a new section 195
   38  to read as follows:
   39    S 195. PROTECTION FROM RETALIATION.   IT SHALL  BE  UNLAWFUL  FOR  ANY
   40  EMPLOYMENT  AGENCY  TO  RETALIATE  OR  DISCRIMINATE  AGAINST  ANY PERSON
   41  BECAUSE HE OR SHE HAS OPPOSED ANY PRACTICE OR PRACTICES FORBIDDEN  UNDER
   42  THIS  ARTICLE OR BECAUSE THAT PERSON HAS FILED A COMPLAINT, TESTIFIED OR
   43  ASSISTED IN ANY PROCEEDING UNDER THIS ARTICLE.
   44    S 12. This act shall take effect immediately.