219. Violations of certain wage payment provisions; interest, filing of order as judgment. 1. If the commissioner determines that an employer has failed to pay wages, benefits or wage supplements required pursuant to article six (payment of wages), article nineteen (minimum wage act) or article nineteen-A (minimum wage standards and protective labor practices for farm workers) of this chapter, or a rule or regulation promulgated thereunder, the commissioner shall issue to the employer an order directing compliance therewith, which shall describe particularly the nature of the alleged violation. A copy of such order shall be provided to any employee who has filed a complaint and to his or her authorized representative. Such order shall direct payment of wages or supplements found to be due, liquidated damages in the amount of one hundred percent of unpaid wages, and interest at the rate of interest then in effect as prescribed by the superintendent of financial services pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment.
At the discretion of the commissioner, the commissioner shall have full authority to provide for inclusion of an automatic fifteen percent additional amount of damages to come due and owing upon expiration of ninety days from an order to comply becoming final. The commissioner shall provide written notice to the employer in the order to comply of this additional damage.
2. An order issued under subdivision one of this section shall be final and not subject to review by any court or agency unless review is had pursuant to section one hundred one of this chapter.
3. Provided that no proceeding for administrative or judicial review as provided in this chapter shall then be pending and the time for initiation of such proceeding shall have expired, the commissioner may file with the county clerk of the county where the employer resides or has a place of business the order of the commissioner or the decision of the industrial board of appeals containing the amount found to be due, including, at the commissioner's discretion, an additional fifteen percent damages upon any outstanding monies owed. At the request of an employee, the commissioner shall assign, without consideration or liability, that portion of the filed order that constitutes wages, wage supplements, interest on wages or wage supplements, or liquidated damages due the employee, to that employee and may file an assignment or order in that amount in the name of such employee with the county clerk of the county where the employer resides or has a place of business. The filing of such assignment, order or decision shall have the full force and effect of a judgment duly docketed in the office of such clerk. The assignment, order or decision may be enforced by and in the name of the commissioner, or by the employee, in the same manner, and with like effect, as that prescribed by the civil practice law and rules for the enforcement of a money judgment.
4. An employer similar in operation and ownership to a prior employer found to be in violation of article six, nineteen or nineteen-A of this chapter, shall be deemed the same employer for the purposes of this section if the employees of the subsequent employer are engaged in substantially the same work in substantially the same working conditions under substantially the same supervisors, or if the new entity has substantially the same production process, produces substantially the same products and has substantially the same body of customers. Such a subsequent employer will continue to be subject to this section and shall be liable for the acts of the prior employer under this section.
Last modified: February 3, 2019