Staff:
Laura Popa, Counsel
Ann Thomas, Counsel
Bikku Kuruvila, Counsel
David Pristin, Policy Analyst
Josh
Aaronson, Policy Analyst
Andrew Wallace, Finance Analyst
Luisa Sanchez, Finance Analyst
Seth Gladstone, Communications
T H E
C O U N C I L
REPORT OF THE HUMAN SERVICES DIVISION
Marcel Van
Ooyen, Legislative Director
COMMITTEE ON HEALTH
Council Member Christine Quinn, Chair
October 11, 2005
INT. NO.
468-A: By
Council Members Quinn, Jackson, Reyna,
Rivera, Gioia, Gennaro, Addabbo, Palma, Weprin, Yassky, Baez, Brewer, James,
Gerson, Perkins, Katz, de Blasio, Martinez, Monserrate, Comrie, Sanders,
Barron, Boyland, Clarke, Fidler, Gentile, Gonzalez, Koppell, McMahon, Nelson,
Recchia, Sears, Stewart, Vann, Foster, Liu, Reed, Moskowitz, Lopez, Seabrook,
The Public Advocate (Gotbaum), The Speaker (Council Member Miller), Avella and
Sanders
TITLE: To amend the administrative code of the city of
New York, in relation to requiring employers in the grocery industry to make
prevailing health care expenditures on behalf of their employees.
ADMINISTRATIVE CODE: Amends Chapter 5 of title 22 by adding a new section 22-506
On October 11, 2005, the Health Committee will hold a hearing on Int. 468-A, which would amend Chapter 5 of Title 22 of the Administrative Code of the City of New York by adding a new section 22-506. At that time, the Committee will override the Mayor’s veto of this legislation. Previous hearings on this legislation were held on December 10, 2004, June 9, 2005 and August 17, 2005, at which time the Committee, and subsequently the full Council, passed Int. No. 468-A.
I. BACKGROUND
A. National
The number of people without health insurance in the United States is striking. According to a 2004 report by Families USA (the “Families USA Report”), approximately 81.8 million people – one out of three (32.2 percent) of those under the age of 65 – were without health insurance in the United States for all or part of 2002 and 2003.[1] Of these 81.8 million uninsured individuals, two-thirds (65.3 percent) were uninsured for six months or more.[2] In fourteen (14) states, including New York, more than one out of three people under the age of 65 went without health insurance for all or part of 2002-2003.[3] The ten states with the largest number of uninsured people were California (11.9 million), Texas (8.5 million), New York (5.6 million), Florida (4.8 million), Illinois (3.5 million), Pennsylvania (2.8 million), Ohio (2.8 million), Michigan (2.5 million), Georgia (2.5 million), and North Carolina (2.4 million).[4]
The Families USA Report notes that, contrary to popular perception, the overwhelming majority of people who experienced periods without health insurance in the last two years were connected to the workforce (either employed or actively seeking work). More than four in five individuals (85.5 percent) who went without health insurance during 2002-2003 were connected to the workforce in December 2003.[5] More specifically, of those uninsured individuals connected to the workforce, 78.8 percent were employed in December 2003, and 5.7 percent were actively looking for employment.[6]
Living without health insurance results in myriad negative impacts on one’s current and long-term health. These impacts result in a situation where the uninsured:[7]
· Are less likely to have a usual source of care outside the emergency room
· Often go without screening and preventive care
· Are sicker and die earlier than those who have insurance
· Are subject to medical care that is more costly than that provided for insured Americans
· Often delay or forgo needed medical care
Furthermore, the delay in obtaining medical attention for preventable and treatable illnesses has the unfortunate consequence of contributing to a sicker and less productive workforce.[8]
The Families USA Report further notes that while lack of health insurance coverage is a problem that affects people of all races and ethnic origins, African Americans and Hispanics are much more likely to be uninsured. While 23.5 percent of white, non-Hispanic people were uninsured, nearly three out of five non-elderly Hispanics (59.5 percent) and more than two out of five non-elderly African Americans (42.9 percent) were uninsured.[9] The Report also finds that Hispanics and African Americans experience longer spells of uninsurance compared to white, non-Hispanic people. Of the total number of uninsured Hispanics, African Americans and white, non-Hispanic people, 50.2, 34.1, and 24.2 percent, respectively, were uninsured for 13 months or more.[10]
B. New York City
According to a report written by the Brennan Center for Justice at NYU School of Law and New York Jobs with Justice, entitled “An Analysis of the New York City Health Care Security Act” in March 2005, 1.8 million working people in New York City, or a quarter of the City’s population, did not have health insurance.[11]
A recent survey by the Commonwealth Fund found that one out of every three workers in New York City do not receive health insurance through their jobs.[12] Additionally, while many businesses continue to provide health insurance, the rising costs of providing such insurance are increasingly being shifted to employees.[13] Between 2002 and 2003, the average American worker faced an increase of 11.2% on their health insurance premium.[14] In New York, the average worker’s contribution for family coverage rose 54 percent, from $1,392 per year in 2001 to $2,148 per year in 2003.[15] As the cost of the required employee contribution has risen, the number of employees able to participate in employer-sponsored health insurance has decreased.[16]
According to the Association of Senior Human Resource Executives, there are currently bills pending in approximately thirty states that would require employers to provide some form of health insurance coverage for their employees.[17] This plethora of bills requiring some form of health insurance coverage can be attributed to the continued increase of uninsured Americans and the lack of immediate and viable solutions at the federal level. Even localities have sought to address the crisis in health insurance. In addition to the Health Care Security Act currently being considered in New York City, San Francisco has had a law in effect for several years that requires employers who contract with the City of San Francisco provide health insurance to their employees. The City of San Francisco recently held a hearing in April on broadening the law to apply to all employers in the city.
Retailers in the grocery industry have helped pay for their employees’ health care costs for several decades.[18] Currently, nearly 72% of grocery retailers help pay for health care for approximately 20,794 employees and their families.[19] However, the ability of such retailers to continue to financially assist with employee health care costs is becoming increasingly threatened due to a new trend among certain grocery retailers, especially gourmet groceries and “big box” food retailers, not to pay for the cost of health care, which in turn puts pressure on those employers who pay for health care costs to eliminate or reduce such benefits in an effort to remain competitive.[20]
Ensuring that employers do not eliminate employer-paid health care is important for minimizing the burden on taxpayers and the public health care system, protecting the health, safety and well-being of hardworking New Yorkers and promoting safe conditions and stable growth. Furthermore, research shows that ensuring access to employer-paid health care can strengthen industries by reducing employee turnover and improving employers’ ability to recruit new employees. Under the Health Care Security Act, an estimated 300 hundred employers in the grocery industry will be required to make health care expenditures, thus helping the approximately 6,000 grocery employees and their families who presently do not have health care coverage to receive some financial assistance toward their health care costs.[21] By requiring that grocery retailers provide financial assistance for their employees’ health care costs, the Health Care Security Act is the first step toward reducing the number of working New Yorkers who do not receive health care coverage.
INT. NO. 468-A
Section 1 of Int. No. 468-A would set forth the legislative findings of the New York City Council.
Section 2 of the legislation would amend Chapter 5 of Title 22 of the Administrative Code by adding a new section 22-506. Subdivision a of this section would state the short title of this legislation, the “Health Care Security Act.”
Subdivision b of section 2 of Int. No. 468-A would state definitions of key terms used in the legislation. Paragraph 1 of subdivision b would define “administering agency” as “any city agency, office, department, division, bureau or institution of government, the expenses of which are paid in whole or in part from the city treasury, as the mayor shall designate.” Paragraph 2 would define “city” as the City of New York. Paragraph 3 would define “covered employer” as “any grocery employer operating in the city.” Paragraph 4 would define “covered industry” as “the grocery industry operating in the city.”
Paragraph 5 of subdivision b of section 22-506 would define “employee” as “any person who works at any location in the city on a full-time, part-time, temporary, casual, on-call, pool or seasonal basis for any grocery employer, including, but not limited to persons who perform work for such employers as independent contractors or as contingent or contracted workers, and persons made available to work through the services of a temporary employment agency.” “Employee,” as defined, would not include persons who are managerial, supervisory or confidential employees.
Paragraph 6 of subdivision b would define “entity” or “person” as “any natural person, corporation, sole proprietorship, association, joint venture, limited liability company or other legal entity.” Paragraph 7 would define “family of employee” as “the spouse or domestic partner as defined in section 3-240 of the administrative code of an employee and each dependent child of such employee.” Paragraph 8 would define “fiscal year” as the period from July 1 of each year through June 30 of the following year.”
Paragraph 9 of subdivision b of section 22-506 would define “grocery employer” as “any entity operating one or more retail stores in the city that (i) primarily sell food for off-site consumption, where such entity employs thirty-five or more employees at any one such store, provided that such entity shall be deemed to employ the highest number of employees that such entity employed at any time during the preceding fiscal year or (ii) contain 10,000 square feet or more of floor space for the sale of food for off-site consumption, such as a “big box” retail store or warehouse club.” The term “grocery employer” would not include “any retail store for which pharmacy sales comprise fifty percent or more of store sales.”
Paragraph 10 of subdivision b would define “health care expenditure” as “any amount paid by a covered employer to its employees or to another party on behalf of its employees and/or the families of its employees for the purpose of providing health care services or reimbursing the cost of such services for its employees and/or the families of its employees. Such an expenditure would include, but not be limited to, contributions by such employer to a health savings account as defined under section 223 of the United States Internal Revenue Code on behalf of any of its employees and/or the families of its employees or reimbursement by such employer to its employees and/or the families of its employees for incurred health care expenses where such recipients had no entitlement to have expense reimbursed under any plan, fund or program maintained by such employer. Paragraph 10 would also specify that “health care expenditure” would not include any payment made directly or indirectly for workers compensation, Medicare benefits or any other health care costs, taxes or assessments that an employer is required to pay pursuant to any federal, state or local law other than this section, or any amount deducted from an employee’s wages and not reimbursed by such employer.
Paragraph 11 of subdivision b of section 22-506 would define “health care services” as primary or secondary medical care or services that would include, but not be limited to (i) inpatient and outpatient hospital services, (ii) physicians’ surgical and medical services, (iii) laboratory, diagnostic and x-ray services, (iv) prescription drug coverage, (v) annual physical examinations, (vi) preventative services, (vii) mental health services or (viii) substance abuse treatment services. Paragraph 11 would also provide that this term would not include any medical procedure or treatment that is solely cosmetic.
Paragraph 12 of subdivision b would define “prevailing health care expenditure rate” as the amount of health care expenditure customarily made on behalf of a full-time employee and/or the family of such employee in the same trade or occupation in the covered industry.” Such expenditure would be prorated on an hourly basis and calculated pursuant to paragraph 2 of subdivision c of this section.
Paragraph 13 would define “required health care expenditure” as the total health care expenditure that a covered employer would be required to make each year for its employees and/or the families of its employees pursuant to subdivision c of this section.
Paragraph 14 would define “retaliatory action” as the discharge, suspension, demotion or penalization of, or discrimination or taking other adverse action against, an employee with respect to the terms and conditions of such employee’s employment.
Subdivision c of section 22-506 of Int. No. 468-A would create requirements with respect to health care expenditures. Specifically, paragraph 1 of subdivision c would mandate that covered employees make required health care expenditures on behalf of their employees and/or the families of their employers each fiscal year.
Paragraph 2 of subdivision c would state that the administering agency shall annually determine the prevailing health care expenditure rate for employees in the covered industry using procedures and standards similar to those used to calculate prevailing wages and fringe benefits pursuant to sections 230 and 220 of the New York state labor law. This paragraph would also provide that where 30 percent or more of such employees are covered by a valid collective bargaining agreement, the prevailing health care expenditure rate for such employees would be equal to the health care expenditure rate for full-time employees as provided under such collective bargaining agreements. This paragraph would also provide that where there are more than one such collective bargaining agreements with differing health care expenditure rates for full-time employees which together cover 30 percent or more of the employees in the covered industry, the prevailing health care expenditure rate for such employees would be the average such rate of all such agreements. Additionally, paragraph 2 if subdivision c would provide that all employees employed in the covered industry would be deemed to be in the same trade or occupation for purposes of determining the prevailing health care expenditure rate. Finally, paragraph 2 of this subdivision would state that each prevailing health care expenditure rate determined pursuant to this subdivision shall be published by the administering agency by March 1 of each year and shall take effect on July 1 of the fiscal year.
Paragraph 3 of subdivision c Int. No. 468-A would state that each covered employer must annually determine its required health care expenditure by multiplying the prevailing health care expenditure rate as determined by the administering agency pursuant to this subdivision for such employer’s covered industry by the total number of hours worked during the fiscal year by all the employees of that employer.
Paragraph 4 of subdivision c of Int. No. 468-A would establish certain record keeping requirements for employers. Subparagraph (i) of paragraph 4 of subdivision c would state that a covered employer is required to maintain an accurate work log that lists, for each employee, such employee’s name, trade or occupation and the dates and hours worked by that employee. Subparagraph (ii) would require that a covered employer provide an employee or his/her designated representative(s) with access to such employee’s work log and payroll records for inspection and copying. Subparagraph (iii) would require the maintenance of accurate records of health care expenditures and required health care expenditures, as well as proof of such expenditures each year, provided that covered employers would not be required to maintain such records in any particular form. Subparagraph (iv) would require employers to submit a report to the administering agency on an annual basis containing the information required to be maintained pursuant to subparagraphs (i) and (iii) of this paragraph, and such other information that the administering agency shall require. This report would be made available to the public upon request without employee names or other personally identifying information. Furthermore, paragraph 4 would state that a covered employer that is a signatory to one or more collective bargaining agreements that cover at least 75 percent of its employees may comply with this section as provided in subdivision g.
Subdivision d of section 22-506 of Int. No. 468-A would specify provisions with respect to unlawful retaliation. Specifically, subdivision d would make it unlawful for any covered employer to deprive or threaten to deprive any person of employment, take or threaten to take any retaliatory action against any person, or directly or indirectly intimidate, threaten, coerce, command or influence or attempt to intimidate, threaten, coerce, command or influence any person because such person has taken an action to enforce, inquire about or inform others about the requirements of this section. Subdivision d would also provide that taking any such adverse action against any person within 90 days of such person’s exercise of rights pursuant to this section shall raise a rebuttable presumption that such action was in retaliation for the exercise of such rights.
Subdivision e of section 22-506 of Int. No. 468-A would create violations and penalties. Paragraph 1 of subdivision e would provide that any covered employer found to be in violation of this section by failing to make health care expenditures during the fiscal year at least equal to the required health care expenditure for such employer shall be liable for a civil penalty equal to the amount of the shortfall. Paragraph 2 of subdivision e would state that any covered employer found to be in violation of this section by failing to make health care expenditures during the fiscal year at least equal to the required health care expenditure for such employer shall correct such violation within 90 days of such determination. Pursuant to paragraph 2, the administering agency would serve a notice to correct such violation, which would specify the date that is 90 days from such determination by which the violation shall be corrected. Failure to correct such violation would subject a covered employer to a civil penalty of not less than $500 for each day that such violation continues.
Paragraph 3 of subdivision e would provide that any covered employer found to have violated any of the requirements of paragraph (4) of subdivision c of this section would be liable for a civil penalty of not less than $500 for each violation.
Paragraph 4 of subdivision e would provide that in addition to being liable for civil penalties pursuant to this subdivision, any covered employer found to have violated this section may be subject to other action taken by the administering agency, including, but not limited to, requesting that City agencies or departments revoke or suspend any City-issued registration certificates, permits or licenses held by such covered employer until such time as the violation is remedied.
Paragraph 5 of subdivision e would provide that penalties imposed pursuant to this section shall not affect any right or remedy available or any civil or criminal penalty applicable under law to any individual or entity, or in any way diminish or reduce the remedy or damages recoverable in any action in equity or law before a court with competent jurisdiction.
Subdivision f of section 22-506 of Int. No. 468-A would provide for enforcement of this legislation. Specifically, paragraph 1 of this subdivision would provide that the administering agency shall take appropriate action to enforce this section, including, but not limited to, periodically auditing covered employers to monitor compliance with this section, establishing a system to receive complaints from any person charging that a violation has occurred pursuant to this section, investigating complaints received and making findings of violations and civil penalties in accordance with the provisions of this section.
Paragraph 2 of subdivision f would provide that any proceeding to recover any civil penalty authorized pursuant to this chapter shall be commenced by the service of a notice of violation, which would be returnable to the administering agency. The commissioner or other designated person of such administering agency would be authorized to impose the civil penalties prescribed by this section after due notice and an opportunity for a hearing.
Paragraph 3 of subdivision f would provide that any action or proceeding that may be appropriate or necessary for the correction of any violation issued pursuant to this section, including, but not limited to, actions to secure permanent injunctions, enjoining any act or practices which constitute such violation, mandating compliance with the provisions of this section or such other relief as may be appropriate, may be initiated in any court of competent jurisdiction by the corporation counsel or such other persons designated by the corporation counsel on behalf of the administering agency.
Paragraph 4 of subdivision f would provide that any joint-labor management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (section 175a of title 29 of the United States Code) operating in the covered industry may bring an action in any court of competent jurisdiction against a covered employer that fails to make health care expenditures during the fiscal year at least equal to the required health care expenditure for such employer in violation of this section. Upon a determination of any such violation, the court may award any appropriate remedy at law or equity and shall award reasonable attorney’s fees and costs incurred in maintaining the action to any complaining party who prevails in any such enforcement action.
Paragraph 5 of subdivision f would state that any aggrieved person may bring an action in any court of competent jurisdiction against a covered employer for violation of subdivision d of this section. Upon a determination of any such violation, the court may award any appropriate remedy at law or equity and shall award reasonable attorney’s fees and costs incurred in maintaining the action to any complaining party who prevails in any such enforcement action.
Paragraph 6 of subdivision f would require that any enforcement proceedings commenced under this section must be commenced within 3 years after the date of the occurrence or termination of the alleged violation, which ever occurs later.
Subdivision g of section 22-506 of Int. No. 468-A would provide for an exemption to the legislation. Specifically, a covered employer that is a signatory to one or more collective bargaining agreements that cover at least 75 percent of its employees may fully comply with the requirements of this section by filing annually with the administering agency proof of such collective bargaining agreements and their terms, in such form and manner as specified by the administering agency, and would otherwise be exempt from all other provisions of this section.
Subdivision h of section 22-506 of Int. No. 468-A would state requirements regarding rules. Specifically, the administering agency shall promulgate rules in accordance with this section and such other rules as might be necessary for the purpose of implementing, construing and carrying out the provisions of this section.
Section 3 of Int. No. 468-A would contain a severability clause.
Section 4 would state that Int. No. 468-A would take effect 90 days after its enactment into law.
Int.
No. 468-A
By Council Members Quinn,
Jackson, Reyna, Rivera, Gioia, Gennaro, Addabbo, Palma, Weprin, Yassky, Baez,
Brewer, James, Gerson, Perkins, Katz, de Blasio, Martinez, Monserrate, Comrie,
Sanders, Barron, Boyland, Clarke, Fidler, Gentile, Gonzalez, Koppell, McMahon,
Nelson, Recchia, Sears, Stewart, Vann, Foster, Liu, Reed, Moskowitz, Lopez,
Seabrook, The Public Advocate (Gotbaum), The Speaker (Council Member Miller),
Avella and Sanders
A Local Law
To amend the administrative code of the city of New York, in relation to requiring employers in the grocery industry to make prevailing health care expenditures on behalf of their employees.
Be it
enacted by the Council as follows:
Section 1. Declaration of legislative findings and intent. In major industries in New York City, such as the grocery industry, responsible employers have long provided employer-paid health care for their employees and the families of their employees. Ensuring that employers do not eliminate employer-paid health care is important for minimizing the burden on taxpayers and the public health care system, protecting the health, safety and well-being of hardworking New Yorkers and promoting safe conditions and stable growth. Furthermore, research shows that ensuring access to employer-paid health care can strengthen industries by reducing employee turnover and improving employers’ ability to recruit new employees.
The City Council finds that in order to achieve these goals, employers should make prevailing health care expenditures on behalf of their employees. This local law initially establishes such a program in the grocery industry, where responsible employers have demonstrated that it is economically feasible to pay for their employees’ health care, but a growing number of employers in this industry are not doing so.
§ 2. Chapter 5 of title 22 of the administrative
code of the city of New York is hereby amended by adding a new section 22-506 to read as follows:
§ 22-506 a. Short title. This section shall be known and may be cited as the “Health Care Security Act.”
b. Definitions. For purposes of this section, the following
terms shall have the following meanings:
(1) “Administering agency” means any city agency, office, department, division, bureau or institution of government, the expenses of which are paid in whole or in part from the city treasury, as the mayor shall designate.
(2) “City” means the city of New
York.
(3) “Covered employer” means any grocery employer operating in the
city.
(4) “Covered industry” means the grocery industry operating in the
city.
(5) “Employee” means any person who works at any location in the city
on a full-time, part-time, temporary, casual, on-call, pool or seasonal basis
for any grocery employer, including, but not limited to persons who perform
work for such employers as independent contractors or as contingent or
contracted workers, and persons made available to work through the services of
a temporary employment agency; provided, however, that such term shall not
include persons who are managerial, supervisory or confidential employees.
(6) “Entity” or “Person” means
any natural person, corporation, sole proprietorship, partnership, association,
joint venture, limited liability company or other legal entity.
(7) “Family of employee” means the spouse or domestic partner as
defined in section 3-240 of the administrative code of an employee and each
dependent child of such employee.
(8) “Fiscal year” means the period from July 1 of each year through
June 30 of the following year.
(9) “Grocery employer” means any entity operating one or more retail
stores in the city that (i) primarily sell food for off-site consumption, where
such entity employs thirty-five or more employees at any one such store,
provided that such entity shall be deemed to employ the highest number of
employees that such entity employed at any time during the preceding fiscal
year or (ii) contain 10,000 square feet or more of floor space for the sale of
food for off-site consumption, such as a “big box” retail store or warehouse
club; provided that such term shall not include any retail store for which
pharmacy sales comprise fifty percent or more of store sales.
(10) “Health care expenditure”
means any amount paid by a covered employer to its employees or to another
party on behalf of its employees and/or the families of its employees for the
purpose of providing health care services or reimbursing the cost of such
services for its employees and/or the families of its employees, including, but
not limited to, contributions by such employer to a health savings account as
defined under section 223 of the United States internal revenue code on behalf
of any of its employees and/or the families of its employees, or reimbursement
by such employer to its employees and/or the families of its employees for
incurred health care expenses where such recipients had no entitlement to have
expenses reimbursed under any plan, fund or program maintained by such
employer; provided, however, that such term shall not include any payment made
directly or indirectly for workers’ compensation, Medicare benefits or any
other health care costs, taxes or assessments that such employer is required to
pay pursuant to any federal, state or local law other than this section, or any
amount deducted from an employee’s wages and not reimbursed by such
employer.
(11) “Health care services” means primary or secondary medical care or
services, including, but not limited to, (i) inpatient and outpatient hospital
services, (ii) physicians’ surgical and medical services, (iii) laboratory,
diagnostic and x-ray services, (iv) prescription drug coverage, (v) annual
physical examinations, (vi) preventative services, (vii) mental health services
or (viii) substance abuse treatment services; provided, however, that such term
shall not include any medical procedure or treatment which is solely cosmetic.
(12) “Prevailing health care expenditure rate” means the amount of
health care expenditure customarily made on behalf of a full-time employee
and/or the family of such employee in the same trade or occupation in the
covered industry, prorated on an hourly basis and calculated pursuant to
paragraph 2 of subdivision c of this section.
(13) “Required health care
expenditure” means the total health care expenditure that a covered employer is
required to make each year for its employees and/or the families of its
employees pursuant to subdivision c of this section.
(14) “Retaliatory action” means the discharge, suspension, demotion or
penalization of, or discrimination or taking other adverse action against, an
employee with respect to the terms and conditions of such employee’s
employment.
c. Required health care
expenditures. (1) Covered employers shall make required health care
expenditures on behalf of their employees and/or the families of their
employees each fiscal year.
(2) The administering agency shall annually determine the
prevailing health care expenditure rate for employees in the covered industry
using procedures and standards similar to those used to calculate prevailing
wages and fringe benefits pursuant to sections 230 and 220 of the New York
state labor law; provided that where thirty percent or more of such employees
are covered by a valid collective bargaining agreement, the prevailing health
care expenditure rate for such employees shall be equal to the health care
expenditure rate for full-time employees as provided under such collective
bargaining agreement; provided further that where there are more than one such
collective bargaining agreements with differing health care expenditure rates
for full-time employees which together cover thirty percent or more of the
employees in the covered industry, the prevailing health care expenditure rate
for such employees shall be the average such rate of all such agreements; and
provided further that all employees employed in the covered industry shall be
deemed to be in the same trade or occupation for purposes of determining the
prevailing health care expenditure rate. Each prevailing health care
expenditure rate determined pursuant to this subdivision shall be published by
the administering agency by March 1 of each year and shall take effect on July
1 of the fiscal year.
(3) Each covered employer shall annually determine its required health
care expenditure by multiplying the prevailing health care expenditure rate as
determined by the administering agency pursuant to this subdivision for such
employer’s covered industry by the total number of hours worked during the
fiscal year by all the employees of such employer.
(4) A covered employer shall (i) maintain an accurate work log that
lists, for each employee, such employee’s name, trade or occupation and the
dates and hours worked by such employee; (ii) provide an employee or such
employee’s designated representative(s) with access to such employee’s work log
and payroll records for inspection and copying; (iii) maintain accurate records
of health care expenditures and required health care expenditures, and proof of
such expenditures each year, provided, however, that covered employers shall
not be required to maintain such records in any particular form; and (iv) provide
a report to the administering agency on an annual basis containing the
information required to be maintained pursuant to subparagraphs (i) and (iii)
of this paragraph, and such other information as the administering agency shall
require. Such report shall be made available to the public upon request without
employee names or other personally identifying information. A covered employer
that is a signatory to one or more collective bargaining agreements that cover
at least seventy-five percent of its employees may comply with this section as
provided in subdivision g.
d. Unlawful retaliation. It shall be unlawful for any covered
employer to deprive or threaten to deprive any person of employment, take or
threaten to take any retaliatory action against any person, or directly or
indirectly intimidate, threaten, coerce, command or influence or attempt to
intimidate, threaten, coerce, command or influence any person because such
person has taken an action to enforce, inquire about or inform others about the
requirements of this section. Taking
any such adverse action against any person within ninety days of such person’s
exercise of rights pursuant to this section shall raise a rebuttable
presumption that such action was in retaliation for the exercise of such
rights.
e. Violations and penalties. (1) Any covered employer found to be in
violation of this section by failing to make health care expenditures during
the fiscal year at least equal to the required health care expenditure for such
employer shall be liable for a civil penalty equal to the amount of the
shortfall.
(2) Any covered employer found to be in violation of this section by
failing to make health care expenditures during the fiscal year at least equal
to the required health care expenditure for such employer shall correct such
violation within ninety days of such determination. The administering agency
shall serve a notice to correct such violation which shall specify the date
which is ninety days from such determination by which the violation shall be
corrected. Failure to correct such violation pursuant to this paragraph shall
subject a covered employer to a civil penalty of not less than five hundred
dollars for each day such violation continues.
(3) Any covered employer found to have violated any of the
requirements of paragraph (4) of subdivision c of this section shall be liable
for a civil penalty of not less than five hundred dollars for each such
violation.
(4) In addition to being liable for civil penalties pursuant to this
subdivision, any covered employer found to have violated this section may be
subject to other action taken by the administering agency, including, but not
limited to, requesting that city agencies or departments revoke or suspend any
city-issued registration certificates, permits or licenses held by such covered
employer until such time as the violation is remedied.
(5) Penalties imposed pursuant to this section shall not affect any
right or remedy available or civil or criminal penalty applicable under law to any
individual or entity, or in any way diminish or reduce the remedy or damages
recoverable in any action in equity or law before a court of law with competent
jurisdiction.
f. Enforcement. (1) The
administering agency shall take appropriate action to enforce this section,
including, but not limited to, periodically auditing covered employers to
monitor compliance with this section; establishing a system to receive
complaints from any person charging that a violation has occurred pursuant to
this section; investigating complaints received; and making findings of
violations and civil penalties in accordance with the provisions of this
section.
(2) Any proceeding to recover any civil penalty authorized pursuant to
this chapter shall be commenced by the service of a notice of violation which
shall be returnable to the administering agency. The commissioner or other
designated person of such administering agency shall, after due notice and an
opportunity for a hearing, be authorized to impose the civil penalties
prescribed by this section.
(3) Any action or proceeding
that may be appropriate or necessary for the correction of any violation issued
pursuant to this section, including, but not limited to, actions to secure
permanent injunctions, enjoining any acts or practices which constitute such
violation, mandating compliance with the provisions of this section or such
other relief as may be appropriate, may be initiated in any court of competent
jurisdiction by the corporation counsel or such other persons designated by the
corporation counsel on behalf of the administering agency.
(4) Any joint-labor management
committee established pursuant to the federal Labor Management Cooperation Act
of 1978 (section 175a of title 29 of the United States code) operating in the
covered industry may bring an action in any court of competent jurisdiction
against a covered employer that fails to make health care expenditures during
the fiscal year at least equal to the required health care expenditure for such
employer in violation of this section. Upon a determination of any such
violation, the court may award any appropriate remedy at law or equity and
shall award reasonable attorney’s fees and costs incurred in maintaining the
action to any complaining party who prevails in any such enforcement action.
(5) Any aggrieved person may bring an action in any court of competent
jurisdiction against a covered employer for violation of subdivision d of this
section. Upon a determination of any such violation, the court may award any
appropriate remedy at law or equity and shall award reasonable attorney’s fees
and costs incurred in maintaining the action to any complaining party who
prevails in any such enforcement action.
(6) Any enforcement
proceedings commenced under this section must be commenced within three years
after the date of the occurrence or termination of the alleged violation, which
ever occurs later.
g. Exemption. A covered
employer that is a signatory to one or more collective bargaining agreements
that cover at least seventy-five percent of its employees may fully comply with
the requirements of this section by filing annually with the administering
agency proof of such collective bargaining agreements and their terms, in such
form and manner as specified by the administering agency, and shall otherwise
be exempt from all other provisions of this section.
h. Rules. The administering
agency shall promulgate rules in accordance with this section and such other
rules as may be necessary for the purpose of implementing, construing and
carrying out the provisions this section.
§ 3. If any section, subsection, sentence, clause, phrase, or other portion of this local law, including any requirement imposed pursuant to it, is for any reason declared unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed severable, and such unconstitutionality or invalidity shall not affect the validity of the remaining portions of this local law, which remaining portions shall continue in full force and effect.
§ 4. This local law shall take effect ninety days after its enactment into law.
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