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a. For purposes of this section, the following terms shall have the following meanings:
Change in control. The term "change in control" means any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets of, or a controlling interest in, including by consolidation, merger or reorganization, any grocery establishment.
City. The term "city" means the city of New York.
Department. The term "department" means the department of consumer and worker protection or any other agency or office designated by the mayor.
Eligible grocery employee. The term "eligible grocery employee" means any person employed by a grocery establishment subject to a change in control, and who has been employed by such establishment on a full-time or a part-time basis for a period of at least six months prior to the effective date of the change in control; provided that such term shall not include persons who are managerial, supervisory or confidential employees or persons who on average regularly worked fewer than eight hours per week during such period.
Grocery establishment. The term "grocery establishment" means any retail store in the city of New York in which the sale of food for off-site consumption comprises fifty percent or more of store sales and that exceeds 10,000 square feet in size, exclusive of any storage space, loading dock, food preparation space or eating area designated for the consumption of prepared food.
Incumbent grocery employer. The term "incumbent grocery employer" means any person that owns or controls a grocery establishment prior to any change in control.
Person. The term "person" means any individual, corporation, sole proprietorship, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality or any other legal or commercial entity, whether domestic or foreign.
Successor grocery employer. The term "successor grocery employer" means any person that owns or controls a grocery establishment after any change in control.
Transitional employment period. The term "transitional employment period" means a 90 day period beginning upon the latter of the effective date of a change in control of a grocery establishment or the end of any period during which such grocery establishment was not open to the public during its normal business hours.
b. Worker retention; transitional employment period.
1. No less than fifteen calendar days before the effective date of any change in control of a grocery establishment, the incumbent grocery employer shall:
(A) provide to the successor grocery employer a full and accurate list containing the name, address, phone number, if known by such incumbent grocery employee, email address, if known by such incumbent grocery employer, date of hire and job category of each eligible grocery employee;
(B) post a notice in the same location and manner that other statutorily required notices to employees are posted at such grocery establishment, which shall include:
(i) the effective date of such change in control;
(ii) the name and contact information for the successor grocery employer;
(iii) an explanation of the rights provided pursuant to this section, in a form prescribed by the department; and
(iv) the names and job categories of each eligible grocery employee.
(C) provide the list and notice required by subparagraphs (A) and (B) of this paragraph to the eligible grocery employees' collective bargaining representatives, if any.
2. A successor grocery employer shall retain each eligible grocery employee for the transitional employment period and, except as provided in paragraph 3 of this subdivision, a successor grocery employer shall not discharge an eligible grocery employee retained pursuant to this section during the transitional employment period without cause.
3. If at any time during the transitional employment period a successor grocery employer determines that it requires fewer eligible grocery employees than were employed by the incumbent grocery employer, such successor grocery employer shall retain such eligible grocery employees by seniority within each job category. During the transitional employment period, the successor grocery employer shall maintain a preferential hiring list of any eligible grocery employees not retained by such successor grocery employer who shall, by seniority within their job category, be given a right of first refusal to any jobs that become available during such period within such job category.
4. A successor grocery employer shall retain written verification of any offer of employment made by such successor grocery employer to any eligible grocery employee for a period of no less than three years from the date such offer was made. Such verification shall include the name, address, date of offer, and job category of each eligible grocery employee.
5. At the end of the transition employment period, a successor grocery employer shall complete a written performance evaluation for each eligible grocery employee retained pursuant to this section and may offer such eligible grocery employee continued employment. A successor grocery employer shall retain a record of the written performance evaluation for a period of no less than three years.
c. Penalties.
1. Any incumbent grocery employer who violates paragraph 1 of subdivision b of this section shall be liable for a civil penalty of not more than $1,000.
2. Any successor grocery employer who violates paragraph 2 of subdivision b of this section shall be liable for a civil penalty of not more than $750 for each employee not retained or terminated without cause during the transitional employment period.
3. Any successor grocery employer who violates paragraph 3 of subdivision b of this section for failing to maintain a preferential hiring list of any eligible grocery employees not retained by such successor grocery employer shall be liable for a civil penalty of not more than $750.
4. Any successor grocery employer who violates paragraph 4 of subdivision b of this section for failing to retain written verification of any offer of employment made by such successor grocery employer to any eligible grocery employee shall be liable for a civil penalty of not more than $500.
5. Any successor grocery employer who violates paragraph 5 of subdivision b of this section for failing to complete or retain written performance evaluations for each eligible grocery employee retained during the transitional employment period shall be liable for a civil penalty of not more than $500.
d. Enforcement.
1. Any eligible grocery employee alleging a violation of this section may file a complaint with the department within 180 days of the date such eligible grocery employee knew or should have known of the alleged violation.
(A) The department shall investigate any complaint it receives regarding an alleged violation of this section. The department shall maintain confidential the identity of any complainant unless disclosure of such complainant's identity is necessary for resolution of the investigation or otherwise required by law. The department shall, to the extent practicable, notify such complainant that the department will be disclosing his or her identity prior to such disclosure.
(B) The department may, at any time after the filing of a complaint, resolve the complaint by any method of dispute resolution, unless such complaint is withdrawn by the complainant.
(C) The department shall keep complainants reasonably notified regarding the status of their complaint and any resultant investigation.
(D) A proceeding to recover any civil penalty authorized by this section shall be commenced by the service of a notice of violation which shall be returnable to the office of administrative tribunals and hearings. Such office shall have the power to impose the penalties described by paragraphs 1 through 5 of subdivision c of this section and by paragraph 3 of this subdivision.
(E) The department may settle a notice of violation at any time prior to the conclusion of an adjudication, provided that any complainant who opts out of such settlement may withdraw his or her complaint and file a private right of action pursuant to paragraph 2 of this subdivision.
2. Any eligible grocery employee alleging a violation of this section may bring a civil action against an incumbent grocery employer for a violation of paragraph 1 of subdivision b of this section or against a successor grocery employer for a violation of paragraphs 2 through 5 of subdivision b of this section only if:
(A) such eligible grocery employee has filed a complaint with the department pursuant to paragraph 1 of this subdivision arising out of the same facts and circumstances, the department has not, within 120 days, either resolved such complaint or issued a notice of violation, and such employee has withdrawn such complaint with the department; or
(B) such eligible grocery employee has filed a complaint with the department pursuant to paragraph 1 of this subdivision arising out of the same facts and circumstances, has opted out of a settlement reached by the department pursuant to subparagraph (E) of paragraph 1 of this subdivision, and has withdrawn his or her complaint with the department.
3. In addition to the penalties authorized by subdivision c of this section, the remedy in any administrative proceeding or civil action undertaken pursuant to this section may include:
(A) three times the pay for each day the eligible grocery employee was discharged or not retained in violation of paragraph 2 of subdivision b of this section, which shall be calculated at a rate of compensation not less than the higher of:
(i) the average regular rate of pay received by the eligible grocery employee during the last three years of such eligible grocery employee's employment in the same job category, or
(ii) the most recent regular rate received by the eligible grocery employee while employed by either the incumbent grocery employer or the successor grocery employer, regardless whether such employee obtained an alternate source of income that was less than, equal to, or greater than the rate calculated pursuant to this paragraph;
(B) the value of the benefits the eligible grocery employee would have received under the successor grocery employer's benefit plan for those days such employee was discharged or was not retained in violation of paragraph 2 of subdivision b of this section;
(C) an order requiring that the successor grocery employer retain its eligible grocery employees during the transitional employment period, unless an eligible grocery employee is discharged pursuant to paragraph 3 of subdivision b of this section or with cause; and
(D) reasonable attorney's fees and costs incurred in maintaining a civil action for a violation of this section, provided the eligible grocery employee is the prevailing party in any such civil action.
e. The provisions of this section shall not apply to any successor grocery employer that, on or before the effective date of the transfer of control from a predecessor grocery employer to the successor grocery employer, enters into a collective bargaining agreement covering the eligible grocery employees or agrees to assume, or to be bound by, the collective bargaining agreement of the predecessor grocery employer covering the eligible grocery employees, provided that such collective bargaining agreement provides terms and conditions regarding the discharge or laying off of employees.
(L.L. 2016/011, 2/8/2016, eff. 5/8/2016; Am. L.L. 2020/080, 8/28/2020, eff. 8/28/2020)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2020/080.
a. For purposes of this section, the following terms have the following meanings:
Covered entity. The term "covered entity" means any person who enters into a food service contract for the provision of food service at premises located within the city.
Food service. The term "food service" means the on-site preparation, service and clean-up of food or beverages to persons.
Food service contract. The term "food service contract" means a contract for a term of at least 12 months between a covered entity and a food service contractor for the provision of food service that requires that:
(i) the food service contractor provide all food service workers;
(ii) the prices for food or beverages sold on the premises of the covered entity be subject to the review and agreement of the covered entity; and
(iii) the food service contractor reports the gross receipts or gross sales generated pursuant to the contract to the covered entity.
Food service contractor. The term "food service contractor" means any person who enters into a food service contract to provide food service to a covered entity.
Food service worker. The term "food service worker" means any person who has been employed by a food service contractor to provide food service pursuant to a food service contract on a full or part-time basis for at least 90 days immediately preceding any transition in employment subject to this section, provided that such term does not include persons who are managerial, supervisory or confidential employees, or persons regularly scheduled to work fewer than eight hours per week.
Former food service contractor. The term "former food service contractor" means any person who has entered into a food service contract with a covered entity prior to a termination of such contract.
Person. The term "person" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ persons or enter into service contracts, but it does not include the city, the state of New York, the federal government any other governmental entity, or any individual or entity managing real property for a governmental entity.
Successor food service contractor. The term "successor food service contractor" means any person who has entered into a food service contract with a covered entity after the termination of a substantially similar food service contract by the covered entity.
b. Terminated food service contract.
1. No less than 15 calendar days before terminating any food service contract, a covered entity shall request the former food service contractor to provide to the successor food service contractor and the covered entity a full and accurate list containing the name, address, date of hire, and job category of each food service worker who provided the food service pursuant to such contract. The former food service contractor shall provide such list within 72 hours of receipt of the request by the covered employer. At the same time that the former food service contractor provides such list, the former food service contractor shall post the list in a notice to the food service workers that also sets forth the rights provided by this section, in the same location and manner that other statutorily required notices to employees are posted at the affected premises. Such notice shall also be provided to the food service workers' collective bargaining representative, if any.
2. Upon termination of a food service contract, the successor food service contractor shall retain those food service workers who provided the food service pursuant to such contract for a 90-day transition employment period.
3. If at any time the successor food service contractor determines that fewer food service workers are required to perform the food service pursuant to such contract than had been performing such service under the terminated food service contract, such successor food service contractor shall retain the food service workers by seniority within job classification; provided, that during such 90-day transition period, the successor food service contractor shall maintain a preferential hiring list of those food service workers not retained at the sites who shall be given a right of first refusal to any jobs within their classifications that become available during that period.
4. Except as provided in paragraph 3 of this subdivision, during such 90-day period the successor food service contractor shall not discharge without cause a food service worker retained pursuant to this section.
5. At the end of the 90-day transition period, the successor food service contractor shall complete a written performance evaluation for each food service worker retained pursuant to this section. If a food service worker's performance during such 90-day period is satisfactory, the successor food service contractor shall offer such food service worker continued employment under the terms and conditions established by the successor food service contractor.
c. Remedies.
1. A food service worker who has been discharged or not retained in violation of this section may bring an action in supreme court against a successor food service contractor for violation of any obligation imposed pursuant to this section.
2. The court shall have authority to order reinstatement of any food service worker who has been discharged or not retained in violation of this section.
3. If the court finds that by reason of a violation of any obligation imposed pursuant to subdivision b of this section, a food service worker has been discharged or not retained in violation of this section, it shall award:
(a) Back pay for each day during which the violation continues, calculated at a rate of compensation not less than the higher of (i) the average regular rate of pay received by the food service worker during the last three years of the food service worker's employment in the same job category; or (ii) the final regular rate received by the food service worker while employed either under the terminated food service contract or under the food service contract with the successor food service contractor, regardless of whether such food service worker obtained an alternate source of income that was less than, equal to, or greater than the rate calculated pursuant to this subparagraph;
(b) The cost of benefits the successor food service contractor would have incurred for the food service worker under the successor food service contractor's benefit plan; and
(c) The food service worker's reasonable attorney's fees and costs.
4. In any such action, the court has authority to order the covered entity or former food service contractor to provide the successor food service contractor with the information required pursuant to subdivision b of this section.
d. The provisions of this section do not apply to a successor food service contractor that, on or before the effective date of the commencement of food service by such successor food service contractor, enters into a collective bargaining agreement covering the food service workers or agrees to assume, or to be bound by, the collective bargaining agreement of the former food service contractor covering such food service workers, provided that such collective bargaining agreement provides terms and conditions regarding the discharge or laying off of employees.
(L.L. 2016/131, 10/31/2016, eff. 10/31/2016)
The department, or an agency or office designated by the mayor, shall by March 1, 2018 develop a program to provide equal access to construction site safety training required by section 3321 of the New York city building code. Such program shall address the needs of individuals who do not have equal access to such training.
(L.L. 2017/196, 10/16/2017, eff. 10/16/2017)
a. Definitions. For the purposes of this section, the following terms have the following meanings:
Affected hotel. The term "affected hotel" means a hotel or discrete portion of a hotel that has been the subject of a change in control or a change in controlling interest or identity.
Change in control. The term "change in control" means any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets used in the operation of a hotel or a discrete portion of a hotel. A change in control shall be defined to occur on the date of execution of the document effectuating such change.
Change in controlling interest or identity. The term "change in controlling interest or identity" means (i) any sale, assignment, transfer, contribution or other disposition of a controlling interest, including by consolidation, merger or reorganization, of a hotel employer or any person who controls a hotel employer; or (ii) any other event or sequence of events, including a purchase, sale or lease termination of a management contract or lease, that causes the identity of the hotel employer at a hotel to change. A change in controlling interest or identity shall be defined to occur on the date of execution of the document effectuating such change.
Eligible hotel service employee. The term "eligible hotel service employee" means a hotel service employee employed by a hotel employer at an affected hotel.
Former hotel employer. The term "former hotel employer" means any hotel employer who owns, controls or operates a hotel prior to a change in control or change in controlling interest or identity of a hotel or of a discrete portion of a hotel that continues to operate as a hotel after such change.
Hotel. The term "hotel" means a transient hotel as defined in section 12-10 of the New York city zoning resolution or any successor provision of such resolution.
Hotel employer. The term "hotel employer" means any person who owns, controls or operates a hotel, and includes any person or contractor who, in a managerial, supervisory or confidential capacity, employs one or more hotel service employees.
Hotel service. The term "hotel service" means work performed in connection with the operation of a hotel.
Hotel service employee. The term "hotel service employee" means (i) any person employed to perform a hotel service at an affected hotel during the 365-day period immediately preceding the change in control or change in controlling interest or identity of such hotel, or (ii) any person formerly employed to perform a hotel service at an affected hotel who retains recall rights under the former hotel employer's collective bargaining agreement, if any, or under any comparable arrangement established by the former hotel employer, on the date of the change in control or change in controlling interest or identity of such hotel. Notwithstanding the preceding sentence, the term "hotel service employee" shall not include persons who are managerial, supervisory or confidential employees or who otherwise exercise control over the management of the hotel.
Hotel service employee retention period. The term "hotel service employee retention period" means the 90-day period beginning on the date of a change in control or change in controlling interest or identity of the hotel or of a discrete portion of the hotel that continues to operate as a hotel after such change, provided that if such hotel is not open to the public on such date, such 90-day period shall begin on the first day that such hotel is open to the public after such change.
Person. The term "person" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, trustee in bankruptcy, receiver or other entity that may employ persons or enter into service contracts, but does not include the city of New York, the state of New York, and the federal government or any other governmental entity, or any individual or entity managing real property for a governmental entity.
Successor hotel employer. The term "successor hotel employer" means a hotel employer who owns, controls or operates a hotel after a change in control or change in controlling interest or identity of the hotel or of a discrete portion of the hotel that continues to operate as a hotel after such change.
b. Hotel service employee retention.
1. No less than 15 days before a change in control or change in controlling interest or identity, a former hotel employer shall provide the successor hotel employer with a full and accurate list containing the name, address, date of hire and employment classification of each hotel service employee employed at an affected hotel. At the same time that the former hotel employer provides such list, the former hotel employer shall post such list in a notice to the hotel service employees that also sets forth the rights provided by this section, in the same location and manner that other statutorily required notices to such employees are posted at the affected hotel; provided that if such hotel is not open to the public, such notice shall be transmitted in the same manner as any offer of employment made pursuant to paragraph 2 of this subdivision. Such notice shall also be provided to the employees' collective bargaining representative, if any.
2. A successor hotel employer shall, during the hotel service employee retention period, offer each eligible hotel service employee employment for no less than 90 days under the terms and conditions established by the successor hotel employer, or as required by law, except that the wage rate offered and paid for such period shall be the same as or higher than the wage rate last paid to such employee by the former hotel employer, or as required by law. Such offers shall be made in writing and shall remain open for at least 10 business days from the date of such offer.
3. Except as provided in paragraph 4 of this subdivision, during the hotel service employee retention period, an eligible hotel service employee retained pursuant to this section shall not be discharged without cause.
4. If at any time during the hotel service employee retention period the successor hotel employer determines that fewer hotel service employees are required than were employed by the former hotel employer, the successor hotel employer shall retain eligible hotel service employees by seniority and experience within each job classification, to the extent such classification exists.
5. A successor hotel employer shall retain written verification of each offer of employment made pursuant to paragraph 2 of this subdivision. Such verification shall include the name, address, date of hire and job classification of the eligible hotel service employee to whom the offer was made. A successor hotel employer shall retain such verification for no less than 3 years from the date the offer is made.
6. At the end of the hotel service employee retention period, the successor hotel employer shall perform a written performance evaluation for each hotel service employee retained pursuant to this section. If such employee's performance during such retention period is satisfactory, the successor hotel employer shall offer such employee continued employment under the terms and conditions established by the successor hotel employer. A successor hotel employer shall retain such written performance evaluation for no less than 3 years from the date it is issued.
c. Remedies.
1. A hotel service employee who has been discharged or not retained in violation of this section may bring an action in supreme court against a former hotel employer or successor hotel employer for violation of any obligation imposed pursuant to this section.
2. The court shall have authority to order preliminary and permanent equitable relief, including, but not limited to, reinstatement of any employee who has been discharged or not retained in violation of this section. If the court finds that by reason of a violation of any obligation imposed pursuant to subdivision b of this section, a hotel service employee has been discharged or not retained in violation of this section, the court shall award:
(i) back pay, and an equal amount as liquidated damages, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of (1) the average regular rate of pay received by the employee during the last 3 years of the employee's employment in the same occupation classification; or (2) the final regular rate of pay received by the employee. Back pay shall apply to the period commencing on the date of the discharge or refusal-to-retain by the successor hotel employer and ending on the effective date of any offer of instatement or reinstatement of the employee;
(ii) costs of benefits the successor hotel service employer would have incurred for the employee under such employee's benefit plan; and
(iii) the employee's reasonable attorney's fees and costs.
4. In any such action, the court shall have authority to order the former or successor hotel employer, as applicable, to provide any information required pursuant to subdivision b of this section.
d. Applicability. This section shall not apply to:
1. any successor hotel employer who, on or before the change of control or change in controlling interest or identity, agrees to assume, or to be bound by, the collective bargaining agreement of the former hotel employer, provided that such collective bargaining agreement provides terms and conditions for the discharge or laying off of employees;
2. if there was no existing collective bargaining agreement as described in paragraph 1 of this subdivision, any successor hotel employer who agrees, on or before the change of control or change in controlling interest or identity, to enter into a new collective bargaining agreement covering its hotel service employees, provided that such collective bargaining agreement provides terms and conditions for the discharge or laying off of employees; or
3. a former hotel employer who obtains a written commitment from a successor hotel employer that such successor hotel employer's hotel service employees will be covered by a collective bargaining agreement that provides terms and conditions for the discharge or laying off of employees.
e. Records.
1. Each hotel employer shall maintain for three years, for each employee and former employee, by name, a record showing the employee's regular hourly rate of pay for each week of the employee's employment.
2. Each hotel employer shall make an employee's or former employee's records available in full to such employee or former employee upon request.
(L.L. 2020/099, 9/28/2020, eff. 9/28/2020)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2020/099.