N.Y. Comp. Codes R. & Regs. tit. 9 § 466.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 466.12 - Payment of civil fines and penalties in installments by employers of fewer than 50 employees

(a) Statutory authority. Pursuant to Executive Law section 297.4(c), where the commissioner finds that a respondent has engaged in any unlawful discriminatory practice, the commissioner shall issue an order which may include, inter alia, the assessment of civil fines and penalties, in an amount not to exceed $50,000, to be paid to the State by a respondent found to have committed an unlawful discriminatory act, or not to exceed $100,000 to be paid to the State by a respondent found to have committed an unlawful discriminatory act which is found to be willful, wanton or malicious, section 297.4(c)(vi). Pursuant to Executive Law section 297.4(e), in cases of employment discrimination where the employer has fewer than 50 employees, such civil fine or penalty may be paid in reasonable installments, with reasonable interest resulting from the delay, and in no case may installments be made over a period longer than three years. Executive Law, section 297.4(e) further requires the division to promulgate regulations regarding installment payments.

(b) Installment payments; general. Any commissioner's order assessing civil fines and penalties shall be made in accordance with the following:

(1) civil fines and penalties shall be due no later than 60 days from the date of the commissioner's order, unless payment in installments has been requested and ordered;

(2) where the employer has fewer than 50 employees, and makes application in accordance with the provisions of subdivision (c) of this section, payment may be ordered in installments, in accordance with subdivision (d) of this section.

(c) Application for payment in installments.

(1) Payment in installments will only be ordered upon application of the respondent employer.

(2) Application for payment in installments shall be made:

(i) orally or in writing on the record at the public hearing; or

(ii) may be included in any written objections to the Administrative Law Judge's recommended order, filed pursuant to the division's Rules of Practice, section 465.17(c) of this Title.

(3) The burden of proof on the issue of whether the employer has fewer than 50 employees rests with the employer, who is responsible to offer evidence on the issue into the record in accordance with the division's Rules of Practice, sections 465.12(e) (Form and content of proof), 465.12(i) (Hearing record), and 465.17(c) (Preparation and order) of this Title.

(d) Commissioner's order after hearing assessing civil fines payable in installments; required content. Any commissioner's order assessing civil fines and penalties, and providing that such civil fines and penalties are payable in installments by an employer of fewer than 50 employees, shall be made in accordance with the following:

(1) payment shall be made in no more than three installments, in such form as the division may now or in future be able to accept, and as specifically directed in the order;

(2) the amount and due date of each installment shall be explicitly stated in the commissioner's order;

(3) the final payment shall be due no later than three years from the date of the commissioner's order;

(4) the first installment shall be due 60 days from the date of the commissioner's order, unless otherwise provided in the discretion of the commissioner.

(e) Interest. Any portion of civil fines and penalties paid within 60 days after the date of the commissioner's order shall not accrue any interest. Interest on any remaining installments may be reduced on all or any portion of an installment by paying in advance of the due dates. Any portion or installment of civil fines and penalties paid after 60 days from the date of the commissioner's order shall accrue interest, from the date of the commissioner's order to the date of payment, at the rate set forth in CPLR section 5004. Any other provision of law, applicable to the employer or the facts of the case, which indicates a different rate of interest is applicable, may be taken into consideration in the discretion of the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 466.12