Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

As readers of this blog may recall, in 2011 New York implemented the New York Wage Theft Prevent Act (the “Act”), which amended the New York Labor Law to impose new recordkeeping and notice obligations on the majority of employers operating within New York State, as well as expanding the civil and criminal remedies available when employers fail to comply with these provisions.  Specifically, the Act requires that by February 1st of each year, employers provide notice to employees of their rate(s) of pay, designated pay day, the employer's intent to claim allowances as part of minimum wage, all identifying, affiliate and contact information for the employer, which includes the name of the employer and any "doing business as" names used by the employer and additional information that may be specified by the Commissioner of Labor.  

The notice must be provided in the employee's primary language, as identified by the employee, through translated notices provided by the Department of Labor.  These notices are required at the time of hire, as well as yearly between January 1 and February 1, and when there are changes in the information on the pay notices.  With respect to changes in the terms of an employee’s notice, the employer must provide notice of changes to the affected employees either in a separate written notice seven days in advance of the change or in the detailed wage statement accompanying payment of wages.  The employer is required to retain copies of these notices and a signed, dated acknowledgement of receipt from each employee for six years.  The notices must be made available to the Department of Labor upon request.

Employers should also be aware of changes in the Act that expand the Department of Labor's authority to enforce the Labor Law.  For example, the Act increases the mandatory liquidated damages for wage violations to 100% of unpaid wages.  In addition, the Act provides for interest from the date of any underpayment and additional civil penalties for failure to comply with final judgments within 90 days.  The Act also provides for individual recovery of civil damages for each workweek in which the employer fails to comply with its new notice requirements.  Finally, the Act expands an employee's ability to bring complaints and private actions for such violations, while also strengthening an employee's protections against any prohibited retaliation by an employer.  Prohibited retaliation includes, among other things, any action that negatively affects workers such as discharge, suspension, transfer to another shift or reduction in wages or hours, which is done because a worker has engaged in a protected activity.  A protected activity includes any of the following: an employee’s right to complain to their employer, the Department of Labor or the Attorney General about possible violations of the Labor Law and regulations issued under it; an employee’s right to file a complaint about these possible violations and give information about their conditions of employment to the Department of Labor or Attorney General; and an employee’s right to testify at hearings or other proceedings.  The penalties for retaliation can include fines up to $10,000, as well as an additional $10,000 in liquidated damages.  The Department of Labor can also request reinstatement of the worker and/or compensation for lost wages.

With February 1, 2012, the deadline for compliance quickly approaching, New York employers should take steps to ensure compliance with these necessary obligations.

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The New York Wage Theft Prevention Act (the "Act"), which went into effect on April 9, 2011, amends the New York Labor Law to impose new recordkeeping and notice obligations on the majority of employers operating within New York State, as well as expanding the civil and criminal remedies available when employers fail to comply with these provisions.  Specifically, the Act requires that employers provide notice to employees of their rate(s) of pay, designated pay day, the employer's intent to claim allowances as part of minimum wage, all identifying, affiliate and contact information for the employer, which includes the name of the employer and any "doing business as" names used by the employer, and additional information that may be specified by the Commissioner of Labor.   

The notice must be provided in the employee's primary language, as identified by the employee, through translated notices provided by the Department of Labor.  These notices are required at the time of hire, yearly between January 1 and February 1, and when there are changes in the information on the pay notices.  With respect to changes in the terms of an employee’s notice, the employer must provide notice of changes to the affected employees either in a separate written notice seven days in advance or in the detailed wage statement accompanying payment of wages.  The employer is required to retain copies of these notices and a signed, dated acknowledgment of receipt from each employee for six years. The notices must be made available to the Department of Labor upon request. 

Employers should also be aware of changes in the Act because it expands the Department of Labor's authority to enforce the Labor Law.  For example, the Act increases the mandatory liquidated damages for wage violations to 100% of unpaid wages.  In addition, the Act provides for interest from the date of any underpayment and additional civil penalties for failure to comply with final judgments within 90 days.  The Act also provides for individual recovery of civil damages for each workweek in which the employer fails to comply with its new notice requirements.  Finally, the Act expands an employee's ability to bring complaints and private actions for such violations, while also strengthening an employee's protections against any prohibited retaliation by an employer.  Prohibited retaliation includes, among other things, any action which negatively affects workers such as discharge, suspension, transfer to another shift or reduction in wages or hours, which is done because a worker has engaged in a protected activity. A protected activity includes any of the following: an employee’s right to complain to their employer, the Department of Labor, or the Attorney General about possible violations of the Labor Law and regulations issued under it, an employee’s right to file a complaint about these possible violations and give information about their conditions of employment to the Department of Labor or Attorney General, and an employee’s right to testify at hearings or other proceedings. The penalties for retaliation can include fines up to $10,000, as well as another $10,000 in liquidated damages.  The Department of Labor can also request reinstatement of the worker and/or compensation for lost wages.

The New York Department of Labor’s FAQ for the Act can be found here.  New York employers should immediately check their policies to ensure that they are complying with the Act’s new requirements.

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New York employers should be aware that New York State recently amended both the New York Labor Law, which governs wage and hour issues, as well as the State’s Human Rights Law.

Changes to the Labor Law 

On July 28, 2009, the New York Labor Law was amended and now requires employers to provide all employees who are hired on or after October 26, 2009 with written notice of their rate of pay and the employer’s regular pay dates. In addition, employers will now be required to notify new non-exempt employees who are eligible for overtime of their regular hourly rate and their overtime rate of pay. Employers will also be required to obtain acknowledgments from each new employee evidencing their receipt of this notice.

On August 27, 2009, Governor Paterson signed a bill into law that will increase the penalties for employers who retaliate against employees exercising their rights under the Labor Law. The minimum penalties will increase from $200 to $1,000 and the maximum penalties will increase from $2,000 to $10,000. In addition, the new law will make the State law consistent with the Federal Fair Labor Standards Act by permitting employees to automatically recover “liquidated damages” from their employers, unless the employer provides a “good faith basis” to show that it believed its wage underpayment was in compliance with the law.  Considering the Labor Law’s six (6) year statute of limitations, liquidated damages at the New York statutory rate of 25% of the unpaid wages could be significant. The law will now impose liability on officers and agents of limited liability companies where such individuals retaliate against employees who exercise their rights. Finally, the law gives the Commissioner of Labor the power to bring an administrative action, in addition to a court action, where the Commissioner finds violations of wage payment laws.

The bill also expanded the Labor Law §215(1) to expand the statute’s whistleblower protections to include those who have complained to their supervisor as opposed to filing a formal complaint. This way, New York law will be consistent with New Jersey’s Conscientious Employee Protection Act.

Changes to the Human Rights Law

On July 7, 2009, the State Legislature also amended the State Human Rights Law to include victims of domestic of violence as a protected category. As with other protected categories, employers may not refuse to hire or otherwise discriminate against an individual, in any aspect of employment, because the individual is a domestic violence victim. Pursuant to the statute, “domestic violence victim” is defined as, “an individual who is a victim of a family offense under New York’s Family Court Act, including disorderly conduct, harassment, stalking, reckless endangerment or assault between spouses or former spouses, or between parent and child or between members of the same family or household.” The New York State Human Rights Law was further amended to now provide for civil fines and penalties of up to $50,000.00 for unlawful discriminatory acts that occur on or after July 6, 2009. In addition, the Act provides for penalties and fines of up to $100,000.00 where the discrimination is willful, wanton or malicious.

Changes to New York’s “Mini-COBRA” Law

On July 28, 2009, Governor Paterson also signed into law a bill that will extend an employee’s right to continue his/her health insurance under New York’s “Mini-COBRA” law. New York’s “Mini-COBRA” applies to employers with less than twenty (20) employees while employers with more than twenty (20) employees are subject to federal COBRA. Prior to this bill, those subject to Mini-COBRA were entitled to continuation coverage for eighteen (18) months from their separation in the event of termination, reduction in hours of employment, or loss of eligibility. Now, however, an employee may continue coverage for up to thirty-six (36) months. If the employee has exhausted his/her continuation coverage under COBRA, he/she is also permitted to maintain coverage for up to thirty-six (36) months. 

Employers conducting business in New York should make note of these important changes to the State’s employment laws.

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