New York's Wage Theft Prevention Act is RealBy Rao Tiliakos LLPMonday, December 13, 2010 |
Today, Governor Patterson signed the Wage Theft Prevention Act. In my December 2, 2010 blog, I promised I would provide more details if the Governor signed the bill. I am a man of my word.
Starting April 12, 2011:
1. Courts must award all reasonable attorneys' fees and interest to a prevailing employee (prevailing employers are out of luck) or the Commissioner in any action instituted in court. There is a 15 percent penalty (and fees and costs) if a court judgment must be enforced after 90 days.
2. Liquidated damages are increased from 25 percent to 100 percent of the total wages due unless the employer proves it believed it was acting in compliance with the law.
3. If an employer fails to pay minimum wage or overtime, its officers or agents can be found guilty of a misdemeanor and jailed for up to one year, or required to pay fines between $500 and $20,000. A second violation within six years will result in a felony conviction
4. If an employer fails to maintain proper records, its officers or agents can be found guilty of a misdemeanor and jailed for up to one year, or required to pay fines between $500 and $5,000. A second violation within six years will result in a fine between $500 and $20,000, or jail time for up to one year (and a day), or both.
5. At the time of hire and before February 1 each year thereafter, all employers must give employees information (in English and in the employee's primary language) about pay rates, hourly and overtime rates for non-exempt employees, the method of calculation (e.g. hourly, shift, day, week, salary, piece, commission), minimum wage allowances (e.g., tip credit, meal, lodging), the regular pay day, and the name of the employer and any DBA, its physical address and phone number. The employee must sign a written acknowledgement each year which must be kept for six years. If documentation is not provided within 10 days of initial employment, the employee may recover $50 a week (up to $2,500) plus attorneys' fees and costs. When changes are made to this information, the employer must provide an employee the changes in writing at least seven days prior to the effective date unless the changes are reflected in a new wage statement. An employer has an affirmative defense if it has made complete and timely payment of all wages due but fails to adequately comply with the notice requirement.
6. Wage statements must be provided with each paycheck and must detail the applicable dates for the wages, the names of the employee and employer, the address and phone number of the employer, the wage rate(s), method of calculation (e.g. hourly, shift, day, week, salary, piece, commission), gross wages, net wages, deductions, and minimum wage allowances (e.g., tip credit, meal, lodging). For non-exempt employees, the statement also must include the regular hourly rate of pay and the overtime rate of pay, the number of regular hours worked, and the number of overtime hours worked. For piece-rate workers, the statement also must include the applicable piece rates and the number of pieces completed. Upon the request of an employee, the employer must explain in writing how wages are computed. Employers must maintain these records and the actual payroll records for six years. Damages of $100 per week up to $2,500, plus attorneys' fees and costs, can be awarded. Also, the Commissioner may bring a civil action and assess a penalty of $100 for each workweek the violation occurs. An employer has an affirmative defense if it has made complete and timely payment of all wages due but fails to adequately comply with the paystub requirement.
7. The Commissioner may enjoin retaliation, award liquidated damages up to $10,000, and reinstate the employee (with back pay). Threats of retaliation are prohibited. Employees who make a complaint to his/her employer or the Commissioner (or the Attorney General or any other person) about conduct that the employee reasonably and in good faith believes constitutes a violation under the law are protected from retaliation. If an employer believes an employee has made a complaint, that employee is protected. An employee who is preparing to complain is protected. Employees who provide information to the Commissioner are protected. Employees who testify (or are preparing to testify) in an investigation are protected. An employee's complaint need not explicitly refer to any section of the law he/she believes was violated. The two-year statute of limitations for filing retaliation claim runs from the date of the retaliation itself, not the dates of employment.
8. There is a private right of action without an exhaustion requirement. Private agreements to work for less than the wages required under law are not valid. There is a six year statute of limitations which can be tolled as discussed later.
9. The Commissioner may perform an accounting of employer assets (all bank accounts, accounts receivable, personal property, real property, automobiles and any other asset) if it fails to comply with an order.
10. The Commissioner may pursue wage discrimination based on gender, meal break violations, day of rest violations, and retaliation through administrative action (not just court action). The Commissioner will keep the names of employees that are the subject of an investigation confidential from an employer until disclosure is necessary for resolution.
11. The Commissioner may add an additional 15 percent damage if an employer defaults on an order to comply for more than 90 days. The Commissioner must provide a copy of an order to comply issued against an employer to a complaining employee. The Commissioner can institute criminal actions. The Commissioner can require posting of a bond. The Commissioner may work with county clerks to collect damage assessments. Employers must permit the Commissioner to question without interference any employee in a private location at the place of business during working hours.
12. If an employer is held liable for a wage violation, it may be required to post documentation explaining the violation for up to one year.
13. The six year statute of limitations may be tolled from the date an employee complains to the Commissioner (or the date the Commissioner's initiates an investigation) to the date the investigation ends.
These changes will cause new daily filings of wage and hour actions (just like in California). If you haven't audited your New York wage and hour practices lately, I highly recommend doing so before April 12, 2011.
Rao Tiliakos LLP is a minority-owned nationwide litigation and counseling law firm. Our specialties include all facets of labor and employment litigation and counseling, trade secrets and restrictive covenant litigation and counseling, and commercial litigation. Learn more about us at www.raotiliakos.com.
Starting April 12, 2011:
1. Courts must award all reasonable attorneys' fees and interest to a prevailing employee (prevailing employers are out of luck) or the Commissioner in any action instituted in court. There is a 15 percent penalty (and fees and costs) if a court judgment must be enforced after 90 days.
2. Liquidated damages are increased from 25 percent to 100 percent of the total wages due unless the employer proves it believed it was acting in compliance with the law.
3. If an employer fails to pay minimum wage or overtime, its officers or agents can be found guilty of a misdemeanor and jailed for up to one year, or required to pay fines between $500 and $20,000. A second violation within six years will result in a felony conviction
4. If an employer fails to maintain proper records, its officers or agents can be found guilty of a misdemeanor and jailed for up to one year, or required to pay fines between $500 and $5,000. A second violation within six years will result in a fine between $500 and $20,000, or jail time for up to one year (and a day), or both.
5. At the time of hire and before February 1 each year thereafter, all employers must give employees information (in English and in the employee's primary language) about pay rates, hourly and overtime rates for non-exempt employees, the method of calculation (e.g. hourly, shift, day, week, salary, piece, commission), minimum wage allowances (e.g., tip credit, meal, lodging), the regular pay day, and the name of the employer and any DBA, its physical address and phone number. The employee must sign a written acknowledgement each year which must be kept for six years. If documentation is not provided within 10 days of initial employment, the employee may recover $50 a week (up to $2,500) plus attorneys' fees and costs. When changes are made to this information, the employer must provide an employee the changes in writing at least seven days prior to the effective date unless the changes are reflected in a new wage statement. An employer has an affirmative defense if it has made complete and timely payment of all wages due but fails to adequately comply with the notice requirement.
6. Wage statements must be provided with each paycheck and must detail the applicable dates for the wages, the names of the employee and employer, the address and phone number of the employer, the wage rate(s), method of calculation (e.g. hourly, shift, day, week, salary, piece, commission), gross wages, net wages, deductions, and minimum wage allowances (e.g., tip credit, meal, lodging). For non-exempt employees, the statement also must include the regular hourly rate of pay and the overtime rate of pay, the number of regular hours worked, and the number of overtime hours worked. For piece-rate workers, the statement also must include the applicable piece rates and the number of pieces completed. Upon the request of an employee, the employer must explain in writing how wages are computed. Employers must maintain these records and the actual payroll records for six years. Damages of $100 per week up to $2,500, plus attorneys' fees and costs, can be awarded. Also, the Commissioner may bring a civil action and assess a penalty of $100 for each workweek the violation occurs. An employer has an affirmative defense if it has made complete and timely payment of all wages due but fails to adequately comply with the paystub requirement.
7. The Commissioner may enjoin retaliation, award liquidated damages up to $10,000, and reinstate the employee (with back pay). Threats of retaliation are prohibited. Employees who make a complaint to his/her employer or the Commissioner (or the Attorney General or any other person) about conduct that the employee reasonably and in good faith believes constitutes a violation under the law are protected from retaliation. If an employer believes an employee has made a complaint, that employee is protected. An employee who is preparing to complain is protected. Employees who provide information to the Commissioner are protected. Employees who testify (or are preparing to testify) in an investigation are protected. An employee's complaint need not explicitly refer to any section of the law he/she believes was violated. The two-year statute of limitations for filing retaliation claim runs from the date of the retaliation itself, not the dates of employment.
8. There is a private right of action without an exhaustion requirement. Private agreements to work for less than the wages required under law are not valid. There is a six year statute of limitations which can be tolled as discussed later.
9. The Commissioner may perform an accounting of employer assets (all bank accounts, accounts receivable, personal property, real property, automobiles and any other asset) if it fails to comply with an order.
10. The Commissioner may pursue wage discrimination based on gender, meal break violations, day of rest violations, and retaliation through administrative action (not just court action). The Commissioner will keep the names of employees that are the subject of an investigation confidential from an employer until disclosure is necessary for resolution.
11. The Commissioner may add an additional 15 percent damage if an employer defaults on an order to comply for more than 90 days. The Commissioner must provide a copy of an order to comply issued against an employer to a complaining employee. The Commissioner can institute criminal actions. The Commissioner can require posting of a bond. The Commissioner may work with county clerks to collect damage assessments. Employers must permit the Commissioner to question without interference any employee in a private location at the place of business during working hours.
12. If an employer is held liable for a wage violation, it may be required to post documentation explaining the violation for up to one year.
13. The six year statute of limitations may be tolled from the date an employee complains to the Commissioner (or the date the Commissioner's initiates an investigation) to the date the investigation ends.
These changes will cause new daily filings of wage and hour actions (just like in California). If you haven't audited your New York wage and hour practices lately, I highly recommend doing so before April 12, 2011.
Rao Tiliakos LLP is a minority-owned nationwide litigation and counseling law firm. Our specialties include all facets of labor and employment litigation and counseling, trade secrets and restrictive covenant litigation and counseling, and commercial litigation. Learn more about us at www.raotiliakos.com.
