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Still Work to be Done: Changes to New York State’s Labor Law are a Starting Point for Meaningful Change

April 7, 2015

Bills signed by Governor Cuomo in late 2014 and early 2015 could strengthen protections for workers in New York, but without real enforcement requirements, leave low wage workers to tow the line themselves.

PROVISIONS

1.  Employers must still provide notice at the time of hiring that states the employee’s rate of pay, type of wage, allowance, address of employer, etc., but no longer has to provide this notice annually.

2.  The fine for failure to provide this notice at the time of hire is now $50 for each work day that goes by after the hire date (as opposed to each week), and is capped at $5,000 (as opposed to $2,500).

3.  The fine for failure to provide weekly wage statements is now $250 per work day (as opposed to $100 for each work week), and is capped at $5,000 (as opposed to $2,500).

What does this mean? 

Almost all low wage workers neither receive the required notice at the time of hire, nor weekly wage statements (in their primary language as required).  These new provisions would enable advocates to recover more money in wage notice violations for shorter-term employees, such as day laborers, and the higher overall cap of $10,000 instead of $5,000 for the notice and statements violations will present a more forceful and meaningful penalty.

The timing:

  • An employer would hit the maximum cap after approximately 22 weeks of work for failure to provide the required notices at the time of hire.
  • The maximum cap of $5,000 for failure to provide weekly wage statements would be hit in approximately 4 weeks.  

However, it remains practically difficult (if not impossible) to enforce these penalties in negotiations and settlements, so these changes may require further enhancement.

4.  If an employer is WILLFULLY AND EGRIGIOUSLY violating an order by the Department of Labor (DOL) for a second time, the employer must report all information regarding its full-time and temporary employees - the number, wages, and hours.  

What does this mean? 

There should be increased monitoring of repeat offenders by DOL, but it’s hard to imagine that with its current resources, DOL will achieve anything greater than it already is with this new provision.

5.  An employer “similar in operation and ownership” to a prior employer, who has been “found in violation” of wage provisions of the NYLL, shall be deemed the “same employer” if:

a.  the employees of the new employer are doing the “substantially the same” work, have “substantially the same” working conditions and supervisor, OR
b.  the new employer has the “same” products AND “substantially the same” body of customers,

AND shall be liable for the acts of the prior employer. 


What does this mean? 

This appears to relax the standard for successor liability, which would help in cases where there is a judgment /order against an employer and they avoid payment by shutting down the business, then just opening up doing the same thing down the street.

However, there is a lot of vague language that will probably only be clarified through litigation.  It’s unclear what the mechanism would be to litigate this as well – would an advocate amend an outstanding judgment against the previous employer?  If it’s a DOL order, is DOL the one responsible for issuing a new order? Or is it collections?

6.  Retaliation Penalties, the civil penalty DOL can assess, is now capped at $20,000 (instead of $10,000), and DOL can assess $20,000 in liquidated damages to the claimant, or a court can give $20,000 in liquidated damages in a civil lawsuit.

What does this mean?

Both provisions, the civil penalty by the Commissioner and the liquidated damages, have not been tested much (if only a handful of times), so its unclear if the increase will have any impact.  A harsher penalty is supposed to be a greater deterrent, but without any real enforcement of the provision, it may be difficult to see any benefit to workers.

7.  DOL orders for wages that aren’t pending an appeal, liquidated damages, and interest will be assigned to the employee instead of DOL, and once DOL dockets the judgment against the employer, either DOL OR the employee can enforce the judgment.

What does this mean? 

Previously, the Department of Labor was the only entity that had the power to collect their orders that were docketed as judgments against employers.  This process would take up to 7 years (it takes 2-3 years just to docket it, and another 2-3 years to go through the collections).  Now the assignment is mandatory to the employee, and once a judgment has been docketed, an employee can enforce on their own and seek to collect.  This would give the power to the employee to either try to collect themselves, send to a collection agency, or have an attorney assist them - as opposed to waiting for DOL to do it for them.  Practically, the wait time to get the docketed judgment will still be long, so collections will still be difficult at the last stage (leaving plenty of time for the employer to go bankrupt), but the new successor liability provision might help the employee go after the employer on their own if they were to open up shop under a new name.

8.  A subcontractor or contractor who is found in violation of wage law (either through DOL order, a settlement with the Attorney General, or a final judgment by a court) must notify all its current employees of these violations with their paycheck.

What does this mean?

Perhaps this new provision would help employees safeguard against bad contractors and make it harder for them to hire workers, but so few workers get weekly paychecks anyhow and it’s hard to believe this procedure will be followed or enforced.

9.  The 10 largest owners/members of LLCs are jointly and severally liable for wage violations.  Notice must be given to all owners that an employee intends to hold liability.  An action can be commenced 90 days after a judgment. 

What does this mean? 

Shareholder liability is extended from corporations to owners/members of LLCs as well.  You can then use this provision for a greater number of businesses.  This notice provision can still be very burdensome in terms of enforcement in the shareholder context, so it will be hard for LLCs as well.  From a practitioner’s point of view, this will work better as a threat, rather than actually seeking to enforce because of its time-consuming nature.  
 

 





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