The Wage Theft Prevention Act: Advice for New York
Download
Report
Transcript The Wage Theft Prevention Act: Advice for New York
July 13, 2011
Title Slide
Place image here in this top corner
Size: 2.58” x 2.58”
Position: horizontal 0, vertical 0
Joseph A. Carello
Michael A. Hausknecht
The Wage Theft Prevention Act:
Advice for New York Employers on
Wage-Hour Compliance
Wage Theft Prevention Act
• Governor David Paterson signed
the Wage Theft Prevention Act on
December 10, 2010
• The Act makes several changes to
New York’s Labor Law, which took
effect April 9, 2011
2
Wage Theft Prevention Act, cont’d
• Additional Notification Requirements
› Section 195.1 of the Labor Law was amended to require employers
to formally notify employees hired on or after October 26, 2009, with
information regarding their exempt status and pay rates
› The Wage Theft Prevention Act further amended Section 195.1,
adding a new requirement that employers provide all employees with
such notices at the time of hire as well as on or before February 1 of
each subsequent year of employment
› First yearly notices are required by between January 1, 2012 and
February 1, 2012
3
Wage Theft Prevention Act, cont’d
• Additional Notification Requirements
› The notices must contain the information previously required
by Section 195 (rates of pay, regular pay day, exempt status)
as well as new information, including:
– the
basis of pay rates (hourly, shift, day, week, salary,
piece, commission, or other),
– any
allowances claimed as part of the minimum wage, and
– detailed
4
employer address and contact information.
Wage Theft Prevention Act, cont’d
• Additional Notification
Requirements
› The notice must be provided both in
English and in the employee’s
primary language
› Employers must maintain these
notices for 6 years
› An employee who does not receive
a new hire or annual notice may
bring an action against the employer
to recover $50 per week not notified,
up to $2,500 (plus costs and
attorney’s fees
• Must be maintained for six years
5
Wage Theft Prevention Act, cont’d
• Information in Wage Statements
› Section 195 was also amended to require employers to
provide employees with pay statements each time employees
are paid that specify:
– applicable
dates that the wages cover,
– name
of the employee, employer name, address and
phone number,
– the
rate or rates of pay and the basis thereof,
– gross
deductions,
– allowances
– net
6
wages.
claimed as part of the minimum wage, and
Wage Theft Prevention Act, cont’d
• Information in Wage Statements
› Statements for non-exempt employees also must include the
following additional information:
– the
regular hourly rate or rates of pay,
– the
overtime rate or rates of pay,
– the
number of regular hours worked, and
– the
number of overtime hours worked.
• Wage statements must be maintained for six years.
• If an employee is not provided with a wage statement, the employee
may bring an action against the employer to recover $100 a week, up
to $2,500 (plus costs and attorney’s fees).
7
Wage Theft Prevention Act, cont’d
• Liquidated Damages for Willful
Violations
› Section 198 was amended to increase
liquidated damages to up to 100% of the
total amount of wages due.
› Current law provides for 25% of the total
amount of wages due.
8
Wage Theft Prevention Act, cont’d
• Additional Anti-Retaliation Penalties
› Section 215 was amended to allow the Commissioner of
Labor to order additional remedies in retaliation actions
› The remedies include the ability to specifically enjoin conduct
and/or order liquidated damages, reinstatement with back
pay, or front pay
9
Wage Theft Prevention Act, cont’d
• Tolling
› The six-year limitations period for
actions brought under the Labor Law
is tolled from the date of the employee
complaint to the Department of Labor
or the date of the Commissioner of
Labor’s commencement of an
investigation, whichever is earlier.
10
Wage Theft Prevention Act (cont'd)
• Interpretation Issues
› Track exempt employee time?
› No requirement to identify specific
exemption on annual notice
› Notice as part of offer letter
› Notification of changes in pay
› Wage statement detail related to
commissions
11
Anatomy of a DOL Audit
• Employee complaint or random audit
• Investigator arrives at premises unannounced
› Requests inspection of payroll/timekeeping records
› Conducts employee interviews
› Option of self-audit in certain instances
• Notice of Violation - preliminary finding of liability
• District Meeting
• ALJ Hearing
• Industrial Board of Appeals
• Appellate Division/Court of Appeals
12
What to do when the DOL comes
knocking
• Establish a point of contact
• Ask for the investigator’s name, office, and government
identification
• Ask if there are complaints of legal violations
• Discuss the scope of the investigation and the
investigator’s expectations
• Contact an attorney
13
What to do when the
DOL comes knocking
• Train supervisors and managers
on the pertinent issues so they are
prepared for questions
• Consider interviewing employees
prior to the DOL interviews to gain
accurate and thorough information
14
Increased Enforcement – New York
• Increased, more aggressive DOL
audits
• Unwillingness to compromise or
negotiate on liability
determinations
› Back pay for 6 years
› Liquidated damages
› Threat of double damages (NYLL
Sec. 218) plus interest if appeal
determination to Industrial Board
of Appeals
15
Increased Enforcement – Federal
• More of the same at the federal
level?
› New York Commissioner of Labor,
Patricia Smith, confirmed as
Solicitor for U.S. Department of
Labor
› Smith’s initiatives in NY included
– Joint
Task Force on
Misclassification
– NYLL
16
Sec. 195 Amendments
Increased Enforcement – Federal
• U.S. Department of Labor –
› Recently announced hiring of 200
additional investigators
› Notice of Proposed Rulemaking on
misclassification
17
Increased Enforcement – Federal
(cont’d)
• Notice of Proposed Rulemaking on misclassification
› Requires employers to:
– Perform
classification analysis of exempt workers
– Provide
analysis to employee
– Maintain
analysis for a period of time
• Employee Misclassification Prevention Act (S. 3254)
› Essentially a statutory codification of proposed rulemaking
18
Increased Enforcement – Federal
(cont’d)
• “Bridge to Justice” Alliance between DOL and the American Bar
Association
› Effective December 13, 2010
› When complainants are informed that the Wage and Hour Division is
declining to pursue their complaints, they will be given a toll-free
number to contact a newly created ABA-approved Attorney Referral
System
› If investigation was conducted, the complainant/attorney will now be
provided information about the agency determination regarding
violations at issue and back wages owed
› Special process to allow complainant/attorney to obtain certain data
and documents from investigation on expedited basis
19
Thank You! Questions?
Joseph A. Carello
Michael A. Hausknecht
[email protected]
585-263-1434
[email protected]
585-263-1582
Follow us on Twitter: @nixonpeabodyllp
20
This presentation contains images used under license from Jupiterimages.com.
These images may not be re-distributed or re-used for other purposes.
This presentation may be considered advertising under certain rules of professional conduct.
The content should not be construed as legal advice, and readers should not act upon information in this
publication without professional counsel. Copyright © 2011 Nixon Peabody LLP. All rights reserved.