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169266 employers guide_to_nys_labor_laws_2014 (1)

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169266 employers guide_to_nys_labor_laws_2014 (1)

  1. 1. Publisher: Rochester Business Alliance 150 State Street, Suite 400 Rochester, NY 14614-1308 Employer's Guide to New York State Labor Laws 2014 Edition Copyright 2014. Rochester Business Alliance and Nixon Peabody LLP. All rights reserved. This copyrighted document is intended for the confidential use of RBA members only and may not be reproduced, shared, sold, stored in a retrieval system, or transmitted in whole or part, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission of RBA, 150 State Street, Suite 400, Rochester, NY 14614-1308, (585) 244-1800. Editor: Nixon Peabody LLP 1300 Clinton Square Rochester, NY 14604-1792
  2. 2. A note from the publisher . . . Rochester Business Alliance promotes sound employer/employee relations and encourages cooperation between business and the Rochester community. The Rochester Business Alliance's 1,600 members, which employ a sizable percentage of the area's work force in manufacturing, finance, health care, education, and business services, take advantage of a wide variety of services including: • Custom Training and Seminars. Bottom-line practical programs on human resource topics, interpersonal relations, health, safety and environment, leadership and supervision. • HR Helpline. Experienced professionals answer questions on human resource issues, respond to requests for sample documents, and assist members with research on various topics. • Surveys and Research Reports. Results from local and national benchmarking surveys can be used to make sound compensation and benefits decisions. Customized wage and benefits sur- veys and other consulting services are also available to meet member needs such as affirmative action plans, employee opinion surveys, job description review, HR audits and employee hand- books. • HR Networking. Regular meetings of specialized groups provide a forum for HR executives, managers and professionals to share concerns and discuss critical topics. In addition, Friday Business Briefings provide members an opportunity to network and listen to speakers on a wide variety of human resource and business issues. • RBA Staffing. Flexible staffing services to reduce hiring risks and increase productivity, from temporary/contract placement to direct hire; payrolling, background and reference checking, and exit interviews. • Public Policy. Actively engaged in initiatives, such as Unshackle Upstate, to reform anti-competi- tive laws and regulations to spur business growth and bring economic relief to the area. Educate and inform members on important public policy and community issues. Recognizing the need for a concise single information source on New York State laws and regulations, we are particularly pleased to work with the law firm of Nixon Peabody LLP to produce this Guide. Its largest office in Upstate New York is located at 1300 Clinton Square, Rochester, NY 14604; and its other offices are located at: Revised 2/14 Updates are published annually to keep this Guide current. Please direct inquiries, comments, and requests for additional copies of the Guide and yearly updates to the RBA Human Resource Services department at (585) 244-1800. - 677 Broadway, 10th Floor, Albany, NY 12207 - 100 Summer Street, Boston, MA 02110-2131 - Key Towers at Fountain Plaza, 40 Fountain Plaza, Suite 500, Buffalo, NY 14202 - 300 S. Riverside Plaza, 16th floor, Chicago, IL 60606-6613 - 50 Jericho Quadrangle, Suite 300, Jericho, NY 11753-2728 - Gas Company Tower, 555 West Fifth St., 46th Floor, Los Angeles, CA 90013 - 900 Elm Street, Manchester, NH 03101 - 437 Madison Avenue, New York, NY 10022 - Two Penn Center, Suite 200, 1500 JFK Blvd., Philadelphia, PA 19102 - One Citizens Plaza, Suite 500, Providence, RI 02903 - One Embarcadero Center, 18th Floor, San Fran- cisco, CA 94111-3600 - 2 Palo Alto Square, 3000 El Camino Real, Suite 500, Palo Alto, CA 94306-2106 - 401 9th Street N.W., Suite 900, Washington, DC 20004-2128 - 1 Ropemaker St., 15th Floor, London, United Kingdom, EC2Y 9HT - Bank of China Tower, 50th Floor, 1 Garden Road, Central Hong Kong, SAR. - Beijing Kerry Center, Suite 1123, North Tower, 1 Guanahua Rd., Beijing 10020 - Citic Plaza Shenhong, 23rd Floor, Suite 2301, 1350 North Sichuan Rd., Shanghai 200080
  3. 3. NIXON PEABODY LLP Revised 2/14 PREFACE As society becomes increasingly more complex, so do its laws. This has been particularly true of our own State labor laws. In the 18th century, the common law governing employer-employee relationships was primi- tive by today’s standards. An employer paid an employee a wage and that employee agreed to work for that wage. If either party decided to terminate the relationship, it could be terminated for any reason or for no reason at all. With the beginning of this century, the law evolved to protect and benefit the employee. There are now requirements for minimum pay, health and safety, protections for union organizing, unemployment insurance, workers’ compensation, and disability benefits. There are also laws that protect workers against discrimination on the basis of race, creed, color, sex, natural origin, sexual orientation, military status, age, marital status, disability, and arrest/conviction. Life is no longer simple, nor are the laws governing employer-employee relationships. This Guide has been designed to help employers understand and clarify, if possible, some of the confusion surrounding State labor laws and to make employers more aware of the issues involved in dealing with employees. The Guide focuses more or less exclusively on State law. There are references made to federal statutes where necessary to clarify a State issue. In some instances, however, State law may be modified or even preempted by federal law. Employers should recognize this possibility and not assume that the State law is controlling in all cases. Furthermore, the Guide does not purport to provide all of the answers. When faced with a complicated legal problem, it is suggested that you seek expert legal counsel to assist you. Also, since labor law is constantly changing as a result of statutory changes and decisions by the courts and administrative agencies, certain parts of the Guide may become outdated with time. Although efforts will be made to update the Guide to reflect recent develop- ments, consultation with your legal counsel is advised in order to ensure that no changes have occurred since publication which could adversely affect your position on a particular matter. Editors: Attorneys in the New York offices of the Labor and Employee Benefits Group of NIXON PEABODY LLP. Stephanie N. Monastra Eric R. Paley Vincent E. Polsinelli Daniel A. Rizzi Susan S. Robfogel Kate Ulrich Saracene Todd R. Shinaman Marion Blankopf Jo Ann Butler Stephanie M. Caffera Joseph A. Carello Jessica A. Chiclacos Stacy J. Crosnicker Tara E. Daub Alexander E. Gallin Christopher G. Gegwich Christian D. Hancey Kimberly Harding Michael A. Hausknecht John E. Higgins Stephen J. Jones J. Brian Kopp Steve C. Mindy Tania Mistretta Mark A. Molloy
  4. 4. NIXON PEABODY LLP PAGE TABLE OF CONTENTS CHAPTER 1 - PAYMENT OF WAGES I. Introduction............................................................................. 1-1 II. Coverage .................................................................................. 1-1 A. Wages.................................................................................. 1-1 B. Employer ............................................................................ 1-1 C. Employee ............................................................................ 1-1 III. Statute .................................................................................... 1-2 A. Frequency of Payments........................................................ 1-2 B. Direct Deposit of Wages ....................................................... 1-3 C. Deduction from Wages ......................................................... 1-3 D. Differential in Pay Because of Sex ........................................ 1-6 E. Gratuities............................................................................ 1-6 F. Kick Back of Wages ............................................................. 1-6 G. Jury Duty ........................................................................... 1-7 H. Procedures .......................................................................... 1-7 I. No Retaliation ..................................................................... 1-8 IV. Penalties/Other Relief Measures A. Civil Remedies..................................................................... 1-8 B. Criminal Penalties ............................................................... 1-9 V. Record-Keeping and Notices ................................................... 1-10 A. New Hire Reports............................................................... 1-12 VI. Administering Agency ............................................................ 1-14 CHAPTER 2 - MINIMUM WAGE/OVERTIME PAY I. Introduction ............................................................................ 2-1 II. Coverage .................................................................................. 2-1 A. Employers ........................................................................... 2-1 B. All Employees ..................................................................... 2-1 III. Statute .................................................................................... 2-5 A. Minimum Wage ................................................................... 2-5 B. Sub-Minimum Wage............................................................ 2-6 C. Overtime Pay ....................................................................... 2-6 D. Procedure............................................................................ 2-7 IV. Penalties/Other Relief Measures .............................................. 2-7 A. Criminal Penalties ............................................................... 2-7 B. Civil Penalties and Remedies ............................................... 2-7 V. Record-Keeping........................................................................ 2-8 VI. Administering Agency .............................................................. 2-9 Table of Contents (i) Revised 2/14
  5. 5. NIXON PEABODY LLP PAGE CHAPTER 3 - EMPLOYMENT OF MINORS I. Introduction............................................................................. 3-1 II. Coverage .................................................................................. 3-1 III. Statute .................................................................................... 3-1 A. Minimum Age Requirements ................................................ 3-1 1. Minors Under Age 14 ...................................................... 3-1 2. Minors Age 14 and 15 ..................................................... 3-1 3. Minors Age 16 and 17 ..................................................... 3-2 4. Posting of Hours ............................................................. 3-2 B. Employment Certificates and Permits .................................. 3-2 1. Types of Employment Certificates .................................... 3-2 2. Requirements for Obtaining Employment Certificates and Permits .................................................. 3-3 C. Prohibited Occupations ....................................................... 3-3 D. Procedures .......................................................................... 3-4 IV. Penalties/Other Relief Measures .............................................. 3-4 V. Record-Keeping........................................................................ 3-4 VI. Administering Agency .............................................................. 3-5 CHAPTER 4 - HOURS OF WORK I. Introduction ............................................................................ 4-1 II. Coverage .................................................................................. 4-1 III. Statute .................................................................................... 4-1 A. Legal Day’s Work ................................................................. 4-1 B. One Day of Rest in Seven .................................................... 4-1 C. Meal Periods........................................................................ 4-2 D. Hours of Work for Minors .................................................... 4-2 1. Children Under Age 14 ................................................... 4-2 2. Children Age 14 and 15 .................................................. 4-3 3. Children Age 16 and 17 .................................................. 4-3 4. Posting of Hours ............................................................. 4-3 E. Procedures .......................................................................... 4-4 IV. Penalties/Other Relief Measures .............................................. 4-4 V. Record-Keeping........................................................................ 4-4 VI. Administering Agency .............................................................. 4-5 Table of Contents (ii) Revised 2/14
  6. 6. NIXON PEABODY LLP PAGE CHAPTER 5 - HUMAN RIGHTS LAW I. Introduction............................................................................. 5-1 II. Coverage .................................................................................. 5-1 III. Statute .................................................................................... 5-2 A. Unlawful Discriminatory Practices ....................................... 5-2 B. Equal Pay ........................................................................... 5-5 C. Procedures .......................................................................... 5-5 1. Administrative Proceeding ............................................... 5-5 2. Judicial Proceeding ......................................................... 5-6 IV. Penalties/Other Relief Measures ............................................... 5-7 A. Relief ................................................................................... 5-7 B. Penalties ............................................................................. 5-7 V. Record-Keeping ........................................................................ 5-7 VI. Administering Agency............................................................... 5-8 A. Division of Human Rights .................................................... 5-8 B. Organization ....................................................................... 5-9 CHAPTER 6 - RIGHT-TO-KNOW LAW I. Introduction ............................................................................ 6-1 A. Employee Right-to-Know Law .............................................. 6-1 B. Patient Access to Records of Health Assessments ................. 6-1 C. Community Right-to-Know Law........................................... 6-1 II. Coverage of the New York RTK Law........................................... 6-1 A. Preemption.......................................................................... 6-1 III. Statute .................................................................................... 6-2 A. Public Health Law ............................................................... 6-2 B. Labor Law ........................................................................... 6-2 1. Posting and Disclosure ................................................... 6-2 2. Employee Education....................................................... 6-2 3. Trade Secrets.................................................................. 6-3 4. Retaliation Prohibition.................................................... 6-3 IV. Penalties/Other Relief Measures .............................................. 6-3 A. Civil Penalties ..................................................................... 6-3 B. Criminal Penalties ............................................................... 6-3 V. Record-Keeping........................................................................ 6-3 VI. Administering Agency .............................................................. 6-4 A. New York State Commissioner of Health .............................. 6-4 B. State Department of Labor................................................... 6-4 C. State Attorney General ........................................................ 6-4 Table of Contents (iii) Revised 2/14
  7. 7. NIXON PEABODY LLP PAGE CHAPTER 7 - WHISTLEBLOWER LAW I. Introduction ............................................................................ 7-1 II. Coverage .................................................................................. 7-1 III. Statute .................................................................................... 7-1 A. Private Employee Rights ...................................................... 7-1 B. Prerequisite to Employee Rights ........................................... 7-2 C. Private Employer Rights....................................................... 7-2 D. Statute of Limitations.......................................................... 7-3 IV. Penalties/Other Relief Measures ............................................... 7-3 A. Private Action ...................................................................... 7-3 B. Exclusivity .......................................................................... 7-3 C. Preemption .......................................................................... 7-3 V. Record-Keeping ........................................................................ 7-3 VI. Administering Agency............................................................... 7-3 CHAPTER 8 - SAFETY AND HEALTH LAW I. Introduction ............................................................................ 8-1 II. Coverage .................................................................................. 8-1 III. Statute .................................................................................... 8-1 A. Employer Duties ................................................................. 8-1 B. Employee Examinations ...................................................... 8-2 C. Prohibited Retaliation Against Employees ............................ 8-2 IV. Penalties/Other Relief Measures .............................................. 8-2 A. General ............................................................................... 8-2 B. Retaliation Against Employees............................................. 8-2 V. Record-Keeping........................................................................ 8-3 VI. Administering Agency .............................................................. 8-3 CHAPTER 9 - WORKERS’ COMPENSATION LAW I. Introduction ............................................................................ 9-1 II. Coverage .................................................................................. 9-1 III. Statute .................................................................................... 9-4 A. Compensation ..................................................................... 9-4 1. Permanent Total Disability ............................................. 9-4 2. Permanent Partial Disability ........................................... 9-4 3. Temporary Total Disability.............................................. 9-4 4. Temporary Partial Disability ........................................... 9-4 Table of Contents (iv) Revised 2/14
  8. 8. NIXON PEABODY LLP PAGE Table of Contents (v) Revised 2/14 CHAPTER 9 - WORKERS’ COMPENSATION LAW (cont'd) B. Medical Expenses ................................................................ 9-5 C. Death Benefits .................................................................... 9-6 D. Minors ................................................................................ 9-7 E. Other Benefits ..................................................................... 9-7 F. Preferred Provider Organizations ......................................... 9-7 G. Workplace Safety and Loss Prevention Program ................... 9-7 H. No Discrimination .............................................................. 9-8 I. Procedures .......................................................................... 9-8 1. Notice of Injury ............................................................... 9-8 2. Filing of Claim ................................................................ 9-9 a. Uncontested Case. ...................................................... 9-9 b. Contested Case ........................................................... 9-9 3. Burden of Proof ............................................................ 9-11 4. Statute of Limitations ................................................... 9-12 J. Confidentiality .................................................................... 9-12 IV. Penalties/Other Relief Measures ............................................ 9-12 A. Attorney’s Fees, Costs........................................................ 9-12 B. Interest ............................................................................. 9-13 C. Penalties ........................................................................... 9-13 D. Stop Work Order ............................................................... 9-14 E. Suspension and Debarment .............................................. 9-15 F. Reimbursements ............................................................... 9-15 G. Judgment ......................................................................... 9-15 H. Exclusive Remedy ............................................................. 9-15 V. Record-Keeping...................................................................... 9-16 VI. Administering Agency ............................................................ 9-17 CHAPTER 10 - DISABILITY BENEFITS LAW I. Introduction .......................................................................... 10-1 II. Coverage ................................................................................ 10-1 A. Employment Relationship ................................................. 10-1 B. Non-Work Related ............................................................. 10-1 III. Statute .................................................................................. 10-1 A. Compensation ................................................................... 10-1 B. Enriched Benefit Plans ...................................................... 10-2 C. Other Benefits ................................................................... 10-2 D. No Discrimination ............................................................. 10-2 E. Securing Benefits .............................................................. 10-2 F. Procedures ........................................................................ 10-3
  9. 9. NIXON PEABODY LLP PAGE CHAPTER 10 - DISABILITY BENEFITS LAW (cont'd) IV. Penalties/Other Relief Measures ............................................. 10-4 A. Attorney’s Fees .................................................................. 10-4 B. Interest ............................................................................. 10-4 C. Penalties ........................................................................... 10-4 D. Reimbursement ................................................................. 10-4 E. Misdemeanors ................................................................... 10-5 V. Record-Keeping...................................................................... 10-5 VI. Administering Agency ............................................................ 10-5 CHAPTER 11 - UNEMPLOYMENT INSURANCE LAW I. Introduction .......................................................................... 11-1 II. Coverage ................................................................................ 11-1 A. Covered Employment ........................................................ 11-1 B. Non-Covered Employment ................................................. 11-1 III. Statute .................................................................................. 11-2 A. Threshold Dollar Liability .................................................. 11-2 1. Agricultural Employment ............................................. 11-2 2. Domestic/Household Employment ............................... 11-2 3. Not-For-Profit Organization .......................................... 11-2 4. Government Entities..................................................... 11-3 B. Employer Responsibilities ................................................. 11-3 1. Registration Number .................................................... 11-3 2. Maintaining Records .................................................... 11-3 3. Quarterly Reports and Payments .................................. 11-3 a. Reporting Payments ................................................. 11-3 b. Due Dates and Late Fees........................................... 11-3 c. Special Situations Affecting the $8,500 Limit ............ 11-4 4. Furnishing Information ................................................ 11-4 C. Tax Rate Calculation ......................................................... 11-4 1. Employer Accounts....................................................... 11-5 a. Transferred Accounts ............................................... 11-5 b. Joint Accounts ......................................................... 11-5 c. Certain Transfers Which Seek to Reduce Liability For Contributions ........................... 11-6 2. Individual Tax Rate Computation.................................. 11-6 3. Subsidiary Contributions ............................................. 11-6 4. Reemployment Service Fund Tax .................................. 11-7 5. Interest Assessment Surcharge ..................................... 11-7 6. Charging Benefits ......................................................... 11-7 D. Benefit Claims................................................................... 11-7 E. Procedures ...................................................................... 11-10 Table of Contents (vi) Revised 2/14
  10. 10. NIXON PEABODY LLP PAGE CHAPTER 11 - UNEMPLOYMENT INSURANCE LAW (cont'd) IV. Penalties/Other Relief Measures ........................................... 11-10 V. Record-Keeping.................................................................... 11-11 VI. Administering Agency .......................................................... 11-12 CHAPTER 12 - STATE LABOR RELATIONS LAWS I. Introduction .......................................................................... 12-1 II. Coverage ................................................................................ 12-1 III. Statute .................................................................................. 12-3 A. Unfair Labor Practices ....................................................... 12-3 B. Representation Matters ..................................................... 12-4 C. Procedures ........................................................................ 12-5 1. Unfair Labor Practices .................................................. 12-5 2. Representation Matters ................................................. 12-6 3. Grievances and Disputes in Nonprofit Hospitals and Residential Care Centers......................... 12-7 4. Judicial Review............................................................. 12-7 D. State Funds and Union Neutrality ..................................... 12-7 IV. Penalties/Other Relief Measures ............................................ 12-8 V. Record-Keeping...................................................................... 12-8 VI. Administering Agency ............................................................ 12-9 A. New York State Public Employment Relations Board .......... 12-9 CHAPTER 13 - EMPLOYMENT AT WILL I. Introduction .......................................................................... 13-1 II. Coverage ................................................................................ 13-1 III. General Rule .......................................................................... 13-1 IV. Erosion of Rule ...................................................................... 13-1 A. Rule in Other States.......................................................... 13-1 B. The Rule in New York ........................................................ 13-1 1. Contract Theory - Express Terms of the Employment Agreement .......................................... 13-1 2. Contract Theory - Implied Covenant of Good Faith and Fair Dealing .................................................. 13-3 3. Tort Theory .................................................................. 13-6 V. Enforcement .......................................................................... 13-6 VI. Conclusion ............................................................................ 13-6 Table of Contents (vii) Revised 2/14
  11. 11. NIXON PEABODY LLP PAGE CHAPTER 14 - SMOKING/LEGAL ACTIVITIES I. Introduction........................................................................... 14-1 II. Clean Indoor Air Act............................................................... 14-1 A. Definitions ........................................................................ 14-1 1. Smoking....................................................................... 14-1 2. Employer...................................................................... 14-1 3. Place of Employment .................................................... 14-1 4. Food Service Establishment .......................................... 14-1 5. Bar ............................................................................... 14-1 6. Membership Association ............................................... 14-2 7. School Grounds ........................................................... 14-2 8. Retail Tobacco Business ............................................... 14-2 9. Enforcement Officer ...................................................... 14-2 B. Statute .............................................................................. 14-2 1. Prohibitions and Restrictions........................................ 14-2 2. Posting of Signs............................................................ 14-3 3. Exceptions ................................................................... 14-3 4. Local Laws.................................................................... 14-4 C. Waivers ............................................................................. 14-4 D. Enforcement and Penalties ................................................ 14-4 III. Legal Activities Law ................................................................ 14-4 A. Definitions ........................................................................ 14-5 1. Political Activity ............................................................ 14-5 2. Recreational Activity ..................................................... 14-5 3. Work Hours .................................................................. 14-5 4. Consumable Products................................................... 14-5 B. Statute .............................................................................. 14-5 1. Scope ........................................................................... 14-5 2. Exceptions ................................................................... 14-5 C. Judicial Interpretation....................................................... 14-6 D. Penalties and Enforcement ................................................ 14-6 CHAPTER 15 - WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT I. Introduction .......................................................................... 15-1 II. Coverage ................................................................................ 15-1 III. Statute .................................................................................. 15-1 A. Triggering Events .............................................................. 15-1 B. Notice Requirements.......................................................... 15-1 C. Exceptions to Notice Requirements .................................... 15-2 D. Aggregation of Employment Losses Within a 90-day Period 15-3 IV. Penalties/Other Relief Measures ............................................ 15-3 V. Administering Agency............................................................. 15-3 Table of Contents (viii) Revised 2/14
  12. 12. NIXON PEABODY LLP PAGE Table of Contents (ix) Revised 2/14 CHAPTER 16 - ADDITIONAL EMPLOYER REQUIREMENTS I. Employment Of Security Guards ............................................ 16-1 A. Introduction ...................................................................... 16-1 B Coverage ........................................................................... 16-1 1. Security Guard .............................................................. 16-1 2. Security Guard Company .............................................. 16-1 C. Statute ............................................................................. 16-1 1. Registration ................................................................... 16-1 2. Requirements for Applicants .......................................... 16-2 3. Duties of Employers ....................................................... 16-3 a. Limitations on Hiring ............................................... 16-3 b. Insurance ................................................................ 16-3 4. Advisory Council............................................................ 16-3 D. Enforcement ...................................................................... 16-4 E. Record-Keeping ................................................................. 16-4 F. Administering Agency ........................................................ 16-4 II. Advisory Panel On HIV/HBV Infected Health Care Workers..... 16-5 III. Lie Detectors (Psychological Stress Evaluators) ....................... 16-5 A. Coverage ........................................................................... 16-5 B. Prohibited Retaliation/Discrimination ............................... 16-6 C. Penalties/Other Relief Measures ........................................ 16-6 D. Record-Keeping ................................................................. 16-6 E. Administering Agency ....................................................... 16-6 IV. Health Insurance Continuation and Conversion Rights .......... 16-6 A. Introduction ...................................................................... 16-6 B. Coverage ........................................................................... 16-6 C. Statute .............................................................................. 16-6 1. Continuation Rights...................................................... 16-6 2. Conversion Rights ......................................................... 16-7 3. Employer Responsibilities ............................................. 16-8 D. Employer Penalties/Other Relief Measures ........................ 16-8 V. Access to Personnel Files Not Required by Law ....................... 16-8 VI. Leave for Bone Marrow Donation............................................ 16-8 VII. Leave for Blood Donation ....................................................... 16-9 VIII. Employee Awareness of Domestic Violence - Development of Model Policy ................................................... 16-9 IX. Workplace Displays of the American Flag.............................. 16-10
  13. 13. NIXON PEABODY LLP PAGE CHAPTER 16 - ADDITIONAL EMPLOYER REQ. (cont'd) X. Time Off To Vote................................................................... 16-10 XI. Professional Employer Act .................................................... 16-10 XII. Information Security Breach and Notification Act ................. 16-11 A. Introduction .................................................................... 16-11 B. Coverage ......................................................................... 16-12 C. Notice of Breach .............................................................. 16-12 D. Delayed Notice ................................................................ 16-12 E. Enforcement ................................................................... 16-12 F. Statute of Limitations ...................................................... 16-12 G. Effective Date .................................................................. 16-12 XIII. Release of Employee Social Security Numbers and Personal Information............................................................ 16-13 XIV. Prohibited Audio and Video Recordings ................................ 16-13 XV. Military Spouse Leave .......................................................... 16-13 A. Introduction .................................................................... 16-13 B. Coverage ......................................................................... 16-14 C. Statute ............................................................................ 16-14 D. Penalties/Other Relief Measures ...................................... 16-14 XVI. Nursing Mothers' Rights ...................................................... 16-14 XVII. Criminal Background Checks and Information ................... 16-14 XVIII. Protection of Crime Victims and Witnesses in Criminal Proceedings ......................................................................... 16-15 XIX. New York State Posting Requirements .................................. 16-16 INDEX .......................................................................................... i-vii Table of Contents (x) Revised 2/14
  14. 14. NIXON PEABODY LLP I. Introduction Article Six of New York’s Labor Law sets forth an employer’s obligations regard- ing the method of paying wages, the fre- quency of such payments, and the de- ductions which may be made from wages. It also governs the payment of fringe ben- efits such as vacation and separation pay, and contributions made on behalf of employees to health and welfare funds. Finally, it provides civil and criminal rem- edies for violations of its provisions. II. Coverage A. Wages “Wages” includes earnings of an employee for labor or services rendered regardless of the basis upon which the earnings are determined, i.e., time, piece, commission, or other basis. "Wages" also includes ben- efits or wage supplements, e.g., reim- bursement for expenses, health benefits, welfare benefits, retirement benefits, va- cation pay, separation pay, or holiday pay. B. Employer “Employer” means any person, corpora- tion, limited liability company, or asso- ciation employing any individual. Gov- ernmental agencies, however, are ex- cluded from the term "employer." A “non-profitmaking organization” is also an employer. A “non-profitmaking orga- nization” is defined as a corporation, unincorporated association, community chest, fund, or foundation organized and operated exclusively for religious, chari- table, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or in- dividual. C. Employee An “employee” is any person employed for hire by an employer in any employ- ment. A “manual worker” is a mechanic, work- ing person, or laborer. A “railroad worker” is any person em- ployed by an employer who operates a steam, electric, or diesel surface railroad or is engaged in the sleeping car busi- ness except persons employed in an ex- ecutive capacity. A “commission salesperson” is any em- ployee whose principal activity is the sell- ing of any goods, services, real estate, securities, insurance, or any other thing, and whose earnings are based in whole or in part on commissions. Excluded from the definition of "commission sales- person" is any employee whose principal activity is of a supervisory, managerial, executive, or administrative nature. Dif- ferent rules govern the payment of com- missions to and contracts with sales rep- resentatives who are independent con- tractors. (N.Y. Labor Law § 191-a,et seq.) “Clerical and other worker” includes all employees who are not manual workers, railroad workers, or commission sales- persons, except persons employed in a bona fide executive, administrative, or professional capacity whose earnings are in excess of $900 per week. (See Chap- ter 2 on Minimum Wage/Overtime Pay for the general definition of a bona fide executive, administrative, or professional employee.) Payment of Wages • Page 1 Revised 2/08 CHAPTER 1 - PAYMENT OF WAGES
  15. 15. NIXON PEABODY LLP III. Statute A. Frequency of Payments Employers are required to pay wages in accordance with the following schedule: 1. Manual Workers - Weekly and not later than seven calendar days after the end of the week in which the wages are earned; manual workers employed by a non-profitmaking organization may be paid in accordance with the agreed upon terms of employment, but not less frequently than semi- monthly. An employer that has em- ployed an average of 1,000 or more persons in the state over the last three years, or has employed an average of 1,000 or more persons in the state over the last year and has employed an average of 3,000 people for the last three years outside the state, may pay manual workers less frequently than weekly, but at least semi-monthly, upon authorization of the Commis- sioner. 2. Railroad Workers - On or before Thursday of each week, the wages earned during the seven-day period ending on Tuesday of the preceding week. If the employee of a railroad corporation (excluding commuter rail- roads under the jurisdiction of the metropolitan transportation author- ity) makes a written request and noti- fies the corporation of his or her ad- dress, the company must mail every check for that employee’s wages via the United States Postal Service, first- class mail. 3. Commission Salespersons - Wages, salary, drawing accounts, commis- sions, or all other monies earned or payable shall be paid in accordance with the agreed upon terms of employ- Payment of Wages • Page 2 Revised 2/08 ment but not less frequently than once each month and not later than the last day of the month following the month in which they are earned. If, however, the monthly or more fre- quent payments are substantial, then additional compensation earned, such as extra or incentive earnings, bo- nuses, or special payments, may be paid less frequently than once a month, but no later than the time pro- vided in the employment agreement or compensation plan. Commission salespersons, upon written request, are entitled to receive a statement of earnings paid or due and unpaid. Effective October 2007, the agreed upon terms of employment of a com- missioned salesperson must be placed in a written agreement signed by both the employer and the salesperson. The written agreement must be kept on file by the employer for at least three years and made available to the Com- missioner upon request. The agree- ment must describe how wages, sal- ary, drawing account, commissions and other monies payable will be cal- culated and how they will be paid if the employment relationship is ter- minated by either party. Where there is a recoverable draw, the frequency of reconciliation must be stated. If the employer fails to produce the writ- ten agreement upon request of the Commissioner, the terms of employ- ment will be presumed to be as de- scribed by the commissioned salesper- son. 4. Clerical and Other Workers - In ac- cordance with the agreed upon terms of employment but not less frequently than semi-monthly on regular pay days designated in advance by the employer. This provision does not ap-
  16. 16. NIXON PEABODY LLP ply to employees employed in a bona fide executive, administrative, or pro- fessional capacity whose earnings are in excess of $900 per week. (See Chapter 2, Minimum Wage/Overtime Pay for the general definition of a bona fide executive, administrative or pro- fessional employee.) Upon termination of employment, wages shall be paid no later than the regular pay day for the pay period during which the termination occurred. If requested by the employee, the final wage payment shall be paid by mail. B. Direct Deposit of Wages Advance written consent of an employee is required if the employer desires to use a direct deposit method of paying em- ployees. The above restriction does not apply to persons employed in a bona fide executive, administrative, or professional capacity (See Chapter 2, Minimum Wage/Overtime Pay for the general defi- nition of a bona fide executive, adminis- trative, or professional employee) whose earnings are in excess of $900 per week or to employees working on a farm not connected with a factory. C. Deduction from Wages New York has stringent requirements pro- hibiting deductions from employee wages. Effective November 6, 2012, the State expanded the list of permissible de- ductions and imposed new procedural re- quirements for making such deductions. 1. Statutory Requirements - No deduc- tions from wages may be made un- less they are: 1. Made in accordance with the pro- visions of a law or regulation is- sued by a governmental agency (such as provisions for the with- holding of income tax, FICA, etc.). 2. Expressly and voluntarily autho- rized in writing and are for the employee’s benefit. Such authorized deductions are limited to payments for: - insurance premiums and prepaid legal plans; - pension benefits; - health and welfare benefits; - contributions to a bona fide chari- table organization; - purchases made at events spon- sored by charitable organizations affiliated with the employer where at least 20% of the profits of the event go to the charity; - United States bonds; - union dues or assessments; - discounted parking and mass tran- sit passes and vouchers; - fitness center, health club, and gym membership dues; - cafeteria and vending machine purchases made at the employer’s place of business; - purchases at gift shops operated by the employer if the employer is a hospital, college, or university; - pharmacy purchases at the employer’s place of business; - tuition, room, board, and fees for pre-school, nursery, and educa- tional institutions; - day care, before-school, and after- school care expenses; - housing provided at no more than market rates by nonprofit hospitals and their affiliates; - “similar payments for the benefit of the employee.” Per current regu- lations, deductions in this last cat- egory cannot exceed, in the aggre- gate, 10% of the gross wages due the employee in a payroll period. Payment of Wages • Page 3 Revised 2/14
  17. 17. NIXON PEABODY LLP Additionally, an employer may make de- ductions from wages for: - the recovery of an overpayment of wagesdue to the employer’s math- ematical or clerical error; - repayment of advances of salary or wages; - deductions made in conjunction with an employer-sponsored pre- tax contribution plan approved by the IRS or local taxing authority. The express written authorization re- quired for each deduction must be kept on file on the employer’s premises dur- ing the employee’s employment and for six years following termination of employ- ment. Before obtaining consent, the em- ployer must provide the employee with written notice of all the terms and condi- tions of the payment and/or its benefits, and the details of the manner in which deductions will be made. Whenever there is a substantial change in any of these terms, such as a change in the amount or manner of the deduction or a change in the benefits of the deduction, the em- ployer must notify the employee as soon as practicable, and before any increased deduction is implemented. Employees may revoke their authoriza- tion in writing at any time, except for de- ductions required or authorized under a current collective bargaining agreement. The employer must cease a revoked wage deduction as soon as practicable, and in no event more than four pay periods or eight weeks after the revocation, which- ever is sooner. Employers must set a maximum aggre- gate limit on the amount of deductions taken from employee wages for (1) pur- chases made at events sponsored by charitable organizations; (2) cafeteria and vending machine purchases; (3) gift shop purchases when the employer is a hos- pital, college, or university; (4) pharmacy purchases; and (5) other deductions simi- lar to these deductions that the New York State Department of Labor determines to be permissible. The employee may also set a maximum aggregate limit up to the maximum established by the employer. Employers must not permit employees to make any purchases that exceed these maximum limits. Employers must pro- vide employees with access to details on individual expenditures within these cat- egories and a running total of these de- ductions to be taken from their next pay- check. Employers must continue to comply with New York law relating to assignment of earnings (Article 3-A of the Personal Property Law) and prohibition of com- pany stores in addition to the provisions of the wage deduction law. Absent further legislative action, the ex- pansion to the wage deduction law that became effective on November 6, 2012 will expire on November 6, 2015. Employers must, under most circum- stances, withhold up to ten percent of an employee’s gross income in response to a lawfully issued income execution. A lower limitation applies where the employee’s weekly after-tax earnings are less than 30 times the federal minimum hourly wage, or where there are multiple orders for alimony, support, or mainte- nance for family members or former spouses and those deductions equal or exceed 25 percent of the employee’s af- ter-tax earnings. Amounts deductible from wages due to income executions are also governed by federal law, which cur- rently has similar limitations. Payment of Wages • Page 4 Revised 2/14
  18. 18. NIXON PEABODY LLP date by which the employee must con- test, and include the procedure by which the employee may contest the overpay- ment and/or terms of recovery, or pro- vide a reference to where the procedure can be located. The procedure for contesting repayment must allow the employee one week from the date of receipt to respond to the employer’s notice (two days if the entire overpayment may be recouped in one pay- ment); the employer must respond within one week stating its reasons for disagree- ing or agreeing with the employee’s posi- tion; the employer must give the employee the opportunity to meet within one week to discuss any outstanding disagreements; and the employer must provide the em- ployee with a written final determination within one week after the meeting. Dis- pute resolution provisions in collective bargaining agreements which contain at least as much protection to the employee and which reference the regulations will be deemed in compliance. In all cases, the employer may only re- cover overpayments made in the eight weeks prior to its issuance of the notice of intent to commence deductions, but the employer may make deductions to recover overpayments for a period of six years from the original overpayment. The Department regulations also address procedures and notice requirements for repayment of advances of salary or wages through wage deductions. Any provision of money to an employee which is accom- panied by interest, fees, or any additional repayment amount is not an advance and may not be repaid by wage deduction. Once an advance is given, no further ad- vances may be given or deducted until the first advance is paid in full. Payment of Wages • Page 5 Revised 2/14 Employers may not make charges against wages or require an employee to make any payment by a separate transaction unless those charges or payments are permitted as a deduction from wages or are permitted or required under a cur- rent collective bargaining agreement. 2. Regulatory Requirements For Recoup- ing Wage Overpayments and Advances In 2013, the Department of Labor issued detailed regulations which contain pro- cedures and notice requirements for re- couping wage overpayments. Overpay- ments due to the employer’s mathemati- cal or clerical error may be recovered by wage deductions no more frequently than once per wage payment. If the overpay- ment is less than or equal to the employee’s net wages in the next wage payment, the entire amount of the over- payment may be recouped in that pay- ment. If the overpayment exceeds the employee’s net wages in the immediately subsequent wage payment, the recovery may not exceed 12.5% of gross wages and may not reduce the employee’s effective hourly wage below the statutory minimum wage. The employer must provide the employee with written notice of its intent to com- mence the deductions. The notice must contain the amount overpaid in total and per pay period, the total amount to be deducted and the date each deduction shall occur followed by the amount of each deduction. The notice must be given at least three days prior to the deduction if the entire amount will be reclaimed in one wage payment; in all other cases, the no- tice must be given at least three weeks before deductions commence. The notice must also inform the employee that he or she may contest the overpayment, of the
  19. 19. NIXON PEABODY LLP The employer and employee must agree to the timing and duration of the repay- ment deduction in writing before the ad- vance is given. The employee must pro- vide written authorization for the deduction(s) to repay the advance before the advance is given. The employee may revoke the authorization only if the em- ployer has not yet provided the advance. An employer may recover an advance by wage deduction no more than once per wage payment. The employee’s authorization must con- tain the amount to be advanced, the amount to be deducted to repay the ad- vance in total and per wage payment and the date(s) when each deduction will be taken. It must also include notice to the employee that he or she may contest any deduction that is not in accordance with the terms of the written advance autho- rization. This procedure must permit the employee to provide written objections to the deduction(s). The employer must re- ply in writing as soon as practical stat- ing its reasons for disagreeing or agree- ing with the employee’s position. The employer must cease deductions until its reply has been given and any appropri- ate adjustments made. Dispute resolution provisions in collec- tive bargaining agreements which con- tain at least as much protection to the employee and which reference the regu- lations will be deemed in compliance. D. Differential in Pay Because of Sex Employers may not differentiate on the basis of sex between rates of pay of em- ployees in the same establishment who are performing work requiring equal skill, effort, and responsibility and which is performed under similar working condi- tions unless payment is made pursuant to a differential based on a seniority sys- tem, a merit system, a system which mea- sures earnings by quantity or quality of production, or any other factor other than sex. E. Gratuities No employer or his agent or an officer or agent of any corporation or any other person shall demand or accept, directly or indirectly, any part of the gratuities received by an employee nor may they retain any part of a gratuity or of any charge which is purported to be a gratu- ity for an employee. Excluded from this provision are the checking of hats, coats, or other apparel and practices in con- nection with banquets and other special functions where a fixed percentage of the patron’s bill is added for gratuities, which are distributed to employees, and the sharing of tips by a server with a similar employee. This provision has no effect upon the allowances for gratuities which an employer may apply to its minimum wage obligations. F. Kick Back of Wages Whenever a worker is engaged to perform labor at an agreed wage rate (whether the agreed wage rate is stated orally, in writ- ing, contained in a collective bargaining agreement or a matter of entitlement pur- suant to New York’s prevailing wage law), it is unlawful for any person, either for himself or herself or on behalf of any other person, to request, demand, or receive, either before or after such worker is en- gaged, a return donation or contribution of any part or all of the worker’s wages, salary, or other things of value upon the statement, representation, or understand- ing that failure to comply with the re- quest or demand will prevent such worker from procuring or retaining employment. Any person who directly or indirectly aids, Payment of Wages • Page 6 Revised 2/14
  20. 20. NIXON PEABODY LLP Payment of Wages • Page 7 Revised 2/14 ployers and employees relating to the payment of wages. 2. Take assignments of claim for wages from employees or third par- ties in trust for such employees or for the benefit of various funds for such employees. Upon taking such assign- ments, the Commissioner may sue the employer on wage claims thus as- signed. 3. Institute criminal proceedings al- leging violations of the provisions of Article Six. The Commissioner may require any employer who has been convicted of a violation of any provi- sion of Article Six, or who fails to sat- isfy any order to comply for a period of 10 days after the time to appeal therefrom has expired and who has not appealed, to (a) provide an ac- counting of assets and (b) deposit a bond in any sum which the Commis- sioner deems sufficient and adequate. The bond shall be payable to the Com- missioner and shall be conditioned upon the employer paying his employ- ees in accordance with the provisions of Article Six for a definite future pe- riod not exceeding two years and shall be further conditioned upon the pay- ment by the employer of any judgment or order to comply which may be re- covered against such employer pur- suant to the provisions of Article Six. If within 10 days after the demand for such a bond is made the employer fails to deposit the bond, the Commissioner may bring an action in State Supreme Court to compel the employer to fur- nish the bond or to cease doing busi- ness until the employer has done so. If such an action is brought, the em- ployer has the burden of proving that the bond is unnecessary or that the amount demanded is excessive. If the Court finds that there is just cause requests, or authorizes any other person to violate this anti-kick back provision is also guilty of violating the provision. A violation of the anti-kick back provision of the Labor Law is a misdemeanor. The Commissioner will direct repayment of wages plus interest to the employee and will order payment of a civil fine up to $5,000. Where appropriate, the Commis- sioner may also direct reinstatement, back wages, and restoration of seniority. Excluded from the anti-kick back provi- sion are agents or representatives of a duly-constituted labor organization who are collecting dues or assessments of such organizations. G. Jury Duty As a general rule, employers may with- hold the wages of employees on jury duty during the time of such service. An em- ployer of more than ten employees, how- ever, may not withhold the first $40 of an employee’s daily wages during the first three days of jury service, provided the employee is scheduled to work those days. Employers may not discharge or penalize an employee on account of ab- sence from employment by reason of jury service under the judiciary law if the em- ployee notifies the employer before such absence. These requirements are im- posed by New York’s Judiciary Law and apply only to jury duty in the New York State Unified Court System. H. Procedures Although employees have a private cause of action against employers to collect wages due them, the primary authority for enforcing the provisions of Article Six of the Labor Law are vested in the Com- missioner of Labor. Under the statute, the Commissioner may: 1. Investigate and attempt to equita- bly adjust controversies between em-
  21. 21. NIXON PEABODY LLP for requiring the bond, the Court may enjoin the employer from doing busi- ness until the requirement of filing a bond is met. 4. Issue rules and regulations which the Commissioner deems necessary for carrying out the purposes of Ar- ticle Six. I. No Retaliation Employers, their officers and agents, and/or any other persons are prohibited from discharging, threatening, penaliz- ing, or in any other manner discriminat- ing or retaliating against an employee (1) because the employee has made a com- plaint to his or her employer, the Com- missioner, the Attorney General, or any other person asserting that the employer has engaged in conduct that the em- ployee, reasonably and in good faith, be- lieves violates the Labor Law or any or- der issued by the Commissioner; (2) be- cause the employer or person believes the employee made such a complaint; (3) be- cause the employee brought, caused to be brought, or is about to bring a pro- ceeding under the Labor Law; (4) because the employee provided information to the Commissioner or attorney general; (5) because the employee testified or is about to testify in an investigation or proceed- ing under the Labor Law; (6) because the employee has otherwise exercised rights protected under the Labor Law; or (7) because the employer has received an adverse determination from the Commis- sioner involving the employee. IV. Penalties/Other Relief Measures The Wage Theft Prevention Act, passed in 2010, significantly expanded the rem- edies available under the Labor Law. Payment of Wages • Page 8 Revised 2/14 These expanded remedies took effect on April 9, 2011. A. Civil Remedies If the Commissioner of Labor determines that an employer has violated a provi- sion of Article Six, the Commissioner will direct payment of wages, benefits, or supplements due, plus liquidated dam- ages in the amount of 100 percent of un- paid wages, as well as interest. If the employer previously has been found in violation of Article Six or certain other wage payment laws or regulations, or has committed a willful or egregious violation, the Commissioner also will assess a civil penalty in an amount not to exceed double the total amount of wages, ben- efits, or supplements found to be due. In its order to comply, the Commissioner may also include an automatic 15 per- cent additional amount of damages to come due upon the expiration of 90 days from the date its order to comply becomes final. Further, where an employer is found in violation of Article Six, the Commissioner has the power to post a notice summa- rizing the violations in an area visible to employees for a period not to exceed one year. If the employer’s violation was will- ful, then the Commissioner has the power to post such a notice in an area visible to the general public for a period not to ex- ceed 90 days. Any person who removes, alters, defaces, or otherwise interferes with the posted notice is guilty of a mis- demeanor. If the violation does not involve failure to pay wages, benefits, or supplements due, the Commissioner will assess a civil pen- alty of up to $1,000 for the first viola- tion, $2,000 for a second violation, and $3,000 for third or subsequent violations.
  22. 22. NIXON PEABODY LLP Additionally, any employer who fails to pay the wages of his employees or who differentiates in rate of pay because of sex as provided in Article Six shall forfeit to the State $500 for each such failure. The Commissioner of Labor may bring a civil action to enforce this provision. An employee or the Commissioner may bring a Court action upon a wage claim. If the employee prevails, the Court will award the employee the full amount of lost wages, pre-judgment interest, and reasonable attorneys’ fees. The Court also will award an additional amount as liq- uidated damages equal to 100 percent of the total amount of wages due, unless the employer proves that it had a good faith basis to believe that its underpay- ment of wages was in compliance with the law. In addition to awarding ordi- nary costs, the Court also may award the employee up to $50 for additional ex- penses which may be taxed as costs. Any monetary judgment or court order that remains unpaid for 90 days after the time to appeal has expired will automati- cally increase by 15 percent. The Commissioner may bring an admin- istrative action against an employer to collect wages due. In addition to any other remedies and penalties available under Article Six of the Labor Law, the Commissioner will assess an additional amount as liquidated damages up to 100 percent of the total amount of wages due, unless the employer proves that it had a good faith basis to believe that its un- derpayment of wages was in compliance with the law. The remedies provided by Article Six may be enforced simultaneously or consecu- tively. Any action to recover upon a li- Payment of Wages • Page 9 Revised 2/14 ability imposed by Article Six generally must be commenced within six years. If an employer violates the anti-retalia- tion provision of the Labor Law, the Com- missioner may, after investigation, assess a civil penalty of no less than $1,000 and no more than $10,000, and order that the employer pay lost compensation. The Commissioner may also order all appro- priate relief including enjoining the im- permissible conduct, ordering payment of liquidated damages by the person or entity in violation of up to a maximum of $10,000 on behalf of every aggrieved em- ployee, and/or ordering reinstatement of the employee to his or her former posi- tion or an equivalent position or payment of front pay in lieu of reinstatement. An employee may bring a court action against any employer or person who vio- lates the anti-retaliation provision of the Labor Law. The Court can order all ap- propriate relief including restraining the violation (if it is within two years of the violation), reinstatement with restoration of seniority or payment of front pay in lieu of reinstatement, payment of lost compensation, damages, costs, and attorney’s fees. The court shall also award liquidated damages in an amount not more than $10,000 to every aggrieved employee. The employee must serve no- tice upon the attorney general at or be- fore commencement of an action under this provision. B. Criminal Penalties Every employer who does not pay the wages of all of its employees in accor- dance with the provisions of Article Six, and any officer or agent of any corpora- tion who knowingly permits the corpo- ration to commit such a violation, is guilty of a misdemeanor for the first of- fense. Upon conviction, the employer, of-
  23. 23. NIXON PEABODY LLP ficer, or agent shall be fined not less than $500 or more than $20,000 or impris- oned for not more than one year. In the event any second or subsequent offense occurs within six years of the date of con- viction for a prior offense, the employer, officer, and/or agent is guilty of a felony, and upon conviction shall be fined not less than $500 or more than $20,000 and/or imprisoned for not more than one year plus one day for each offense. Every employer who does not comply with the requirements for maintaining and preserving payroll records, and any officer or agent of the employer who knowingly permits the employer to vio- late that provision, is guilty of a misde- meanor. Upon conviction, the employer, officer, and/or agent shall be fined not less than $500 or more than $5,000 or imprisoned for not more than one year. In the event any second or subsequent offense occurs within six years of the date of conviction for a prior offense, the em- ployer, officer, and/or agent is guilty of a felony, and upon conviction, shall be fined not less than $500 or more than $20,000 and/or imprisoned for not more than one year plus one day for each offense. Any employer who is a party to an agree- ment to pay or provide benefits or wage supplements to employees or to a third party or fund for the benefit of employ- ees, who fails, neglects, or refuses to pay the amount or amounts necessary to pro- vide such benefits or furnish such supplements, within 30 days after such payments are required to be made, is guilty of a misdemeanor, and upon con- viction, shall be fined not less than $100 or more than $10,000, or imprisoned for not more than one year, or punished by both such fine and imprisonment for each offense. If the employer is a corpo- ration, the president, secretary, treasurer, or officers exercising corresponding func- tions shall each be guilty of a misde- meanor. These penalties are not appli- cable where the employee is a bona fide executive, administrative, or professional employee who earns in excess of $900 per week. Any employer, agent, officer, or any other person who violates the anti-retaliation provisions of the Labor Law is guilty of a class B misdemeanor. An employer who is required, but fails, to pay the first $40 of a juror’s daily wages during the first three days of jury service is guilty of criminal contempt of court punishable by a fine of up to $1,000 or 30 days in jail, or both. V. Record-Keeping and Notices The Labor Law imposes several notice and record-keeping obligations upon em- ployers. The Wage Theft Prevention Act, passed in 2010, significantly expanded employers’ record-keeping requirements under the Labor Law. These expanded requirements became effective on April 9, 2011. With respect to wages and ben- efit policies, every employer must: 1. Give written notice to its employ- ees at the time of hiring, and on or before February 1st of each subse- quent year of employment, of the fol- lowing: the rate(s) of pay and the ba- sis for the rate(s) (whether paid by the hour, shift, day, week, salary, piece, commission, or other); allowances claimed as part of the minimum wage; the regular pay day designated by the employer; the name of the employer, including any d/b/a names; the Payment of Wages • Page 10 Revised 2/14
  24. 24. NIXON PEABODY LLP physical address of the employer’s main office or principal place of busi- ness and a mailing address if differ- ent; the employer’s telephone num- ber; and such other information as the Commissioner may require. For all employees who are not exempt from overtime compensation, the no- tice must also state the employee’s regular hourly rate(s) and overtime rate(s) of pay. The notice must be pro- vided both in English and in the employee’s primary language. The Commissioner will provide templates that may be used for this purpose. Each time the employer provides no- tice, the employer must obtain a writ- ten acknowledgement from the em- ployee, in English and in the employee’s primary language, of re- ceipt of the notice, which must be re- tained for six years. An employee who does not receive the required notice within 10 business days of hire may bring a court action against the employer to recover $50 per each work week not notified, up to a maximum of $2,500, plus costs and reasonable attorneys fees. The Commissioner may also bring legal action to collect such a claim. 2. Notify its employees in writing of any changes to the information con- tained in the above notice, at least seven calendar days prior to the time of the change, unless the changes are reflected in the wage statement refer- enced below in subsection 3. 3. Furnish each employee with a wage statement each time an employee is paid, listing the following: dates of work covered by the wage payment; Payment of Wages • Page 11 Revised 2/14 name of the employee; name of the employer; address and phone num- ber of the employer; rate(s) of pay and the basis for the rate(s) (whether paid by the hour, shift, day, week, salary, piece, commission, or other); gross wages; deductions; allowances claimed as part of the minimum wage; and net wages. For all employees who are not exempt from overtime compensation, the statement also must include the employee’s regular hourly rate(s) of pay, overtime rate(s) of pay, the num- ber of regular hours worked, and the number of overtime hours worked. For all employees paid a piece rate, the statement must include the ap- plicable piece rate(s) and number of pieces completed at each piece rate. An employee who does not receive a required wage statement may bring a court action against the employer to recover $100 per each work week the violation(s) occurred or continue to occur, up to a maximum of $2,500, plus costs and reasonable attorneys fees. The Commissioner may also bring legal action to collect such a claim. Upon the request of an em- ployee, an employer must furnish a written explanation of how the wages were computed. 4. Establish, maintain, and preserve for not less than six years contempo- raneous, true, and accurate payroll records showing, for each week worked, the following: hours worked, the rate(s) of pay and the basis for the rate(s) (whether paid by the hour, shift, day, week, salary, piece, com- mission, or other); gross wages; de- ductions; allowances claimed as part of the minimum wage; and net wages for each employee, as well as any other
  25. 25. NIXON PEABODY LLP Payment of Wages • Page 12 Revised 2/14 information that the Commissioner may require. For all employees who are not exempt from overtime compen- sation, the payroll records also must include the employee’s regular hourly rate(s) of pay, overtime rate(s) of pay, the number of regular hours worked, and the number of overtime hours worked. For all employees paid a piece rate, the statement must include the applicable piece rate(s) and number of pieces completed at each piece rate. 5. Notify its employees, in writing or by publicly posting, the employer’s policy on sick leave, vacation, personal leave, holiday, and hours. With respect to terminated employees, ev- ery employer must: 1. Notify employees terminated from employment, in writing, of the exact date of termination and exact date of cancellation of employee benefits con- nected with the termination. Notice of termination must be provided within five working days after the date of ter- mination. It should be noted that the requirement that employers notify em- ployees of the cancellation of benefits may be preempted by ERISA with re- spect to benefit plans covered by ERISA. Every railroad corporation must furnish each employee with a statement with ev- ery payment of wages listing accrued to- tal earnings and taxes to date, and fur- ther, furnish each employee at the same time with a separate listing of his daily wages and how they are computed. Every employer engaged in the sale or service of food or beverages must con- spicuously post a copy of the law relat- ing to permissible deductions from wages and tips. A. New Hire Reports The state tax law requires all employers to submit reports to the "State Directory of New Hires" established by the Depart- ment of Taxation and Finance identify- ing any employee who has been newly hired or re-hired to work in New York State. This law is intended to facilitate the calculation of child support obliga- tions by state government support col- lection units and to aid in administering the law's child support enforcement pro- gram. New York State has coordinated its program to meet the reporting require- ments found in the federal Personal Re- sponsibility and Work Opportunity Rec- onciliation Act of 1996. Each new hire/re-hire report to the State must consist of the employee's W-4 form or an equivalent form containing the fol- lowing required information: the employee's name, address, and social se- curity number, and the employer's name, address, and IRS identification number. Employers also must report if dependent health insurance benefits are available and the date the employee qualifies for the benefits. If the new hire/re-hire re- port is submitted on a W-4 form, an ad- ditional form must be submitted by mail, magnetically, or electronically, to report the required information on dependent health insurance benefits. The report must be submitted within 20 calendar days of the hiring or re-hiring. Reports must be sent by first class mail or pri- vate delivery service to New York State Department of Taxation and Finance, New Hire Notification, P.O. Box 15119, Albany, New York 12212-5119 or by fax to (518) 320-1080. There also is an option to sub- mit the report via the internet at www.nynewhire.com.
  26. 26. NIXON PEABODY LLP Employers have the option to transmit reports electronically or on computer disk rather than by mail or fax. Employers who do so must make two monthly sub- missions (if needed) not less than 12 days, nor more than 16 days, apart. Those interested in this option should contact Employer Outreach at (518) 320- 1079 for more information. New York employers with employees both in New York and in another state who use the electronic/magnetic transmission option may submit all new hire/re-hire reports to either New York or the other state, but must inform the federal Secretary of Health and Human Services in writing of which state the employer selects for reporting. Notification must be sent to: Department of Health & Human Services, Multistate Employer Registration, Office of Child Support Enforcement, Box 509, Randallstown, MD 21133. Failure to timely submit proper reports will result in a penalty of $20 for each employee not reported, not to exceed $10,000 per year, unless the employer can show that the failure to report was due to reasonable cause and not willful neglect. However, if the failure to report is a result of a conspiracy between the employer and the employee to not supply a proper report, the penalty will be $450 for each such employee. Employers with questions about new hire/re-hire reporting requirements may call New York State's Corporation Tax Information Center at (518) 485- 6027 or write to the New York Depart- ment of Taxation and Finance, Tax- payer Assistance Bureau, W. A. Harriman Campus, Albany, New York 12227. Information is also available online at www.tax.ny.gov/bus/wt/ newhire.htm. Payment of Wages • Page 13 Revised 2/14
  27. 27. NIXON PEABODY LLP ALBANY Building 12, Room 185 A (518) 457-2730 State Office Building Campus 12240 BINGHAMTON 44 Hawley Street, Room 909 (607) 721-8014 13901-4408 BUFFALO 65 Court Street, Room 202 (716) 847-7141 14202 GARDEN CITY 400 Oak Street, Suite 101 (516) 794-8195 11530 NEW YORK 75 Varick Street (212) 775-3880 10013 ROCHESTER 109 South Union Street, Room 318 (585) 258-4550 14607 SYRACUSE 333 East Washington Street (315) 428-4057 Room 121, 13202 WHITE PLAINS 120 Bloomingdale Road, 10605 (914) 997-9521 VI. Administering Agency Article Six of the New York Labor Law is administered by the New York State De- partment of Labor, Division of Labor Standards. For information or assistance, contact any of the Department of Labor’s offices listed below: Payment of Wages • Page 14 Revised 2/14
  28. 28. NIXON PEABODY LLP CHAPTER 2 - MINIMUM WAGE/OVERTIME PAY I. Introduction The New York Minimum Wage Act (“Act”) requires that covered employees receive a specified minimum wage. The Act re- quires overtime pay when covered employ- ees work more than 40 hours in a week. Employers are also required to keep records of their employees’ hours and wages. Finally, the Act provides a mechanism for its enforcement and pen- alties for its violation. II. Coverage A. Employers The Act applies to all individuals and entities acting as employers in New York. Non-profit institutions, however, may obtain limited relief from some of the Act’s requirements. Most employers in New York will also be subject to the federal Fair Labor Standards Act, which also imposes minimum wage, overtime pay and record-keeping obligations, on em- ployers. In addition, all employers must satisfy additional obligations imposed by Wage Orders promulgated pursuant to the Act according to their industry: Miscel- laneous Industries and Occupations; Hospitality; and Building Service Indus- try. These obligations vary, but include such requirements as call-in pay, split- shift payments, uniform allowances, guaranteed minimum weekly wages and part-time hourly wage rates. Employers with employees working on “public works” projects are also subject to the New York Prevailing Wage Act. This law requires, among other things, that employees receive no less than the wages and benefits prevailing in the surround- ing area and that they receive overtime pay for all hours of work in excess of eight in a day. (Employers contracting with the federal government are subject to similar obligations under several federal laws.) B. All Employees The Act covers most employees. It does not, however, cover volunteers, appren- tices and some students and workers in non-profit organizations. The Act also contains exemptions from the minimum wage and overtime provi- sions for bona fide executive, adminis- trative, and professional employees, as well as outside salespeople. A bona fide executive under New York State law generally is an individual: 1. Whose primary duty consists of the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; 2. Who customarily and regularly di- rects the work of two or more other employees therein; 3. Who has the authority to hire or fire other employees or whose sugges- tions and recommendations as to the hiring or firing and as to the advance- ment and promotion or any other change of status of other employees will be given particular weight; 4. Who customarily and regularly ex- ercises discretionary powers; and 5. Who is paid a salary of not less than $600 per week, inclusive of board, lodging, other allowances and facilities. Minimum Wage / Overtime Pay • Page 1 Revised 2/14
  29. 29. NIXON PEABODY LLP A bona fide administrative employee un- der New York State law generally is an individual: 1. Whose primary duty consists of the performance of office or non- manual field work directly related to management policies or general op- erations of his or her employer; 2. Who customarily and regularly ex- ercises discretion and independent judgment; 3. (a) Who regularly and directly as- sists an employer, or an employee employed in a bona fide executive or administrative capacity (e.g., employ- ment as an administrative assistant), or (b) who performs under only gen- eral supervision specialized or tech- nical work requiring special training, experience, or knowledge; and 4. Who is paid a salary of not less than $600 per week, inclusive of board, lodging, other allowances and facilities. A bona fide professional employee under New York State law generally is an indi- vidual: 1. (a) Whose primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning customar- ily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine men- tal, manual, or physical processes, or (b) whose work is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or in- Minimum Wage / Overtime Pay • Page 2 Revised 2/14 tellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee; and 2. (a) Whose work requires the con- sistent exercise of discretion and judg- ment in its performance, or (b) whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechani- cal, or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. An outside salesperson under New York State law generally is an individual who is customarily and predominantly en- gaged away from the premises of the em- ployer and not at any fixed site and loca- tion for the purpose of: 1. making sales; 2. selling and delivering articles or goods; or 3. obtaining orders or contracts for service or for the use of facilities. The New York State Department of Labor website now refers employers to the fed- eral definitions contained in the Fair La- bor Standards Act for exemptions from overtime pay. Nonetheless, some differences remain between the federal and state exemptions. It is unclear which set of definitions will govern should an employer’s practices be challenged under the New York Act. Pru- dent New York employers therefore should be aware of both state and fed- eral definitions.
  30. 30. NIXON PEABODY LLP Minimum Wage / Overtime Pay • Page 3 Revised 2/06 and independent judgment with respect to matters of significance. The rule contains a number of examples describing how the administrative exemp- tion is to be applied. The examples spe- cifically address occupations including insurance claims adjusters, financial ser- vices employees, team leaders, executive assistants, human resources managers, purchasing agents, inspectors, and ad- ministrators in educational institutions. Learned Professional Exemption To qualify for the learned professional employee exemption under federal law, the employee must meet the following tests: - The employee must be compen- sated on a salary or fee basis at a rate not less than $455 per week; - The employee’s primary duty must be the performance of work requir- ing advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the con- sistent exercise of discretion and judgment; - The advanced knowledge must be in a field of science or learning; and - The advanced knowledge must be customarily acquired by a pro- longed course of specialized intel- lectual instruction. The rule outlines specific criteria for ex- empting certain employees in select oc- cupations, including medical technolo- gists, registered nurses, dental hygien- ists, physician assistants, accountants, chefs, paralegals, athletic trainers, funeral directors and embalmers, and teachers. The following summarizes the white col- lar exemptions available under the fed- eral Fair Labor Standards Act: Executive Exemption Exempt executive employees must meet the following requirements under federal law: - The employee must be compen- sated on a salary basis at a rate not less than $455 per week; - The employee must have a primary duty of managing the enterprise or a customarily recognized depart- ment or subdivision of the enter- prise; - The employee must customarily and regularly direct the work of at least two or more other full-time employees (or the equivalent); and - The employee must have the au- thority to hire or fire other employ- ees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, pro- motion or any other change of sta- tus of other employees must be given particular weight. Administrative Exemption Exempt administrative employees must meet the following requirements under federal law: - The employee must be compen- sated on a salary or fee basis at a rate not less than $455 per week; - The employee’s primary duty must be the performance of office or non- manual work directly related to the management or general business operations of the employer or the employer’s customers; and - The employee’s primary duty must include the exercise of discretion
  31. 31. NIXON PEABODY LLP computer programmer, software engineer or other similarly skilled worker in the computer field per- forming the duties described be- low; - The employee’s primary duty must consist of: 1. The application of systems analysis techniques and proce- dures, including consulting with users, to determine hard- ware, software or system func- tional specifications; 2. The design, development, docu- mentation, analysis, creation, testing or modification of com- puter systems or programs, in- cluding prototypes, based on and related to user or system design specifications; 3. The design, documentation, testing, creation or modifica- tion of computer programs re- lated to machine operating sys- tems; or 4. A combination of the aforemen- tioned duties, the performance of which requires the same level of skills. The regulations also note that the use of manuals by these employees containing highly technical, scientific, or complex information will not necessarily defeat exempt status. The New York Minimum Wage Act does not expressly adopt the federal exemp- tion for computer professionals. State regulations provide, however, that the Act's overtime requirements do not ap- ply to those employees who are exempt under the Fair Labor Standards Act. Consequently, an employee who meets the requirements for the federal exemp- Minimum Wage / Overtime Pay • Page 4 Revised 2/14 Creative Professional Exemption To qualify for the creative professional employee exemption under federal law, the employee must meet the following tests: - The employee must be compen- sated on a salary or fee basis at a rate not less than $455 per week; and - The employee’s primary duty must be the performance of work requir- ing invention, imagination, origi- nality or talent in a recognized field of artistic or creative endeavor, as opposed to work that can be pro- duced by a person with general manual or intellectual ability and training. This exemption distinguishes the creative professions from work that primarily de- pends on intelligence, diligence and ac- curacy. Exemption depends on the ex- tent of the invention, imagination, origi- nality or talent exercised by the employee, and is determined on a case-by-case ba- sis. The requirements of this exemption generally are met by actors, musicians, composers, soloists, certain painters and writers, cartoonists, essayists, and nov- elists. Computer Employee Exemption Exempt computer employees must meet the following requirements under federal law: - The employee must be compen- sated either on a salary or fee ba- sis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 per hour; - The employee must be employed as a computer systems analyst,
  32. 32. NIXON PEABODY LLP tion for computer professionals also should be exempt from state overtime re- quirements. Outside Sales Exemption Exempt outside sales employees must meet the following requirements under federal law: - The employee’s primary duty must be making sales or obtaining or- ders or contracts for services or for the use of facilities for which a con- sideration will be paid by the cli- ent or customer; and - The employee must be customar- ily and regularly engaged away from the employer’s place or places of business. - There are no salary requirements. Consistent with the existing regulations, “engaged away from the employer’s place or places of business” means that an out- side sales employee makes sales at the customer’s place of business, or, if sell- ing door-to-door, at the customer’s home. The rules clarify that outside sales do not include sales made by mail, telephone or the Internet, unless such contact is used merely as an adjunct to personal calls. Highly Compensated Employee Exemp- tion The April 2004 federal regulations also create a new exemption for those employ- ees who are considered “highly compen- sated.” Employees who receive total an- nual compensation of at least $100,000, including commissions and non-discre- tionary bonuses but excluding employer contributions toward insurance or retire- ment benefits, may be eligible for the ex- emption. To qualify, such employees must also be paid at least $455 per week on a salary or fee basis, perform office or Minimum Wage / Overtime Pay • Page 5 Revised 2/14 non-manual work, and must “customar- ily and regularly perform at least one of the duties from the executive, adminis- trative, or professional duties tests.” The $100,000 amount may be pro-rated if an employee is employed for only part of a calendar year, but cannot be pro- rated if the employee takes leave without pay (such as Family and Medical Leave). The final regulations also provide employ- ers the ability to pay employees a “catch- up payment” within one month of the end of year, or within one month of when the employee terminates employment, to bring the employee’s total annual com- pensation up to $100,000. III. Statute A. Minimum Wage The New York State minimum wage for covered employees is currently $8.00 for each hour worked. This exceeds the cur- rent federal minimum wage of $7.25 per hour. Employers must pay the higher of the two applicable wage rates in order to satisfy their legal obligations. The State minimum wage will rise to $8.75 per hour on December 31, 2014 and to $9.00 per hour on December 31, 2015. If the fed- eral minimum wage ever becomes greater than the State minimum wage, the State minimum wage will automatically match the higher wage. Under federal law, employers may pay new hires under age 20 an "opportunity wage" of not less than $4.25 per hour during the first 90 calendar days of their employment, as long as the employer does not displace or take any other action against current employees, including any reduction in their hours or wages, to take advantage of this exception. These re- quirements apply regardless of whether
  33. 33. NIXON PEABODY LLP the employee is paid an hourly wage, a salary, by piece rate or on a commission basis. With the state minimum wage at $8.00 per hour, however, this "opportu- nity wage" is likely unavailable to New York employers. The minimum wage need not be paid en- tirely in cash. Employers are entitled to limited credits for meals, lodging, and utilities customarily furnished to employ- ees. Employers whose employees cus- tomarily are tipped may also claim an allowance for tips, under most circum- stances. The Act sets out specific minimum wage rules for food service workers and other service employees. A food service worker is defined as any employee primarily en- gaged in the serving of food or beverages to guests, patrons or customers in the hotel or restaurant industries, who regu- larly receives tips from such guests, partrons or customers. The minimum wage for a food service worker must be a cash wage of at least $5.00 per hour, and credit for tips may not exceed $3.00 per hour, provided that the employee's tips plus cash wages equal or exceed $8.00 per hour. Additional requirements for food service workers, and requirements for other types of service employees, con- tinue to be found in the Wage Order for the Hospitality Industry. The Act requires that covered employees be paid for working time which means time worked, or time of permitted atten- dance, including waiting time, whether or not work is provided, and time spent in traveling as part of the duties of the employee. The issue of "call in pay" is addressed by the Minimum Wage Orders applicable to Minimum Wage / Overtime Pay • Page 6 Revised 2/14 for-profit employers and non-profitmaking institutions subject to a minimum wage order. Any employee who reports for work on any day at the request or permission of the employer must be paid for at least 4 hours, or the number of hours in the employee's regularly scheduled shift, whichever is less, at the basic minimum hourly wage. B. Sub-Minimum Wage Although the Act permits learners, ap- prentices, and handicapped workers to be employed at a rate below the mini- mum wage under limited circumstances, 1986 amendments to the State’s Wage Orders have eliminated this option for all employers except non-profit organi- zations. C. Overtime Pay The Act and regulations thereunder re- quire that non-exempt employees receive overtime pay in the amount of one and one-half times their regular rate for all hours worked in excess of 40 per week. New York State Department of Labor in- vestigators at the local level generally advise that compensatory time off may not be used as a substitute for overtime pay except within a single work week. However, state regulations provide that overtime may be paid in the manner and method provided by federal law. Under federal law, an employer may of- fer employees time off as a substitute for overtime pay under the following condi- tions. First, time off cannot be less than one and one-half times the number of overtime hours worked. Second, time off must be taken during the same pay pe- riod in which the overtime hours are worked. Thus, the regulations appear to permit time off as a substitute for over- time pay. To date, however, there has
  34. 34. NIXON PEABODY LLP been no specific ruling by New York State holding that time off instead of overtime pay for non-exempt employees is permis- sible under State law. Employers who choose to give time off instead of over- time pay should, in addition to following the rules under federal law, also advise employees of their practice before the employee performs the overtime work, as New York law generally requires that em- ployees receive prior notice of their rates of pay and hours of work. D. Procedure The New York State Department of La- bor, Division of Labor Standards, is re- sponsible for enforcing the Act. Its in- vestigators are authorized to receive and investigate claims for wages required to be paid under the Act. They may enter a place of business or employment, at any reasonable time, to inspect payroll records and to question employees about their wages and hours. In 2005, the State Legislature authorized the Commissioner to establish a “fair wages task force” for the purpose of con- centrating enforcement of the wage laws in manufacturing, service, and other in- dustries where a concentration of work- ers may be at risk of exploitation in New York State. The fair wages task force is empowered to inspect the books, records, and premises of employers to determine compliance with orders and assessments of the Commissioner and wage laws in- cluding but not limited to minimum wage, overtime compensation, unemploy- ment insurance coverage, and child la- bor laws. During the course of its inves- tigation and inspection, the task force also may inspect books and records con- cerning federal, state, and local payroll taxes and refer possible tax evasion to the appropriate authorities. A similar State task force has been in existence for the garment industry. If an investigation reveals violations of the Act, the Department of Labor can is- sue a compliance order requiring an em- ployer to pay the wages required by the Act, plus interest and a civil penalty of up to 25 percent of the amount due. This order can be challenged before the In- dustrial Board of Appeals and, thereaf- ter, in state court. IV. Penalties/Other Relief Measures The Wage Theft Prevention Act, passed in 2010, significantly expanded the rem- edies available under the Labor Law. These expanded remedies took effect on April 9, 2011. A. Criminal Penalties Every employer, and any agent or officer of the employer, who fails to pay an em- ployee the minimum wages required by the Act, or who fails to keep the required records, is subject to the criminal penal- ties discussed in Chapter 1, Payment of Wages, for these types of violations. Each day’s failure to keep records, and each payment of less than minimum wage to an employee in any week, constitutes a separate offense. B. Civil Penalties and Remedies If the Commissioner of Labor determines that an employer has violated a provi- sion of the Act, the Commissioner will direct payment of wages, benefits, or supplements due, plus liquidated dam- ages in the amount of 100 percent of unpaid wages, as well as interest. If the employer previously has been found in violation of the Act or certain other wage payment laws or regulations, or has com- Minimum Wage / Overtime Pay • Page 7 Revised 2/14

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