Establishes the wage theft prevention act

Summary of specific provisions

§ 3 (Labor Law Art. 6, § 195) Notice and Record-Keeping Requirements

Pre-Employment Notice of Wage Rates:

* Sets out the information that must be included in the disclosure of wage rate notice currently required by § 195. Clarifies that employer must disclose intent to claim allowances (like tip or meal allowances) as part of the minimum wage. Clarifies that employer must state basis of wage payment (whether paying by hour, shift, day, week, piece, etc.). * New requirements: disclosure of employer's "doing business as" names; updates of disclosure annually and within 7 days of a change if the change is not listed on pay stubs. * Requires employers to provide translated notices provided by the Department of Labor (DOL). Requires DOL to create dual-language template notices in English and additional languages that the DOL, in its discretion, can select. Requires employee to affirm that the employee has accurately told the employer his or her primary language.

Payroll and Paystub Requirements:

* Amends statutory payroll record and paystub requirements to include information currently required pursuant to regulation. * Amends statute to require employers to maintain copies of payroll records for six years (as is currently required by regulation).

§ 4 (Labor Law Art. 6, § 196) Power of Commissioner

* Provides Commissioner discretion to require employer to provide accounting of all assets upon employer default on administrative order to pay wages, damages, and penalties. Provides civil penalty of up to $10,000 if employer fails to provide and commissioner must go to court to obtain compliance. * Provides Commissioner discretion to require employer to post bond after default on order to comply (not after ministerial step of docketing administrative order in court, as is currently required).

§ 5 (Labor Law Art. 6, § 196-a) Complaints by Employees to Commissioner

* Codifies existing DOL policy of maintaining confidential the identity of employees who are subject of investigation as long as possible. * Codifies existing DOL policy of investigating third-party complaints of violations.

§ 6 (Labor Law Art. 6, § 197) Civil penalty

* Closes loophole and provides that Commissioner can take administrative action (not just court action) to collect civil penalty for employer discrimination in pay rates because of sex.

§ 7 (Labor Law Art. 6, § 19S) Costs, Remedies for Payment of Wages Claims

Liquidated Damages:

o Increases liquidated damages on unpaid wages from 25% to 100% in court action. o Provides commissioner discretion to assess up to 100% liquidated damages in early investigation stages, prior to issuance of an order to comply.

Employer Violations of Wage Stub and Notice Requirements

o Provides statutory damages and a private right of action in cases where an employer fails to provide disclosures of wage rates or pays tubs (as required under Section 195). Caps statutory damages available for employees at $2,500. provides two affirmative defenses for employer where the employer demonstrates that it: (1) paid all wages legally required: or (2) had a good faith, reasonable basis for not providing notice or wage stubs.

Facilitating collection of wages Ordered to Be paid:

o Provides that where employer defaults on paying judgment for more than 90 days, after the judgment is final, the employer must pay an additional 15% additional damages to defray approximately half of the cost to the employee of collecting on the judgment.

Other Changes:

o Tolls the statute of limitations during investigations by the Commissioner.

§ 8 (Labor Law Art. G, § 19B-a) Criminal Penalties for Nonpayment of Wages

* Adds newer business forms (partnerships, limited liability corporations) to the list of types of employers covered under this provision.

§ 9 (Labor Law Art. G, § 199-a) Notification of DOL Process

Codifies the DOL's current practice of accepting for investigation complaints for violations of meal breaks, days of rest, and retaliation and requires that employee representatives who receive communications from the DOL must be duly authorized by the employee.

§ 10 (Labor Law Art. 7, § 215) Prohibited Retaliation

Closes loopholes on what actions constitute prohibited retaliation:

o Explicitly prohibits threats of retaliation. o Prohibits retaliation by persons who do not meet technical definition of "employer" under the statute but who an employee can prove retaliated against him or her because he or she engaged in protected conduct under the Labor Law. o protects an employee from retaliation where the employee makes a complaint about conduct that the employee reasonably and in good faith believes constitutes a violation under the Labor Law. o Clarifies that two-year statute of limitations for filing retaliation claim runs from the date of the retaliation itself, not the dates of the employee's employment.

Provides Commissioner authority commensurate with the court to remedy retaliation

o Amends statute to explicitly provide commissioner with all necessary tools, including ordering reinstatement, for remedying retaliation - makes Commissioner's power parallel to those of a court.

Provides deterrence against violations

Provides for statutory damages, in addition to existing remedies of up to $10,000 for instances of retaliation.

o Explicitly provides that the sole remedy available against a person who is now an employer is statutory damages of up to $10,000 (not reinstatement, lost wages, front pay, etc).

§ 11 (Labor Law Art. 7, § 218) and § 12 (Labor Law Art. 7 § 219) orders to Comply

[same changes in both provisions]

* Provides that the full 100% liquidated damages amount be assessed if an employer refuses to settle a claim and forces the Commissioner to issue an order to comply. * Provides the Commissioner discretion to add an additional 15% damage that comes due if the employer defaults on an order to comply for more than 90 days. * Requires the commissioner to provide a copy of an order to comply issued against an employer to complaining employee (any employee who

submitted an actual complaint form with the DOL but not every employee covered in an investigation). * To facilitate collections, provides the Commissioner discretion to assign to an employee the amount of wages, wages supplements, interest, and liquidated damages due that employee under an order to comply and file in the name of that employee with the county clerk of the county where the employer resides or has a place of business.

§ 13 (Labor Law Art. 7, § 219-c) Public Notices

* Provides Commissioner discretion to post notices of violations at worksite. Limits amount of time postings must be kept visible (employee-visible notices max. 1 year; publicly visible notices max ninety days). Limits posting of notices visible to public to instances of willful violations. * Provides for a misdemeanor for any person who defaces or removes such a posting without authorization.

§ 14 (Labor Law Art. 19, § 661) Records of Employers

* Moves record-keeping and pays tub requirements under the Minimum Wage Act from regulation to statute. Requires that employer maintain records for six years, as is already required by regulation. * Requires employers to allow DOL investigators to interview employees without interference and in a private location.

§ 15 (Labor Law Art. 19, § 662) Criminal Penalties under Minimum Wage Act

* Closes a loophole in criminal penalties that apply to wage theft by extending the same penalties that cover record keeping violations and non-payment of wages to also cover minimum wage non-payment.

§ 16 (Labor Law Art. 19, § 663) costs, Remedies for Minimum Wage/Overtime Claims

* Replicates amendments made to § 198 (nonpayment of wage claims) in 663 (nonpayment of minimum wage claims).

§ 17 provides that the act shall take effect on the 120th day after it becomes law.

Justification

Studies indicate that a large number of employees are earning less than minimum wage and others are being paid less than their correct wage. Many employees are also not all receiving the appropriate amount of overtime compensation and many employers are failing to adequately inform their employees of their wages and how they are calculated in a language they can comprehend. The penalties currently in place for employers paying less than minimum wage are minimal and offer little deterrent - this will change dramatically with this,

legislation. Penalties for violating employee rights would be increased in order to far better protect workers' rights and interests.

Prior legislative history

New legislation.

Fiscal implications

Minimal.

Effective date

This shall take effect on the one hundred and twentieth day after becoming law.