New York State Department of Labor has released proposed regulations under its recently enacted Wage Deduction Law. The Law, which went into effect in November 2012, permits employers to deduct certain amounts from employees’ wages, including deductions to recover wage overpayments, for repayments of employer loans, and to provide for the payment of items such as gym memberships, parking or mass transit passes and day care, among many other items. The proposed regulations, accessible here, focus on authorized deductions for the benefit of the employee and deductions for advances and overpayments.
This alert serves as a reminder that the New York Wage Theft Prevention Act requires employers to provide annual pay notices to all of their employees (whether full-time or part-time, exempt or non-exempt) no later than February 1, 2013. For seasonal employees who are not working during this period, employers must provide annual pay notices to these employees as soon as they return to work from their time away.
Governor Cuomo has finally signed a bill amending New York’s Wage Deduction law (Section 193) to permit employers to deduct certain amounts from employee wages to recover wage overpayments and for the repayment of employer loans. The law also permits employers to deduct certain amounts from an employee’s paycheck, for the payment of items such as gym memberships, parking or mass transit passes and day care, among many other items.
Employers have long been frustrated by their inability to make these types of deductions, especially as they often benefit the employee as well as employer. The law goes into effect on November 8, 2012.
The complete amendment can be accessed here.
New York employers will be pleased to know that Governor Cuomo is expected to sign a bill passed last week amending New York’s Wage Deduction law (Section 193) to permit employers to deduct certain amounts from employee wages to recover wage overpayments and for the repayment of employer loans. The law also permits employers to deduct certain amounts from an employee’s paycheck for the payment of items like gym memberships, parking or mass transit passes and day care, among many other items. Employers have long been frustrated by their inability to make these types of deductions, especially as they often benefit both the employer and employee. This change, which will take effect two months after the Governor signs the bill, is likely to be welcomed by employers and employees alike. The complete amendment can be accessed here.
California Employers Have No Duty to Ensure Employees Do Not Work During Meal Breaks: Brinker Restaurant Corp. v. Superior Court
California employers, and employers with California employees, have been waiting for the California Supreme Court to decide Brinker Restaurant Corp. v. Superior Court, regarding the scope of an employer’s duty to provide meal periods. The significant question before the Court,(among others that the Supreme Court addressed) was whether employers were simply required to provide meal periods to non-exempt employees or, as the plaintiff employee argued, ensure that non-exempt employees do no work during the required thirty-minute meal period. The California Supreme Court concluded that under IWC Wage Order No. 5 and California Labor Code Section 512, “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”
The New York State Senate Passes Bill Eliminating the Annual Pay Notice Requirement Under the New Wage Theft Prevention Act
Quick update on the New York Wage Theft Prevention Act, which we reported about here, here and here. The New York Senate has passed a bill eliminating the requirement that employers provide their employees with an annual pay notice. The bill now goes to the New York State Assembly. We will report back after it votes.
Unpaid interns: They are as ubiquitous as taxis in New York and suntans in Los Angeles, especially in the entertainment, media, and fashion industries. Indeed, for many college students and graduates, unpaid internships represent a door to possible future employment in these competitive industries. For more, click here for an article written by my colleagues Jessica W. Catlow, Richard H. Block, and H. Andrew Matksin.
We recently reported about the new California Wage Theft Protection Act (“Act”) that went into effect on January 1, 2012.
On December 30, 2011, the Division of Labor Standards Enforcement (“DLSE”) published its "Frequently Asked Questions" (“FAQ”) regarding the new Act and its notice requirements. The FAQs incorrectly stated, however, that the Act’s required notice must be provided to all current employees, despite the fact that the new statute calls only for employers to provide the Notice to employees "at the time of hiring." The DLSE has since updated the FAQs, found here, which now correctly reflect that the new Labor Code § 2810.5 notice need only be provided to employees at the time of hiring and within seven days of a change in that information, if the change is not listed on the employee's pay stub for the following pay period.
The start of a new year often means new laws for California employers to follow, and new administrative burdens for them to bear. The start of 2012 will be no exception. Effective January 1, 2012, California employers must comply with California’s new Wage Theft Protection Act, Labor Code Section 2810.5. This new California law, which is similar to the New York Wage Theft Protection Act, requires employers to provide certain employees with a written notice containing the following wage-related and employer information:
This alert serves as a reminder that the New York Wage Theft Prevention Act requires employers to provide annual pay notices to all of their employees (whether full-time or part-time, exempt or non-exempt) between January 1 and February 1, 2012. For seasonal employees who are not working during this period, employers must provide annual pay notices to these employees as soon as they return to work from their time away.
In a case of first impression, a Massachusetts trial court recently ruled that the Massachusetts Wage Act protects out-of-state employees, provided that they have sufficient contacts with the Commonwealth. To read more of an interesting article written by my colleagues, Drew Matzkin and Maura Pelham about this decision, Dow v. Casale, et al, Superior Court Civil Action No. 10-1343-BLS1, please click here.
On November 6, 2011 at 2:00 a.m. daylight savings time will end and most clocks across the country should be set back an hour from 2:00 a.m. to 1:00 a.m. Non-exempt employees working a shift during that time must be provided with an additional hour of pay. For example, if an employee’s shift runs from 10:00 p.m. to 6:00 a.m., the employee will receive nine hours of pay instead of eight hours of pay because he or she will have worked the 1:00 a.m. hour twice. In calculating any overtime due, employers must count this additional hour in determining whether the employee crossed the 40-hour threshold and must also include the additional hour of pay in calculating the employee’s overtime rate.
Employer Exposure in Unpaid Wage Lawsuits Increases as Court Applies New York Wage Theft Prevention Act's Liquidated Damages Provision Retroactively
The New York Wage Theft Prevention Act went into effect last April. (You can read our two previous alerts about this Act here and here). Among other things, that Act amended Section 198(1-a) of the Labor Law to require courts to impose a liquidated damages award of 100% of the total unpaid wages found to be due – up from the previous 25% cap. And remember, in addition to recovering up to six years of unpaid wages and these now increased liquidated damages, plaintiffs may also recover attorneys’ fees, costs and pre-judgment interest at a rate of 9% (which is probably 8.99% higher than the interest rate in your standard checking account).
An earthquake and a hurricane in one week in New York and elsewhere!? With the former, you may have had to evacuate your employees from the building; with the latter, it is becoming increasingly likely that your east coast employees may not even make into the building. Understandably, employers often become frustrated when Mother Nature disrupts their businesses, especially because of adverse weather conditions. In New York, most often, it’s due to a blizzard. But next week, for the first time since 1985, it may be because of a hurricane.
Written by Martha Zackin
On May 9, 2011, the US Department of Labor launched a smartphone "app" to help employees track hours worked and break times, and to calculate regular wages and overtime. Data collected may be viewed in daily, weekly, and monthly formats, and can be sent with wage data as an attachment to an email. Of course, the app includes DOL contact information and information about wage and hour laws.
According to the DOL press release that heralded the app’s release:
This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
Currently available in English and Spanish, the app is compatible only with iPhones and the iPod touch. The DOL plans to release apps compatible with other smartphone platforms, such as Android and Blackberry. Future releases will contain other capabilities, for tracking of tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
It will be interesting to watch the battles to be waged over discrepancies between employers’ time records and employees’ smartphone data.
Written by Jessica Catlow
If one thing was made clear in a recent seminar sponsored by BNA that included panelists who are former U.S. Department of Labor officials, the enforcement of labor laws as they relate to the classification of service providers as employees or independent contractors is on the rise – as could be expected when both the federal government and states are starved for revenue. Some states, such as New York, have created special tasks forces for the specific purpose of conducting audits and bringing actions against employers who improperly classify employees as independent contractors. At least nine states have enacted statutes directed at worker misclassification, and many others have considered such legislation. In addition, the U.S. Department of Labor is contemplating a new rule that would require employers to notify employees of their status under federal wage and hour law, and may require employers to provide the same information to service providers the employer classifies as independent contractors.
Improperly classifying employees as independent contractors can lead to liability and penalties for failure to withhold taxes, required payroll deductions, and workers’ compensation and unemployment compensation insurance contributions. In addition, independent contractors may have claims against employers for benefits under benefit plans offered to employees. In light of the stepped-up scrutiny and enforcement, it is imperative that employers review their service provider classifications. We also recommend that such a review be conducted at least once a year to ensure that any change in the independent contractor’s responsibilities does not require a re-classification. Employers should be aware that the longer an individual performs services as an independent contractor, the more likely they will be considered employees, especially if the work being done is similar to the work done by employees and/or relates to the core operations of the employer.