Wage and Hour Law Update : Wage & Hour Lawyer & Attorney : Jackson Lewis Law Firm : Minimum Wage, Overtime & Service Contracts

On December 13, New York Governor David Paterson signed into law the “Wage Theft Prevention Act,” a bill which provides new and expanded protections for workers under the New York State Labor Law. 

Among other provisions, the new law (which takes effect in 120 days) includes the following provisions:

·         An increase in the liquidated damages penalty for violations of Labor Law Article 6 from 25% to 100% -- the amount available under the FLSA:

·         Any employee not provided with the new hire “rate of pay” notice required by N.Y. Labor Law § 195 may bring a cause of action to recover $50 for each workweek that such a violation occurs, as well as attorneys fees;

·         The notice previously required by Labor Law § 195 must now be provided to each employee in English and the language “identified by each employee as the primary language of such employee;” and

·         Expanded wage statements which include, among other new requirements, the employee’s basis of pay, whether hourly, piece rate, salary or other basis, and, for non-exempt employees, the applicable overtime rate. Under the new law, any change to an employee’s regular rate must be reflected in the wage statement, or in a revised Labor Law § 195 notice. 

We will provide further details regarding the obligations posed by this new law in the near future on www.JacksonLewis.com.

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As previously discussed here, the New York legislature recently enacted the Construction Industry Fair Play Act. The law is effective tomorrow. In sum, the law provides that an individual providing services in the construction industry only qualifies as an “independent contractor” under the Act, if s/he meets the following test:

(1) [the worker] is free from control and direction in performing the job, both under his or her contract and in fact; (2) the service performed is outside the usual course of business; and (3) the worker is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue

This is an example of what is commonly referred to as the “ABC” test for independent contractor status. It is utilized by various state agencies to define who is excluded from employee status for purposes of, for example, workers compensation or unemployment benefits. See generally 22 Berkeley J. Emp. & Lab. L. 295. The use of the phrase “and” requires that all three prongs of the test be met for contractor classification. The result is a very broad definition of “employee.”

The New York State Department of Labor has issued the mandatory posting required to be displayed by covered employers. The poster is available here.

New York construction industry employers must analyze whether they are covered by the Act (necessitating among other things immediate posting of this new NYSDOL poster), and how the Act’s narrow definition of “independent contractor” impacts their classification of workers. This legislation is similar to numerous pieces of legislation in other states. In certain instances, such legislation, and related state initiatives, is not limited to the construction industry.

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On March 23, President Obama signed a bill which amended the FLSA to require most covered employers to provide breaks to mothers for the purposes of breastfeeding (as well as furnish private space for them to do so).  While the new law does not require that nursing mothers be paid for such break time, state law may.  An in depth analysis of the new law is available here.

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