In March 2010, congressmen introduced, in the New York State Senate and the New York State Assembly, a bill entitled the Wage Theft Protection Act. The bill would significantly enhance civil and criminal penalties against employers who violate New York’s minimum wage and overtime pay laws.
The Senate bill is linked here: http://open.nysenate.gov/legislation/api/1.0/html/bill/S7050. The Assembly bill is linked here: http://open.nysenate.gov/legislation/bill/A10163 .
If enacted, the Wage Theft Protection Act will, among other changes to existing law, increase the damages recoverable in specified types of lawsuits by employees or by the New York State Commissioner of Labor (the “Commissioner of Labor” or the “Commissioner”) against companies which flout New York’s minimum wage and overtime pay laws. Further, if enacted, the bill will criminalize, and severely punish, certain violations by employers of the Empire State’s minimum wage or overtime pay laws which previously gave rise only to civil lawsuits.
With regard to civil actions against employers, the Wage Theft Protection Act would amend the New York Labor Law by, among other changes:
- In any successful action by an employee against his employer for failing to pay the minimum wage, increasing, from 25% of the total underpayment of wages to 200% of the total underpayment of wages, the liquidated damages to be awarded to the employee unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law;
- Expanding the bases for a civil cause of action by a worker against his employer for discharge in retaliation for the worker complaining of the employer’s violation of minimum wage or overtime pay laws;
- Creating a strong presumption, in any lawsuit by an employee against his employer for firing the employee in retaliation for the employee complaining of minimum wage or overtime pay violations, that the employee’s firing occurring within 90 days after the employee complained of such violations was retaliatory;
- Requiring the Commissioner of Labor, whenever the Commissioner determines after an investigation that an employer fired an employee in retaliation for the worker complaining of the employer’s violation of minimum wage or overtime pay laws, to order the employer to pay the employee liquidated damages of $10,000; and
- Requiring the Commissioner of Labor, whenever the Commissioner determines after an investigation that an employer did not pay a worker the minimum wage or the requisite amount of overtime pay, to assess against the employer the full amount of the underpayment and liquidated damages equal to 50% – 200% of the amount of the underpayment.
With regard to criminal prosecutions of employers or of employers’ officers or agents, the Wage Theft Protection Act would amend the New York Labor Law by, among other revisions,
- Making it a felony, punishable by a criminal fine equal to 50% – 200% of the amount of the underpayment and by imprisonment of up to four years, for an employer to, or for an officer or agent of a company knowingly to allow a company to, fail to pay employees the minimum wage or the requisite amount of overtime pay in the aggregate amount of $25,000 or more;
- Rendering it a felony, punishable by a criminal fine of 50% – 200% of the amount of the underpayment and by a jail term of up to seven years, for an employer to, or for a company’s officer or agent intentionally to permit a company to, fail to pay workers the minimum wage or the requisite amount of overtime pay in an aggregate of $100,000 or more; and
- Making it a felony, punishable by a criminal fine of 50% – 200% of the underpayment and by imprisonment of up to 15 years, for an employer to, or for a company’s officer or agent purposely to allow a company to, fail to pay employees the minimum wage or the requisite amount of overtime pay in an aggregate of $500,000 or more.
The bill has been referred to the Labor Committees of the New York State Senate and of the New York State Assembly, respectively.
Call the Law Offices of David S. Rich, LLC at (347) 603-1143 to consult with an experienced labor and employment attorney about ensuring your company’s compliance with overtime pay or other wage and hour laws, or to retain a skilled employment attorney to defend your company in wage and hour litigation.
