New York Labor & Employment Statutes Archives

January 5, 2012

First Annual Written Pay Notice under the New York Wage Theft Prevention Act Due by February 1, 2012

            2012 is the first year that private-sector New York employers must provide the annual written pay notice required by the Wage Theft Prevention Act.  Although the initial passage of the Wage Theft Prevention Act over a year ago garnered significant attention, it is worth reiterating now that the February 1 deadline for provision of the annual notice is rapidly approaching and employers should use the remaining time to ensure compliance with the new notice obligations.


            On December 14, 2010, then-Governor David Paterson signed the Wage Theft Prevention Act, S. 8380/ A. 11726 (the "Act"), into law in New York State, which amended Section 195 of the New York Labor Law.  Joining a growing number of states with similar wage theft legislation, the Act sought to address classification of employees and payment of statutorily-mandated minimum wages and overtime, and included enhanced civil and criminal penalties for non-compliance.  In effect since April 9, 2011, the requirements applies to all private-sector employers in New York.


            Under the Act, every employee, whether full or part-time, whether covered by a union contract or not, and regardless of exempt status, must receive a written pay notice between January 1 and February 1 of each year, including the following information:

  • the employee's rate of pay, including overtime rate of pay, if non-exempt;
  • the basis of the wage payment (e.g., by  the  hour, shift, day, week, salary, piece, commission, or other); 
  • the regular payday;
  • the allowances taken as part of the minimum wage (e.g., tip, meal and lodging deductions); 
  • the employer's official name and any other "doing business as" names; and 
  • the address and phone number of the employer's main office or principal location, and mailing address if different. 


2012 is the first year that employers must provide the annual written pay notice, which applies even if none of the information has changed from the prior year.          


            Under the Act, the notice must be provided in English and in the employee's primary language if the New York Department of Labor ("NY DOL") offers a translation.  Currently, the NY DOL offers dual language translations in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish, all of which are available here.  Employers with seasonal employees on layoff between January 1 and February 1 must furnish the notice as soon as the employees return from layoff.  The notice may be distributed electronically, but only if employees' receipt of the notice and acknowledgment is verifiable and if the employee is able to print a copy for their records. 


            In addition, the Act requires employers to obtain a signed and dated acknowledgment of the notice from each employee.  Employers must retain copies of the notice and accompanying acknowledgment for six years, and provide them to the NY DOL upon request.  If an employee refuses to acknowledge the notice, an employer should still give the notice and note the refusal on its retained copy.  Moreover, an employee cannot waive the written notice requirement.  The NY DOL can assess penalties of $50 per week per employee if a proper written notice is not provided, and employees can sue for not receiving a proper written notice with damages capped at $2,500 per employee. 


            With the February 1, 2012 deadline rapidly approaching, employers should take any remaining steps necessary for to meet the annual notice requirements.  The NY DOL provides web-based, printable model templates for employers seeking guidance, which are available here.  The Act does not require the use of these particular forms, and employers may develop their own forms so long as all the information legally required is included.  The NY DOL has also published a Fact Sheet on the Act, available here, and a set of FAQs, available here.


            This post was authored by Matt Lampe, Joseph Bernasky, and Jenny Ma of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.



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February 15, 2012

Suit Against Gucci Executive Remains A Good Fit

It is common to see individuals named as defendants in discrimination cases brought under New York State or New York City law. Unlike Title VII, which does not provide for individual liability according to the Second Circuit (Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), both the New York State Human Rights Law and the New York City Human Rights Law provide one or more bases upon which an individual can be held liable for discriminatory conduct.

The issue of individual liability under the State law was recently the focus of a decision by District Judge J. Paul Oetken in Robinson v. Gucci America, et al., 11-CV-3742 (February 9, 2012). In Robinson the Plaintiff, a tax attorney for Gucci, accused the company and several executives, including Matteo Mascazzini, Gucci's Associate President, of several violations of State and Federal discrimination law, including sex, race, national origin and disability discrimination, and retaliation, in connection with her termination of employment. According to the Complaint, Robinson alleged that she had been subjected to sexual harassment by her supervisor "almost from the time she started at Gucci", and that her complaints to Human Resources went unheeded. After several run-ins with Human Resources and other executives, Robinson was placed on the first of two administrative leaves that Gucci directed.

Up to this point, there is no mention of wrongdoing by Mascazzini in the Complaint, a not unsurprising development, given his position as Associate President. Mascazzini became involved, however, upon Robinson's return from her first administrative leave, when Robinson was told to report to a different work location, in New Jersey. When Robinson demurred, Mascazzini directed her to report to New Jersey, and it was this instruction that formed the basis of her claim that Mascazzini retaliated against her under the "aiding and abetting" theory of liability found in the New York State Human Rights Law.

In moving to dismiss the claim against him, Mascazzini conceded for the purpose of the motion that the move to New Jersey constituted an adverse employment action. Nor did he dispute that Robinson engaged in protected activity. Instead, Mascazzini focused on the absence of any allegation in the Complaint that he had knowledge of Robinson's alleged prior protected conduct; therefore, he could not have "retaliated" against her for engaging in that protected conduct.

Citing the "plausibility" standard for determining dismissal motions (that a Plaintiff must plead sufficient facts to state a claim to relief that is plausible on its face), the Court rejected Mascazzini's argument, and denied his dismissal motion. The Court was persuaded by several factors: (1) that Robinson was not licensed to practice in New Jersey, and told this to Mascazzini; and (2) that Robinson told Mascazzini at their meeting that she was being retaliated against. According to the Court, these factors lead to the conclusion that there was "no logical reason" for the direction to work in New Jersey, and that such a circumstance "constitute[s] strong evidence of an intent to discriminate." Thus, based on the pleadings, the Court determined that a reasonable inference that Mascazzini aided and abetted retaliation could be drawn.

The decision provides a cautionary tale for executives one or two levels removed from direct supervsion of an employee turned plaintiff. Presumably, had Mascazzini not inserted himself into the dispute by directing Robinson to report to the New Jersey location, either he would not have been named a defendant, or the Court would have dismissed the claim against him. Mascazzini can take some comfort, however, in the fact that the decision was rendered only at the pleading stage, and that Robinson still has the burden of proving to a jury that he unlawfully retaliated against her.

April 10, 2012


On February 29, 2012, the New York State Senate passed Bill S60631-2011, which would eliminate the annual notice requirement under the New York State Wage Theft Prevention Act, which we discussed in a prior post.  The Bill does not add text to the Wage Theft Prevention Act, and keeps intact the notice requirements for new hires, but deletes the language regarding the requirement that such notices be provided "on or before February first of each subsequent year of the employee's employment with the employer...." 

The Bill was introduced by Senator DeFrancisco on January 4, 2012.  The Senate Memo summarizing the Bill explains, as its justification, that the annual notice requirement "imposes a new administrative cost on every private sector employer in the state, with aggregate costs in the millions of dollars, and will do little to improve overall compliance with the state's wage laws. The Department of Labor has conceded that wage compliance is an issue for only a small percentage of New York State employers, despite the universal application of this annual notice requirement. This type of annual notification requirement should be reserved for instances where non-compliance has been an issue, however, as an across the board measure, it will add costs and provide little if any additional benefit.  Moreover, this modification to the WPTA leaves in place its most significant reforms intended to assure payment of all wages earned by employees."

Now that the Bill has passed the Senate, it has been delivered to the Assembly, where an identical bill (A08856) is pending, and if passed by the Assembly, will be presented to the Governor for signature.  New York employers should stay tuned for further developments on this Bill. 

This post was authored by Matt Lampe and Joseph Bernasky of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

January 26, 2013

New York City Council Votes to Amend Human Rights Law to Include "Unemployment" as Protected Classification; Veto and Override Expected

On Wednesday, January 23, 2013, the New York City Council passed a bill amending the City's Human Rights Law to prohibit employment discrimination based upon an employee or applicant's "unemployment status." It defines "unemployment status" as "an individual's current or recent unemployment." Under the amendment, however, an employer is not precluded from considering unemployment status data that is substantially job related where it has a bona fide reason for doing so. Nor is an employer barred from inquiring as to prior terminations or demotions, including whether such action was taken for cause.

The amendment also addresses the advertisement of job vacancies by proscribing the inclusion of any statement that being currently employed is a job requirement or that unemployed applicants will not be considered.

It has been reported that Mayor Michael Bloomberg plans to veto the bill. In response, City Council Speaker Christine Quinn was quoted saying that should Bloomberg veto it, she is confident she has the votes to override him.

June 4, 2013

Second Circuit Vacates Summary Judgment, Finding District Court Applied Wrong Standard In Evaluating Claims Under NYCHRL

The Second Circuit, in Mihalik v. Credit Agricole Cheauvreux North America, Inc., No. 11-3361-cv (2nd Cir. April 26, 2013), ruled that federal standards do not govern claims under the New York City Human Rights Law ("NYCHRL"). Instead, such claims require a separate and independent analysis. The court explained that that the 2005 amendment of the NYCHRL compels this result.

Citing the First Department's decision in Williams v. New York City Housing Authority, 872 N.Y.S.2d 27 (1st Dep't 2009), the Second Circuit explained that under the NYCHRL the "severe and pervasive standard" is not the test of liability for gender discrimination, but is relevant only to the issue of damages. To prevail on liability, the plaintiff need only demonstrate by "a preponderance of the evidence that she has been treated less well than other employees because of her gender." The court cautioned, however, that the NYCHRL is not a "general civility code." Therefore, the plaintiff still must demonstrate "discriminatory motive," which requires a showing that she has been treated less well, at least in part, due to her gender.

Addressing the standard for a retaliation claim under the NYCHRL, the Second Circuit instructed that the plaintiff must establish that she opposed her employer's act(s) of discrimination and the employer responded with conduct "reasonably likely to deter a person from engaging in such action." The court opined that in the context of this case, Mihalik did not need to demonstrate that she was discharged for opposing her supervisor's alleged offensive behavior because "a jury could reasonably find that publicly humiliating Mihalik in front of her male counterparts and otherwise shunning her was likely to deter a reasonable person from opposing his harassing behavior in the future."

July 9, 2013

The New York City Council Overrides Mayor Bloomberg's Veto of the Earned Sick Time Act By A 47 To 4 Margin

On June 26, 2013, the New York City Council (the "Council") voted 47-4 to override Mayor Michael Bloomberg's veto and adopt the New York City Earned Sick Time Act (the "Act"). The Act will require employers with 20 or more employees to begin providing paid sick leave on April 1, 2014. Employers with 15 to 19 employees would be required to provide paid sick leave starting October 1, 2015. These dates could be delayed depending on economic conditions, as measured against the New York Coincident Economic Index, a Federal Reserve Index that measures the New York City economy.

The Act entitles employees to up to five paid sick days (40 hours) annually, which will accrue at the rate of one hour for every thirty hours worked. Employees can begin to use accrued paid sick time after they have been employed for at least 120 days or 120 days after the Act goes into effect, whichever is later. Both part-time and full-time employees are covered, so long as they are employed more than 80 hours in a calendar year. At the end of the year, the employer must either allow the employee to carry over unused accrued paid sick time to the following year (subject to the 40 hour maximum) or pay the employee for the unused accrued paid sick time. Employers are not required to reimburse employees for unused accrued paid sick time upon the employee's termination, resignation, retirement, or other separation from employment.

Employees are entitled to use sick time for absences due to (1) the employee's mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment, or need for preventative medical care; (2) care of a family member needing such medical diagnosis, care or treatment; or (3) closure of the place of business due to a public health emergency or to care for a child whose school is closed due to a public health emergency.

Employees working for employers with less than fifteen employees will be entitled to up to five days of unpaid, job-protected leave once the Act becomes effective. The Act also imposes sick leave requirements on employers of domestic workers. The Act will not apply to any employee covered by a collective bargaining agreement that expressly waives the Act's provisions or provides for comparable benefits. Any employer with a paid leave policy that provides an amount of paid leave sufficient to meet the accrual requirements of the Act is not required to provide additional paid sick time.

The Act mandates that employers retain records documenting the number of hours worked by employees and sick time accrued and taken by employees for a period of at least two years. Employers are required to provide employees with written notice of their entitlement to paid sick time and display a poster in a conspicuous location highlighting the rights guaranteed under the Act. Additionally, the Act includes non-retaliation provisions, which if violated can lead to monetary penalties and other forms of equitable relief.

The Department of Consumer Affairs (the "Department") is responsible for investigating and enforcing the Act. The Department can impose civil penalties ranging from $500 to $1,000 per violation. The Department can also order the employer to pay penalties to the affected employee. For unlawful termination, the Department can award back pay and equitable relief (including reinstatement). Employees have no right to bring a private civil action for violations of the Act.

Employers should begin to consider what steps are necessary to comply with the Act in advance of the effective date. Even those employers who already provide paid leave will need to review existing policies to determine whether those policies meet the specific accrual requirements of the Act, as well as its unique coverage requirements (which extend protection to both part-time and full-time employees). Furthermore, employers will need to ensure compliance with the recordkeeping and notice requirements of the Act.

This post was authored by Matt Lampe, Wendy Butler, Emilie Hendee, and Joshua Grossman of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 4, 2013

Mayor Bloomberg Signs Law Expanding Protections for Pregnant Workers

On October 2, 2013, Mayor Bloomberg signed into law an amendment to the New York City Human Rights Law that expands protections for employees who need reasonable accommodations relating to pregnancy, childbirth, or related medical conditions (Bill No. 0974-2012), after the bill was unanimously approved by the New York City Council on September 24, 2013.  The law will take effect on January 30, 2014 (120 days after it was signed into law). 

The amended law will require most New York City employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.  The text of the amended law includes examples of reasonable accommodations that might be required, such as "bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor."  Consistent with existing law, a reasonable accommodation does not include accommodations that would cause "undue hardship" to an employer's business.

The law will apply to all businesses with four or more workers, counting both employees and independent contractors, thereby expanding protections that are already available under existing federal, state and local laws.  Employees who believe they have been discriminated against will be able to file a complaint with the New York City Commission on Human Rights or bring an action in court against their employer.

Employers will be required to provide written notice in a form to be determined by the NYC Commission on Human Rights of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.  The notice must be provided to: (1) new employees at the commencement of employment; and (2) existing employees within 120 days after the effective date of the new law.  Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.  The commission will conduct ongoing public education efforts to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this law.

This post was authored by Matt Lampe and Emilie Hendee of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 19, 2014

New York City Council Considers Legislation Limiting Inquiries into Applicants' Criminal and Credit Histories

Currently pending before the New York City Council (the "Council") are two bills that could significantly affect hiring processes utilized by New York City employers.  The proposed Fair Chance Act and the Stop Credit Discrimination in Employment Act would restrict what employers may inquire about regarding job applicants' criminal and consumer credit histories.  If passed, the bills would require employers to review and potentially revise their hiring practices, including the use of criminal background searches and credit checks. 


Introduced in April 2014, the Fair Chance Act (the "FCA"), which has been described as "ban-the-box" legislation, would amend the New York City Human Rights Law (the "NYCHRL") to prevent pre-employment inquiries into an applicant's conviction or arrest history.  The New York Correction Law ยง 23-A currently requires employers to conduct a multi-factor analysis before refusing to hire an applicant based on his or her criminal history.  This analysis considers, among other things, any bearing the criminal offense would have on the applicant's fitness or ability to perform the duties related to the position, the time that has elapsed since the offense, the applicant's age at the time of the offense, the seriousness of the offense, any information produced on behalf of the applicant relating to his or her rehabilitation and good conduct, and the employer's legitimate interest in protecting property and the safety and welfare of specific individuals or the general public.  The employer may only refuse to hire an applicant based on his or her criminal conviction if there is a direct relationship between the prior criminal offense and the specific job sought, or if hiring the individual would pose an unreasonable risk to property or others' safety.


The FCA extends these protections by requiring that employers first deem an applicant qualified for a job and make a conditional job offer before inquiring into an applicant's criminal history or conducting any criminal history search.  The bill defines "inquiries" to include questions in a job application or in a standalone document, searches of publicly available records or consumer reports, or even mentioning that a background check will be required.  However, employers who are legally required to conduct a criminal history search may inform applicants that the job is subject to a background check and that the employer is prohibited from employing individuals with certain criminal convictions.


The FCA also provides that if an employer intends to take an adverse employment action based on a criminal inquiry, it must provide the applicant with a written copy of the criminal inquiry and the multi-factor analysis the employer is required to conduct.  The applicant must then be provided a minimum of seven business days to respond, during which time the position must remain open.  Once the response time has lapsed, the employer no longer needs to wait for an answer.  An employer who violates these new requirements could be liable for a minimum of $1,000 in damages and is presumed to have engaged in unlawful discrimination, which can only be overcome with "clear and convincing evidence" demonstrating otherwise.  Further, an applicant may not be disqualified from prospective employment based on a response to an unlawful inquiry or statement under the FCA.  Employees who claim that their rights have been violated under the FCA would be entitled to a private cause of action.


Also pending before the Council is the Stop Credit Discrimination in Employment Act (the "Act"), which would amend the NYCHRL to prohibit employers from requesting or using for employment purposes information contained in an applicant's consumer credit history or to retaliate or otherwise discriminate against an applicant based on the applicant's credit history.  The Act defines "consumer credit history" as "any information bearing on an individual's credit worthiness, credit standing, or credit capacity, including but not limited to an individual's credit score, credit account and other consumer account balances and payment history."  However, the Act would not apply to employers that are required under state or federal law to use an individual's consumer credit history for employment purposes.


Employers should monitor the Council's legislative activity on both bills and, if they are passed, review and revise hiring policies and practices.


This post was authored by Matt Lampe, Emilie Hendee, and Sharon Cohen of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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