Labor & Employment N.Y. ("LENY")

            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.

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.

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. 

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.

http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1102958&GUID=9B3B9F98-4E30-475C-A813-F9E1C99F1D99&Options=ID%7cText%7c&Search=