New York Employment Lawyer Blog

What are the Risks of Non-Compliance with the Workers Compensation and Disability Benefits Law?

In recent years our experienced Penalty Defense Attorneys have been sought after because NYS has increased its efforts to penalize small businesses and homeowners who fail to secure workers compensation and disability benefits insurance coverage. Employers are required to have both insurance policies in place before the first day that an employee reports to work. Covered employers can obtain coverage from the New York Insurance Fund or private insurance carriers. If a business does not obtain the required insurance coverages, it faces severe civil (i.e. monetary) consequences and potential criminal charges. If a covered employer with more than 5 employees fails to obtain a workers' compensation policy, it may be charged with a Class E felony and may be assessed a fine not less than $1,000 and not more than $50,000.00. See Section 52(1)(a). If a covered employer has less than 5 employees, it may be charged with a misdemeanor, a criminal charge that is lower than a felony, and may be issued a fine of not less than $5,000 and not more than $50,000.00. Section 52(1)(a). Repeat violations in the following five years are a basis for imposition of a Class D felony and a fine of not less than $10,000.00 and not more than $50,000.00. Section 52(1)(b). Importantly, if a small business does not have the workers compensation insurance and workers is injured, the employer could be responsible for all of the employee's medical expenses and the total amount of the claim. This amount can be devastating for a business. Even if a worker is not injured at the work site, the Board can issue you significant monetary fines. Call now at (800) 893-9645 to speak with one of our experienced defense lawyers for a confidential telephone consultation and learn how to protect your business and assets. Our Firm has saved small businesses over One Million Dollars ($1,000,000.00) in penalties and fines.

What are the Civil and Criminal Penalties for not having required insurance coverages?

An employer who violates the WC law (knowingly or unintentionally) can be assessed a penalty of $2,000.00 for every 10 day period of non-compliance. See Section 52(5). In addition, companies are required to maintain employment records regarding their workers, classifications of their workers, wages paid, and if any work-related accidents occurred. See Section 131(1). Failure to preserve such documentation can be a basis for a fine of not less than $5,000.00 and not more than $10,000.00 and additional civil fines. Section 131(1). Repeat violators are subject to a Class E felony and a fine not less than $10,000.00 and not more than $25,000.00. Section 131(1). Not only can these fines and potential criminal charges can be a death sentence for most businesses, you could also be issued a Stop-Work Order. If you are not in compliance with the law, you may be forced to shut down your business until the Order is removed by New York State. Section 141-a(4). If your business is subject to such an Order, you will also be barred from certain public contracts. Section 141(b). Our lawyers can help you save your business and keep it open.

An employer who violates the DB law, intentionally or unintentionally, can be issued a penalty of not more than .5% of the company's weekly payroll for the period of non-compliance and an additional amount not more than $500.00. Section 220. If an employee files a disability benefits claim and the company is not insured, it could be responsible for the employee's benefits or 1% of the company's payroll for period of non-compliance. Section 213. Finally, failing to carry insurance is a misdemeanor with a fine of not less than $100.00 but not more than $500.00 and/or imprisonment for not more than one year. Section 220.

As you can see, the penalties for non-compliance are severe. It is very important for you to secure experienced legal counsel as soon as you receive the penalty notice. Ignoring the notice is the worst thing you can do. Your fine could turn into a judgment by which New York State can seize your assets including your bank accounts. Not every employer is required to have coverage as the law provides for certain exceptions and defenses. Call now to speak with one of our Defense Lawyers at (800) 893-9645 to learn your rights.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

The hospitality industry, including hotels, motels and resorts, has been violating workers' wage and hour laws for many years. It's an industry that employs many non-English speaking and undocumented workers who, unfortunately, are scared to ask for their rightful wages. When employees in an industry, whether they are documented or not, are not being paid their rightful wages, it not only affects their cost of living, but it also results in lost tax revenue to the entire country. This in turn, impacts the entire economy.

The U.S. Department of Labor Wage and Hour Division ("DOL") of the Virginia, Norfolk office, recently announced an enforcement initiative against local hotels. Over the past 3 years, the Labor Department found that 60% of the hotels that were investigated had violations. The government audits revealed that employers were taking advantage of workers, especially undocumented workers. Patricia A.J. Pickett, Assistant Director of the DOL in Norfolk, stated that employers tried intimidating undocumented workers by telling them "You're not going to say anything. You're not supposed to be here."

One of the more frequent violations included not paying workers overtime wages. For example, if an employee worked 20 hours per week at one hotel and worked 25 hours at another hotel in the same week, the worker should have been paid time and a half his or her usual rate of pay for the hours worked in excess of 40 hours a week. In other words, he or she should have received 5 hours of overtime pay.

Employers were also found to be violating minimum wage laws. For example, you cannot pay an employee minimum wage and then require him or her to purchase a uniform. You must pay wages such that after paying for the uniform, the employee earns his or her minimum wage of $7.25.

The DOL has made it known that it intends to audit hotels, motels, and resorts across the country for compliance with wage and hour laws. This is greatly due to the fact that it considers the hospitality industry at high risk for violating the Fair Labor Standards Act ("FLSA"). If you're in the hotel business, make sure your personnel records and payroll records are in compliance with the FLSA. Since the government will also check your employees' lawful immigration status, be certain that you're not violating any immigration laws. Our experienced Employment Law attorneys at Villanueva & Sanchala can help you make sure you're in compliance with the Federal and State labor laws. Call us now at (800) 893-9645 to avoid any potential liability and safeguard your company from costly litigation.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Other Resources:

U.S. Department of Labor

Yes. Private sector employees and former employees (who worked for a company in Connecticut and have not been separated for more than one year) in Connecticut are allowed under state law, Conn. Gen. Stat. Chapter 563a Secs. 31-128a to 31-128i, to see their personnel files.

How to Make Your Request to Review Your Personnel File

You cannot simply make a verbal request to see your personnel file. Your request must be in writing. It is advisable to either deliver your written request by personal delivery or by certified mail. You should always keep a copy of your written request and proof of delivery so your employer cannot claim it never received your request. Although there is no specific proscribed time period in the law, the company is required to make your personnel file available for inspection for review within a reasonable time period after your request at the Company's premises or near the employer's premises during regular business hours.

What Should Be Included In Your Personnel File and a Company's Response

According to the statute, your personnel file should include documents and reports including emails and faxes regarding your "eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse action including employee evaluations or reports relating to [your] character, credit and work habits" See Sec. 31-128a.

What You Will Not Find in Your Personnel File

Under the state law, your personnel file will not include stock option plan information, management bonus plan information, your medical records, letters of recommendations or references, documents regarding employer's plan for future operations, documents contained in separately maintained security files, test related documents, or documents which are being developed or prepared for use in civil, criminal or grievance procedures.

A "security file" refers to documents relating to an investigation of loss, misconduct or suspected crime, and investigative information maintained pursuant to government
requirements, provided such memoranda, documents, or information are maintained separately and not used to determine an employee's eligibility for employment.

How Often Can I Review my Personnel File?

The law places a limit on the amount of times an eligible individual can seek to review their personnel file. You are entitled to review your personnel file up to two times per calendar year

What If I Disagree with Something in My Personnel File?

You can ask the Company to remove or correct the inaccurate information in your personnel file. If the Company refuses to remove or correct the information, you should submit a rebuttal statement stating why you believe that certain information is inaccurate. Your rebuttal statement should be included in your personnel file so the inaccurate information is not without a response.

Do I Have Any Rights Beyond the State Law?

If you are a public sector employee or a member of a union, you may have additional rights under a collective bargaining agreement or other authority. Some public employees must be told that government agency has received a Freedom of Information Act request to review their personnel file. The public employee should be given an opportunity to respond within the stated time period before his or her personnel file is released. You should consult with your union representative and an experienced employment law attorney if you have any questions.

What If My Employer Refuses to Allow Me Access to My Personnel File?

A Connecticut employer is subject to monetary penalties for refusing to provide personnel files for inspection and review to eligible individuals. You should contact our Stamford, Greenwich and Norwalk Connecticut Employment Law Attorneys to enforce your rights. You should always request a copy of your personnel file because it could be very useful in analyzing any potential employment law claims.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.