Our NY Employment Law Attorneys have represented many business owners before the New York State Department of Labor regarding audits, investigations and hearings. In recent years, the DOL has increased its resources to scrutinize the employment practices of businesses. One division of the NYSDOL is dedicated to accepting and reviewing complaints of non-payment of prevailing wage for public projects. The compliance and audit process can be daunting. Call one of our experienced NYS Employment Lawyers at (800) 893-9645 if you received a notice or are being investigated by the agency. Our attorneys regularly lecture on New York Labor Law to other attorneys and human resources professionals and below are some frequently asked questions.
Why was my Company selected for an NY DOL Audit or Investigation?
A complaint may be commenced because (i) an individual filed a complaint in writing with the Bureau of Public Work or (ii) the Commissioner of Labor may on his or her own (either randomly or due to initiate a compliance investigation to confirm that your company has been paying the appropriate prevailing wage and supplements for public contracts. Generally, if the compliance review process is initiated because of an employee’s complaint, the Department will seek to keep the employee’s identity confidential.
What is the next step in the process?
Generally, the Bureau of Public Work will demand the following documents from you — certified payroll records, daily time records, proof of payment of wages, i.e., cancelled checks and proof of the payment and/or providing of supplemental benefits. It is important to speak with an experienced attorney before you provide any records. The investigation will focus on whether the records demonstrate that you have underpaid or otherwise improperly paid your employees in violation of the Prevailing Wage regulations.
What are the potential penalties?
If you are found to have violated the Prevailing Wage law, you could be assessed a penalty for the amount of the underpayments plus 16% interest and a penalty of 25% of the underpayment of wages. This can add up to be a significant amount of money. Some contractors have been penalized over $100,000.00. Further, as a prime contractor, you could be liable for violations caused by your subcontractors. It is important to have experienced employment law counsel during the process.
Can I be barred from future public works projects if I am liable?
This is a possibility. Pursuant to paragraph 6 of subdivision 3 of Section 220-b of the Labor Law, a contractor has willfully violated Article 8 if it knows or should have known that it failed to pay the prevailing rates of wages and supplements to its employees. There are several situations that could form the basis for “willful” behavior under the statute – below is a partial list –
1. If you as a contractor had actual knowledge he/she was violating the law 2. Your experience as a contractor – was there credible evidence that you as a contractor “should have known” that you was violating Article 8, i.e., receipt of the prevailing rate schedule 3. Do you have prior history of violating prevailing rate violations 4. The degree of severity and nature of your violations. Notification by DOL that it views the contractor’s act a violation and the contractor fails to take corrective action
What if I disagree with the DOL’s findings?
You can request an administrative hearing.
What if I disagree with the Administrative Hearing?
After a determination is filed, an aggrieved party may file an appeal within 30 days pursuant to Article 78 of the New York Civil Practice Law. This appeal must be commenced in the NY Appellate Division of the Supreme Court.
Contact our NY Employment Lawyers to discuss your Notice of Audit or Investigation at (800) 893-9645. If you have not received a notice, you should review your business operations and ensure that you have created and implemented best business practices before you are audited.
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