N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 921-7.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 921-7.3 - Violation; liability

(a) An employer who fails to give notice to an employee entitled to receive notice under this Part, is liable to each such employee, including part-time employees for:

(1) Back pay at the average regular rate of compensation received by the employee during the three years prior to the date of termination, or the employee's final rate of compensation, whichever is higher.

(i) Calculation for employees receiving hourly based pay. The average regular rate of compensation is calculated by dividing the total regular and overtime wages earned by the employee during the three years prior to the date of termination by the number of hours worked over the same three-year period. The final rate of compensation is calculated by dividing the amount received by the employee in their last paycheck prior to termination divided by the number of hours worked.

(ii) Calculation for employees receiving pay other than hourly based pay. The average regular rate of compensation is calculated by dividing the total regular and overtime wages earned by the employee during the three years prior to the date of termination by the number of days worked over the same three-year period. The final rate of compensation is calculated by dividing the amount received by the employee in their last paycheck prior to termination divided by the number of days worked. The number of days worked is the number of days the employee was in active employment status.

(2) In the case of an employee who became an employee of their current employer through a merger or consolidation of their former employer with/into their current employer, such employee's history of wage and benefit payments from their prior employer shall be treated as if such wages and benefits were earned with their current employer for purposes of making any calculations that are required under this Part, including the payment of back wages and benefits due.

(3) The value of the cost of any benefits to which the employee would have been entitled had his or her employment not been lost, including the cost of any medical expenses incurred by the employee that would have been covered under an employee benefit plan. Benefits that the Commissioner will consider shall include, but not be limited to: health benefits, private disability coverage, life insurance, employer paid retirement contributions, and vacation leave.

(4) Where the commissioner determines that an employer has failed to provide sufficient wage, hour, or benefit information to calculate such employer's liability in accordance with the methodologies outlined in this section, the commissioner may use alternative methodologies using any available data, information, and statistics to calculate such employer's liability.

(b) Back pay and other liability under the Act is calculated for the period of the employer's violation, up to a maximum of 60 days, or one-half the number of days that the employee was employed by the employer, whichever period is smaller.

(c) The amount of an employer's liability, under this section, shall be reduced by the following:

(1) Any wages, except vacation moneys accrued before the period of the employer's violation, paid by the employer to the employee during the period of the employer's violation. Wages are obtained using the same calculation in paragraph (a)(1) of this section.

(2) Any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligations and that the employer can demonstrate were made prior to the issuance of the commissioner's final determination. Such payments shall be made by check or through a previously agreed upon direct deposit arrangement. Payments required pursuant to employee contracts, collective bargaining agreements, through other legal obligations, or under law shall not be credited against liability under this section. Promises to make future payments shall not be credited against liability under this section.

(3) Any payments by the employer to a third party trustee, such as premiums for health benefits or payments to a defined contribution plan, on behalf of and attributable to the employee for the period of the violation.

(4) Any liability paid by the employer under any applicable federal law governing notification of mass layoffs, plant closings, relocations, or covered reductions in work hours.

(5) In an administrative proceeding by the commissioner, any liability paid by the employer prior to the commissioner's determination as the result of a private action brought under this Act.

(6) In a private action brought under this Act, any liability paid by the employer in an administrative proceeding by the commissioner prior to the adjudication of such private action.

(d) Any liability incurred by an employer under paragraph (a) of this section with respect to a defined benefit pension plan may be reduced by crediting the employee with service for all purposes under such a plan for the period of the violation.

(e) The period of the violation, for which the employer is liable to each employee, begins on the date of the employee's employment loss and continues up to 90 days after the date the employee received notice. Where the employer failed to provide notice, the period of the violation is 90 days. Where the employer claims exemption from the notice requirements under one of the exceptions provided for in the Act, the commissioner will consider all information obtained during the investigation and determine when it would have been practicable for the employer to provide notice, if at all.

(f) A violation of the Act may be shared with other public entities making fitness, responsible contractor, or due diligence inquiries.

(g) Payments in lieu of notice of separation or layoff.

(1) Amounts paid or payable by an employer to an individual in lieu of notice of separation or layoff, except for payments related to an employer's violation of the Act, shall be treated as wages with respect to the period of notice, provided that the following conditions are met:

(i) There must be an employment agreement or a uniformly applied company policy that requires that the employing unit give the employee a definite period of notice before a layoff or separation; and

(ii) The employee must be laid off or separated without the required notice; and

(iii) The employing unit must pay the employee a sum equal to the employee's regular wages and the value of the costs of any benefits, or an amount computed in accordance with a formula based on the employee's past earnings and benefits costs, for the required period of the notice.

(2) Amounts paid or payable by an employer to an individual in lieu of notice of separation or layoff that do not satisfy the conditions set forth in paragraph (1) of this subdivision shall be treated as severance pay except for payments that qualify as vacation pay in connection with a layoff or separation and are not related to an employer's liability for violation of the Act.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 921-7.3

Amended New York State Register June 21, 2023/Volume XLV, Issue 25, eff. 6/21/2023