While everyone’s attention was fixed on COVID-19 and the surrounding chaos, New York State Governor Andrew Cuomo signed the state budget for fiscal year 2020-2021, ushering in several new labor laws and amendments. Some of these such amendments concern the Home Health Care Worker Wage Parity Law (Wage Parity Law) and New York’s Wage Theft Prevention Act (WTPA).
The Wage Parity Law prescribes specific wage and benefit requirements for home care aides who perform Medicaid-reimbursed work within New York City and Westchester, Nassau, and Suffolk Counties.
The WTPA most notably requires employers to give written notice of wage rates to each employee and to include specific information on each wage statement or pay stub.
Employers subject to the Wage Parity Law must take note of their new obligations under both laws.
What are the new requirements under the WTPA for the home care industry?
Additional information on the WTPA notices and wage statements:
The Notice of Pay Rate (Wage Notice) and wage statement information required under the WTPA must now include “the benefit portion of the minimum rate of home care aide total compensation” as defined by the Wage Parity Law.
If benefits are provided to satisfy the benefit portion (as opposed to paying the benefit portion as wages), the Wage Notice must identify for each benefit provided: type of benefit (e.g., pension, healthcare, etc.); hourly rate for the benefit; name and address of the person or entity providing the benefit; if applicable, the agreement requiring the provision of such benefits and information on how the home care aide can obtain a copy of the agreement or a summary of same. The wage statements that accompany every paycheck must identify each type of benefit provided for the corresponding pay period and the hourly rate for each.
Absent other guidance, presumably the amendments above would require employers to issue new updated Wage Notices for current home care aides and update the information included on home care aides’ wage statements to include the above information no later than the date the amendments go into effect (October 1, 2020). Be reminded that the failure to comply in a timely fashion with the requirements of the WTPA is punishable by penalties of up to $10,000 per affected employee.
What are the amendments to the Wage Parity Law?
• More specific rules regarding funds distributions: No portion of the funds “spent or to be spent to satisfy the wage or benefit portion” of the Wage Parity Law may be returned or refunded to the employer or company (certified home health agency (CHHA), licensed home care services agency (LHCSA), long term home health care program (LTHHCP), managed care plan (MCP) or fiscal intermediary (FI), or other related persons or entities) in any way, whether “as a refund, dividend, profit, or in any other manner.” All such wages and benefits must be directed to the home care aide to whom they are due.
• Annual certification: LHCSAs, FIs, and other parties serving a CHHA, LTHHCP or MCP contract must include in the contract a requirement that the LHCSA, FI, or other third party provide annual certification, under oath, to the CHHA, LTHHCP or MCP demonstrating compliance with the Wage Parity Law and amendments to the same, including a “compliance statement of wage parity hours and expenses” and “an independently-audited financial statement verifying such expenses.” The New York State Department of Labor (NYSDOL) will prepare a form for this purpose. Knowingly signing a false certification is punishable by law as criminal perjury.
Such compliance certifications must be reviewed by the CHHA, LTHHCP or MCP and any “reasonably suspected failures” regarding compliance with the Wage Parity Law must be reported to the NYSDOL.
All certifications, information submitted to verify compliance, annual compliance statements and financial statements must be retained for ten years.
• New penalties under Wage Parity: Willfully paying home care aides less than as required under the Wage Parity Law is punishable by criminal penalties, including a $500 fine and/or 30-day imprisonment for the first offense, and a $1,000 fine, contract forfeiture and forfeiture of all payments under that contract for the second offense.
Note: These penalties are in addition to the maximum $10,000 penalty for each affected employee for failing to provide compliant and timely Wage Notices and wage statements under the WTPA.
The amendments outlined above go into effect on October 1, 2020.
Attorney Advertising. The information contained in this Legal Alert provides a general summary of the topics covered and is not intended to be and should not be relied upon as legal advice. You should consult with your legal counsel for advice and before making legal, business or other decisions.
|Drogin, Laurent S. Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice||Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice||212.216.8016|
|Feder, Hagit Senior Compliance Administrator, CFE||Senior Compliance Administrator, CFE||212.216.1109|
|Hershberg, Jonathan S. Counsel||Counsel||212.216.8009|
|Kleinmann, David N. Partner and Co-Chair of Restrictive Covenant Practice||Partner and Co-Chair of Restrictive Covenant Practice||212.216.1115|
|Schoenstein, Richard C. Partner and Co-Chair of Securities and Financial Services Litigation Group||Partner and Co-Chair of Securities and Financial Services Litigation Group||212.216.1120|
|Schuchert, Wolf Paralegal||Paralegal||212.216.1183|
|Steer, Richard L. Partner and Chair of Employment Practices Liability Insurance Practice||Partner and Chair of Employment Practices Liability Insurance Practice||212.216.8070|
|Toevs Carolan, Tara Partner||Partner||212.216.8007|