On Sept. 6, 2023, Gov. Kathy Hochul signed into law an amendment to the New York Penal Law that strengthens penalties for employers found to have committed “wage theft.” This amendment goes into effect immediately. The amendment follows a Feb. 16, 2023 announcement by Manhattan District Attorney Alvin J. Bragg that his office had partnered with the New York State Department of Labor and local law enforcement to create the Worker Protection Unit, which is expected to focus on pursuing criminal charges against employers engaged in “wage theft.” Under New York Penal Law Section 155.05, the crime of larceny occurs “when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” The new amendment adds “compensation for labor services” to the definition of “property” covered by the penal law.
The amendment also adds “wage theft” as a way in which an individual can commit the crime of larceny. As the statute now states, an individual “obtains property by wage theft when he or she hires a person to perform services and the person performs such services and the person does not pay wages, at the minimum wage rate and overtime, or promised wage, if greater than the minimum wage rate and overtime, to said person for work performed.” Thus, in addition to the rights that an employee already has to file a private lawsuit in federal or state court or file a complaint with the Department of Labor, a prosecutor can now file criminal charges as well. The amendment allows prosecutors to aggregate victims into a single workforce in larceny cases where the property stolen is wages.
The amendment and ability of the prosecutor to aggregate multiple victims is significant because all larceny offenses involving at least $1,000 are considered felonies under New York penal law. It is important to note that the amendment is in addition to existing criminal wage theft offenses in New York, such as New York Labor Law section 198-a, which already provides for criminal penalties for employers and their officers and agents who pay or agree to pay any employee less than minimum wage.
Employers in New York need to be wary more than ever that they are properly paying all their employees and, just as importantly, that they are maintaining accurate records to show that their employees have been paid all wages owed for all time worked. Employers should review their timekeeping, pay, and record-retention policies and practices now to ensure that they do not risk subjecting themselves to criminal penalties in the future. Nonetheless, it remains to be seen how vigilant prosecutors will be in pursuing wage theft larceny claims.
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