United States: Eagerly Anticipated Proposed Wage Deduction Regulations Announced By New York State DOL

Last week, the New York Department of Labor ("DOL") published proposed regulations governing the new categories of permissible wage deductions in Section 193 of the New York Labor Law that took effect in November 2012. The law was amended to allow: (1) new types of deductions made for the benefit of the employee, (2) deductions made to recapture overpayments of wages due to employer error, and (3) deductions made to repay wage advances given to employees. We detailed the revisions to the law in a September 2012 Alert available here. When finalized, the regulations governing these deductions will be codified at 12 N.Y.C.R.R. 195.

Deductions for the Benefit of the Employee

The amended Section 193 created a number of new permissible wage deductions for the benefit of employees, including those made for discounted parking passes or fare cards, gym membership dues, cafeteria purchases, and day care expenses, among others. It also permitted "similar payments for the benefit of the employee," but did not describe those payments.

The proposed regulations make clear that deductions for the benefit of the employee include only (1) items explicitly listed in Section 193 or (2) items in one of six categories that correspond to those listed deductions:

  • Health and Welfare Benefits (e.g., insurance premiums, gym memberships, and day care)
  • Pension and Savings Benefits (e.g., pension benefits and U.S. bonds)
  • Charitable Benefits (e.g., charitable contributions)
  • Representational Benefits (e.g., labor dues)
  • Transportation Benefits (e.g., parking passes and fare cards)
  • Food and Lodging Benefits (e.g., cafeteria and vending machine purchases)  

Deductions made for fines for misconduct or tardiness, political contributions, or for recoupment of unauthorized employee expenses, among other things, remain impermissible.

All deductions made for the benefit of the employee must be authorized in advance by the employee in a written agreement (electronic or hard copy) that is express, voluntary, and informed. Oral notice or authorization is insufficient for all deductions permitted by Section 193. For an authorization to be informed, before it is executed, the employee must be provided with written notice of the deduction's terms and conditions, the benefit to which it is related, and the manner in which deductions will be made. That written notice must be provided any time the amount of the deduction changes or there is a "substantial change" in the benefits provided (including any reduction of benefits). For deductions made for cafeteria or similar purchases that may fluctuate from one pay period to the next, the notice should list a deduction range that includes a ceiling for a single pay period.

Deductions for Overpayments

Employers will also be able to make deductions to recover overpayments made due to the employer's mathematical or clerical error. The proposed regulations require the employer to first provide notice to the employee of its intent to make the deduction(s). This notice must be given within eight weeks of the employer's overpayment. Deductions can be made no more frequently than once per wage payment, and recovery can come in the form of a wage deduction or a separate transaction.

For overpayments that are equal to or less than "the net wages earned after other permissible deductions in the next wage period," the employer may recover the entire overpayment amount in the next wage payment. Before doing so, it must give at least three days' notice to the employee.

For overpayments that exceed a single payment of net wages, deductions (1) may not exceed 12.5% of the gross wages earned in that pay period, and (2) may not reduce the effective hourly wage below the minimum wage (which will increase from $7.25 to $8.00 on December 31, 2013). Before beginning these deductions, the employer must provide at least three weeks' notice to the employee.

Employers must also implement a procedure under which the employee may dispute the overpayment and terms of recovery (the proposed regulations include a number of specific process requirements). An employee has two days to respond to the employer's notice in the case of overpayments equal to or less than a single payment of net wages; he or she has one week to respond to a notice of an overpayment exceeding this amount. If the employee does protest, the employer must not make the deduction until at least three weeks after the process concludes. The failure to afford this process to the employee creates the presumption that the contested deduction was impermissible.

Deductions for Wage Advances

Finally, the draft regulations allow employers to make deductions for wage advances given to employees. The employer and employee must agree in writing to the amount to be advanced, the deduction amount (in total and per wage payment), and the date(s) on which each deduction will be made. The authorization must also include notice to the employee that he or she may contest deductions that are not taken in accordance with the authorization's terms. If the wage advance is accompanied by interest or a fee or fees, it is not an advance under the Labor Law and cannot be recovered via wage deductions.

Employers may recover advances by making deductions no less frequently than each wage payment. Advances may be recovered through wage deductions or a separate transaction. If an employee is terminated or leaves the organization prior to the advance being repaid, and the written authorization allows for it, the remaining advance can be recovered through a larger deduction from the last wage payment.

Once the employee has taken the advance, he or she may not revoke his or her deduction authorization. And an employee cannot be given a second wage advance until the first has been repaid in full.

As with deductions for overpayments, employers must implement a dispute procedure that allows the employee to dispute the amount and frequency of deductions that are not permitted by the authorization. The employee must be able to provide written notice of his or her objection, and the employer must reply in writing "as soon as practical." If an employee protests the deductions under this procedure, the employer must cease its deductions until it has replied to the employee. The failure to afford this process to the employee creates the presumption that the contested deduction is impermissible.

The full text of the proposed regulations is available here. Public comments on the proposed regulations can be sent to regulations@labor.ny.gov through July 6, 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.