The New York Wage Theft Prevention Act was passed in 2011 and is designed to protect employees from wage theft. The law ensures that employers provide written wage notices and pay stubs or risk penalties of up to $20,000 per infraction (New York Department of Labor). What does this mean for employers? Employers must have extra precautions and dedicated measures to ensure they are tracking hours accurately for payroll if a dispute is to occur.
The New York Wage Theft Prevention Act protects workers in a variety of industries, but recent amendments to the law (effective January 2022) impact the construction industry specifically. This article looks to outline everything the construction industry needs to know about recent amendments to New York’s Wage Theft Prevention Act.
“[Amendments have been made] to back New York’s construction workers in their fight against wage theft and help those seeking justice to navigate their claims against such crimes.”
If you are a contractor (Subcontractor or General Contractor) read on to explore your responsibilities as an employer, the risks of non-compliance, and what you can do to ensure your firm abides by the law.
Table of Contents
- Subcontractor vs. General Contractor: Who is Liable?
- Don’t Get Nailed with Fines: How do General Contractors Protect Themselves?
- Using Technology to Stay in Compliance with New York’s Wage Theft Prevention Act
- Intro to myComply: New York Construction’s Top Time & Attendance Solution
Subcontractor vs. General Contractor: Who is Liable?
In short, the General Contractor (GC) is held liable for all the subcontractors (Subs) it chooses to use on a construction project.
The General Contractor will have to monitor their Subcontractor movement and activity on a construction project more effectively to ensure that their subs are paying their workers appropriately. In the past, the New York Wage Theft Prevention Act protected all workers from wage theft, but the worker would dispute their wages directly to their employer – the sub.
The recent amendments to the Wage Theft Prevention Act are designed to give a worker greater access to the top of the project hierarchy, the General Contractor. Typically, General Contractors are in a stronger financial position than a Subcontractor if wages cannot be paid at the Subcontractor level. The law encourages General Contractors to be more involved when managing Subcontractors on projects and ensuring that all firms working on a construction project abide by these new amendments.
The reason that the construction industry differs from other industries is that there are often several levels of red tape involved with payroll on a construction project. A worker might work for a merit-shop sub or may be employed by a union. These entities are often paid by a General Contractor on a project, whether it be fixed cost or time/materials jobs.
Where the New York Wage Theft Prevention Act was stuck, or not accommodating in previous iterations, is that workers might be waiting for outstanding pay from their sub or union, but those entities had not yet been paid for work on the job. Previously, this may put a worker in a precarious position, but the amendment passed in 2022 for all unpaid wages.
“[the changes in January of 2022] amends existing wage theft law to require general contractors to assume joint and several liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf.”
Don’t Get Nailed with Fines: How do General Contractors Protect Themselves from the New York Wage Theft Prevention Act?
The easiest way to protect yourself as a General Contractor is to work with familiar Subcontractors or trades that have a record of paying their staff, and/or being a well-organized group. But we know that is easier said than done in an industry that has significant labor shortages.
Realistically, any worker can clam wage theft at any time. It is the worker’s right to do so if they feel they are taken advantage of or want a second look at their pay cheque. But a General Contractor can do a variety of things to ensure that claims are smooth and that records are always accurate.
Questions General Contractors Should Ask Themselves
Here are a few of the top questions to ask yourself when staying on top of new wage theft amendments:
1) Am I logging accurate time and attendance of all workers on the job?
- You should have technology or processes in place to have accurate records of when workers come/go from the site
- This will give you a reference point if/when you are reviewing subcontractor wage/hour records
2) Does my job follow standard certified-payroll practices on public construction work?
- On public jobs, you are legally required to submit federally mandated WH-347 forms, so you are doing a lot of extra tracking.
3) Do my Subcontractors have a history of disorganized work or unpaid labor?
- If you answer yes, it could increase the risk that your firm is liable for unpaid labor on a construction project.
4) Do I do things manually?
- Manual tracking often means gaps in information. Consider an automated time and attendance system that you can trust to surface accurate workforce data on your construction sites.
5) Do I have Indemnification Clauses in my Subcontractor Agreements?
- GC’s should amend their subcontractor agreements to require subcontractors to defend, hold harmless, and indemnify the contractor against any wage and hour claims that may result from a subcontractor’s failure to properly compensate its workers (Venable LLP).
6) Are my records verifiable and organized on private work? Do I take the same precautions on private jobs as on public, certified payroll mandated jobs?
- Ideally, you use the same systems and processes on both public and private jobs to ensure accurate time and attendance is managed.
Protection comes from working with firms that you trust are paying their workers correctly. But you (the GC) would be wise to not leave that to chance.
General Contractors need to ensure they are tracking time and attendance data that can be relied upon. Our suggestion is to introduce technologies to your site(s) that help keep accurate workforce records. Many of these systems can export data to project management solutions that you already use, like Procore or Autodesk.
Using Technology to Stay in Compliance With the New York Wage Theft Prevention Act Amendments of 2022
It all starts with accurate time and attendance on the job, which many in the construction industry refer to as accurate workforce logs. If a contractor can populate accurate workforce logs, then a dispute is much harder to prove. The power in any dispute lies in with the party who has the most information or evidence.
What technology is available for General Contractors in New York for accurate workforce? A variety of solutions, but only one solution that is tailored to New York City construction – myComply.
Introducing myComply – New York’s Top Time & Attendance Solution
myComply is an IoT hardware company with cloud-connected software allowing General Contractors to gather accurate manpower in real-time, or access historical logs on-demand.
myComply offers a variety of options to ensure accurate time and attendance on New York jobsites.
myComply’s access control integrations are built for densely populated areas and builds like the ones we see in New York City that have a secure perimeter around the site. Utilize the SST Card or use Smart Badges to log time and attendance information through turnstile entry/exit points.
Bluetooth Time & Attendance
myComply’s Bluetooth low energy (BLE) time and attendance solution allows contractors to gather time and attendance information passively. When workers arrive at the site, their activity is tracked. When they leave the site, their activity is tracked.
SST Card Integration
myComply’s integration with New York City’s Site Safety Training Card (aka SST Card) allows contractors to gather accurate time and attendance information using the DOB-mandated SST Card. The card is powered using NFC (near-field communication) technology and communicates with myComply’s Smart Brick.
All workers in New York City are required by law to carry these cards to a construction site. Utilize the cards that workers carry to site to log accurate time and attendance.
Curious about which solution will work best for your site? Want a quote? We can help – book a demo with our team and we will get you more information in less than 24 hours.