Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 184-A
Recruitment of domestic or household employees from outside the continental United States
General Business (GBS) CHAPTER 20, ARTICLE 11
§ 184-a. Recruitment of domestic or household employees from outside
the continental United States. 1. Purposes. The recruitment of domestic
or household employees from outside the continental United States
involves special problems and special services not encompassed in other
sections of this article. This section is enacted to establish adequate
regulation and to provide responsible practices and procedures for such
recruitment and is in the interests of employers, employees, employment
agencies and the public.

2. Application. a. The provisions of this section, and the applicable
provisions of other sections of this article, shall apply to an
employment agency which directly or indirectly recruits, supplies, or
offers to recruit or supply, or participates in any manner in the
recruitment or supply of any person who resides outside the continental
United States for employment within the continental United States as a
domestic or household employee. The provisions of sections one hundred
eighty-four and one hundred eighty-five, and of subdivisions two, three,
and four of section one hundred eighty-six of this article, are excluded
from the application of this section.

b. The term "continental United States" as used in this section means
the forty-eight states on this continent and the District of Columbia,
but does not include the state of Alaska.

3. Responsibilities. a. No such agency shall directly or indirectly
supply or participate in the supply of any person who is under the age
of eighteen years at the time of his emigration to the United States.

b. Such agency shall have the following additional responsibilities:

(1) Confirm the statements in the employee's application for
employment relating to the age and references given, and fully and
accurately inform the employer before the employer agrees to employ the
applicant, of the applicant's statements relating to his qualifications,
age, experience, references and related matters.

(2) Provide the applicant for employment with a statement of job
conditions in a form approved by the commissioner. The statement shall
fully and accurately describe the nature and terms of employment,
including wages, hours of work, agency fee and the advances, if any,
which are specifically authorized by this section. Such statement shall
also clearly indicate when the applicant will be required to pay such
fee, and advances. The statement shall be in the English language, and
if the applicant's native language is other than English, the statement
shall also be in such language. This statement shall be mailed to the
applicant prior to the time the applicant signs an employment agreement.
The agency shall keep on file a duplicate copy of such statement, which
shall have indicated on it when and by whom it was mailed to the
applicant, and the certificate of mailing shall be attached thereto.

(3) Reduce to writing any contractual agreement with the employer or
with the employee.

(4) If the agency arranges for the employee's travel, it shall provide
that the transportation be by common carrier. The agency shall meet or
arrange for the employer to meet the employee at the port of arrival.

(5) a. Provide the employee with suitable meals and lodging solely at
agency expense from the time the employee arrives until the beginning of
employment, or at any time within ninety days after arrival, upon notice
that the employee is without employment.

b. If the employer discharges the employee without giving the agency
advance notice of at least three business days, the agency may charge
the employer the actual cost of providing suitable meals and lodging
incurred because of the failure to give such notice, but in no event for
more than five consecutive calendar days. Such charge, however, may not
be made where unusual circumstances would create an undue burden on the
employer to provide meals and lodging to the employee after the
discharge of the employee.

c. If the employee unreasonably refuses to accept comparable
employment offered by the agency, the obligation provided by this
paragraph shall terminate.

(6) If within ninety days after arrival the employee (a) has become
disabled and is unable to continue work as evidenced by a certificate
from a doctor designated by the consulate of the country of his
nationality; and (b) is in financial distress and wishes to return to
the country from which he came, the agency shall provide return fare and
a reasonable allowance for meals while traveling.

(7) If the employee is hospitalized within ninety days after arrival,
and the employee is in financial distress and unable to meet the cost of
hospitalization, the agency shall be responsible for reasonable
hospitalization costs incurred during such ninety-day period, provided,
however, that this responsibility shall be deemed to be met if the
agency provides a basic twenty-one day hospitalization insurance policy
approved by the commissioner. This provision shall in no way prevent an
agency from requiring the employer to agree to provide the same basic
twenty-one day hospitalization insurance policy for the employee, but
the employee may not be required to pay the premium for such policy
covering the first ninety days. Any person or organization damaged by
the failure of an agency to comply with this paragraph or with
paragraphs (5) and (6) of this subdivision may bring an action on the
agency bond as provided in this article.

(8) Comply with all of the applicable laws and regulations of the
country from which the employee is recruited.

(9) If prior to the arrival of the employee in the United States,
either the employee or the employer cancels the employment agreement,
the agency shall notify in writing the central immigration office of the
New York state department of labor within ten days of receiving notice
of the cancellation.

4. Fees and disbursements. a. Circumstances permitting fees. Such
agency shall not charge or accept a fee or other consideration unless in
accordance with the terms of a written contract, the form of which has
been approved by the commissioner, and unless the agency has been
responsible for the employment of the employee.

b. Maximum fee. (1) The total maximum fee that such agency may charge
for any placement shall not exceed eleven percent of the employee's
agreed or anticipated first full year's wages, and of this total maximum
fee not more than twenty-five percent may be charged the employee.
Nothing herein shall be construed as prohibiting an agency from making
an agreement with an employer under which the employer agrees to pay the
total maximum fee provided by this subdivision, but in such event, no
fee shall be charged the employee.

(2) If the agreement between the employer and employee provides for an
additional wage payment on completion of the contract of employment, and
if such additional payment is payable to the employee on a monthly
pro-rata basis in the event that the employment terminates for any
reason before the completion of the contract, such additional payment
may be considered part of the employee's first full year's wages.

(3) If an employee is provided meals or lodging, the value of such
meals or lodging shall not be included in determining the employee's
first full year's wages.

c. Deposits or advance fee. An agency may require an employer to pay a
deposit or advance the fee before an employee is employed, and such
deposit or advance shall be offset against the fee charged the employer.

d. Employer's cancellation fee. The agency shall be entitled to a fee
from the employer not exceeding twenty-five dollars if the employer
cancels his job order before the acceptance of the job offer by the
employee. If the cancellation occurs after such acceptance and before
certification for alien employment by the appropriate governmental
agency, the fee shall not exceed fifty dollars. If the cancellation
occurs after such acceptance and after such certification, the fee shall
not exceed seventy-five dollars. No cancellation fee, however, shall be
payable if within a reasonable time after the employer placed his job
order the agency failed to make reasonable efforts to supply a job
applicant to the employer.

e. Employee's payments; when payable. The agency fee charged to the
employee and any advances made to the employee for transportation, visa
fee and medical examination, and such other advances as are specifically
authorized by the commissioner, shall be payable at a rate not greater
than six equal installments, at the end of each of the first six months
of employment. If the employer, on behalf of the employee, advances the
employee's agency fee or other authorized costs, the contract between
the employer and the agency shall provide that the employee is not
required to repay the employer the money advanced at a rate greater than
such six equal monthly installments.

f. Termination of employment. (1) Notwithstanding any other provision
of this section, if the employment terminates for any reason within
ninety days, the following fees may be charged the employer and may be
charged the employee:

(a) Fifty percent of the maximum fee provided by paragraph b of this
subdivision, and

(b) If the employment terminates after thirty days, an additional fee
computed by prorating the remaining fifty percent of the maximum fee on
the basis of the number of days worked during such sixty-day period.

(2) If after termination, subsequent placements are made by the agency
to such employer or of such employee, the total termination fees payable
by such employer and such employee shall not exceed the maximum fees
provided by paragraph b of this subdivision for the initial placement.

g. Subsequent placement with another employer. If employment
terminates within ninety days and the agency is responsible for the
placement of the employee with another employer within such ninety-day
period, the maximum fee that the agency may charge for such subsequent
placement shall be the fee provided by paragraph b of this subdivision.
If such subsequent placement is made after such ninety-day period, the
fee provisions of section one hundred eighty-five of this article shall
apply to such placement, notwithstanding subdivision two of this
section.

h. Employee's refusal of employment. Notwithstanding any other
provision of this section, if the employee after arrival in this
country, refuses to accept the employment for which he was recruited or
another comparable position offered by the agency, he shall pay an
agency fee of not to exceed twenty-five dollars, and shall remain
personally responsible to his employer for any and all advances made in
his behalf.

i. Limitations and charges. Except for the advances specifically
provided in paragraph e of this subdivision, an agency shall not
directly or indirectly make any charge or require any advances whatever.
Such prohibited charges include, but are not limited to attorney's fees
and finance charges.

5. Emigrant agent. a. Such agency shall furnish to the commissioner
the names and addresses of all emigrant agents it utilizes. Only a duly
licensed emigrant agency may be utilized, directly or indirectly, by the
employment agency if such emigrant agent is required to be licensed in
the place where he is recruiting employees.

b. Any fee paid to an emigrant agent shall be considered part of the
maximum fee which an agency may charge as provided by this section.

6. Registers. In addition to the entries prescribed in section one
hundred seventy-nine of this article, such agency shall enter in its
register the following information: (a) the last home address and birth
date of all applicants for employment who were recruited by the agency;
(b) the name and address of the emigrant agent, if any, through whom
such applicant was obtained; (c) the fee, if any, paid to the emigrant
agent by the agency, job applicant or employer which shall be separately
stated; (d) the charges or advances made to the job applicant for agency
fee, transportation and visa fee, and such charges or advances shall be
separately listed and the total indicated; and (e) the manner in which
the employee's age and references were confirmed.

7. Recordkeeping. Such agency shall retain for inspection: (a) copies
of all forms prepared or received on behalf of an employee and submitted
to any governmental agency in connection with immigration requirements;
and (b) copies of executed contracts between the agency and the employer
and between the agency and the employee. The copies shall be retained on
the premises of the agency for three years.