On September 6, 2023, New York Governor Kathy Hochul signed a bill into law that amends the criminal larceny law to include wage theft. The amendment goes into effect immediately. This legislative action follows a February 16, 2023 announcement by the Manhattan District Attorney Office that it had partnered with the New York State Department of Labor to create the Office’s first-ever “Worker Protection Unit” to investigate and criminally prosecute wage theft charges against companies and executives that “steal” wages.
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On September 6, 2023, New York Governor Kathy Hochul signed Senate Bill S2832A into law, which amends the New York criminal larceny statute to include wage theft. Under existing New York law, “A person . . . commits larceny 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 law adds a statutory description of larceny by wage theft: “A person 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.” It also amends the definition of “property” to include “compensation for labor or services.” Depending on the amount of wages taken, larceny can be charged as a misdemeanor or a felony in New York.
The bill’s sponsors stated that “wage theft in New York accounts for nearly $1 billion in lost wages each year and affects tens of thousands of workers.” The sponsors also asserted that the amendment is necessary “to allow aggregation of victims,” which will “allow prosecutors to seek stronger penalties against employers who steal wages from workers.”
Notably, the new wage theft larceny law is in addition to, and does not replace, existing criminal wage theft offenses in New York. For example, New York Labor Law Section 198-a provides for criminal penalties for employers and their officers and agents for “failing to pay the wages of any of [their] employees.” New York Labor Law Section 662 also makes it a crime for employers and their officers and agents to “pay[] or agree[] to pay to any employee less than the [minimum] wage.”
The Manhattan District Attorney’s February 2023 announcement suggested that the newly formed Worker Protection Unit will use the new legislation to pursue “bad faith employers,” who “tak[e] advantage of . . . vulnerable populations, including low-income and undocumented New Yorkers.” Employers who inadvertently fail to comply with New York’s complex wage and hour laws, on the other hand, may be able to rely on the larceny statute’s “intent to deprive” requirement as a defense. It also remains to be seen whether prosecutors will seek to apply the new law to compensation paid to independent contractors.