NY Gen Bus L § 184-A (2021)
2021 New York Laws GBS - General Business Article 11 - Employment Agencies. 184-A - Recruitment of Domestic or Household Employees From Outside the Continental United States.

§  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.