2006 New York Code - 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.