On September 6, 2023, New York Governor Kathy Hochul signed legislation amending the New York Penal Law making wage theft a criminal larceny. Under the New York Penal Code: “[a] person steals property and 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 amendment adds “compensation for labor services” to the definition of “property” applicable to larcenies.

Moreover, the penal code’s definition of “larceny” now also includes “by wage theft.” Specifically, “[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.”

The amendment permits the prosecution for wage theft to aggregate all nonpayments or underpayments to one employee into one larceny count. Similarly, the prosecution may aggregate nonpayments or underpayments from a “workforce” into a single larceny count. The amendment also now defines “workforce” as “a group of one or more persons who work in exchange for wages.” Larceny offenses are felonies when an offense involves at least $1,000.

Notably, the New York Labor Law already deemed wage theft as a misdemeanor for the first offense and a felony for the second or subsequent offense within six years of a conviction for a prior offense. An employer guilty of a misdemeanor for the first offense of wage theft is fined between $500 to $20,000 or imprisoned for not more than one year. Similarly, those guilty of a felony for the second or subsequent offense are subject to the either of the same penalties or both.

The amendment took effect on September 6. New York employers must be cautious to pay their employees appropriately, maintain accurate pay records demonstrating that they properly paid wages to their employees for all time worked, review all payroll and wage policies, and provide accurate wage statements. We will continue monitoring developments on how this amendment is prosecuted and any additional guidance, and provide updates as new information becomes available.

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About The Authors

Sean Kirby is a partner in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s New York office. Mr. Kirby’s practice encompasses the defense of single plaintiff and class action discrimination, wrongful discharge and wage/hour claims, in addition to employment contract, restrictive covenant, whistleblower, sexual harassment, and related claims. He regularly represents clients in labor and employment litigations in federal and state courts, in arbitrations before the American Arbitration Association and the Financial Industry Regulation Authority, and in proceedings before various administrative agencies, including the Equal Employment Opportunity Commission, the U.S. Department of Labor and state agencies throughout the United States.

Mr. Kirby received his law degree from Fordham University and his undergraduate degree from LeMoyne College.

Maria A. Gomez is an associate in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s New York office. Maria’s practice focuses on representing employers in a wide array of labor and employment subject areas including: wage/hours claims, the defense of single plaintiff and class action discrimination, harassment, retaliation, wrongful termination, and related claims. Maria also advises and counsels clients on various employment practices, such as new hire issues, terminations, employee classification, and restrictive covenants.

She has written a number of articles for the Sheppard Mullin Labor and Employment Blog and is a contributing author of the ALERT Newsletter.

Ms. Gomez received her law degree from St. John’s University and her undergraduate degree from the State University of New York at Buffalo.