N.Y. General Business Law § 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 noncitizen 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 or her

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.