§ 184-A — Recruitment of domestic or household employees from outside the continental United States

§ 184-a. Recruitment of domestic or household employees from outside\nthe continental United States. 1. Purposes. The recruitment of domestic\nor household employees from outside the continental United States\ninvolves special problems and special services not encompassed in other\nsections of this article. This section is enacted to establish adequate\nregulation and to provide responsible practices and procedures for such\nrecruitment and is in the interests of employers, employees, employment\nagencies and the public.\n 2. Application. a. The provisions of this section, and the applicable\nprovisions of other sections of this article, shall apply to an\nemployment agency which directly or indirectly recruits, supplies, or\noffers to recruit or supply, or participates in any manner in the\nrecruitment or supply of any person who resides outside the continental\nUnited States for employment within the continental United States as a\ndomestic or household employee. The provisions of sections one hundred\neighty-four and one hundred eighty-five, and of subdivisions two, three,\nand four of section one hundred eighty-six of this article, are excluded\nfrom the application of this section.\n b. The term "continental United States" as used in this section means\nthe forty-eight states on this continent and the District of Columbia,\nbut does not include the state of Alaska.\n 3. Responsibilities. a. No such agency shall directly or indirectly\nsupply or participate in the supply of any person who is under the age\nof eighteen years at the time of his emigration to the United States.\n b. Such agency shall have the following additional responsibilities:\n (1) Confirm the statements in the employee's application for\nemployment relating to the age and references given, and fully and\naccurately inform the employer before the employer agrees to employ the\napplicant, of the applicant's statements relating to his qualifications,\nage, experience, references and related matters.\n (2) Provide the applicant for employment with a statement of job\nconditions in a form approved by the commissioner. The statement shall\nfully and accurately describe the nature and terms of employment,\nincluding wages, hours of work, agency fee and the advances, if any,\nwhich are specifically authorized by this section. Such statement shall\nalso clearly indicate when the applicant will be required to pay such\nfee, and advances. The statement shall be in the English language, and\nif the applicant's native language is other than English, the statement\nshall also be in such language. This statement shall be mailed to the\napplicant prior to the time the applicant signs an employment agreement.\nThe agency shall keep on file a duplicate copy of such statement, which\nshall have indicated on it when and by whom it was mailed to the\napplicant, and the certificate of mailing shall be attached thereto.\n (3) Reduce to writing any contractual agreement with the employer or\nwith the employee.\n (4) If the agency arranges for the employee's travel, it shall provide\nthat the transportation be by common carrier. The agency shall meet or\narrange for the employer to meet the employee at the port of arrival.\n (5) a. Provide the employee with suitable meals and lodging solely at\nagency expense from the time the employee arrives until the beginning of\nemployment, or at any time within ninety days after arrival, upon notice\nthat the employee is without employment.\n b. If the employer discharges the employee without giving the agency\nadvance notice of at least three business days, the agency may charge\nthe employer the actual cost of providing suitable meals and lodging\nincurred because of the failure to give such notice, but in no event for\nmore than five consecutive calendar days. Such charge, however, may not\nbe made where unusual circumstances would create an undue burden on the\nemployer to provide meals and lodging to the employee after the\ndischarge of the employee.\n c. If the employee unreasonably refuses to accept comparable\nemployment offered by the agency, the obligation provided by this\nparagraph shall terminate.\n (6) If within ninety days after arrival the employee (a) has become\ndisabled and is unable to continue work as evidenced by a certificate\nfrom a doctor designated by the consulate of the country of his\nnationality; and (b) is in financial distress and wishes to return to\nthe country from which he came, the agency shall provide return fare and\na reasonable allowance for meals while traveling.\n (7) If the employee is hospitalized within ninety days after arrival,\nand the employee is in financial distress and unable to meet the cost of\nhospitalization, the agency shall be responsible for reasonable\nhospitalization costs incurred during such ninety-day period, provided,\nhowever, that this responsibility shall be deemed to be met if the\nagency provides a basic twenty-one day hospitalization insurance policy\napproved by the commissioner. This provision shall in no way prevent an\nagency from requiring the employer to agree to provide the same basic\ntwenty-one day hospitalization insurance policy for the employee, but\nthe employee may not be required to pay the premium for such policy\ncovering the first ninety days. Any person or organization damaged by\nthe failure of an agency to comply with this paragraph or with\nparagraphs (5) and (6) of this subdivision may bring an action on the\nagency bond as provided in this article.\n (8) Comply with all of the applicable laws and regulations of the\ncountry from which the employee is recruited.\n (9) If prior to the arrival of the employee in the United States,\neither the employee or the employer cancels the employment agreement,\nthe agency shall notify in writing the central immigration office of the\nNew York state department of labor within ten days of receiving notice\nof the cancellation.\n 4. Fees and disbursements. a. Circumstances permitting fees. Such\nagency shall not charge or accept a fee or other consideration unless in\naccordance with the terms of a written contract, the form of which has\nbeen approved by the commissioner, and unless the agency has been\nresponsible for the employment of the employee.\n b. Maximum fee. (1) The total maximum fee that such agency may charge\nfor any placement shall not exceed eleven percent of the employee's\nagreed or anticipated first full year's wages, and of this total maximum\nfee not more than twenty-five percent may be charged the employee.\nNothing herein shall be construed as prohibiting an agency from making\nan agreement with an employer under which the employer agrees to pay the\ntotal maximum fee provided by this subdivision, but in such event, no\nfee shall be charged the employee.\n (2) If the agreement between the employer and employee provides for an\nadditional wage payment on completion of the contract of employment, and\nif such additional payment is payable to the employee on a monthly\npro-rata basis in the event that the employment terminates for any\nreason before the completion of the contract, such additional payment\nmay be considered part of the employee's first full year's wages.\n (3) If an employee is provided meals or lodging, the value of such\nmeals or lodging shall not be included in determining the employee's\nfirst full year's wages.\n c. Deposits or advance fee. An agency may require an employer to pay a\ndeposit or advance the fee before an employee is employed, and such\ndeposit or advance shall be offset against the fee charged the employer.\n d. Employer's cancellation fee. The agency shall be entitled to a fee\nfrom the employer not exceeding twenty-five dollars if the employer\ncancels his job order before the acceptance of the job offer by the\nemployee. If the cancellation occurs after such acceptance and before\ncertification for noncitizen employment by the appropriate governmental\nagency, the fee shall not exceed fifty dollars. If the cancellation\noccurs after such acceptance and after such certification, the fee shall\nnot exceed seventy-five dollars. No cancellation fee, however, shall be\npayable if within a reasonable time after the employer placed his or her\njob order the agency failed to make reasonable efforts to supply a job\napplicant to the employer.\n e. Employee's payments; when payable. The agency fee charged to the\nemployee and any advances made to the employee for transportation, visa\nfee and medical examination, and such other advances as are specifically\nauthorized by the commissioner, shall be payable at a rate not greater\nthan six equal installments, at the end of each of the first six months\nof employment. If the employer, on behalf of the employee, advances the\nemployee's agency fee or other authorized costs, the contract between\nthe employer and the agency shall provide that the employee is not\nrequired to repay the employer the money advanced at a rate greater than\nsuch six equal monthly installments.\n f. Termination of employment. (1) Notwithstanding any other provision\nof this section, if the employment terminates for any reason within\nninety days, the following fees may be charged the employer and may be\ncharged the employee:\n (a) Fifty percent of the maximum fee provided by paragraph b of this\nsubdivision, and\n (b) If the employment terminates after thirty days, an additional fee\ncomputed by prorating the remaining fifty percent of the maximum fee on\nthe basis of the number of days worked during such sixty-day period.\n (2) If after termination, subsequent placements are made by the agency\nto such employer or of such employee, the total termination fees payable\nby such employer and such employee shall not exceed the maximum fees\nprovided by paragraph b of this subdivision for the initial placement.\n g. Subsequent placement with another employer. If employment\nterminates within ninety days and the agency is responsible for the\nplacement of the employee with another employer within such ninety-day\nperiod, the maximum fee that the agency may charge for such subsequent\nplacement shall be the fee provided by paragraph b of this subdivision.\nIf such subsequent placement is made after such ninety-day period, the\nfee provisions of section one hundred eighty-five of this article shall\napply to such placement, notwithstanding subdivision two of this\nsection.\n h. Employee's refusal of employment. Notwithstanding any other\nprovision of this section, if the employee after arrival in this\ncountry, refuses to accept the employment for which he was recruited or\nanother comparable position offered by the agency, he shall pay an\nagency fee of not to exceed twenty-five dollars, and shall remain\npersonally responsible to his employer for any and all advances made in\nhis behalf.\n i. Limitations and charges. Except for the advances specifically\nprovided in paragraph e of this subdivision, an agency shall not\ndirectly or indirectly make any charge or require any advances whatever.\nSuch prohibited charges include, but are not limited to attorney's fees\nand finance charges.\n 5. Emigrant agent. a. Such agency shall furnish to the commissioner\nthe names and addresses of all emigrant agents it utilizes. Only a duly\nlicensed emigrant agency may be utilized, directly or indirectly, by the\nemployment agency if such emigrant agent is required to be licensed in\nthe place where he is recruiting employees.\n b. Any fee paid to an emigrant agent shall be considered part of the\nmaximum fee which an agency may charge as provided by this section.\n 6. Registers. In addition to the entries prescribed in section one\nhundred seventy-nine of this article, such agency shall enter in its\nregister the following information: (a) the last home address and birth\ndate of all applicants for employment who were recruited by the agency;\n(b) the name and address of the emigrant agent, if any, through whom\nsuch applicant was obtained; (c) the fee, if any, paid to the emigrant\nagent by the agency, job applicant or employer which shall be separately\nstated; (d) the charges or advances made to the job applicant for agency\nfee, transportation and visa fee, and such charges or advances shall be\nseparately listed and the total indicated; and (e) the manner in which\nthe employee's age and references were confirmed.\n 7. Recordkeeping. Such agency shall retain for inspection: (a) copies\nof all forms prepared or received on behalf of an employee and submitted\nto any governmental agency in connection with immigration requirements;\nand (b) copies of executed contracts between the agency and the employer\nand between the agency and the employee. The copies shall be retained on\nthe premises of the agency for three years.\n