February 9, 2009

Hon. M. Patricia Smith

Commissioner

New York State Department of Labor

W. Averell Harriman State Office Campus

Albany, New York  12240

Re: New York Wage Watch

Dear Commissioner Smith:

The Department of Labor’s January 26, 2009 press release announcing New
York Wage Watch causes great concern among the trade associations signing this
letter and, through us, to each of the thousands of individual member businesses
and employers we represent throughout New York State.

On first blush, it would appear that the Department has sanctioned “community
groups” to enforce the state’s complex and complicated labor laws – statutes and
procedures that today are enforced by professionals who have dedicated their
careers to learning the intricacies those laws purposefully contemplate. To
this end, we think New York Wage Watch steps well over the boundaries of even the
most constructive collaborations with community groups and advocates.

To give quasi-enforcement capabilities to certain, seemingly hand-selected
constituencies sets a troubling precedent that could spread among the spectrum
of state agencies. We wonder how such an effort can create an atmosphere of
anything other than vigilantism where every honest employer will have a legitimate

concern for the preservation of his or her rights as a taxpaying business owner
in the state of New York. The image painted by the Department in its January 26
release is of a posse of activists, duly deputized by the weighty imprimatur of
the Department, demanding access to any employer in the state whom they have
chosen either at random, by will, or by prejudice. The February 2, 2009
editorial in the New York Post (“Vigilante Labor ‘Justice’”) illustrated well
this concern shared among our collective memberships (copy attached).

We are troubled that groups so empowered would be guided less by objectivity
than agenda. Some, we fear, would mistake their status as Watch groups for an
all-access pass to the records of any business they may choose to ‘watch.’ And
we harbor the legitimate concern that participants may take advantage of their
new status by staging publicly-funded press events created to embarrass without
cause any employer whom they choose.

In short, as we understand it from the January 26 release, New York Wage
Watch promises an unprecedented and unwarranted intrusion on New York’s employer
community.

We think it entirely fair and appropriate that the Department’s Division
of Labor Standards conduct investigations in either a proactive manner or in
response to specific complaints. As you know, many of us signing this letter
represent organizations which have long supported the work of the Division,
including public support for state budget lines increasing the number of Labor
Standards investigators. And many of us have a demonstrable record of partnership
with your Department in promoting, educating, and ensuring wage and hour compliance
among our members.

We write today, then, to ask that you meet with us to explain exactly how
New York Wage Watch will operate. We have several questions aside from our
pervading concern that no business groups were, to our knowledge, invited to
participate either in the “pilot” program announced on January 26 or in the
discussions crafting the program. Among them:

• What specific rules and regulations apply to the conduct and scope of
  authority of groups selected as Watch participants? What are the criteria
  for groups seeking certification as Watch participants?
  
  
• What safeguards are in place to ensure that the rights of employers will
  be protected – including those comprising private property access – when
  Watch participants engage with employees?
  
  
• Will Watch participants be reacting to complaints, or will they, instead,
  be canvassing workplaces asking employees if they have specific or general
  complaints against their employers?
  
  
• What steps will the Department of Labor employ to ensure that Watch
  participants stay within the boundaries established by the Department?
  Will aggrieved employers have redress against the Department in the event
  of demonstrable misconduct by Watch participants?
  
  
• What specific statutory authority does the Department employ to “provide
  ordinary people with a formal and systemic role in the fight against wage
  theft”? Can the Department implement such a program without first fulfilling
  the public notice and public comment provisions of the State Administrative
  Procedure Act? The employer community was given no advance notice of the
  Watch, nor was it given opportunity for input.
  
  
• How will New York Wage Watch be funded?

These are fundamental questions that many of our members small and large
now are asking, alarmed as they are by press reports generated by the January 26
Department announcement and by the content and tone of the press release itself.
Because the Department failed to include us in any briefing outlining the
program prior to or concurrent with the public Watch launch, we are unable at
this time to ameliorate our members’ concerns or disabuse any assumptions they
are making.

We hope a meeting with you at your earliest opportunity will shed some
light on the Department’s intentions and goals for New York Wage Watch. Without
that opportunity, we and our members only can assume that the program is little
more than a dangerous deputizing of groups looking for a platform to harass,
infiltrate, and publicly embarrass the taxpaying employers that fuel this
state’s economic engine. We hope that is not the case.

We look forward to meeting with you soon.

Sincerely,

cc:   Hon. David Paterson
       Governor

       Hon. Susan John
       Chair, Assembly Committee on Labor

       Hon. George Onorato
       Chair, Senate Committee on Labor

       Carmine Ruberto
       Director, Division of Labor Standards