309 N.Y. 401 | NY | 1955
Lead Opinion
Pursuant to leave granted by a Justice of the Appellate Division, Second Department, the defendant appeals from an order and judgment of that court affirming a judgment of a Court of Special Sessions held by a City Magistrate, Borough of Brooklyn, convicting him of a violation of section 1272 of the Penal Law in that he failed to pay the wages of his employees in accordance with the provisions of subdivision 2 of section 196 of the Labor Law.
On September 24, 1952, defendant entered into a two-year collective bargaining contract with Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Among other things the contract provided for vacations, the length of which was dependent upon the number of days worked during the 12-month period ending on March 31st of each year. For the first 120 workdays, one day of vacation was allowed for each 30 days. Thereafter vacation days accrued on the basis of 15 or 20 additional workdays until a maximum of a 14-day vacation period was reached. The agreement required the employer to post the vacation schedule not later than May 1st.
While the agreement was in effect, defendant discontinued business. He made all payments required under the agreement save for the accrued vacations of six of his employees ranging from four to fourteen days. Upon complaint of these employees who were members of the union, defendant was convicted on an information charging him with a violation of subdivision 2 of section 196 of the Labor Law in that on March 31, 1954, he failed to pay the wages due the complainants who were employed by him “ for various periods during the past year ”.
So far as here pertinent, subdivision 2 of section 196 of the Labor Law provides: “ Every person carrying on a business by lease or otherwise * * * shall pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment.”
The relevant portion of section 1272 of the Penal Law provides : ‘1 Each person * * * who does not pay the wages of all his * * * employees in accordance with the provisions of the labor law is * * * guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than one hundred nor more than ten thousand dollars or imprisoned for
The sole question presented by the appeal is whether vacation pay constitutes wages within the meaning of the above-quoted sections of the Labor Law and the Penal Law. The trial court held that since vacation pay represented part of the employee’s compensation for services rendered, it fell within the purview of the statutes under consideration.
The requirement that an employer pay his employees their wages weekly was first imposed in 1890 (L. 1890, ch. 388, § 1). After several amendments it was carried over as section 10 of the Labor Law (L. 1897, ch. 415), from which the present section 196 was derived. The purpose of the law was to assure prompt payment of daily wages to those employed in a subordinate capacity and who depended upon their earnings for support on a per diem rather than on a salary basis. (Erie R. R. Co. v. Williams, 233 U. S. 685, 704.) It was not intended to include the so-called fringe benefits found in present-day collective bargaining contracts, which were relatively foreign to per diem hirings at the time of the original enactment of the statute.
In the present case the daily and hourly rates of pay are set forth in section 1 of the collective bargaining contract which deals exclusively with “ wages ”. Failure to pay the amounts prescribed under that section within six days after they are earned, and not a failure to pay vacation money, is what would constitute a violation of the statute.
Section 196 of the Labor Law is a police power regulation intended for the protection of those who are dependent upon their wages for sustenance (New York Central & H. R. R. R. Co. v. Williams, 64 Misc. 15, 27, 28, affd. 136 App. Div. 904, affd. 199 N. Y. 108, affd. sub nom. Erie R. R. Co. v. Williams, 233 U. S. 685, supra). A violation of its provisions is malum prohibitum and not malum in se, and, as such, the statute should be ‘ ‘ strictly construed ’ ’. (People v. Taylor, 192 N. Y. 398, 400; People v. Werner, 174 N. Y. 132, 134.) “ Acts otherwise innocent and lawful do not become criminal unless there is a clear and positive expression of legislative intent to make them criminal ”. (People v. Adamkiewicz, 298 N. Y. 176, 179.) See, also, People v. Benc (288 N. Y. 318, 323) and People v. Grogan (260 N. Y. 138, 145). In People v. Shakun (251 N. Y. 107, 113-
Mere failure to pay wages within the time prescribed by the statute automatically constitutes a violation of the law and exposes the employer to criminal prosecution (People v. Werner, supra; People v. Kibler, 106 N. Y. 321, 323); hence the language of the statute is to be given the meaning it conveys to the ordinary employer as to what must be done and what must be avoided, to the end that he may know how to comply with its requirements. (People v. O’Gorman, 274 N. Y. 284, 287.) As pointed out in United States v. Brewer (139 U. S. 278, 288): “ Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. * * * Before a man can be punished, his case must be plainly and unmistakably within the statute.”
If the term ‘ ‘ wages ’ ’ as used in the Labor Law is to be construed according to its fair import, “ vacation pay ” cannot be embraced in that term by implication. The courts may not by forced construction create a crime. (People v. Stoll, 242 N. Y. 453, 463.)
In support of the People’s position, reliance is placed upon section 21 of the Penal Law, which provides: ‘ ‘ The rule that a penal statute is to be strictly construed does not apply to this chapter [Penal Law] ”. However, it is to be noted that the section goes on to state that its provisions 1 ‘ must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.” A construction of the language of subdivision 2 of section 196 of the Labor Law which makes penal that which is not plainly written in the statute, would hardly promote justice or effect the object of the law which is to compel prompt payment of daily wages to the small wage earner. (People v. Grass, 257 App. Div. 1; New York Central & H. R. R. R. Co. v. Williams, supra, p. 26.)
To be sure, the term “ wages ” broadly interpreted includes all of the benefits, monetary or otherwise, which an employee derives from a master and servant relationship. However, the sense in which it is used in a given statute depends not only upon the wording of the statute but upon the purpose of the law as well. The liberal interpretation placed upon it in actions involving civil remedies of employees does not apply to the word as used in a criminal statute. The decisions in civil actions are based upon different considerations and they may not enlarge an employer’s criminal responsibility beyond that indicated by the criminal statute itself.
It is true that for the purpose of giving priority to wage earners over other creditors under the Bankruptcy Act (§ 64, subd. [a], par. [2], U. S. Code, tit. 11, § 104, subd. [a], par. [2]) the Federal courts have held that “ A vacation with pay is in effect additional wages ” (Matter of Wil-low Cafeterias, 111 F. 2d 429, 432); so too with respect to severance pay (Matter of Public Ledger, 161 F. 2d 762). See, also, Matter of Brooklyn Citizen (1 Misc 2d 162, 168). In computing the amount to be awarded an injured employee under the New York Workmen’s Compensation Law, bonuses were held to be part of the
Moreover, under the welfare provisions of the collective bargaining contract here, the employer is required to provide and maintain insurance and hospitalization for the benefit of his employees and their families. These benefits accrue immediately upon employment and before any work is performed. While they too fall within the broad interpretation of “ wages ”, they nevertheless do not constitute wages earned six days prior to the date of payment within the meaning of the Labor Law. It would appear, therefore, that the word 1 ‘ wages ” as used in the Labor Law was not intended to include every type of benefit derived by an employee from a master-servant relationship and which might fall within the general category of wages.
The law affords wage earners ample civil remedies for the purpose of assuring them full payment of all additional benefits accruing to them under their contract of employment. If the Legislature desires to provide that failure to pay vacation moneys or other benefits due an employee be deemed criminal, this purpose can readily be effected by appropriate amendment to the Labor Law or to the Penal Law. Under the language of these statutes as now written, defendant was guilty of no criminal act.
Accordingly, the judgment appealed from should be reversed and the information dismissed.
Dissenting Opinion
(dissenting). The defendant was convicted of a violation of the provisions of subdivision 2 of section 196 of the Labor Law of the State of New York in that, on March 31, 1954, he failed to pay the wages due six complainants who were employed by him “ for various periods during the past year ”.
Courts have construed the term “ wages ” to include vacation with pay. (Matter of Wil-low Cafeterias, 111 F. 2d 429, 432; Matter of Public Ledger, 161 F. 2d 762; Matter of Brooklyn Citizen, 1 Misc 2d 162.)
The Legislature of this State in 1952 (L. 1952, ch. 794) amended both section 71 of the Stock Corporation Law and section 22 of the Debtor and Creditor Law to include a definition of wages, which specifically included vacation pay. The courts and the Legislature have recognized that vacation pay is a part of wages.
The question before us is whether “vacation pay” is “ wages ” within the meaning of section 196 of the Labor Law and section 1272 of the Penal Law. Section 1272 of the Penal Law and section 196 of the Labor Law are correlative. They were enacted to protect employees by insuring the prompt and expeditious payment of their wages.
Subdivision 2 of section 196 of the Labor Law provides in its pertinent parts: “ Every person carrying on a business by lease or otherwise * * * shall pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment ”.
Section 1272 of the Penal Law, in its pertinent parts, provides: “ Each person, copartnership, corporation or joint-stock association carrying on a business by lease or otherwise, who does not pay the wages of all his or its employees in accordance with the provisions of the labor law is * * * guilty of a misdemeanor
The agreement for accumulation of vacation pay is not a violation of subdivision 3 of section 196 of the Labor Law. The employee in this ease is not required as a condition of employment to accept wages at periods other than weekly. Here the employer, at the request of the employee, was required to pay for vacations in advance of the vacation period but for days ’ pay earned prior thereto. Since the employer went out of business before the summer vacation and refused to pay on the
Although vacation pay is paid as compensation for services already rendered, its purpose is to provide for the support of employees during their vacation. Granted that the statute should be strictly construed, we cannot escape the fact that the contemporary, natural and obvious meaning of the term “ wages ” includes vacation pay. Certainly an employer of average intelligence would not assume it to have any other meaning. The purpose of the statute is to enable employees to prosecute employers who fail to pay them their wages. Therefore, we think the employer’s failure to pay the wages to cover the vacations constitutes a violation of section 1272 of the Penal Law to the same extent as the failure to pay the weekly wages.
It is conceded that the sanctions imposed by the statutes, section 1272 of the Penal Law and section 196 of the Labor Law, were designed to help earners of small wages who needed cash for their day-to-day living expenses. Since there can be no question that the wages due for the vacation period were earned, there is no basis for adopting a construction of the statute which would limit the sanctions in such a way as to relegate the wage earner in the event of a failure of the employer to pay part of the earnings (vacation pay), to a civil suit, while permitting the use of sanctions of the penal statute for a failure to pay the remainder of the earnings (weekly wages). When a basic question of public policy is involved we cannot impute such a mutually exclusive intent to the Legislature.
The circumstance in this case is a cogent example of the precise problem the Legislature intended to prevent. The defendant employer pleaded inability to pay. Inability to pay the wages earned for vacation cannot be distinguished from an inability to pay the wages earned day-by-day. The deprivation of earnings in either case is real. To forestall such losses the State by statute holds employers to a standard of social justice in their dealing with workmen. The attainment of the aims of the statute would be frustrated by other than a reasonable interpretation.
The construction urged by the defendant is not only technical but is in conflict with authority.
In People v. Hines (284 N. Y. 92, 104) this court held that a defendant may be prosecuted under a gambling statute which was enacted before a gambling game came into being. It is not necessary, we said, to “ re-enact over again the same comprehensive statute ’ ’. By giving words employed in the statute their ordinary and usual current meaning, we do not make acts, otherwise innocent and lawful, crimes.
And only recently in Matter of Di Brizzi (Proskauer) (303 N. Y. 206 [1951]), this court upheld the use of a statute (Executive Law, § 62, subd. 8, now § 63, subd. 8) which was originally enacted a few weeks after our entry into World War I as a “ Peace and Safety Act” (L. 1917, ch. 595), to permit the creation of a “ New York State Crime Commission ”.
Finally in People v. Morton (308 N. Y. 96) we specifically ruled that penal statutes, without necessity of amendment, may, in view of changes in other statutory law, make criminal, conduct which prior to these changes was not proscribed. (Stock Corporation Law, § 71; Debtor and Creditor Law, § 22.)
We should not apply one rule of construction when property rights or civil order or public safety are involved and a different rule of construction when the rights of workmen are involved. The rule heretofore followed in the cases cited above is clearly applicable here as section 21 of the Penal Law provides: “ § 21. General rules of construction of this chapter. The rule that a penal statute is to be strictly construed does not apply to this chapter or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.”
The judgment of the Appellate Division should be affirmed.
Judgments reversed, etc.
Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Desmond and Dye, JJ.