As discussed in previous Employment Law Alerts, the annual notice requirements under the New York Wage Theft Prevention Act (WTPA) go into effect on January 1, 2012. Our prior alerts regarding the WTPA’s notice and recordkeeping requirements, and criminal and civil penalties, can be accessed below:
New York makes several changes to Labor Law
New York Department of Labor releases Wage Theft Prevention Act guidance and forms
All private sector employers must provide each of their employees working in New York State with a written notice containing specific information upon hire, when the employee’s rate of pay changes, and annually each January (between January 1 and February 1 of every year). The written notice must state:
- The employee’s rate(s) of pay;
- The basis of the employee’s wage payment (i.e., hourly, weekly, salary, commission, piece rate, etc.);
- Whether the employee is exempt from overtime requirements, and, for non-exempt employees, the employee’s overtime rate(s) of pay;
- Identification of any allowances the employer intends to claim against the minimum wage (i.e., tip credit, meal credit, lodging allowances, etc.) and the amount;
- The regular pay day designated by the employer in accordance with the New York Labor Law’s frequency of pay requirements;
- The legal name of the employer’s business and all “doing business as” names;
- The physical address of the employer’s main office or principal place of business, the employer’s mailing address (if different), and the employer’s telephone number;
- For commission salespersons, the written commission agreement (as required by Labor law Section 191.1c) must be attached to the pay notice.
These notice requirements have been in effect for all new hires and upon a change in pay since the WTPA’s effective date on April 9, 2011. The annual notice requirements, requiring distribution of wage notices to all employees in January of each year, become effective January 1, 2012.
Employers must obtain a signed acknowledgement of receipt from each employee and must maintain the signed acknowledgement for six years. The employer must also provide a copy of the signed acknowledgment to the employee.
Except for employers in the hospitality industry, a separate notice is not required when there is an increase in an employee’s pay rate, so long as the increase is reflected on the corresponding wage statement. For any reduction in pay rate, the employer must notify the employee in writing before the reduction is implemented.
The New York Department of Labor has issued several sample notices, each for different types of pay classifications, including non-exempt hourly, salaried exempt, and others. Use of the templates remains optional—employers are free to develop their own notices, so long as the notices contain the information required by law. However, it is highly recommended that employers use the official forms, or, in the alternative, we can provide forms appropriate for your workforce. We can also provide advice on developing effective methods of distribution, collection, and recordkeeping, including the use of electronic signatures and recordkeeping.
Employers must determine whether the employee’s primary language is English or another language. If the Department of Labor provides a notice template in the employee’s primary language, the employer must provide the notice to the employee in both English and the primary language. At this time, templates are available on the New York Department of Labor’s website in the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish, and Russian.
The notice requirements are not a mere formality; failure to comply with the notice requirements can result in significant civil or criminal penalties. The WTPA provides a private right of action to employees, allowing them to sue employers based on allegations that the employee did not receive the required WTPA notice. If successful, each employee who establishes that he or she did not receive the notice may obtain up to $2,500 in a civil action, plus costs and attorneys’ fees. The Commissioner of Labor can also pursue these penalties on behalf of employees.
To the extent not already done, we highly recommend that employers take steps to ensure compliance with all aspects of the WTPA, including: paying all employees on time and the correct amount; reviewing wage statements for compliance; issuing wage notices to all new hires and upon any pay-rate and other changes; issuing annual wage notices to all employees each January; training managers, supervisors, and HR professionals on the new notice and recordkeeping requirements, as well as on the new anti-retaliation rules; and adopting and/or tightening applicable written policies. Please contact us if you have any questions or need assistance in your steps to comply with the Act.