New York law is imposing significant new notice requirements on employers with respect to new hires. A new law requires employers to give written notice to new employees of their rate of pay, overtime rate of pay (for non-exempt employees), and the employer’s designated regular pay day at the time they are hired. In addition, employers must obtain a written acknowledgement of receipt of such information from each new hire. New York Department of Labor guidelines further require that the notice to exempt employees must identify the specific exemption that applies; however, this requirement is not actually set forth in the statute. Lastly, employers must keep the signed acknowledgment on file for at least six years.
These new requirements supplement employers’ existing obligations under New York law to post a notice or otherwise communicate to employees in writing (e.g., in a handbook) their policies regarding sick leave, vacation, personal leave, holidays and hours. This information may be added to the newly required notice to new hires, but it may also be communicated separately provided that the communication is in writing.
It is recommended that any term sheet or offer letter that provides the newly required information about rate of pay, overtime rate and regular pay day upon hire also contain an employment-at-will statement to negate any suggestion that the document is a contract.
Practical Impact of the Requirements
These new requirements not only impose additional obligations on employers, but they also implicate other provisions of the state’s labor law. Although written notice of pay days is now required, the frequency of pay days remains unchanged. Commissioned salespeople must be paid at least monthly; clerical and other workers at least twice per month; and manual workers at least weekly. As a result, the pay day designation in the new hire notice must comport with these frequency requirements.
Similarly, the new requirements intersect with those previously enacted specifically for commissioned salespeople. Those existing statutory regulations require that the terms of employment for commissioned salespeople must be in writing and signed by both the employee and employer. Specifically, the writing must include information regarding the calculation of wages, salary, drawing account, commissions and all other money earned. In addition, if the writing provides for a recoverable draw, it must state the frequency of reconciliation. Finally, the writing must provide details regarding the payment of all money earned and payable should either party terminate the employment.
Guidelines for Temporary Agencies
The New York Department of Labor has established separate notice guidelines specific to temporary agencies. These require that written notice be given to an applicant at the time of the initial interview – or at the time of hire – of the likely range of wages (which must be a good faith estimate based upon the applicant’s or employee’s qualifications); the designated pay day if known, and if unknown, a statement that the pay day may vary; and overtime eligibility. The temporary agency must then provide the applicant or employee with the Department’s “Notice and Acknowledgement of Wage Rate(s)/Temporary Help Firms” form (available on the Department’s website) for the applicant’s or employee’s signature, return a copy of the signed form to the applicant or employee, and maintain the original signed form in the employer’s files.
At the time the temporary agency gives an employee a particular assignment, the Department requires the temporary agency to notify the employee (verbally or in writing) of the pay rate and designated pay day for that assignment, and the overtime rate or whether the position is exempt, along with the reason for the overtime exemption. Temporary agencies are also required to list on employees’ paychecks or paystubs the number of hours worked, and regular and overtime rates, along with the actual regular and overtime wages earned for that pay period. These special requirements for temporary agencies apply only for employees hired by temporary agencies, and not to employees hired by other employers for a temporary assignment.