As we reported in our December 15, 2010 LawFlash,1 the New York Wage Theft Prevention Act (the Act), which becomes effective on April 9, 2011, dramatically increases an employer’s notice and recordkeeping requirements and imposes significantly increased penalties for violations of the Act’s requirements. Among other requirements, the Act provides that an employer must provide an employee, at the time of hire and thereafter each year on or before February 1, notice of the following information:
- His or her regular rate of pay, regular payday, and overtime rate of pay if he or she will be eligible for overtime
- The basis of the wage payment (e.g., whether the employee will be paid by the hour, shift, day, week, salary, piece, or commission, or on another basis)
- The employer’s intent to claim allowances (e.g., tip or meal allowances) as part of the minimum wage
- The employer’s main address and phone number
- Additional information about the employer, including any d/b/a names
The New York State Department of Labor (the Department), the agency with responsibility for enforcing the new law, recently issued template notices for use in connection with these requirements, instructions on using the templates, and guidance concerning the Act’s application. Notably, the Department has now stated that employers may develop and use their own notice templates instead of using those provided by the Department. However, a statement contained in a question-and-answer format, issued by the Department, suggests that the notice requirements are satisfied only if the required information is contained in a form separate and apart from an offer letter or employment agreement.
Notification must be provided to employees in English and in the language identified by an employee as his or her primary language, to the extent that the Department has created a template in that language. Presently, templates exist for the following languages: Chinese, Korean, and Spanish. The Department has advised that it will be creating additional templates in the following languages: Haitian-Creole, Polish, and Russian.2 The Department’s guidelines, instructions, and templates can be viewed at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
Importantly, the Department has reversed its position on one key issue. Previously, the Department took the position that, for an exempt employee, an employer was required to notify the employee of all exemptions applicable to the employee’s position. In the recently issued guidelines and instructions, the Department states that an employer is not required to identify the specific exemption(s) applicable to the employee’s position (though it may if it wishes).
It is critically important that employers review the guidelines and instructions, become familiar with the new legal requirements, and take steps now to be in compliance when the law goes into effect on April 9.