The New York Wage Theft Prevention Act (WTPA), which takes effect 9 April 2011, significantly expands employers' notice obligations under the New York Labor Law. Under the WTPA, New York employers will be required to provide additional and annual information to employees in their wage rate notices (letter to employee) and wage statements (check stubs). Further, employers will be subject to increased penalties if they violate New York's wage payment laws.
Expanded wage rate notice obligations
Section 195 of the New York Labor Law currently requires employers to inform hew hires in writing of their rate of pay (including overtime rate, if applicable) and the employer's regular pay days. Employers must also obtain a written acknowledgment from the employee of the employee's receipt of this information. The WTPA requires employers to provide the following additional information in its wage rate notices to new employees:
- the basis for the employee's rate of pay (e.g., hourly, weekly, salary, or commission);
- allowances claimed, if any, as part of the minimum wage (e.g., a tip, meal, or lodging allowance);
- the name of the employer, including any "d/b/a" names;
- the telephone number of the employer;
- the physical address of the employer's main office or principal place of business, and a mailing address if different; and
- any additional information as may be determined by the commissioner.
Starting on 9 April 2011 employers must provide this additional information in its wage rate notices to all employees, both at the time of hiring and on or before February 1st of each subsequent year of employment. Employers must provide the notice in English and in the employee's primary language, if different.
If an employer changes an employee's rate of pay, basis of pay, or regular pay day, or if an employer claims any new allowance as part of the minimum wage, then the employer must immediately provide the affected employee with a written notice specifying these changes, unless these changes are reflected in the employee's wage statement (explained further below), and obtain a written acknowledgement. All written notices and accompanying written acknowledgements must be maintained for six years.
New requirements for wage statements
The WTPA also requires employers to provide each employee with the following additional information in a regular wage statement accompanying pay checks:
- the dates of work covered;
- the employee's rates of pay (including overtime rate, if applicable);
- the number of regular and overtime hours worked (if applicable);
- the basis for the employee's rate of pay (e.g., hourly, weekly, salary, or commission); and
- allowances claimed, if any, as part of the minimum wage (e.g., a tip, meal, or lodging allowance)
The wage statements should also include the name of the employee, the name of the employer, and the address and phone number of the employer. Such records must also be maintained for six years.
Prohibition against retaliation
The WPTA prohibits employers from taking adverse employment actions against employees who make good faith complaints about any suspected violations by the employer of the WTPA or other provisions of the New York Labor Law.
Under the WTPA, employees who are not provided notices in compliance with the statute may recover up to $100 for each work week during which the violation occurred, up to a maximum of $2500, plus lawyers' fees and costs.
In addition, the WTPA gives the New York Department of Labor (NYSDOL) greater power to impose liquidated damages against an employer and to toll statutes of limitations during investigations. The WTPA raises the maximum available liquidated damages (that is, additional penalties for the failure to pay wages due) to 100 percent of wages due.
The NYSDOL may also require employers to post a notice of any violations for up to one year in an area visible to employees. If the NYSDOL determines that the violation was willful, it may require that the employer post a notice of the violation in an area visible to the general public for up to 90 days.
As of the date of this Client Alert, the NYSDOL has not yet provided any new model notices.
For more information regarding the new requirements under the WTPA, please contact one of the lawyers listed in this Client Alert or the Hogan Lovells lawyer with whom you work.