Effective April 9, 2011, employers in New York must comply with the Wage Theft Prevention Act, including the notice, recordkeeping and payroll information requirements addressed in detail below. Additional information regarding the Act, such as the penalties for non-compliance, was the subject of Pepper’s December 13, 2010 Client Alert, “New York Passes the Wage Theft Prevention Act, Substantially Increasing Penalties for Wage Payment Violations and Imposing Additional Obligations on Employers.”

Although the Act directs the Department of Labor (DOL) to prepare forms (in English and unspecified foreign languages), as of April 1, the DOL has not yet published these forms and the forms on the DOL’s Web page refer to the labor law in effect prior to the Act’s enactment (http://www.labor.ny.gov/workerprotection/laborstandards/workprot/lshmpg.shtm). While the forms, once issued, will most likely be available at the link above, it is unclear whether the forms will be published by April 9. Employers are not excused from compliance if the DOL does not publish the forms by the Act’s effective date; thus, employers may wish to prepare their own forms to ensure compliance with the Act.

Once the new forms are issued, employers are not required to use them; however, in a recent opinion letter, counsel for the DOL stated: “While employers are free to modify the [the standard] forms or create forms customized to their business, the content and form of those models has been deemed to be appropriate and required by the Commissioner of Labor. As such, the content of forms created by employers should include, at the very least, all of the elements, questions, and information as the forms promulgated by the Department.” As a result, many employers may opt to simply use the standard forms once they are issued.

The Act’s Notice and Acknowledgement Requirements

The Act requires that the information below be provided to: (a) all employees hired on or after April 9, 2011 (notifications are not required for existing personnel); and (b) all employees every year on or before February 1 (commencing February 1, 2012):

  • the rate(s) of pay and how the employee is paid (e.g., by hour, shift, day, week, salary, piece-rate, commission or otherwise)
  • for overtime eligible employees (non-exempt), the regular hourly rate and the overtime rate
  • any allowances claimed against minimum wage (e.g., tip, meal or lodging allowances)
  • the regular pay day (e.g., first and fifteenth day of the month)
  • the name of the employer and any “doing business as” names
  • the telephone number and address of the employer’s main office or principal place of business and a mailing address if different from the office address, and
  • additional information the DOL deems “material and necessary.”

With regard to this last point, it is unclear what additional information, if any, the DOL will require. The notice must be given in English and the employee’s primary language (the DOL is required to issue notices in languages other than English).

Each time the notice is given, the employer must obtain a signed and dated acknowledgement of receipt, an affirmation that the employee accurately identified his/her primary language and that the notice was in the employee’s primary language. The acknowledgement must be an independent document (i.e., not included with an acknowledgment of receipt of other employer policies or procedures).

As with the notice, the acknowledgement must also comply with any additional (and as yet unknown) requirements established by the DOL regarding content and form. Presumably, the form acknowledgments will also be available at the DOL Web site link above. The acknowledgement must be kept for six years.

Employers should provide a new notice and get a new signed acknowledgment any time there is a change to the information required by the notice (e.g., a new rate of pay).

Employees must be notified of any changes to the information above at least seven days in advance; however, if the changes are reflected in the payroll statement discussed below, seven days of advance notice of changes is not required.

New Payroll Information to be Provided

With each payroll statement, employers must now provide the following information:

  • the dates of work covered by the payment of wages
  • the name of employee
  • the employer’s name, address and telephone number
  • the rate(s) of pay and the basis of such rate(s) (e.g., by hour, shift, day, week, salary, piece, commission, or otherwise)
  • for overtime eligible employees (non-exempt), the regular hourly rate and the overtime rate
  • the number of regular hours worked and the number of overtime hours worked
  • for employees paid a piece rate, the applicable piece rate(s) and the number of pieces completed at each piece rate
  • gross pay
  • deductions from wages
  • any allowances claimed against minimum wage (e.g., tip, meal or lodging allowanced), and
  • net wages.

Upon the employee’s request, the employer must provide a written explanation of how wages were computed. These records must be kept for six years.

Existing Notice Requirements Not to be Overlooked

Under existing law, employers are obligated to notify employees in writing or by a workplace posting regarding their policies on sick leave, vacation, personal leave, holidays and hours. In addition, within five days of termination of employment, former employees must be notified in writing of the exact date of cancellation of their benefits.