In our previous Alert, dated December 7, 2009, available here, we advised you that the New York State Department of Labor ("DOL") had reversed its previous position requiring that employers use the DOL's Wage Rate and Designated Payday Form (LS 54) for the purposes of providing newly hired employees with a written notice of: (i) their rate of pay; (ii) the overtime rate for non-exempt employees; and (iii) their designated payday, as required by the New York Labor Law. The DOL now has taken the position that employers have the option of using the DOL's forms, creating their own forms or incorporating the necessary information into offer letters and/or employment agreements.

Since our last Alert, the DOL has created a variety of Wage Rate and Designated Payday Forms, which can be found here. In the DOL's newly created Form LS 59, which can be used for satisfying the written notice requirement for exempt employees, the DOL indicates that employers should specify the overtime exemption that applies to an exempt employee—most commonly, the administrative, professional or executive exemption. The statute does not specify that stating the exemption is required and the DOL's written materials on the provisions of the new law are inconsistent. However, in its responses to informal inquiries, the DOL has indicated that it expects employers to set forth the basis for the exemption. Unless and until the DOL clarifies its position, employers that use Form LS 59 or create their own forms or incorporate the necessary information into offer letters and/or employment agreements, should specify the overtime exemption that applies to the exempt employee in question.

We recommend that employers carefully consider how they classify newly hired employees. For a brief description of the federal overtime laws, see our previous Alert, which can be found here.