In prior Employment Law Alerts, we informed you that, pursuant to an amendment to Section 195 of the New York State Labor Law, employers must notify employees of their rate of pay and their regular pay day in writing at the time of hiring and also obtain a written acknowledgement from each employee of their receipt of such notice—the rate of pay for nonexempt employees (i.e., employees who are eligible under federal and/or state wage and hour laws to receive overtime pay) must state both their regular hourly rate and overtime rate of pay. Employers must be aware of the following changes and/or clarifications contained in Guidelines, Instructions and model notices recently issued by the New York State Department of Labor (NYS DOL):

  • For exempt employees (i.e., employees who are not eligible under federal and state law to receive overtime pay), the written notice must state the specific exemption that applies to each employee—e.g., executive; administrative; professional; computer professional; outside sales representative. Although amended Section 195.1 does not contain any such requirement, employers should include this information given the NYS DOL Commissioner's statutory right to establish requirements for the content and form of the acknowledgement. Employers must carefully review the proposed duties of new hires to determine whether they may be properly classified as exempt. Since the federal and New York State exemptions are not perfectly aligned, employers should state whether the particular exemption applies under both federal and New York State law.
  • The employer must have the employee sign "a statement acknowledging receipt of the written notice"—the model notices include the following statement: "I have been notified of my wage rate, overtime rate, and designated pay day on the date given below." In an informal telephone conversation, the NYS DOL confirmed that no particular statement is needed so long as the new hire signs the notice. If employers are using offer letter and/or employment agreement templates to provide the information required by Section 195.1, the new hires should be required to sign, date and return the offer letter and/or employment agreement before their starting date.
  • The model notices state that "[t]he employee must receive a duplicate signed copy of th[e] form. The original must be kept by the employer [for six years]." As such, employers should provide each employee with a copy of the signed notice rather than rely on the employee to make a copy of the notice.

The Guidelines note that, although the NYS DOL may require the use of Department-provided forms in the future, "[n]o particular form is required" at this time, provided of course that all of the required information is given in writing to new hires before they do any work. Employers should revise their offer letter and employment agreement templates to include the information required by amended Section 195.1 and/or use the applicable model notices available on the NYS DOL website.

The Guidelines also remind employers that, pursuant to a 2007 amendment to Section 191 of the New York State Labor Law, certain terms of employment for "commissioned salespersons" must be in writing, signed by both the employer and employee and kept on file by the employer for not less than three years. This amendment was discussed in our December 2007 newsletter.