As described in prior alerts, Section 195 of the New York Labor Law was amended in 2009 to require that employers notify employees of their rate of pay and the 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. This written notice also must include the regular hourly rate and overtime rate of pay for non-exempt employees (i.e., employees who are eligible under federal and/or state wage and hour laws to receive overtime pay). The New York State Department of Labor ("NYS DOL") stated that, for employees who are exempt from overtime pay, the notice must also state the basis for such exemption. The NYS DOL has issued template notices that can be used by employers. It was previously thought that this information could be included instead in offer letters, employment agreements or in separate notices prepared by employers, but according to one recent NYS DOL opinion letter, "the acknowledgement must be in a form independent from the [offer] letter [or employment agreement] and other materials included with the letter so as to ensure that employee directly acknowledges the receipt of that form." We have requested a clarification from the NYS DOL regarding the acknowledgement requirement.
Section 195 has been amended yet again—this time effective April 12, 2011—to require additional notices and/or information to be provided both to new hires and to current employees. Employers will therefore be required to do the following, among other things:*
- Annual Notice to Current Employees (as well as to New Hires): Employers must provide all employees both at the time of hiring and on or before February 1 of each year, a written notice containing the following information (some of which was not previously required): "the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal or lodging allowances; the regular pay day designated by the employer...; the name of the employer; any "doing business as" names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the Commissioner [of the NYS DOL] deems material and necessary." For employees who are not exempt from overtime compensation, the notice must state the regular hourly rate and overtime rate of pay. Based on the NYS DOL's previous guidance, the notice must also state the basis for the exemption for employees who are exempt from overtime.
- Notice in English and Primary Language: The notice must be provided to employees in English and, except as stated below, in the language identified by each employee as his or her primary language. Section 195 does not address how employers should obtain information regarding the primary language of their employees.
- Acknowledgement in English and Primary Language: Each time the notice is provided to an employee, the employer must obtain from the employee a signed and dated written acknowledgement in English and, except as stated below, in the employee's primary language. The acknowledgement must contain an affirmation by the employee that he or she accurately identified his or her primary language to the employer and that the notice was provided in the language so identified or otherwise complied with this section of the Labor Law. The employer must keep the signed acknowledgement for six years.
- NYS DOL Templates: The Commissioner is required to prepare dual-language templates of such notices and acknowledgements (with English and one additional language on each template). If the employee identifies a primary language for which a template is not available, the employer need only provide the employee with an English-language notice or acknowledgement. It is unclear at this time whether the NYS DOL will require employers to use these template notices or employers can substitute their own notices.
- Advance Notice of Changes: In addition, employers must notify employees in writing of any changes to the information set forth above at least seven calendar days prior to the time of such changes, unless such changes are reflected in the wage payment statements provided with every payment of wages.
- New Requirements for Wage Statements and Payroll Records: The amendment expands the information required to be included in the statements provided with every payment of wages and in employer payroll records. It also requires that employers retain payroll records for six years (previously three years).
- New and Increased Penalties: If an employee does not receive the above notice within 10 business days of his or her first day of employment, the employee may file a lawsuit and recover damages of US$50 for each work week that the violation(s) occurred, up to a maximum of US$2,500, together with costs and reasonable attorney's fees.
A copy of the amended law is available here.