As we advised in our November 2009 Client Alert (http://www.loeb.com/nystatepublishesnoticeofwagerateformsfactsheets/), the New York State Department of Labor (“NYSDOL ”) had previously taken the position that employers must use the Department’s official Notice and Acknowledgement Forms in order to comply with the recent amendments to Section 195(1) of the Labor Law, requiring employers to provide written notice to employees of their wages, overtime rates (if applicable) and pay days.
The NYSDOL has now decided, as stated on its web site (http://www.labor.state.ny.us/workerprotection/laborstandards/workprot/lshmpg.shtm), that employers are not required to utilize the DOL’s official form in order to comply with Section 195(1) and may now utilize their own forms, which may consist of an offer letter that includes the requisite notice information.
Employers may nevertheless still elect to utilize the NYSDOL form (http://www.labor.state.ny.us/workerprotection/laborstandards/PDFs/LS _52_Hourly_Rate_Plus_Overtime.pdf), though employers should note that the only forms currently available on the NYSDOL web site are for hourly non-exempt employees and staffing agencies. The NYSDOL ’s web site, however, does state that “[i]n the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided.”
Based on the DOL ’s newly stated position, employers will be deemed to be in compliance with Section 195(1) if: (i) the employer’s notice form includes the employee’s rate of pay, regular pay day, and overtime rate (for non-exempt employees); (ii) the form is provided to the employee before he or she performs any work; (iii) the form is signed by the employee; (iv) the original form is maintained by the employer for a minimum of six years; and (v) a copy of the signed form is provided to the employee.