New York Wage Theft Prevention Act Effective April 9, 2011

We previously reported on a series of changes to New York Labor Law contained within the Wage Theft Prevention Act (“WTPA”) that are now applicable to all New York private-sector employers (including charter schools, private schools, and not-for-profit corporations).

As discussed in our previous post, the WTPA requires New York employers to provide all employees with written pay notices at the time of hire and on or before February 1 of each year that include:

• The employee’s rate or rates of pay
• The overtime rate of pay, if the employee is nonexempt
• The basis of wage payment (e.g., per hour, per shift, per week, piece rate, commission, etc.)
• The allowances to be claimed against the minimum wage (e.g., tip, meal, and lodging allowances)
• The regular pay day
• The employer’s name and any name under which the employer conducts business
• The physical address of the employer’s main office or principal place of business (if different from the mailing address)
• The employer’s telephone number

The above disclosures must be given in English as well as the employees native language (if the NYDOL has provided a notice template in the employee’s primary language, with Spanish, Chinese, Korean, Creole, Polish, and Russian versions supposedly being made available soon on the NYDOL’s website). Moreover, the WTPA requires that employers get signed acknowledgments from employees that verify the above disclosures.

To assist New York employers with compliance, the NYDOL has issued the following materials:

• Frequently Asked Questions (“FAQs”) about the Wage Theft Prevention Act
• Guidelines for Written Notice of Pay Rates and Regular Pay Day
• Instructions: Model Notice of Rates of Pay and Pay Days
• Model Pay Notice for Hourly Rate Employees
• Model Pay Notice for Multiple Hourly Rates cdddxd
• Model Pay Notice for Employees Paid a Weekly Rate or Salary for a fixed number of hours (40 or fewer in a week)
• Model Pay Notice for Employees Paid a Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay
• Model Pay Notice for Prevailing Rate and Other Jobs
• Model Pay Notice for Exempt Employees

Based on the information released by the NYDOL, we wanted to bring the following WTPA-related items to your attention:

• Employers are not required to use the above-linked template forms. Employers can develop their own pay notices so long as they comply with the WTPA. Moreover, the NYDOL has specified that the notice obligations can be included in a letter and/or employment agreement; however, it must be on its own form. In other words, the NYDOL seems to be directing that the notice obligations appear on a separate page or pages from the rest of the agreement, such as in an appendix.
• The pay notice can be distributed electronically, but there must be a system in place where the employee can acknowledge the receipt of the notice as well as print copies.
• The NYDOL has specified that: (i) new-hire notices must be provided to employees hired on or after April 9, 2011 before they perform any work; and (ii) annual notices must be provided to all employees between January 1 and February 1 beginning in 2012. The WTPA’s annual notice requirement will not be satisfied if notice is given at any other time.
• Under the WTPA, employers are required to keep copies of the notices and acknowledgments for six years and must be able to provide them to the NYDOL upon request.
• If an employee refuses to acknowledge the notice, the NYDOL has instructed employers to still provide the notice and to note the employee’s refusal to sign.

In addition to the above notice requirements, the WTPA requires employers to provide certain information in writing along with each payment of wages. Specifically, the dates of work covered, the employer’s name, address and phone number, the employee’s rates of pay and basis thereof (e.g., hour, shift, day, week, salary, piece, commission, etc.), gross wages, deductions, net wages, and allowances claimed against the minimum wage (e.g., tip, meal, lodging), overtime rates, and the number of regular and overtime hours worked.

The NYDOL has indicated that employers can provide these pay statements electronically if the employee can access the statements on a computer provided by the employer and print a copy for their records. The NYDOL has indicated that it will at some point issue a sample pay statement that demonstrates the necessary entries.

Given that the WTPA became effective last month, now is a good time for employers to communicate with experienced wage and hour counsel regarding compliance strategies. If you have any questions, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.