Effective April 9, 2011, the New York Wage Theft Prevention Law (the “New Wage Law”) requires all employers (other than governmental agencies) to give employees, at the time of hire and annually on or before February 1st, a written wage notice with the following information:
- Employee’s rate or rates of pay;
- Overtime rate of pay, if the employee is subject to overtime regulations;
- Basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.);
- Any allowances the employer intends to claim as part of the minimum wage, including tip, meal, and lodging allowances;
- Regular pay day;
- Employer’s name and any names under which the employer is doing business (DBA name);
- Physical address of the employer’s principal place of business; and
- Employer’s telephone number.
Under the New Wage Law, an employer is required to disclose to the employee whether the employee is paid by the hour, shift, day, week, salary, piece, commission or otherwise, and whether the employer intends to claim allowances, such as tips, meal and/or lodging allowances against the minimum wage. This mandatory disclosure must be made in both English and in the language identified by the employee as his or her primary language. In addition, for existing non-exempt employees, the notice must state the regular hourly rate and overtime rate of pay.
The New Wage Law mandates that employers provide this written wage notice not only at the time of hire (i.e., before any work is performed), but also toall existing employees every year. Annual wage notices must be provided between January 1 and February 1 with the first notice required before February 1, 2012. Employers must issue annual notices even if there have been no changes.
The employer must obtain a signed and dated written acknowledgment from each employee confirming that this wage notice was provided each and every year. Copies of the employer’s wage notice and the employee’s signed acknowledgment must be maintained for a minimum of 6 years. If an employee refuses to sign the acknowledgment, the Department of Labor advises that “the employer should still give the notice and note the worker’s refusal on its copy of the notice.”
In addition to the above wage notice, the New Wage Law also requires employers to furnish employees covered by the Minimum Wage Law with a payroll statement every pay period identifying the employee’s wage rate; the basis of pay (e.g., whether paid by the hour, shift, day, week, salary, piece, commission, and allowances), amount of gross wages, wage deductions, and amount of net wages paid. The New Wage Law also mandates that employers maintain these payroll records for a minimum of 6 years.
The New Wage Law imposes a variety of severe penalties on employers who fail to comply with the statutory requirements, including liability for unpaid wages plus interest, employee’s legal fees and costs of collection, liquidated damages, and criminal sanctions. An employer who violates the wage payment law may now be required by the commissioner to post a notice of the violation in the workplace, for up to one year, in an area visible to employees, summarizing the violations found. If the violation was willful, the employer must post the notice in an area visible to the general public for up to 90 days.
Prior to the enactment of the New Wage Law, the criminal sanctions of New York Labor Law applied to corporations and their officers and agents. The New Wage Law has expanded the range of covered employers to include partnerships and limited liability companies (as well as their officers and agents).
The New Wage Law does not differentiate between willful and non-willful violations. An employer who inadvertently misclassifies a worker as an independent contractor and who accordingly fails to comply with the above statutory requirements is equally at risk of liability as an employer who blatantly ignores the law. Similarly, misclassifying employees as exempt will also subject the employer to liability, not only for overtime back wages owed, but also for notice and record-keeping violations.
The New Wage Law also increases penalties against employers for retaliation against employees who make good faith complaints against their employers for violation. If retaliation is found, an aggrieved employee is entitled to reinstatement, back pay and front pay, and the Department of Labor could also impose liquidated damages, civil penalties and criminal penalties against the employer, its officers or agents (including managers).
All New York employers must comply with the New Wage Law by no later than April 12, 2011. In order to avoid liability, employers should review their personnel or human resources practices to ensure they are in compliance with these statutory requirements.
You may obtain additional information and answers to frequently asked questions by clicking the links below: