The New York Department of Labor Issues Guidance Concerning the New York Wage Theft Prevention Act
Employers operating within New York state should be aware that the New York Wage Theft Prevention Act (WTPA) has become effective. The new law, which became effective April 9, 2011, imposes notice requirements on employers and imposes enhanced penalties for willful as well as nonwillful violations of the wage-hour laws.
As discussed in detail in our January 19, 2011 Bulletin, the WTPA generally requires that employers notify all newly hired employees and all current employees of the following: (i) the employee’s rate of pay; (ii) whether the employee is paid by the hour, shift, day, week, salary, piece, commission or otherwise; (iii) any allowances claimed as part of the minimum wage such as tips, meals or lodging allowance; (iv) the employee’s regular payday; and (v) the employer’s name (including any DBAs), address and telephone number. Additionally, the WTPA codified several regulations concerning the information required to be included on the pay stubs given to employees with their paychecks.
The New York State Department of Labor (NYSDOL) has now posted sample notices on its website, which comply with the WTPA’s notification requirements. Specifically, the DOL has issued notices for:
- Hourly rate employees.
- Multiple hourly rate employees.
- Employees paid a weekly rate or salary for a fixed number of hours fewer than 40 in a week.
- Employees paid a salary for varying hours, day rate, piece rate, flat rate or other nonhourly pay.
- Employees paid under the Prevailing Rate.
- Exempt Employees.
The NYSDOL’s sample notices may be accessed here. Significantly, we must point out that the NYSDOL’s sample notices include statements and sections that are not mentioned in the statute. For example, the DOL’s sample notice to exempt employees adds a statement that “[m]ost workers in NYS must receive at least 1½ times their regular rate of pay for all hours worked over 40 in a workweek, with few exceptions. A limited number of employees must be paid overtime at 1½ times the minimum wage rate, or not at all.” These notices, however, are merely samples, and employers may craft their own notices (as long as they are in compliance with the terms of the WTPA).
In addition, the NYSDOL has issued FAQs that address many important issues that were raised to the NYSDOL since passage of the WTPA. The NYSDOL’s FAQs may be accessed here. Of particular note, the DOL has provided the following guidance:
Who Is Covered by the WTPA?
- All private sector employers must comply with the WTPA.
- The WTPA applies to charter schools, private schools and not-for-profit corporations.
When and How Are Notices to Be Provided?
- Notices are required at the time of hire, and yearly between January 1 and February 1. Employers are not required to give a notice at other times of the year.
- Notices must be given each year even if none of the information has changed.
- Notices may be attached to letters or employment agreements given to new hires as long as the notice is on its own form.
- Notices may be given electronically, but only if the employee can acknowledge receipt of the notice and print out a copy for his file.
Must Commission-based Employees and Unionized Employees Receive the Notices?
- Commission-based Employees: Under Labor Law § 191.1c, commissioned salespeople are required to sign a written commission agreement. The DOL advises that the commission agreement be attached to the pay notice each year.
- Unionized Employees: Since collective bargaining agreements may cover multiple job titles that are paid multiple wage rates, individual employees must receive notices of their applicable wage rates.
Are Notices Required for Changes to Wage Rates?
- Employers in the hospitality industry must provide a new notice each time a wage rate changes.
- For employers not in the hospitality industry, notice is not required where there is an increase in a wage rate and that increase is reflected on the next wage payment statement.
- For any reduction in a wage rate, the employee must be notified in writing before the reduction is implemented.
In What Languages Will Employers Be Required to Provide Notices?
- Sample notices will be available in English, Spanish, Chinese, Korean, Creole, Polish and Russian.
- Employers must provide notices to employees in their primary language if the NYSDOL provides notice templates in that language. Otherwise, the employer is required to provide the notice only in English.