As we mentioned in our memos of January 28 and March 1, the New York Wage Theft Prevention Act (the “Act”) becomes effective April 9, 2011. The legislation deals primarily with an employer’s obligation to give employees notice of their pay rate and payday, wage statements, and retention of payroll records, and sets forth penalties for non-compliance with various provisions of the Labor Law.
We are writing to inform you that the New York State Department of Labor (the “NYDOL”) has issued templates for the Notice and Acknowledgment requirements of the Act. The templates, together with a list of frequently asked questions and other relevant information, can be found at
http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
The initial templates have been issued in English, Spanish, Chinese and Korean versions. Creole, Polish and Russian templates will be issued over time. Employers should not attempt to translate the templates themselves, as the Act provides that if the NYDOL has not issued a template in the primary language identified by the employee, the employer can comply with the Act simply by providing the English only Notice and Acknowledgment form. An employer is not liable for any errors in the translations provided by the NYDOL, but would be responsible for any translation it prepares.
The NYDOL has provided a number of clarifications with respect to the application of the Act, including the following:
- The Notice for new hires may be “included with” offer letters or employment agreements, but must be on a separate form (this will require a change in practice by those employers who had previously satisfied the requirements ofLabor Law Section 195 by including the necessary information in new hire letters or employment agreements and did not use a separate form);
- Employers will not be required to identify the specific state exemption for workers exempt from overtime requirements (although the NYDOL will encourage employers to provide the information), but exempt employees are still required to receive the Notice;
- The annual Notice is required to be given between January 1 and February 1 of each year, commencing January 1, 2012;
- The annual Notice must be given even if no information on the form has changed since the prior Notice;
- Employers are not required to use the NYDOL templates, and can develop their own notices, so long as the notice contains all of the information required by the Act (we recommend, however, that the templates be used, as this would avoid liability for inadvertently failing to include information required to be provided under the Act);
- No Notice need be given if an increase in pay rate is disclosed on a wage statement, but a Notice must be given (at least seven calendar days in advance) with respect to any decrease in pay rate;
- The Notice can be given electronically, but the employer has to establish a system where the employee can acknowledge receipt of the Notice and print out a copy of the Notice; and
- Even threatening an employee with discharge, suspension, pay cut, or other adverse action, can be deemed retaliation for complaining about a violation of the Act. Employers should make sure supervisors are educated about the Act and its anti-retaliation provisions.
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Please keep in mind that no Notice needs to be given existing employees prior to January 1, 2012, unless there is a change in the information required to be disclosed under the Act with respect to a particular employee, in which case the Notice must be given to such employee at least seven calendar days prior to the change (unless the change is disclosed on the employee’s wage statement, in which case no Notice must be given).
Please contact us if you have any questions regarding Act. We will be happy to be of assistance to you.
