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April 5, 2011

Department of Labor Publishes Wage Theft Prevention Act Guidance and Templates

On April 4, 2011, the New York State Department of Labor (“NYS DOL”) published templates of the notices needed to comply with the requirements of Labor Law § 195 as amended by the Wage Theft Prevention Act (the “Act”).  The NYS DOL also published other documents to help employers comply with the Act, including “Frequently Asked Questions About the Wage Theft Prevention Act.”  The templates and documents are available on the NYS DOL website here. For additional  information on the Wage Theft Prevention Act, please see our earlier client alerts: Wage Theft Prevention Act Takes Effect April 9, 2011 and New York Passes Wage Theft Prevention Act.

Notices:

The Act requires employers to provide notice of rate(s) of pay and other information to all employees (including full-time, part-time, per diem, casual and seasonal) at the time of hiring and on or before February 1st of each succeeding calendar year.  The NYS DOL has prepared templates in English, Spanish, Chinese, and Korean for six (6) different categories of employees (hourly rate, multiple hourly rate, salaried (fixed hours), salaried (varying hours), prevailing rate and exempt).  The NYS DOL has indicated that it intends to prepare Creole, Polish, and Russian templates. If an employee identifies his or her primary language as one of those covered by a published template, the employer must provide the notice in that language.  If an employee’s primary language is not one of these languages, the employer complies with Labor Law § 195 by providing the employee with a notice in English.

Frequently Asked Questions:

Although the information contained in the “FAQ’s” lacks the force of law, it provides significant guidance as to the NYS DOL’s interpretation of several key provisions of the Act, including:

  • Employers may prepare their own notices; they do not need to use the NYS DOL templates. 
  • A separate notice is required even if the relevant information is contained in an offer letter or employment agreement.  Thus, it is not sufficient that all of the information required by Labor Law § 195 is embedded in an employment agreement or offer letter.
  • The notice may be provided electronically provided employees are able to (i) acknowledge receipt of the notice, and (ii) print out and retain a copy of the notice.  Previously, the NYS DOL indicated that sufficient forms of acknowledgment include: an acceptable electronic signature under the State Electronic Signature and Records Act (State Technology Law § 301 et seq.); an email response from an employee which positively acknowledges receipt of the notice; an acknowledgement provided by an employee through a “hiring terminal”; and a scanned or faxed image of the signed notice and acknowledgment. 
  • If an employee refuses to sign the notice, the employer should note the employee’s refusal on the original notice and provide a copy to the employee.
  • Between January 1 and February 1 of each year commencing 2012, a notice must be completed for all incumbent employees.  For all new hires on or after April 9, 2011, a notice is required at the time of hire.  An annual notice must be given even if none of the requisite information has changed.  If an employee is on a temporary layoff between January 1 and February 1, the annual notice must be provided as soon as the employee returns from layoff.  If a seasonal employee does not work between January 1 and February 1, the annual notice must be provided as soon as the employee resumes employment.
  • A new notice is required within seven (7) days of any change in the requisite information unless the information is set forth in the wage statement which accompanies the payment of wages reflecting the changed circumstances.
  • For employees working at multiple rates in different jobs, employers may list the different rates on one notice; separate notices for each job are unnecessary.
  • For exempt employees, employers do not need to identify the particular exemption which renders the employee exempt from overtime compensation.  (Previously, the NYS DOL took the position that employers must identify the exemption in the notice.)
  • For salespersons whose compensation is based in whole or in part on commissions, the notice must be attached to the signed commission agreement.  (Labor Law § 191 already requires commissioned salespersons to sign and receive a copy of a commission agreement setting forth the terms and conditions of employment.  Previously, the NYS DOL took the position that the agreement itself constituted notice under Labor Law § 195 if it contained all of the required information.) 
  • The NYS DOL reaffirmed its position that employees covered by a Collective Bargaining Agreement must be provided notices.
  • A wage statement containing the following information must accompany every payment of wages: dates of work covered by the payment of wages; name of employee; name of employer; address and phone number of employer; rate(s) of pay and basis thereof; and gross wages.  For all employees who are not exempt from overtime compensation, the statement must also include: the regular hourly rate(s) of pay; the overtime rate(s) of pay; the number of regular hours worked; and the number of overtime hours worked.  For all employees paid a piece rate, the statement must also include the applicable piece rate(s) of pay and the number of pieces completed at each piece rate.
  • Employers must provide a copy of the signed notice to the employee and retain the original for at least six (6) years.
  • The wage statements may be provided electronically if the employees are able to (i) access their statements on an employer-provided computer, and (ii) print a copy for their records at the employer’s expense.

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If you have any questions regarding the Wage Theft Prevention Act, please do not hesitate to contact us.