As highlighted last year, the recently enacted New York State Wage Theft Prevention Act requires that all employers provide their employees, by February 1, 2012 and every February 1 thereafter, with a written notice reiterating their pay rate and overtime rate (if applicable), regularly scheduled paydays, whether the employee is paid by the hour, shift, day, week, piece, commission, salary, etc., and any intent to claim allowances (e.g., tip, meal or lodging allowances) as part of the employee's minimum wage. In addition, the notice must include the employer's name, any "doing business as" name, the employer's physical address, mailing address (if different) and telephone number.
Employers are required to give employees written notice in both English and the employee's native language and to obtain a written acknowledgment of receipt of the foregoing written notices from each employee on or before February 1st of each year. As of February 1, 2012, all employers must provide employees with at least seven calendar days' notice of any changes to the information required to be disclosed by the foregoing written notices, unless such changes are reflected in new payroll wage statements accompanying employees' pay (discussed more fully below). If the written wage notice is not provided by an employer to its employees, the employer shall be subject to penalties of $50 per employee, per week (up to $2,500), in addition to costs and reasonable attorney's fees. Finally, the New York State Wage Theft Prevention Act permits the New York Labor Commissioner to bring an enforcement action and to seek additional penalties for noncompliance with this requirement as a source of revenue to the State
An employer's obligations to provide payroll wage statements, accompanying employees' pay, has also been modified by the New York State Wage Theft Prevention Act. As of February 1, 2012, employers are required to provide wage statements to all of their employees with each paycheck specifying the: (1) dates of the applicable pay period; (2) employee's name; (3) employer's name, address and telephone number; (4) rate and basis of pay; and (5) allowances, if any, claimed as part of the minimum wage. For non-exempt employees, the statement must also include the applicable regular and overtime pay rates, in addition to the number of regular and overtime hours worked during the pay period. Payroll records containing this information must be maintained by the employer for six years (up from three years). Violations can result in civil damages of $100 for each workweek that the violation occurred (not exceeding $2,500), in addition to costs and reasonable attorney's fees. Additional penalties may be sought and awarded in actions for noncompliance brought by the New York Labor Commissioner on an employee's behalf.
To ensure compliance and avoid the significant penalties for violations, New York employers should carefully review and revise their payroll practices. A copy of the New York State Department of Labor's Guidelines for Notice and Acknowledgment of Wage Rate and Wage Notice Form (English) are attached hereto for convenience. Additionally, pre-drafted agency approved Wage Notice Forms in alternative languages can be obtained from its website (http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm).
We hope you find this information helpful. If you have questions pertaining to the material presented in this Client Alert or other legal issues, please contact the Agovino & Asselta, LLP attorney with whom you usually work at (516) 248-9880.
Disclaimer
This Client Alert provides an overview of certain aspects of a particular new law. It has been prepared by Agovino & Asselta, LLP for informational purposes only and is not intended to serve as, and should not be considered, legal advice for any specific fact situation. Readers should not act upon the information contained in these publications without the assistance of professional counsel.
