NY WAGE THEFT PREVENTION ACT REQUIRES NEW NOTICES
The Wage Theft Prevention Act requires that an employer issue a notice to each employee in English or in the language identified by the employee as his or her primary language, if the employee’s primary language is one for which the Department has provided a notice template. The Department intends to issue template notices in English, Spanish, Chinese, Korean, Creole, Polish and Russian. To date the Department has created templates for notices in Chinese, Korean and Spanish. The Department’s templates, instructions and guidance are available at www.labor.ny.gov/formsdocs/wp under LS50 through 59.
The notice must be provided at the time of hiring, and (beginning in 2012) annually between January 1 and February 1 of each year of employment, and within seven days of a change, if the change is not listed on the employee’s pay stub for the following pay period. The annual notice must be given every year even if the data remains the same. The notice cannot be waived and must be in a separate document. The employee must sign a receipt for the notice. Electronic notice is permitted, but the employee must be able to access the notice on a computer provided by the employer and be able to print a copy of the notice. Employers must retain copies of the notice for six years.
The notice must provide: the pay rate and basis thereof; whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or another measure; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular payday; the name of the employer and any assumed business names used by the employer; the physical address of the employer's main office or principal place of business and the mailing address if different; and the telephone number of the employer. No specific notice is required for bonus and incentive plans that provide for compensation on top of base wages, as long as the “employee was initially given a description or it is clearly shown on the wage statement for the period in which it is paid.”
Additional disclosures are required for employees of temporary help firms and for commissioned sales employees, farm employees and hospitality industry employees.
Failure to provide the notice is punishable by a fine of $100 per week per employee. An employee who does not receive a notice can sue for up to $2,500, plus attorneys’ fees. The Act also provides for fines of up to $10,000 plus another $10,000 in liquidated damages, for retaliation, as well as the recovery of lost wages and reinstatement.
For advice and guidance on the Act, please contact Randolph C. Oppenheimer by e-mail, roppenheimer@damonmorey.com, or call 716.858.3780.
© 2011 Damon Morey LLP, Randolph C. Oppenheimer, Esq.