December 28, 2015 2015 Wage Theft Prevention Act
KEEPING YOU INFORMED…
We are writing to remind you about your obligations pursuant to New York’s Wage Theft Prevention Act. As we advised in our January 5, 2015 memorandum, several changes to the law went into effect in February 2015, including the elimination of the requirement to provide current employees with annual wage notices by February 1 and stricter penalties for an employer’s violation of the Act. The Act still requires employers to provide new employees with a wage notice at the time of hire and to provide all employees with a wage statement (or pay stub) with each payment of wages.
The Act applies to all private sector employers. Employees who work outside of the State of New York and federal, state and local government employers are not covered by the Act. According to the State Department of Labor, charter schools, private schools and not-for-profit corporations are covered by the Act because they are not public entities.
Below is a summary of the Act’s current requirements.
The Act requires employers to provide the following information to all new employees at the time of hire (before work is performed):
- the employee’s regular pay day; the employee’s regular rate of pay and, for an employee eligible for overtime compensation, the overtime rate of pay;
- the basis of the rate(s) of pay (e.g., by the hour, shift, day, week, salary, piece, commission; etc.);
- allowances, if any, claimed as part of the minimum wage, including tip, meal or lodging allowances, and the amount of those allowances;
- the name of the employer and any “doing business as” names used by the employer;
- the physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and
- the employer’s telephone number
Employers are no longer required to also provide current employees with additional yearly notices on or before February 1 of each year.
Employers must provide this notice in writing in both English and in the employee’s primary language (but only if the Department of Labor has published a template in that language). Employers must obtain a signed and dated written acknowledgement from the employee each time the notice is provided. The acknowledgement must include an affirmation by the employee stating that he or she accurately identified his or her primary language and that the notice was in that language or, if the employee’s primary language is one for which a template notice was not created, that the employer provided an English-language notice. Employers must retain the signed and dated notices and acknowledgements for at least six years. The Act requires employers to notify current employees in writing of any change to the information included in the notice at least seven calendar days before the effective date of the change, unless the change is reflected on the employee’s wage statement or pay stub. The Department of Labor has advised, however, that written notice is required before an employee’s wage rate is reduced and that, for hospitality industry employers (the hotel and restaurant industries), written notice is required every time a wage rate is changed. The Department of Labor has created guidelines and sample notice templates in English and in other languages for several common types of pay agreements. These documents are available at: http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm”>http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
The Act requires employers to provide a wage statement (or pay stub) to each employee with each payment of wages listing the following information:
- gross wages;
- net wages;
- dates of work covered by the payment;
- name of the employee;
- name, address and phone number of the employer;
- rate(s) of pay and the basis thereof (e.g., by the hour, shift, day, week, salary, piece, commission; etc.); and
- allowances, if any, claimed as part of the minimum wage.
For employees eligible for overtime compensation, the statements must also include the following:
- regular hourly rate(s) of pay;
- overtime rate(s) of pay;
- number of regular hours worked; and
- number of overtime hours worked.
For employees paid a piece rate, the statements must also include the following:
- applicable piece rate(s) of pay; and
- number of pieces completed at each piece rate.
Employers must retain these statements for at least six years. Upon an employee’s request, the employer must furnish a written explanation about how the employee’s wages were computed.
The Department of Labor has created a sample wage statement, which is available at: http://www.labor.ny.gov/workerprotection/laborstandards/images/sample_wage_statement.jpg.
Penalties for Failure to Provide Initial Wage Notification and Wage Statements
The following table summarizes the monetary penalties that may be assessed against an employer in a legal proceeding brought by an employee or the Commissioner for violating the initial wage notification requirement.
|Employee-Commenced dfdfd–||$50/work day, capped at $5,000 (plus costs and— reasonable attorneys’ fees|
|Commissioner-Commenced||$50/work day, capped at $5,000|
The following table summarizes the monetary penalties that may be assessed against an employer in a legal proceeding brought by an employee or the Commissioner for violating the wage statement requirements.
|Employee-Commenced||$250/work day, capped at $5,000 (plus costs and reasonable attorneys’ fees)|
|Commissioner-Commenced||$250/work day, capped at $5,000|
An employer can establish an affirmative defense by showing that: (a) it made complete and timely payment of all wages due to the employee who was not provided with an initial wage notification and/or wage statements; or (b) that it reasonably believed in good faith that it was not required to provide the notification or statements to the employee.
Please do not hesitate to contact us if you have any questions regarding your obligations pursuant to the Wage Theft Prevention Act.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015
 The Department of Labor sample notice templates (see below) provide a space for the employee to identify his or her primary language.