December 06, 2017 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. Although the Act was amended in 2015 to, among other things, eliminate the requirement to provide current employees with annual wage notices by February 1, the Act still requires employers to provide new employees with a wage notice at the time of hire.
The Act applies to all private sector employers. 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. The Act does not apply, though, to employees who work outside of the State of New York or federal, State and local government employers.
Below is a summary of the Act’s 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 (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 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. Written notice is required before an employee’s wage rate is reduced. In addition, 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.
The Act also 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 (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 and must, upon an employee’s request, furnish a written explanation of how the employee’s wages were computed.
The Department of Labor has created a sample wage statement, which is available at:
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 of Labor for violating the initial wage notification requirement.
|Employee-Commenced||$50/workday, capped at $5,000 (plus costs and reasonable attorneys’ fees)|
|Commissioner-Commenced||$50/workday, 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/workday, capped at $5,000 (plus costs and reasonable attorneys’ fees)|
|Commissioner-Commenced||$250/workday, 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.
If you have questions regarding your obligations pursuant to the Wage Theft Prevention Act, please contact Matthew J. Mehnert or one of our other attorneys by calling (631) 694-2300.
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 2017
 The Department of Labor’s sample notice templates (see below) provide a space for the employee to identify his or her primary language.