Reminder: NY Labor Law Compliance Due by February 1
Just over one year ago, we sent an advisory about the New York Wage Theft Prevention Act, which first took effect on April 9, 2011. The act requires all private sector employers in New York to provide certain notices to their New York employees:
(a) at the time they are hired, and
(b) annually thereafter (on or before February 1 of each subsequent year).
These notices must contain the following information:
- The employee’s rate(s) of pay;
- The basis of the employee’s rate(s) of pay (e.g., by the hour, shift, day, week, salary, piece, commission, or other);
- Whether the employer intends to claim allowances as part of the minimum wage, including tip, meal, or lodging allowances, and the amount of those allowances;
- The employee’s regular pay day designated by the employer in accordance with the frequency of pay requirements in New York Labor Law Section 191;
- 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 a mailing address if different; and
- The telephone number of the employer.
In addition to the foregoing notices, every time that an employee is paid, employers must provide each employee with a statement setting forth the following information:
- The dates of work covered by that payment of wages;
- Name of employee;
- Name, address, and phone number of employer;
- Rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other;
- Gross wages;
- Allowances, if any, claimed as part of the minimum wage; and
- Net wages.
The law makes it clear that for all employees who are not exempt from overtime compensation, this payroll statement must include the regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked, and the number of overtime hours worked. It also emphasizes that if pay is on a piece rate basis, this payroll statement must include the applicable piece rate or rates of pay and the number of pieces completed at each piece rate.
The foregoing requirements are set forth in New York Labor Law Section 195.
We hope all employers have been complying with the notice requirement for new employees as well as the payroll statement requirement.
HOWEVER, PLEASE BE REMINDED THAT THE FIRST ANNUAL NOTICE FOR ALL EMPLOYEES IS REQUIRED BY NO LATER THAN FEBRUARY 1, 2012. Similar notices will be required for all employees in following years, no later than February 1 of each year. According to the New York State Department of Labor (NYSDOL), each annual notice is due between January 1 and February 1. The annual notices are required even if the information listed in the notices has not changed since the previous notice.
The NYSDOL has provided templates for the notices. Employers are not required to use NYSDOL’s form, and can devise their own forms or provide their notice information in a letter format, but all the required information must be included. Each employee must be given a notice in that employee’s primary language, if NYSDOL has provided a template in that language. At the link above, NYSDOL has provided templates in English, Spanish, Chinese, Korean, Creole, Polish and Russian.
Both the employer and the employee must sign the notice, the employee must be given a copy of the signed notice, and the employer must retain the original signed notice for at least six years. (If an employee refuses to sign, the employer should note that refusal on the notice.) Please note that employers may be audited for compliance with these requirements, and the penalty for non-compliance could be up to $50 per week per employee, up to $2,500 per employee.
If you have questions about this new rule, please contact:
- Sean P. Beiter (716.566.5409; email@example.com)
- Richard A. Braden (716.566.5436; firstname.lastname@example.org)
- Matthew C. Van Vessem (716.566.5476; email@example.com)
- Or another member of the Goldberg Segalla Labor and Employment Practice Group