The New York Wage Theft Prevention Act (WTPA), which was enacted in December 2010, goes into effect on April 9, 2011. As a reminder, among other new employer obligations and penalties, the WTPA requires that employers provide to all of their employees written notice of their pay rate and pay dates, both at the time of hire and on or before February 1 of each year, and obtain signed acknowledgement of receipt of this notice from each employee.

Specifically, the WTPA notice provision requires written notice of:

  • the employee's rate or rates of pay
  • the overtime rate of pay, if the employee is subject to overtime regulations
  • the basis of wage payment (per hour, per week, day rate, commission, etc.)
  • any allowances claimed as part of the minimum wage (e.g., tip, meal, or lodging allowances)
  • the regular pay day
  • the employer's name
  • any names under which the employer does business (DBAs)
  • the physical address of the employer's main office or principal place of business and, if different, the employer's mailing address
  • the employer's telephone number

LANGUAGE REQUIREMENTS

The notice must be provided in English and in the language identified by the employee as his/her primary language, so long as the New York Department of Labor (DOL) has issued a form notice in that language. The DOL has issued form notices in Chinese, Korean and Spanish. The DOL has indicated that it intends to add form notices in Creole, Polish and Russian.

NOTICE OF CHANGES

In addition, employers must notify employees in writing of a change to the information in any notice at least seven calendar days prior to the change, unless the change is noted on the wage statement (discussed below).

For more information about the WTPA, see "New York Enacts Wage Theft Prevention Act."

NEW FORM NOTICES

On April 1, 2011, the DOL released form notices that employers may use to satisfy the WTPA notice and acknowledgment requirements. The form notices are available on the DOL's website.

The website contains separate sample notices for:

  • Hourly Rate Employees (Form LS 54)
  • Multiple Hourly Rates (Form LS 55)
  • Employees Paid a Weekly Rate or Salary for a Fixed Number of Hours (40 or fewer in a week) (Form LS 56)
  • Employees Paid a Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay (Form LS 57)
  • Prevailing Rate and Other Jobs (Form LS 58)
  • Exempt Employees (Form LS 59)

The website also has Guidelines for Written Notice of Pay Rates and Regular Payday (Document LS 52) and Instructions for Model Notices of Pay Rates and Pay Days (Document LS 53).

FREQUENTLY ASKED QUESTIONS

In addition to the form notices, guidelines and instructions, the DOL has published a set of frequently asked questions (FAQ) regarding the WTPA and its interpretation. The entire FAQ may be viewed on the DOL's website.

Of note from the answers in the FAQ:

  • Employees who work outside of New York are not covered.
  • Employers are not required to use the form notices, so long as their own notices contain all of the information required by the WTPA.
  • Notice may be given electronically, but only if there is a system where the employee can acknowledge receipt of the notice and print out a copy.
  • Annual Wage Notices
    • The first annual notices must be given between January 1 and February 1, 2012.
    • Subsequent annual notices must be provided between January 1 and February 1 of each year. A notice given at another time will not satisfy the annual notice requirement.
    • The annual notice must be given each year even if there are no changes.
  • New Hire Wage Notices
    • The notice may be given to new hires with an offer letter or employment agreement, but it must be on a separate form.
  • Employers must give a copy of the notice to the employee and keep and retain a signed copy of all notices for 6 years.
  • If an employee refuses to sign the notice, the employer should note the employee's refusal on its copy of the notice.
  • Except for employers in the hospitality industry, notice is not required where there is an increase in pay and the new rate is shown on the wage statement (check stub). An employee must be notified in writing at least 7 days in advance of any pay reduction. Employers in the hospitality industry must give a new notice for any wage rate change.
  • Employers do not have to identify the specific applicable exemption for employees exempt from overtime pay.
  • Employees who are exempt from overtime pay requirements are not exempt from the wage notice provisions of the WTPA.
  • In addition to information previously required to be on wage statements (check stubs), the WTPA requires that the statement show the name, address and phone number of the employer as well as the beginning and end date for the period covered by that payment.
  • For commission salespersons, the required commission agreement should be attached to the pay notice.

CONCLUSION

In addition to providing employees with notices that are compliant with the WTPA, employers should also implement procedures to provide the required notices to all employees in January 2012. Employers who create their own wage notice forms (as opposed to using one of the DOL templates) may want to consult with counsel to ensure that their forms are compliant. In addition, employers should be sure that they are in a position to provide the required wage statements, either through their own payroll systems or by working with their third-party payroll provider, when the WTPA goes into effect on April 9.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.