New York State Department of Labor Issues Model Forms and Guidance Regarding the New York Wage Theft Prevention Act
On April 9, 2011, the New York Wage Theft Prevention Act (the “Act”) will take effect. As discussed in our December 28, 2010 Alert (see New York Enacts Wage Theft Prevention Act http://www.kmm.com/articles-433.html), the Act amends the New York Labor Law by placing new notice and recordkeeping requirements on employers and enhancing employee protections and remedies for violations of the law. To assist employers in understanding and complying with their obligations under the Act, the New York State Department of Labor (“NYSDOL”) recently issued model forms and guidance regarding the Act.
Background Regarding Required Employer Actions Under the Act
In our December 28 Alert, we summarized, among other things, the actions New York employers must take to comply with the Act’s requirements. Highlights of the required employer actions include the following:
- Employers must notify employees in writing regarding the employees' rates of pay, regular pay days, and certain other new information (the “Notice”).
- The Notice must be provided: (a) to employees at the time of hire; and (b) yearly to all employees, by February first of each year (starting in 2012).
- Employers must obtain from employees an acknowledgment of their receipt of the Notice, and the Notice and acknowledgment of receipt must be given to employees in English and the language they identify as their primary language.
- Employers must notify employees if information previously provided under the Act’s notice requirements changes.
- The Act provides that such notice must be given in writing at least seven calendar days prior to the time of any change, unless the change is reflected on the employee’s wage statement.
- In its recent guidance, the NYSDOL clarified this provision of the Act with respect to changes in employee pay rates, stating that: (a) for non-hospitality industry employers, notice is not required where there is an increase in a wage rate and the new rate is shown on the wage statement accompanying the next payment of wages; however, (b) for any reduction of a wage rate, an employee must be notified in writing prior to the reduction being implemented. Employers in the hospitality industry currently need to give employees a new notice every time a wage rate changes.
- Employers must provide employees with certain new information in their wage statements.
- Employers must retain the required employee notices and other payroll information for six years.
Model Forms and Guidance Issued by the NYSDOL
The NYSDOL recently published on its website: (a) frequently asked questions about the Wage Theft Prevention Act; (b) model notices that employers may use to comply with their notice obligations under the Act; and (c) instructions and guidelines regarding employers’ use of the NYSDOL’s model notices. These materials can be found at http://www.labor.ny.gov/workerprotection/laborstandards/workprot/lshmpg.shtm.
The NYSDOL’s materials provide helpful information regarding: (a) the distribution of the Notices electronically; (b) employers’ use of their own forms in lieu of the NYSDOL’s model forms; (c) information that must be provided to exempt and non-exempt employees; (d) information that must be provided to employees who do not speak English as their primary language; (e) the timing of the yearly Notice; and (f) the treatment of employees who receive commissions or participate in a bonus and incentive compensation plan. The NYSDOL’s materials also indicate that the NYSDOL will issue a sample wage statement to clarify for employers the information that must be provided in the employees’ wage statements.
Please do not hesitate to contact any of our attorneys if you have any questions regarding the Act and the steps that must be taken to comply with the Act’s requirements.