Attention New York Employers: Pay Rate Notices Due by February 1, 2013

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The New York State Wage Theft Prevention Act ("the Act") requires all New York employers to provide all employees by February 1, 2013, a written notice containing specific information about the employee's wages. The required information must be provided at the time of hire, annually between January 1 and February 1 of each year, and within seven days of any change not listed on the employee's pay stub. The New York Department of Labor (NYDOL) takes the position that for any reduction in wage rate, the employer is required to notify the employee in writing prior to implementation of the reduction. For employers in the hospitality industry, the NYDOL requires written notice to the employee every time the employee's wage rate changes.

Early last year, the New York State Senate passed a bill to eliminate the annual notice requirement, but the bill was not adopted by the New York State Assembly. On January 15, 2013, a bill to eliminate the annual notice requirement was reintroduced, and another bill introduced this year seeks to repeal the Act in entirety. For now, the Act's notice requirements remain in effect.

The notice must include:

  1. The employee's rate of pay, including overtime rate (if applicable)
  2. How the employee is paid (i.e., by the hour, shift, day, week, etc.)
  3. Official name of the employer and any other names used for business (DBA)
  4. Address and phone number of the employer's main office or principal location and mailing address (if different)
  5. Allowances taken as part of the minimum wage

Employers must provide the notice and acknowledgment in English and, if applicable, also in the language identified by an employee as his or her primary language (if the NYDOL provides a template in the employee's primary language). The NYDOL's website provides templates for the notice in English, Spanish, Chinese, Korean, Creole, Polish and Russian, available at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm. If no template is available in the employee's primary language, the employer may provide the notice in English only. Employers are required to obtain a signed and dated written acknowledgement from the employee confirming receipt, which must be maintained by the employer for six years, and provide a copy to the employee.

The Act also requires employers to provide employees every pay period a wage statement that includes the information set forth above and also the:

  1. Name of the employee
  2. Dates of work covered by that payment of wages

What This Means for Employers

Despite continued legislative efforts to repeal the Act's notice requirements, employers must comply with the Act until its repeal. Employers that do not provide required notices or wage statements may be liable for respective damages of $50 per week and $100 per week per employee, up to $2,500 for each, together with costs and attorneys' fees, subject to certain affirmative defenses.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.