Change in Employer Wage Notification Requirements

posted by Albert Rizzo  |  Jun 16, 2011 05:40 AM [EST]  |  applies to New York

Effective April 9, 2011 the New York Wage Theft Protection Act of 2010 has substantially modified the existing wage notification requirements under New York Labor Law Section 195.

Under prior law, an employer had to simply notify an employee at the time of hiring of the rate of pay and pay date, and obtain a written acknowledgment from the employee. Employers were also required to provide written notification of any changes at least seven days in advance and provide an employee with every wage payment: a statement listing gross wages, deductions net wages. Payroll records were to be maintained for not less than three years.

Now, however, all employers in New York State, regardless of size, must provide written notice to each employee upon hire and annually thereafter, by no later than February 1 ,of the following:

• The rate of pay, both straight time and, if applicable, the overtime rate
• The basis of pay (e.g., hourly, salary, shift, day, week, month)
• Any allowances claimed as part of minimum wage (e.g., tip allowance, meal allowance, lodging allowance )
• The employer's regular pay date
• The name of the employer, including any d/b/a's
• The physical address of the employer and, if different, the mailing address
• The employer's telephone number
• Any "other information" deemed "material and necessary" by the NYS Commissioner of Labor

Further,

• The notice must be written in English and in the employee's primary language as defined in the statute.
• The notice must be provided in duplicate so that the employee may retain a copy.
• The employer must obtain a signed and dated acknowledgement from the employee of receipt of the notice and that it was in the employee's primary language. The acknowledgements must be obtained each and every time an employee is provided with a notice (for example, raises, annual February notices, etc.). The acknowledgements must be retained by the employer for six (6) years.

The penalties for non-compliance and non-payment of wages have also drastically changed. Employers that fail to pay wages as required are subject to a civil fine of $500 for each such failure. Employers failing to pay wages as required are guilty of a misdemeanor and can be fined from $500 to $20,000, or imprisoned for up to one year plus one day OR BOTH. An employee who is not provided the required notifications within ten business days of his first day of employment may recover in a civil action damages of $50 for each workweek that the violations occurred or continue to occur, to a maximum of $2,500, plus costs and reasonable attorneys' fees.

Moreover, in any action brought against the employer, if the employee prevails, the court will allow the employee ordinary costs, expenses (not to exceed $50), plus reasonable attorneys' fees. An additional amount, equal to 100% of the wages due, will also be awarded as liquidated damages.

Employers are well-advised to comply with the new law or risk very substantial penalties.

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