Wage Theft Prevention ActDecember 16, 2011 |
The New York State enacted a new law entitled Wage Theft Provention Act (the “Act”) which went into effect in April 2011 for new employees. As outlined in our prior February 2011 Employment Bulletin, the Act requires New York employers to provide written notice of certain wage, payroll and other related information. The required notices must identify for each employee:
- their rate of pay;
- type of pay (hourly or salary, etc.);
- overtime rate of pay;
- allowances and credits to be taken;
- exempt or non-exempt status;
- regular payday;
- name of employer and doing business name; and
- address and phone number of the employer.
The notice must be provided in English and in the employee’s primary language. The notice must also be signed by the employee, and the signed notice must be maintained by the employer for six years. The Act became effective in April 2011, but at that time it was applicable to new employees hired after that date.
Commencing January 1, 2012, New York employers must provide statutory notice to all employees at least once a year. This provision of the law becomes effective January 1, 2012 and specifically requires every employer in New York State to provide the applicable notice to all of its employees between the period of January 1st and January 31st of 2012 and each year thereafter.
The Department of Labor has developed different model forms for hourly and salaried employees, exempt employees, tipped employees and has provided forms in various languages. (Department of Labor website (http://labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm). It is important to recognize the forms must be provided in English and if English is not the employee’s primary language, it must be also provided in the employee’s primary language if the Department of Labor has published a form in that language.
Additionally, the Act applies to all employees, therefore, compliance will require the employer to identify and/or clarify the status of all individuals who perform services for the employer. For example, the Act requires the employer to properly identify whether an individual is exempt from overtime pay requirements. This analysis often requires the assistance of a professional familiar with wage hour laws and regulations. Further, the Act also requires employers to inform nonexempt employees in writing of their regular rate of pay and their overtime rate of pay.
This new statute also provides substantial penalties for violations, including civil penalties, liquidated damages of up to 100% or more of wages owed, prejudgment interest, attorneys’ fees, personal liability and potential other liabilities.
Therefore, it is important for employees to review and update its wage hour policies and forms.