April 4, 2011
Eight days before the Wage Theft Prevention Act goes into effect, the New York State Department of Labor finally released the notification templates and related information which will assist New York employers in complying with the Act. The documents were posted on the Department’s website Friday.
The Department issued notification templates for the following groups of employees: (a) Hourly Rate Employees; (b) Multiple Hourly Rate Employees; (c) Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week); (d) Employees Paid a Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate, or Other Non-Hourly Basis; (e) Prevailing Rate and Other Jobs; and (f) Exempt Employees. The templates are available here.
The Department also issued Guidelines for Written Notice of Rates of Pay and Regular Payday, as well as instructions related to the templates. While the Guidelines state that dual language templates are available in Chinese, Haitian-Creole, Korean, Polish, Russian, and Spanish, as of this writing, only the Chinese, Korean and Spanish templates are available.
Finally, the Department also issued a document titled, “Frequently Asked Questions About the Wage Theft Prevention Act,” which provides answers to many of the most common questions employers have about the Act.
The information issued by the Department contains few real surprises. Some points of interest:
- Though the legislature authorized the Commissioner to expand the required contents of the Section 195 notices to contain "other information" she "deems material and necessary," the notice templates essentially track the requirements set forth in the statute.
- Employers are NOT required to use the DOL-issued templates and can develop their own, as long as the employer-prepared notices contain all the required information. Notably, the Department expressly states that it "reserves the right to require use of DOL forms in the future, if employer notices do not meet the requirements."
- While the Department states that the New Hire Notice may be "included in" letters and/or employment agreements provided to new hires, it states the notice itself must "be on its own form." This is a significant requirement as many employers had previously satisfied Section 195's requirements by including the necessary information in new hire letters or employment agreements and did not use a separate form.
- Interestingly, the Department backed off its prior position that notices issued to exempt employees must specify the exemption that applies to the employee. The Department now states that employers "may state the specific exemption that applies," but are not required to.
- Annual notices must be provided between January 1 and February 1 with the first notice required before February 1, 2012. The annual notice requirement CANNOT be satisfied by giving notice at some other point in the year (e.g., when annual increases are implemented). Many employers had hoped the Department might recognize that many employers implement annual rate changes in months other than January and allow employers to issue the annual notices when those rate changes occur, rather than in January of each year. Unfortunately, the Department is requiring all employers to issue annual notices in January.
- Employers must issue annual notices even if there have been no changes.
- If employees are paid at multiple hourly or piece rates, the notice should disclose the all the rates that may apply (either on the notice itself or on an attached sheet).
- Notices may be given electronically but there must be a system for the employee to acknowledge receipt of the notice and print out a copy of the notice.
- If an employee refuses to sign the acknowledgment, the Department advises that "the employer should still give the notice and note the worker's refusal on its copy of the notice."
Notice of Changes
- Except for hospitality industry employers, a separate notice is not required when there is an increase in an employee's pay rate, if the increase is reflected on the corresponding wage statement.
- For any reduction in pay rate, the employer must notify the employee in writing before the reduction is implemented.
- If a retroactive wage increase is implemented, the amount of the retroactive increase must be separately noted on the wage statement in the period in which it is paid.
- Wage statements may be provided electronically, if employees can access and print their statements on a computer provided by the employer.
- The Department will prepare a sample wage statement showing the types of entries which may be necessary, but has not said when it will do so.
- Employees are protected from retaliation if they complain to their employer, the Department, or the Attorney General about a possible labor law violation.
- If employees believe in good faith that "there is a problem in the workplace, their activities are protected," even if the employer has not actually violated the labor law.
- Even threatening an employee can be considered retaliation. This makes it essential that employers educate supervisors about the Act, and the retaliation provisions in particular.
Remember - the Wage Theft Prevention Act is effective this Saturday, April 9.