New York Wage Theft Prevention Act
The New York Wage Theft Prevention Act (WTPA) requires that employers provide employees hired on or after April 9, 2011 with a written acknowledgment concerning their rates of pay, wage allowances, pay dates, and related matters. Employers need to ensure that they are in full compliance with the new wage and hour notice requirements of Section 195(1) of the New York Labor Law in order to avoid the imposition of the expanded civil and/or criminal penalties set forth in Sections 197 and 198, also effective on April 9, 2011.
A WPTA amendment, which became effective December 29, 2014, provides that employers are now not required to distribute annual wage notices to their existing employees between January 1 and February 1 of each year. Nevertheless, employers are still required under the WTPA to provide wage notices to (i) new employees within ten (10) business days of their first day of employment; (ii) employees in the hospitality industry; and (iii) employees affected by a change to the information contained in their prior wage notices, excluding increases in pay rates if such increases are properly reflected in employees' wage statements.
The WTPA requires that employers provide employees hired on or after April 9, 2011 with a written acknowledgment containing the following information:
- the employee’s rate or rates of pay (including the overtime rate of pay for non-exempt employees), and the basis thereof;
- whether the employee will be paid by the hour, shift, day, week, salary, piece, commission or otherwise;
- whether the employer will claim any allowances as part of the minimum wage (e.g., tip, meal or lodging allowances);
- the employer’s regular pay day;
- the physical address of the employer's main office or principal place of business, and a mailing address if different;
- the telephone number of the employer; and
- such other information as the commissioner deems material and necessary (the “Pay Notice”).
The Pay Notice must be provided to employees either in English and in the language identified by each employee as his/her primary language at the time of their hiring. Each time the employer provides a Pay Notice to an employee, the employer shall obtain from the employee a signed and dated written acknowledgement, in English and in the primary language of the employee, of his/her receipt of the Pay Notice.
The WTPA further requires employers to provide employees with a statement in connection with every payment of wages that lists the following information: 1) the dates of work covered by that payment of wages; 2) name of employee; 3) name of employer; 4) address and phone number of employer; 5) rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; 6) gross wages; 7) deductions; 8) allowances, if any, claimed as part of the minimum wage; and 9) net wages. For non-exempt employees, the pay statements must also include: 1) the employee’s regular hourly rate or rates of pay; 2) the employee’s overtime rate or rates of pay; 3) the number of regular hours worked; and 4) the number of overtime hours worked.
The Commissioner of Labor has issued Pay Notice templates in various languages, including English and Spanish that comply with the WTPA’s new reporting requirements. These templates are available at the following web address: http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
Effective February 27, 2015, new amendments to the WTPA went into effect which, among other things, increased penalties for employers that fail to provide new employees with the required notice within 10 days of hire from $50.00 per worker per workweek to $50.00 per worker per workday up to a maximum penalty of $5,000. Employers will also face increased penalties for failing to provide employees with wage statements along with each wage payment. Under the amended Act, the employee and the NYSDOL may each recover up to $250 from an employer for each workday it does not comply with the wage statement requirement, up to a maximum of $5,000. Furthermore, these amendments impose individual liability for certain LLC members and liability on a “successor” business, such that a successor company will be liable for any WTPA violations caused by the predecessor company.