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N.Y. offers tools for Wage Theft Prevention Act compliance

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in Compensation and Benefits,Employment Law

by John M. Bagyi, Esq.

The New York State Department of Labor has issued notification templates New York employers can use to comply with the state’s new Wage Theft Prevention Act. The law, which went into effect April 9, requires employers to provide every employee with a statement detailing:

  1. The employee’s rate of pay
  2. The overtime rate of pay, if the employee is subject to overtime regulations
  3. The basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.)
  4. Any allowances the employer intends to claim as part of the minimum wage, including tip, meal and lodging allowances
  5. The regular pay day
  6. The employer’s name and any names under which the employer does business
  7. The physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address
  8. The employer’s telephone number.

Employers can print out the templates and then fill in pertinent information to comply with the law. Templates are available at www.labor.ny.gov/workerprotection/laborstandards/workprot/lshmpg.shtm.

The department also issued “Guide­lines for Written Notice of Rates of Pay and Regular Payday.” Currently, guidelines are available in English, Spanish, Chinese and Korean. Even­tually, Haitian-Creole, Polish and Russian versions will be produced.

The department has also issued a document titled, “Frequently Asked Questions About the Wage Theft Prevention Act.”

The law’s notice requirements

Employers are not required to use the DOL-issued templates and can de­­velop their own, as long as the notices contain all the required information. While the department states that a “New Hire Notice” may be included in offer letters or other employment agreements provided to new hires, the notice itself must “be on its own 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 says employers “may state the specific exemption that applies,” but are not required to.

Notice required in January

Annual notices must be provided between Jan. 1 and Feb. 1, with the first notice required before Feb. 1, 2012. The annual notice requirement cannot be satisfied by giving notice at some other point in the year (such as when annual increases are implemented). Employers had hoped the DOL might recognize that many organizations im­plement annual pay changes through­out the year and let them provide notice when those rate changes ­occurred, rather than in Jan­uary.

Employers must issue annual notice even if there have been no changes.

If employees are paid at multiple hourly or piece rates, the notice should disclose all the rates that may apply (either on the notice itself or on an attached sheet).

Notices may be delivered to employees electronically, but there must be a system for the employee to acknowledge receipt of the notice and print out a copy.

If an employee refuses to sign the acknowledgment, the department advises “the employer should still give the notice and note the worker’s refusal on its copy of the notice.”

Pay changes and wage statements

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.

Note: The DOL said it plans to prepare a sample wage statement showing the types of information required to appear.

Retaliation

Employees are protected from retali­ation if they complain to their employer, the state Department of Labor or the Attorney General about possible violations of the Wage Theft Pre­ven­tion Act. According to DOL guidance, 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. That makes it essential for employers to educate supervisors about the new law and the retaliation provisions it contains.

_____________________________

Author: John M. Bagyi is a member of Bond, Schoeneck & King’s Labor Law and Employment Law Practice. Contact him at (518) 533-3229 or jbagyi@bsk.com.

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{ 1 comment… read it below or add one }

Bob Lipman January 9, 2012 at 4:34 pm

Great article. One point I would add is a warning to employers not to answer the optional question on the NYDOL template for exempt employees which asks employers to identify the specific exempt classification. Many employers do not know the reason some employees are exempt – for example administrative v. executive or whether the Motor Carrier Act or 7i exemption should be cited. Employers that want to automate wage notice distribution and use a customized notice that has no “optional questions” should check out http://www.wagenotice.com

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