The following is a summary of New York’s Wage Theft Prevention Act (“WTPA”), which went into effect April 9, 2011. The WTPA modified New York’s previous new hire notification requirements, created a new annual notification requirement, and altered the information required to be included on employee pay stubs. The text and interpretation of the WTPA may change over time or may not yet be resolved. Therefore, you should seek competent counsel before you make business decisions relying upon this guide.
I. Written Notices
A. Employers must provide ALL employees with a written notice containing the following information:
the rate or rates of pay; [for non-exempt employees:] the regular hourly rate and the overtime rate of pay; the basis of pay (e.g., by the hour, shift, day, week, salary, piece, commission); allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day; the name of the employer; any “doing business as” names used by the employer; 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; any other information as the Commissioner of Labor – i.e., the New York State Department of Labor (NYSDOL) – deems “material and necessary.”
B. Restaurant employers must provide the written notice (1) at the time of hire, (2) annually between January 1 and February 1, AND (3) every time an employee’s wage rate changes.
C. Notices must be provided in English and in the language identified by the employee as his/her primary language.
D. Each time the employer provides the notice to an employee, the employer must obtain a signed and dated written acknowledgment of the employee’s receipt of the notice, which the employer must keep for six (6) years. This acknowledgment must include an affirmation by the employee that the employee accurately identified his or her primary language to the employer, and that the notice provided by the employer was in that language. (Note: In order to comply with this requirement, an employer will have to ask each new employee to identify his/her primary language before the notice is provided. To avoid discrimination issues, employers should only request this information once an offer of employment has been made.)
E. The NYSDOL has prepared dual language notice templates for employers to use. When an employee identifies his/her primary language as one for which a template is not available from the NYSDOL, the employer need only provide the employee a notice in English. Notice templates are available in English, Spanish, Chinese, Korean, Creole, Polish and Russian on the NYSDOL’s website at www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm. Employers do not have to use the NYSDOL’s templates, and may develop their own notices so long as they contain all of the information required by the law. Notices included in letters and/or employment agreements must be on their own form.
F. Notices may be provided electronically so long as the employee can acknowledge receipt of the notice and print out a copy of the notice for their records.
II. Wage Statements / Pay Stubs
A. With every payment of wages, each employee must receive a statement listing the following information:
the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis of pay (e.g., paid by the hour, shift, day, week, salary, piece, commission); [for non-exempt employees:] the regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked, and the number of overtime hours worked; [for employees paid on piece rate:] the applicable piece rate or rates of pay and number of pieces completed at each piece rate; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages.
B. Upon the request of an employee, an employer must provide an explanation in writing of how the employee’s wages were computed.
C. Employers must keep payroll records reflecting the above information for six (6) years.
D. Wage statements can be provided electronically, but employees must be able to access their statements on a computer provided by the employer and be able to print a copy for their records.