January 27, 2012
Please be reminded that on or before February 1 of each year all employers in New York State (other than government agencies) are now required to provide each of their New York employees with an annual Notice under the New York State Wage Theft Prevention Act (NYWTPA).
- Employers must issue the current annual Notices to employees between January 1 and February 1, 2012. All new hires must receive Notices. Employers who miss the deadline or otherwise fail to comply with the NYWTPA's requirements face the possibility of an action by individual employees and/or the New York State Department of Labor (NYSDOL), with the potential for civil and/or criminal penalties. If the employer fails to provide notice in a timely manner an employee may file a civil claim and recover $50 for each work week of noncompliance up to a maximum of $2,500. The NYSDOL can file a claim and recover $50 for each work week of noncompliance without limitations.
- The NYWTPA requires that the annual Notice be tailored to each employee and must include rate or rates of pay, including overtime rate of pay (if it applies); how the employee is paid (by the hour, shift, day, week, commission, etc.); allowances taken as part of the minimum wage (such as tips, meal and lodging allowances); regular payday; official name of the employer and any other names used for the business (DBAs); and address and phone number of the employer's main office or principal place of business (and mailing address, if different). The notice must be given both in English and in the employee's primary language, if the NYSDOL offers a translation – the Department currently offers translations in the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish and Russian.
The employer may provide its own notice, as long as it includes all of the required information, or can use the NYSDOL sample notices posted on the NYSDOL website:http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm
In addition to providing the required annual Notice, employers must obtain a signed, dated Acknowledgement from each employee, certifying that he or she received the annual Notice in his or her primary language. Employers must retain a copy of each Notice and the Acknowledgement for six years.
- The NYWTPA also includes other provisions that employers need to know, such as weekly payroll record and pay stub requirements, stronger protections for whistleblowers, and increased penalties for wage theft. It is recommended that employers review the NYWTPA Fact sheet and FAQs from the NYSDOL website listed above.
- Employers who have operations in California also are reminded that California recently adopted its own version of the Wage Theft Prevention Act, with notice requirements that took effect on January 1, 2012.