January 2012 marks the first time that New York private employers must provide the annual notice of pay rate under the Wage Theft Prevention Act (WTPA). When it became effective in April 2011, the WTPA ushered in sweeping changes to the New York State Labor Law by amending the notice of wage rate requirements and expanding the civil and criminal remedies that are available when employers fail to comply with its provisions.
1. The Notice That Must Be Given
Under the WTPA, between January 1, 2012 and February 1, 2012, New York employers must provide to all employees (both exempt and non-exempt) notice of the following information:
- The employee's rate or rates of pay;
- The employee's overtime rate (if applicable);
- The basis of the employee's rate of pay (e.g. by the hour, shift, day, week, salary, piece, commission, or other);
- Whether the employer intends to claim allowances as part of the minimum wage, including tip, meal or lodging allowances, and the amount of those allowances;
- The employee's regular pay day;
- The employer's name and 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 employer's telephone number.
The New York State Department of Labor has developed templates for the annual notice that are available on its website. Employers may develop and use their own notice forms, provided that they include all of the required information.
2. The Language Requirement
The notice must be provided in English and in the employee's primary language if the Department of Labor offers a template in that language. Currently, the Department offers templates in Spanish, Chinese, Korean, Creole, Polish and Russian. If the employee's primary language is English or a language other than those for which the Department has offered a template, the notice need only be provided in English.
3. Proof of Compliance
Employers must have each employee sign and date a statement acknowledging receipt of the notice. A copy of the notice must be provided to the employee. The Department of Labor has indicated that notice may be given electronically, but only if the employer's system allows the employee to acknowledge receipt of the notice and print out a copy.
Employers must retain the notices for six (6) years. The notices must be kept so that they can be made available to the Department of Labor upon request.
Employers who fail to provide the required notices may be liable for damages of up to $50 per week, per employee.
4. How to Deal With Subsequent Changes
After the annual notices are provided, except for employers in the hospitality industry, notices are not required when an employee receives an increase in a pay rate provided that the new rate is shown on the employee's next wage payment statement. However, for any reduction in wage rate, an employee must be notified in writing before the employee's wage rate is reduced. Employers in the hospitality industry must give employees written notice of every increase and decrease in pay rates.
The New York State Department of Labor has developed a guidance on the WTPA that provides additional information in a helpful question and answer format.
For more information about the WTPA's annual notice requirements or any wage and hour issue, please contact any member of Baker Hostetler's Employment and Labor Law team.
Authorship Credit: Stephen C. Sutton
 The WTPA also provides employers must furnish "such other information as the [Labor Commissioner] deems material and necessary." No specific additional mandates have been issued.
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