New York State Amends Employee Notice at Time of Hiring Requirements

November 5, 2009

On July 28, 2009, New York Governor David Paterson signed legislation that requires employers to give new employees at the time of their hiring written notification stating their rate of pay, overtime rate of pay and regular pay day. The new law requires the employer to obtain a written acknowledgement from employees indicating receipt of the notice. The legislation, effective for all employees hired on or after October 26, 2009, amends Section 195(1) of the New York Labor Law. In a statement in support of the legislation, the Legislature stated that by requiring employers to notify overtime-eligible employees of the regular hourly rate and overtime rate of pay, employees will be able to compute the overtime that they are entitled. As a practical matter, the change in the legislation will require the employer to determine, in advance, whether newly hired employees qualify for an overtime exemption. The determination whether an employee is eligible for overtime must be done in accordance with State and Federal overtime requirements. Failure to comply with this law can result in a civil penalty of up to $1000 for a first violation, $2000 for a second violation or $3000 for a third or subsequent violation. In assessing a violation, the size of the employer’s business, good faith of the employer, and history of previous violations are considered. New York employers should review and amend their policies to comply with this new legislation. For unionized employers, there is no indication of whether their labor agreement will suffice as the required notice. UPDATE: On October 28, 2009, the New York State Department of Labor (“NYDOL”) published the official form that must be used to provide the required notice to newly hired employees, along with both Employer and Employee Fact Sheets. The Form and Fact Sheets are available on the NYDOL’s website. The Employers’ Fact Sheet makes it clear that the notice must be given on the NYDOL’s official form and that this notice must be given at the time of hire and before the employee does any work for the employer. The NYDOL has advised us that the current form is to be used for all employees. However, they are currently working on forms that will be specific to exempt employees and other types of employees (e.g., commissioned salespersons). For more information contact John R. Vreeland.