New York Employers – It’s That Time of Year Again

For the second time since the New York Wage Theft Prevention Act (“WTPA”) took effect in 2012, New York employers must provide their employees with a written annual notice containing information about their wages and the employer. This year’s notice must be provided before February 1, 2013. Failure to do so could result in fines up to $50 per employee per week of non-compliance. The annual notice must contain the following information:

• the employee’s rate of pay, including the overtime rate (if applicable);
• how the employee is paid (e.g., by the hour, shift, day, week, commission, etc.);
• the regular payday as designated by the employer;
• the official name of the employer and any other names used for the business (e.g., any D/B/A);
• the address and phone number of the employer's main office or principal location; and
• any allowances taken as part of the minimum wage such as for tips or meal and lodging deductions.

The New York Department of Labor (“NYDOL”) has made a form available that will ensure the notice contains the required information. This form can be found on the NYDOL’s website (http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm). However, there is no requirement that this form be used and employers may develop their own form. The notice must be provided in English and the employee’s primary language, if the NYDOL offers a translation in that language. Currently, NYDOL dual-language forms exist in Spanish, Russian, Korean, Polish, Creole, Haitian and Chinese. WTPA compliance varies by industry. For example, hospitality industry employees must receive notice of both wage increases and decreases.  Salespersons whose wages are based in whole or in part on commissions must receive and sign a copy of a commission agreement. New York employers are well advised to confer with counsel to ensure compliance with the WTPA requirements for their industry. Many are hopeful that the WTPA’s annual notice requirement is not a permanent one. Early in 2012, the New York State Senate approved the repeal of the WTPA notification requirement, but the Assembly never adopted the bill. We anticipate similar legislative efforts to repeal the law in 2013. But for now, New York employers must comply with annual notice requirement. For more information on the WTPA and our firm’s wage and hour compliance audit services, please contact John R. Vreeland, Esq., Director of the firm’s Wage & Hour Compliance Practice Group, jvreeland@genovaburns.com, or Douglas J. Klein, Esq., dklein@genovaburns.com.