April 22, 2011 | Kelley Drye Client Advisory
The recently enacted New York Wage Theft Prevention Act (WTPA) imposes a number of new notice and recordkeeping obligations on employers, strengthens protections for whistleblowers, and imposes significant civil and criminal penalties for violations of the law.
Notice and Recordkeeping Requirements
The WTPA requires employers to provide the following information to new hires beginning on April 9, 2011:
- the employee's rate of pay (regular rate and OT rate for non-exempt employees)
- any allowances claimed as part of the minimum wage
- the employer's regular pay day
- the employer's official name, main office address/mailing address, telephone number, and any D/B/As
Beginning on February 1, 2012, employers will be required to provide the above information to all employees on an annual basis.
The New York State Department of Labor (DOL) has issued forms for employers to use to comply with the WTPA. We've attached at the bottom of this advisory the most common forms that you will need. These forms are also available in Spanish, Korean, and Chinese on the DOL's website. You should give an employee a form in one of these languages if it is his primary language. (We anticipate forms in other languages will be forthcoming.)
The WTPA requires employers to keep, for six years, signed acknowledgments for all employees stating that the employer provided the required information. The DOL forms contain an employee acknowledgment section. If you use the attached forms, you should have the employee sign and then keep a copy on file.
Note About The Forms: Section 7 of the form, for exempt employees, provides an option for the employer to indicate the applicable exemption. We recommend against identifying the applicable exemption(s).
Also, you should make sure that your pay stubs contain all the information required by the WTPA, including:
- employee's name
- dates of work covered by the payment
- employer's name, address, and telephone number
- regular rate of pay
- overtime rate of pay
- regular rate hours worked
- overtime rate hours worked
- gross wages
- net wages
If an employer is found to retaliate against any employee because the employee complained that the employer engaged in conduct that the employee reasonably and in good faith believes violated any provision of the New York Labor Law or any order issued by the Commissioner, the Commissioner may stop and prevent further retaliation, award liquidated damages of up to $10,000, and reinstate the employee with back pay.
Civil and Criminal Penalties
The WTPA imposes significant civil and criminal penalties for employers who fail to comply with the law.
If the employer underpays employee's wages and the employer cannot prove a "good faith" basis to believe that its underpayment of wages was in compliance with the law, the WTPA increases liquidated damages from 25% to 100% of the total wages due.
The WTPA also institutes criminal penalties for violation of the New York Labor Law. Employers who fail to pay employees their minimum wage and/or overtime compensation shall be guilty of a class B misdemeanor and upon conviction shall be fined an amount between $500 and $20,000 or imprisoned for up to one year. If the employer is convicted of a subsequent offense within six years of the prior offense, the employer shall be guilty of a felony for the second or subsequent offense.
The above information is only a summary of the Department of Labor's new rules.
Weekly Rate Form
Exempt Employee Form
Hourly Employee Form
Multiple Hourly Rates Form