The New York Wage Theft Prevention Act took effect in 2011. Among other things, the law required employers to give specific New York wage notices to their employees. The law originally required the notices to be given in three situations:
- Within 10 days of hire.
- When the information in the notice changed.
- Annually, between January 1st and February 1st.
The law was amended in 2015 to no longer require the burdensome annual notice. However, employers still must give compliant wage notices to all new employees. In addition, new notices are required for most changes in the mandatory information.
Please note that additional notice requirements may apply for employees in the “hospitality industry,” as defined by New York regulations. This includes hotels and restaurants.
Federal, state and local government employers are NOT required to give these notices. However, charter schools, private schools, and not-for-profit corporations are covered, as they are not public entities under the applicable law.
Businesses do not have to give these notices to true independent contractors. However, it is important to be sure that you are not treating someone as an independent contractor if they should be considered an employee. (Stay tuned for a later blog post on that subject!)
Required Elements of New York Wage Notices
To comply with the law the wage notices 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.
- Regular payday
- Official name of the employer and any other names used for business (e.g., DBAs)
- Address and phone number of the employer’s main office or principal location
- Allowances taken as part of the minimum wage (tips, meal and lodging deductions)
The New York State Department of Labor (NYSDOL) has created wage notices covering various employment situations. For example, there is a notice for employees paid hourly and a different notice for salaried, exempt employees. The sample notices are available on the NYSDOL’s website.
Employers must provide the notice in the employee’s primary language, if the NYSDOL has created a template notice in that language. They currently offer translations in at least the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish and Russian.
In addition to providing the written notice, the employer has to get a copy signed by the employee and retain it for at least six years.
When Is a New Notice Required During Employment?
If any of the information required to be included in the New York wage notice changes, then the employer must provide a new notice and have the employee sign it.
The NYSDOL takes the position that except for employers in the hospitality industry, notice is not required where there is an increase in a wage/salary rate and the new rate is shown on the next wage statement (e.g., check stub). For any reduction of wage rate, an employee must be notified in writing before the employer reduces the rate. Employers in the hospitality industry must give a new notice every time a wage rate changes.
It is not necessarily a bad practice to obtain a new signed wage notice even for wage/salary increases. This would ensure that the employee’s file always contains a current acknowledgment of the appropriate compensation rate. However, this is not required (outside of the hospitality industry) and may not always be worth the administrative hassle.
What Is the Penalty for Not Providing Wage Notices?
The NYSDOL can assess damages of $50.00 per day per worker if a proper New York wage notice is not given.
Employees can also personally sue for damages on their own. The maximum amount an individual employee can recover is $5,000.00, and attorneys fees and costs may also be awarded.
Wage Notice Checkup
Even if you only have one employee who has not received timely notice, the potential penalty could be very costly. Make sure your notices are up to date. Check out the NYSDOL website for more information or email me if I can be of assistance.