Forms Released Under NY Wage Theft Prevention Act

On April 1, 2011, eight days before the April 9, 2011 effective date of the New York Wage Theft Prevention Act (WTPA), the New York State Department of Labor (NYDOL) issued long-awaited forms that employers may use to satisfy the enhanced notice requirements that apply to all private employers in New York. Under the WTPA, employers must notify all new hires, and they must provide annual notice to all existing employees, of the following:

• The employee’s rate or rates of pay;
• The overtime rate of pay, if the employee is subject to overtime regulations;
• The basis of wage payment (per hour, shift or week, piece rate, commission, etc.);
• Any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances;
• The regular pay day;
• The employer’s name and any names under which the employer does business (DBA);
• The physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and
• The employer’s telephone number.

After providing this notice, employers must have their employees sign a statement acknowledging receipt of the written notice. Employers also must provide a copy of the acknowledgments to their employees and keep the acknowledgments for at least six years. The WTPA also requires written notice of any changes in the information required by the Act at least seven calendar days prior to the time of such changes, unless such changes are reflected in the employees’ wage statements. (1)

The NYDOL prepared six different forms designed to address the differing wage payment requirements that apply to hourly rate employees (Form LS 54), multiple hourly rate employees (Form LS 55), employees paid a weekly rate or salary for a fixed number of hours (Form LS 56), employees paid a salary for varying hours, day rate, piece rate, flat rate or other non-hourly pay (Form LS 57), employees who receive prevailing wages (Form LS 58), and exempt employees (Form LS 59).

The NYDOL issued these six forms in English, Spanish, Chinese, and Korean. The agency’s website indicates that the forms also will be released in Polish, Haitian-Creole, and Russian, although the forms in these languages were not immediately available on the website. Employees who declare that their primary language is one of the non-English languages in which the NYDOL has issued a form must receive the written notice in English and their primary language. Employees whose primary language is English or a language other than the non-English languages selected by the NYDOL need only receive their notices in English.

Coinciding with the release of these forms, the NYDOL also issued a set of 41 Frequently Asked Questions (FAQ), in which the agency addressed many of the questions that have arisen since Governor Paterson signed the WTPA in December of last year. We highlight below what we believe to be the most noteworthy pieces of information included in the FAQ:

• Employers can develop their own notices so long as the notices contain all of the information required by the WTPA.
• Annual notices to existing employees must be provided between January 1 and February 1 of each year. Attempting to give the annual notice at other times of the year will not satisfy the yearly requirement.
• The notice may be given electronically, but employers must provide a system where the worker can acknowledge the receipt of the notice and print out a copy.
• Except for employers in the hospitality industry, notice is not required where there is an increase in a rate and the new rate is shown on the wage statement accompanying the next payment of wages. For any reduction of wages, however, an employee must be notified in writing prior to the reduction being implemented.
• Employees paid under a bonus or incentive plan on a weekly or less frequent basis do not need to receive additional notice under the WTPA, provided the employees are initially given a description of the plan or it is clearly shown on the wage statement for the period in which it is paid.

The WTPA authorizes the Labor Commissioner to include among the notice requirements any “such other information as the commissioner deems material and necessary.” Although the Labor Commissioner has made no announcements of her intent to add any new categories, the forms appear to call for information above and beyond the express language of the WTPA. Notably, each form requires employers to state whether the pay periods are weekly, bi-weekly, or other. In addition, the form applicable to employees who earn prevailing wages (Form LS 58) requires employers to identify the applicable occupation, in addition to the posted prevailing rate for that occupation. Employers that intend to prepare their own forms should ensure that their forms include this additional information.

Acknowledging the challenges the WTPA presents to temporary help firms, the NYDOL separately issued a document entitled Guidelines for Notice and Acknowledgment of Wage Rate(s) for Temporary Help Firms.  Recognizing that variable wage rates and paydays may prevent these firms from being able to supply all of the information required by the WTPA at the time of hire, the NYDOL relaxed the requirements of the statute as it applied to these firms, permitting them to notify applicants and employees of the range of hourly wages they will likely earn.

Finally, though many speculated that the Labor Commissioner would require employers to identify which exemption(s) applied to their exempt employees, the form applicable to exempt employees (Form LS 59) and the NYDOL’s Guidelines for Written Notice of Rates of Pay and Regular Payday make it clear that identifying the specific exemption(s) is optional.

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(1) Although the statute does not appear to require the use of the complete notice in such circumstances, and similarly does not appear to require employers to maintain affirmations from employees in connection with such change notices, the NYDOL has taken the position that complete notices and employee affirmations are required whenever there is a change in any of the information required by the Act that is not reflected in the wage statements. We have requested further clarification from the NYDOL, but for the time being we recommend that employers provide the complete notices to employees and obtain affirmations seven days in advance of any changes not reflected in employee wage statements.