Wage Theft Prevention Act
Effective April 9th, 2011, employers in New York State have a new regulation to follow. Former Governor Patterson signed this new act into law (S.8380/A.11726) at the very end of his term. The act is an attempt to address the failure by employers to pay minimum wages and overtime. In reality, the act creates more regulations abusive employers will ignore while all the rest are stuck with more paperwork requirements, tracking annual wage notifications of all employees, and yet another act to understand and add to the list of regulations to follow.
What Employers Need to Do After April 9th, 2011
After April 9th, 2011, employers must ask the employee what his/her primary language is and have the employee acknowledge he/she was asked in writing. This needs to be filed in the personnel file. Then the employer must give the employee the following information in writing prior to the start of work in both English and the employee's primary language (if available on the New York State Department of Labor's Website).
- 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, per shift, per 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
- the employer’s telephone number
This information can be listed on one form for the employee. The NYS Department of Labor has issued templates on their website although employers can choose to use their own forms that contain all required elements. The employee will need a copy of the notice and the employer will need to file a written acknowlegment signed bythe employee demonstrating they have received the notice in the personnel file.
Forms are currently available in English, Spanish, Chinese and Korean. If an employee's primary language is not available, the employer is only required to provide the notice in English.
How Employers Need to Change The Information on Pay Stubs
- Pay stubs must show all changes in wages.
- Retroactive pay increases need to be noted separately on pay stubs.
- Pay stubs can be provided electronically as long as employees can access and print them from a work computer.
What Employers Need to Do in January 2012 and Every January After
Employers are required to ask each current employee their primary language and provide the notice outlined above. This is required for the first time to occur between January 1st, 2012 and January 31st, 2012. Employers are then required to provide these written notices annually between January 1st and January 31st of each year. In addition, employers in the hospitality industry are required to provide these notices each time an employees benefits or wages change throughout the year. Although not required, the Department of Labor advises employers to notify employees in writing whenever pay is decreased.
These notices are required even if benefits and pay have not changed from the year prior.
Consequences of Noncompliance
Failure to comply with the notice and pay stub requirements can lead to civil liability for the employer of up to $2,500 per employee for each type of violation.
New York State Department of Labor
- Wage and Hour Law - New York State Department of Labor
Official NYS DOL webiste containing current regulations and form templates.