New York State Wage Theft Prevention Act
Effective February 1, 2012

By Eric Morgenweck, Esq,

New York State has enacted the Wage Theft Prevention Act ("WTPA"), effective as of April 9, 2011, which affects all private sector employers and requires such employers to provide their employees with written notice of wage rates and related information by February 1st of each year. The purpose of the WTPA is to give greater protection and wage information to workers and impose penalties on employers that fail to comply with the provision.

Specifically, an employer must provide existing employees annually on or before February 1st or to newly hired employees before work is performed, a written notice in English and in the language identified by each employee as his/her primary language, containing the following information:

• the employee's rate or rates of pay and, if applicable, overtime rate of pay;
• the basis of pay (e.g., hour, shift, week, piece, commission or other);
• whether the employer will claim allowances as part of the minimum wage;
• the regular pay day designated by the employer in accordance with the New York State Labor Law;
• the name of the employer and any names under which the employer does business;
• the physical address of the employer's main office or principal place of business, and a mailing address if different; and
• the telephone number of the employer.

The Department of Labor has prepared templates of these notice documents (in multiple languages) that can be found at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.

These notices must be given to all employees¹, whether exempt or non-exempt. Employers must have each employee sign and date the completed notice, and provide the employee with a copy of the fully executed notice. In addition, an employer should provide the employee with an updated notice if there are any changes to the information contained in the prior notice. Employers are required to maintain records of this notice for six years and make them available to the New York State Department of Labor upon request. Failure to provide this notice may result in penalties of up to $50 per week per employee or a maximum of $2,500 per employee if an employee sues directly for damages.

The WTPA requires also that each wage statement or pay stub contain the information listed above plus the following:

• hours worked, both regular and overtime;
• the employee's gross and net wages;
• itemized deductions;
• itemized allowances and credits claimed by the employer, if any; and
• dates covered by the payment.

An employer is required to give any employee who asks a written explanation of how wages were computed. Employers that do not include the above information in their statement/pay stub may be liable for damages of up to $100 per week, or a maximum of $2,500 per employee on any civil lawsuit filed by employees.

This memorandum briefly describes generally the WTPA notice requirements. It is for information purposes only and should not be construed as legal advice applicable to specific facts or circumstances. For more information, please contact Patricia A. Harris, Esq. or Eric R. Morgenweck, Esq. at 212-682-6800.

JANUARY 2012