Annual Notice Requirement for New York Employers Takes Effect in 2012
December 20, 2011
As a reminder, the New York Wage Theft Prevention Act requires all employers to provide employees working in New York State with a notice and acknowledgement of certain pay rate and employer information by no later than February 1 of each year beginning in 2012.
Expanding Upon Prior Requirements
This annual notice supplements the pre-existing requirement that employers provide employees working in New York State with similar forms upon the commencement of employment. As discussed in previous WSGR Alerts, such notification upon the commencement of employment can be incorporated into employee offer letters. A Wilson Sonsini Goodrich & Rosati employment litigation attorney can counsel you on incorporating such terms into your company's existing offer letter. It is recommended that you periodically confirm that your company's form offer letter is current and compliant.
Content of Notice
Similar to the notice and acknowledgement required upon the commencement of employment, employers also can create their own annual notices, which must include the following:
- 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 (DBA)
- Address and phone number of the employer's main office or principal location
- Allowances taken as part of the minimum wage (e.g., tip, meal, and lodging deductions)
The notice must be in both English and the primary language of the employee to whom it is provided, if the New York Department of Labor (DOL) offers a translation. Employers electing to draft their own notices should consult with a WSGR employment litigation attorney before deploying them.
Notwithstanding the option to create custom notices, the firm recommends utilizing the DOL's extensive collection of pre-approved notices. The forms are available at http://labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
If using the pre-approved DOL notices, employers should use form "LS 59" for English-speaking employees in positions that are exempt from state or federal overtime regulations and form "LS 54" for English-speaking employees in positions that are not exempt from state or federal overtime regulations.
Regardless of the type of notice that is selected, employers can distribute hard copies or electronic versions to employees. If an electronic version is provided, employers must distribute it via an electronic medium that permits the employee to acknowledge the receipt of the notice and print out a copy.
Retention of Acknowledgement and Notice
Employers must provide a copy of the notice to each employee and have each employee sign and date it. The employer also must retain a copy of the signed and dated notice for six years.
If the information included by the employer in the notice changes and this change is not reflected on employee paystubs, the employer must notify employees at least one week before the change becomes effective. In the event that the change involves a reduction in an employee's pay rate, the employer must notify the affected employee in writing before the reduction takes effect. Except for employers in the hospitality industry, notice is not required where there is an increase in pay rate and the new pay rate is reflected on the next paystub. Notwithstanding the regulation, best practices include providing adequate notice to employees of any change in employment terms and memorializing all such changes in writing, including an increase or decrease in pay rate.