The New York Wage Theft Prevention Act took effect on April 9, 2011. Among other things, the Act requires all private sector employers to provide an annual notice to employees at the time of hire AND before February 1 of each year. It is mandatory that employers provide the notice to employees before February 1, 2012. Notice given at another time of year is not sufficient to satisfy the yearly requirement.

The notice, which must be issued PRIOR TO FEBRUARY 1, 2012 , must include the following information in English or the employee’s primary language:

1. The rate or rates of pay, including overtime rate of pay for non-exempt employees;
2. All pay rates for employees with multiple pay rates;
3. The salary for exempt employees;
4. How the employee is paid: e.g., hourly, shift, week, day, commission, etc.;
5. Any allowances claimed as part of the minimum wage (e.g., tips, meals, or lodging and the amount of those allowances);
6. Regularly scheduled pay day;
7. Employer’s official name and any “doing business as” names;
8. Employer’s main office, principal place of business, mailing addresses, and telephone number;
9. A written acknowledgment of the employee's receipt of the notice; and
10. An affirmation by the employee that the employee accurately identified his or her primary language to the employer and that he or she received the notice in that language.

The New York State Department of Labor has provided templates for the forms, which can be found here.

Employers must retain for six years payroll records showing required information, including employees’ acknowledgement that notices received were in the employees’ primary language. Employers can be assessed damages by the New York State Department of Labor of $50 per week per worker if proper notice is not given. Additionally, employees have a private right of action to enforce the Act. If an employer does not provide the information above within 10 business days of an employee’s first day, each employee may recover in a civil action, $50 for each work week that the violation occurs to up to $2,500. The employee may also be awarded reasonable attorneys fees and costs. The court may also award other relief such as injunctive and declaratory relief that it deems appropriate. To avoid these penalties, employers should act now and have all employees complete the forms before February 1.

Along with the provisions above, The Wage Theft Prevention Act also requires employers to provide the following information on paystubs when wages are paid:

1. Name of employee/name of employer;
2. Hours worked;
3. Dates of work covered by wages;
4. Rate of pay, basis of pay (e.g., hour, shift, salary);
5. Allowances, if any, claimed as part of the minimum wage;
6. Name, address, and phone number of employer; and
7. For non-exempt employees: overtime rate, regular hours and overtime hours worked.

If employers fail to provide employees with pay statements as described above, the Labor Department may assess damages of $100 per week per worker. Additionally, the employee may be awarded in a civil action damages in the amount of $100 for each work week that the violations occurred or continues to occur to the limit of $2,500. The employee may also be awarded costs and attorneys’ fees. The Labor Commissioner may also bring an action on behalf of the employee to collect these damages.

Employers must act now to make sure they are in compliance with all aspects of The Wage Theft Prevention Act, especially the requirement that the notice of wages be completed prior to February 1, 2012.

For more information on other provisions of The Wage Theft Prevention Act, please review our previously issued Alert discussing the other aspects of the Act.

Arent Fox regularly counsels clients on New York State labor laws. If you have any questions, please contact Darrell Gay or Temitope Yusuf in the Labor and Employment practice group.