New York’s employee-friendly wage and hour laws present challenges for employers, in
particular small businesses and domestic employers. The laws are often technical, and the penalties can be substantial. Two common pitfalls relate to the notice of wage rate and wage statement requirements. Private-sector employees who do not receive a notice of wage rate and wage statements can sue their employers for up to $10,000. Fortunately, the notice of wage rate and wage statement requirements are fairly easy to satisfy.
NOTICE OF WAGE RATE
New York requires employers to provide employees with a notice of wage rate at the time of hiring. If a proper notice is not provided within 10 business days of the first day of employment, damages build at $50 per workday, up to a total of $5,000. Employees can also recover the costs of the lawsuit and attorneys’ fees.
The notice must be provided in writing and in English. The New York Department of Labor (DOL) website contains a notice template in English and in several foreign languages. If an employee’s primary language is one for which the DOL maintains a template, the employee must be given the notice both in English and his/her primary language.
The notice must contain the following information:
• Rate(s) of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or other.
• Allowances, if any, claimed as part of the minimum wage, including tip, meal or lodging allowances.
• Regular pay day designated by the employer.
• Employer’s name.
• Any “doing business as” names used by the employer.
• Physical address of the employer’s main office or principal place of business and a mailing address if different.
• Employer’s telephone number.
For nonexempt employees, the notice also must contain the regular hourly rate and the overtime rate.
Employers are required to obtain a signed and dated written acknowledgment that the notice was provided. The acknowledgment must contain an affirmation that the employee accurately identified his or her primary language and if the primary language is not English but is another language for which the DOL maintains a template, the affirmation must indicate that the notice was provided in the employee’s primary language. Employers must retain the acknowledgment for six years.
New York also requires employers to provide wage statements with each paycheck. Noncompliance results in damages of $250 per workday, up to $5,000. Employees also can recover the costs of the lawsuit and attorneys’ fees.
A wage statement must contain the following information:
• Dates of work covered by that payment of wages.
• Employee’s name.
• Employer’s name.
• Employer’s address and phone number.
• Rate(s) of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other.
• Gross wages.
• Allowances, if any, claimed as part of the minimum wage.
• Net wages.
For nonexempt employees, the wage statement also must contain:
• Regular hourly rate(s) of pay.
• Overtime rate(s) of pay.
• Number of regular hours worked.
• Number of overtime hours worked.
As with the notice, wage statement templates are available on the New York DOL website.
Employers who find themselves defending a litigation typically have multiple defenses, but not when the litigation is related to notice of wage rates and wage statements. Generally, there is a single defense for violating notice and wage statement requirements — that the employer provided “complete and timely payment of all wages due.” For that reason, litigation involving notice and wage statement claims typically includes minimum wage or overtime claims as well, making the litigation even more costly.
Running a business can be difficult, but complying with notice of wage rate and wage statement requirements doesn’t have to be. Employers can create their own statements using the guidelines outlined in this article, or they can download templates from the DOL website. Once they have the right forms, compliance is easy. Noncompliance can expose businesses to unnecessary, expensive and time-consuming litigation.
Michael Reed is a counsel at Yankwitt LLP. He can be reached at email@example.com.