The New York Wage Theft Prevention Act (WTPA)

The WTPA, which went into April 9, 2011, requires employer provide employees with written notice (in English and the employee’s primary language) of certain information, including:

• The rate or rates of pay
• [For non-exempt employees:] the regular hourly rate and the overtime rate of pay
• The basis of pay (e.g., by the hour, shift, day, week, salary, piece, commission)
• Allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances
• The regular pay day designated by the employer
• The name of the employer
• Any “doing business as” names used by the employer
• The physical address of the employer’s main office or principal place of business (and a mailing address if different)
• The telephone number of the employer

This notice must be provided at the time of hiring AND between January 1 and February 1 of each subsequent year, beginning next month, January 2012.

Each time the employer provides the notice to an employee, the employer must obtain a signed and dated written acknowledgment of receipt of the notice, and must keep the acknowledgment for six (6) years.  The NYSDOL has prepared dual language notice templates for employers to use, which are available at www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm. Employers do not have to use the NYSDOL’s templates, and may develop their own notices so long as they contain all of the information required by the law.  Notices included in letters and/or employment agreements must be on a separate form.

Fines and Penalties

The NYSDOL can assess employers $50.00 per week per employee if proper notice is not given.  Alternatively, employees can sue on their own for up to $2,500.00 in damages. The NYSDOL may also assess civil penalties of up to $1,000.00 for a first violation, $2,000.00 for a second, and $3,000 for third and subsequent violations.

Next Step For Employers

Plan Distribution Logistics:  Employers, especially those with large work forces, should begin planning the logistics for distributing the notices as soon as possible.  According to the NYSDOL’s WTPA Frequently Asked Questions (FAQ), which can be found at  http://labor.ny.gov/workerprotection/laborstandards/PDFs/wage-theft-prevention-act-faq.pdf, as well as several NYSDOL opinion letters,  the notices may be provided electronically if:  (1) the employer ensures that the employee has access to a computer with printing capabilities so that the employee is able to access and print a copy of the notice at the time of hire and at any time throughout the employment relationship at no cost to the employee; (2) the notice is in a format that the employee is able to review at the computer in which he/she has access (e.g., web page, word processing document, etc.); and (3) affirmative steps are required by the employee to acknowledge receipt of the notice (i.e., the form of the acknowledgment must be sufficient to guarantee that the employee has received and reviewed the notice, and the employee must be made aware that his/her actions have legally significant consequences).

Re-Examine Exempt v. Non-Exempt Status:  In addition, with the passing of the WTPA, it is now more important than ever that employers ensure their employees are properly classified as exempt or non-exempt.  As we regularly remind friends and clients of the firm, whether an individual is “exempt” or “non-exempt” under federal and state law depends not only on how the individual is paid, but also on what the individual actually does.  The fact that an employee is paid a salary does not automatically qualify him or her as “exempt.”