On December 13, 2010, New York Governor David Paterson signed into law the “Wage Theft Prevention Act”, which provides new and expanded protections for workers under the New York State Labor Law. The new law will become effective in 120 days, or on or about April 12, 2011.
New York State Labor Law §195 currently mandates that employers inform all new hires of their regular rate of pay, pay day, and overtime rate, if applicable. Information on Labor Law §195 may be found at https://www.labor.state.ny.us/formsdocs/wp/LS52.pdf.
Employers must obtain written acknowledgment from new employees that they have received this information. The New York State Department of Labor has promulgated forms to be used for this purpose, which can be found on its website, at https://www.labor.state.ny.us/formsdocs/wp/LS57.pdf.
Under the new law, the written notice must include additional information, such as the method of payment (i.e. by the hour, shift, week, salary, piece or commission), as well as whether any allowances will be claimed as part of the minimum wage, such as for tips, meals, and/or lodging.
In addition, the new law requires that employers provide employees with a notice reiterating their pay rate and other mandated information (with written acknowledgment) prior to February 1 of each year.
Furthermore, employers must provide a written notice at least seven (7) days prior to the implementation of any changes to the information contained in the employee’s most recent notice, unless the modifications are reflected in the employee’s wage statement. Consistent with present requirements for payroll records, employers must maintain all required notices, statements and acknowledgments for six (6) years.
The new law increases the potential liquidated damages for failure to pay proper wages from the current twenty-five (25%) percent to one hundred (100%) of unpaid wages, unless the employer is able to show that it had a “good faith basis” that the method of payment was lawful. Thus, New York law now matches the federal Fair Labor Standard Act (FLSA) with regard to potential assessment of liquidated damages.
Finally, any employee not provided with the new hire notice within ten (10) business days of his or her start date may bring a claim to recover $50.00 for each workweek that a violation occurs, up to $2,500.00, plus attorneys’ fees. For violations relating to a current employee, the employer may be liable for damages up to $100 per week, not to exceed $2,500.00, plus attorneys’ fees.
Although businesses also face criminal liability for violations of the New York State Labor Law, only corporations and their officers/agents where subject to criminal penalty under the old law. The new Act extends coverage in this regard to both partnerships and limited liability corporations.