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NEWS

Tuesday, June 7, 2011

Wage Theft Prevention Act Update

            Effective April 9, 2011, the “Wage Theft Prevention Act” (WTPA) seeks to expand the rights of employees to seek civil and criminal remedies against their employers when the employer fails to follow specifications of the Labor Law, which require the employer to pay statutorily-mandated minimum wages and overtime.  It also creates additional obligations on the employer to notify employees of their wage rates and other information. 

All employers must give employees at the time of hire (before work is performed) and on or before February 1^st of each year, notice of the following:

·         The employee’s rate or rates of pay;

·         For non-exempt employees, the overtime rate of pay;

·         The basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.) ;

·         Any allowances the employer intends to claim as part of the minimum wage including   tip, meal, and lodging allowances;

·         The regular payday;

·         The employer’s name and any names under which the employer does business (DBA);

·         The physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and

·         The employer’s telephone number.

                The WTPA requires employers to provide translated or dual language notices.  Now, each time the employer provides this notice to an employee, the employer is required to obtain from the employee a signed and dated written acknowledgment in English and in the primary language of the employee.  The acknowledgement must include an affirmation by the employee that the employee accurately identified his or her primary language to the employer, and that the notice provided by the employer to the employee was in the language so identified. Employers must maintain acknowledgements received by employees for at least six years. 

           It requires the Department of Labor to create dual-language template notices in English and additional languages that the DOL, in its discretion, can select. The DOL has prepared templates for several common types of pay agreements (hourly, weekly, prevailing wage, etc.) that are available on its website.  In addition to the English version, these templates include dual language versions in Chinese, Haitian-Creole, Korean, Polish, Russian and Spanish (at this time, only the Chinese, Korean, and Spanish versions are posted on the DOL website). 

            If the Department of Labor does not make a template in a particular language available, employers may provide notice to that employee in English only.  Employers will not be penalized for errors in the templates issued by the DOL. The DOL templates and instructions may be found under “Wage Theft Prevention Act Forms” at: http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.

In addition to the notice and acknowledgement requirements, employers must include certain information in all employee wage statements (pay stubs) as follows:

·         Name of employee;

·         Name of employer;

·         Employer’s address and phone number;

·         Dates of work covered for those wages;

·         Rate or rates of pay and basis thereof (hourly, shift, day, week, salary, piece, commission or other);

·         Gross wages;

·         Deductions;

·         Allowances, if any, claimed as part of the minimum wage (including tips, meals, lodging); and

·         Net wages.

            For all non-exempt employees, the wage statement must also include:

·         Regular hourly rate or rates of pay;

·         Overtime rate or rates of pay;

·         Number of regular hours worked; and

·         Number of overtime hours worked.

Some of the other new requirements of the Act include:

·         Employers must maintain copies of payroll records for six years.

·         Commissioner may require employer to provide accounting of all assets upon employer default on administrative order to pay wages, damages, and penalties.

·         Provides civil penalty of up to $10,000 if employer fails to provide an accounting,  and commissioner must go to court to obtain compliance.

·         Increases liquidated damages on unpaid wages from 25% to 100% in court action.

·         Provides statutory damages and a private right of action in cases where an employer fails to provide disclosures of wage rates or pays stubs.

·         Caps statutory damages available for employees at $2,500.

·         Adds newer business forms (partnerships, limited liability corporations) to the list of types of employers covered under this provision.

·         Explicitly prohibits threats of retaliation.

·         Provides for statutory damages, in addition to existing remedies of up to $10,000 for instances of retaliation.

·         Provides that the sole remedy available against a person who is now an employer is statutory damages of up to $10,000 (not reinstatement, lost wages, front pay, etc.).

For additional information, please contact Couch White partner Melanie J. LaFond of the Firm’s Labor and Employment practice group at mlafond@couchwhite.com or 518-426-4600.

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