Provided by: Jennifer Kirschenbaum, Esq.
April 21, 2011
We are sorry to report additional documentation requirements newly minted by the NYS Department of Labor under the Wage Theft Prevention Act, effective as of April 9, 2011. The new law now requires employers to provide written notice to employees of their rate of pay, calculation of hours, allowances, and other wage and benefit information within 10 days of being hired and again, annually. See Section 195.1 of the New York State Labor Law. Along with passing this requirement, the Department of Labor published a series of FORMS, meant to also serve as instructive tools. The changes discussed herein effect all employers. See FAQ Number 2.
The new requirements do have some bite – under Section 198.1 of the Labor Law, if an employee is not provided with the required notice within 10 business days of his or her first day of employment, they are entitled to statutory damages of fifty dollars for each week of employment the their employer has failed to provide them with the required notice, up to a maximum of $2,500, and reasonable attorneys fees. The Department of Labor may bring actions on behalf of employees as well, so depending on the number of employees you have, this is an area that could result in significant exposure in event of an audit.
EXAMPLE - So, if you hire someone on May 1, 2011 and you fail to provide them with notice until May 31, 2011, for the last 2 weeks of May you will owe that employee $50 per week in statutory damages, the Department of Labor may fine you up to $2,500 and you may have to pay attorneys fees – on top of that, the employee isn’t even the one who has to bring an action against you!
In addition to the employee notice requirements, Section 195.4 of the Labor Law now requires employers to maintain payroll records for six years, doubling the previous requirement of three years, and also, requires more complete payroll records than were previously required. Be advised that liquidated damages for underpayment of wages, which used to be 25%, are now 100% under the Act. (see Section 198 of the Labor Law). This significant increase in the statutory liquidated damages available to plaintiffs is likely to result in an upsurge in litigation.
GETTING FOUND OUT - As some of you may unfortunately already be aware, the Department of Labor engages in regular audits. Due to the abundance of regulators and litigious former employees, we recommend that you prioritize updating your payroll compliance policies and protocols to conform to these new requirements, especially since with this new regulation the NYS government has just created a very easy way to start fining employers who will very likely take a lacksidasical approach to implementing these new requirements.
If you run into an issue with an employee, you should seek the advice of legal counsel. Feel free to contact our office if you have questions or concerns. As a reminder, our office does not charge consultation fees for listserv members.
For additional information on this topic, contact Jennifer Kirschenbaum at (516)-747-6700 ext. 302 or at Jennifer@Kirschenbaumesq.com.
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