New York Department of Labor Wage Theft Prevention Act

By Samantha Sherman, Esq.

The last provision of the New York State Wage Theft Prevention Act is now applicable to all private sector employees working in the State.

The law, which mandates that workers receive yearly pay notices, proper wage statements, and be free from retaliation for complaining about possible violations of the Labor Law, became effective in April 2011, but employers had until February 1, 2012 to provide the required written wage notice to all employees. Notices are also required at the time of hire for new employees and within seven days of a change if the change is not listed on the employee’s pay stub for the following pay period.

The notice must include (a) rate or rates of pay, including overtime rate if applicable; (b) how the employee is paid (e.g. hourly, daily, weekly, by shift, by commission, salary or other); (c) the employee’s regular payday; (d) the employer’s official name and any other names used for business; (e) the telephone number and physical address of the employer’s main office or principal location, and the mailing address if different; and (f) whether the employer intends to claim allowances as part of the minimum wage, including tip, meal, or lodging allowances, and the amount of those allowances.

The notice must appear in English and the employee’s primary language if the Department of Labor provides a translation. Templates in Spanish, Chinese, Haitian Creole, Korean, Polish and Russian are available on the Department of Labor’s website, but the employer may provide its own notice if it includes all the necessary information.

Furthermore, employers must have each employee sign and date the notice and give the employee a copy.

The Act also enhances other employee protections under Labor Law 215.  For example, threats to discharge, penalize and/or discriminate against an employee who makes a complaint about an employer’s lack of compliance are now included as a prohibited form of retaliation. In addition, the bar against retaliation now applies to any person, not just the employer. Retaliation carries criminal penalties for employee complaints about any section of the labor law.

The protections apply to any employee who alleges that the employee has done something that the employee thinks breaks a Department labor law or an order of the Commissioner – even if the employee is mistaken and even if the employer incorrectly believes the employee made a complaint.

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