By: Anne M. Dunne, RN-BC, MBA, MSCN, Director of Healthcare Consulting
On December 10, 2010, Governor Patterson signed the Wage Theft Prevention Act (“WTPA”). This act took effect on April 9, 2011. The WTPA amends the New York Labor Law and was designed to prevent employers from underpaying their employees and retaining the difference. The WTPA provides various protections to employees and penalizes employers who fail to comply with the WTPA’s requirements. Under this new Act, the cost of new employees may be more than just their salary and benefits alone.
The WTPA amends Section 195 of the New York State Labor Law and requires employers to provide employees a written notice containing the following information:
- The basis of the employee’s rate(s) of pay whether it be hourly, by shift, by day, by week, salary, piece, commission, or other
- 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 employee’s regular pay day designated by the employer in accordance with the frequency of pay requirements in the Labor Law
- The name of the employer and 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
- Any “such other information as the commissioner deems material and necessary.”
This notice must be provided to each new employee upon hiring. The law requires the notice be provided at the time of hiring, annually on or before February 1st of each year of employment, and within 7 days of a change if the change is not listed on the employee’s pay stub for the following pay period. Notices need to be given in a worker’s primary language if the Department of Labor provides notice templates in that language. Otherwise the notice need only be provided in English. Templates are available at the NYS Dept of Labor website in English, Spanish, Chinese, Korean, Creole, Polish and Russian. An employee can not waive the notice requirement. The notice can be provided electronically as long as the employee can acknowledge the receipt of the notice and print out a copy. If an employee refuses to acknowledge and sign the notice, the employee’s refusal should be noted on the notice. Employers are required to retain a copy of the notice for a six year period. Exempt employees, including professionals, executives, or administrators, are not excluded from the notice requirement.
The Act clarifies and expands the Department of Labor’s authority to enforce the Labor Law and expands an employee’s ability to bring complaints and private actions for such violations. The protection against prohibited retaliation is strengthened by closing loopholes on what actions constitute retaliation and expands the remedies available to employees If an employer fails to comply and does not provide an employee with the notice within ten business days of his/her first day of employment, an action may be brought by the Commissioner of Labor or by the employee to recover damages at the rate of $50 for each work week during which the violation occurred or continues to occur, up to a maximum of $2,500 together with attorneys’ fees and costs. Employees have the right to complain to their employer, the Department of Labor, or the Attorney General about a possible violation of the Labor Law. Employees can file a complaint about these possible violations and give information about their conditions of employment to the Department of Labor or Attorney General and testify at hearings or other proceedings. If it is found that an employer retaliated against an employee because the employee complained that the employer engaged in conduct that the employee, reasonably and in good faith, believed violated any provision of the New York Labor Law, the employee may be entitled to reinstatement, back pay, and front pay. The employee may also recover up to $10,000 in liquidated damages. Employers or their agents can be fined up to $10,000 in penalties for retaliation.
The Wage Theft Prevention Act has implications for all businesses but particularly small business owners who do not have a dedicated human resource department that is aware of the new requirement and can provide the support necessary for compliance. Those owners not “in the know” may regrettably feel the pain associated with a penalty for non compliance to the Wage Theft Protection Act. Contact your business advisors to ensure that your policies and procedures are current and fully compliant.
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