NY DOL Issues Notice of Pay Rate Form in Response to Wage Parity Law Amendment as Pay Stub Requirements Take Effect

On April 3, 2020, New York Governor Andrew Cuomo signed the 2020-2021 state budget bills, part of which amended the New York’s Home Health Care Worker Wage Parity Law (“Wage Parity Law”).  One of the key amendments made to Wage Parity Law was a new notice of wage parity pay/benefit requirements. Specifically, starting October 1, 2020, New York home care agencies must include additional information on their Notice and Acknowledgement of Pay Rate and Payday forms to indicate how wage parity is being paid by type of “additional wage” or “supplemental wage,” who is providing the benefit, the hourly rate claimed, and other additional information depending on what benefits are provided. Furthermore, in addition to standard information previously required to be placed on a paycheck, under an amendment to the New York Labor Law, home care agencies must now also provide a detailed breakdown of how wage parity is being paid on every wage statement (pay stub) or provide along with each wage statement a Notice and Acknowledgement of Pay Rate and Payday.

In response to the Notice of Pay amendment, the New York Department of Labor (NYDOL) released form LS 62 for use by agencies. Unfortunately, the form was not released with any meaningful guidance on how to complete the form accurately and there has been no indication to date from the NYDOL when, or if, such guidance will be issued. A review of form LS 62 reveals that some requirements may be difficult to comply with, either because of the way the form is structured, or because of how wage parity compliance can be satisfied by an agency under existing New York State Department of Health guidance. As each agency has different ways to comply with the Wage Parity Law, we recommend that home care agencies seek the advice of legal counsel to ascertain information regarding wage parity benefits that must be reported and how the form LS 62 should be completed.

As to the requirement to include wage parity information on every wage statement issued, the NYDOL has not, to date, issued any other meaningful guidance for compliance. It issued a “sample” wage statement in August 2020:  “Wage Statement (pay stub): Required Information under Section 195.3” – form LS 49 – which references the new wage parity requirement without providing detailed examples of the information that must be reported and the prescribed method for doing so. Under the amended Wage Parity Law, a home care agency, in lieu of placing wage parity information on wage statements, may instead attach a copy of the new Notice and Acknowledgement of Pay Rate and Payday form to every wage statement issued to an employee. We recommend that home care agencies immediately contact their payroll company about their capabilities to assist their compliance with the wage statement requirement and legal counsel to determine the best way to comply with the new requirement.

These amendments have resulted in many significant changes that will substantially affect home care agencies. Agencies should be cognizant of the new requirements and reach out to employment counsel with questions regarding these requirements, including how best to ensure compliance, as wage parity compliance has become, and will remain, an area that many governmental agencies are enforcing vigorously. The NYDOL has not commented on whether it will allow home care agencies a period of non-enforcement in order to allow time for agencies to amend their on-boarding and payroll practices and documents.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.