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.
On April 3, 2020, New York Governor Andrew Cuomo signed the 2020-2021 state budget bills, which include several amendments to New York’s Wage Theft Prevention Act (WTPA). The WTPA, which went into effect in 2011 and was revised in 2014, requires employers to, among other things, provide to employees “new hire” notices and paystubs containing specific and enumerated information.
Changes to “New Hire” Notice Required Under New York Labor Law Section 195(1)
The WTPA currently requires employers to provide to employees, at the time of hiring, a notice containing the following information:
the rate or rates of pay and basis thereof (including the employee’s overtime rate of pay, if applicable), whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; the name of the employer; 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; plus such other information as the commissioner deems material and necessary.
The new hire notice must be provided to the employees in English and their primary language, must be signed and dated by the employee, and must be maintained by the employer for six years.
Recent amendments to the WTPA will require home healthcare employers to specify on a home care worker’s new hire form the benefits the employee is receiving under New York’s Wage Parity Law, including “each type of…benefit provided.” This requirement goes into effect on October 1, 2020.1
The new hire notice requirements under the WTPA will also be amended to address employers covered by New York’s prevailing wage law. Specifically, employers covered by the prevailing wage law will be required to specify on an employee’s new hire form the “prevailing wage supplements, if any, claimed as part of any prevailing wage or similar requirement pursuant to Article Eight of this Chapter.” If the employer claims prevailing wage supplements, the employee’s new hire notice must identify the following information:
(i) the hourly rate claimed; (ii) the type of supplement, including when applicable, but not to, pension or healthcare; (iii) the names and addresses of the person or entity providing such supplement; and (iv) the agreement, if any, requiring or providing for such supplement, together with information on how copies of such agreements or summaries thereof may be obtained.
The amendments requiring this additional information for covered employers take effect on June 23, 2020.
Changes to “Pay Stub” Requirements Under New York Labor Law Section 195(3)
The state budget bills also amended the WTPA’s requirements regarding paystubs. Specifically, home health care employers will be required to include on a home care worker’s paystubs “the benefit portion of the minimum rate of home care aide total compensation” as defined by the Wage Parity Law, and each type of “home care aide benefits” provided.
Similarly, prevailing wage employers will be required to include, on each employee’s paystub, the prevailing wage supplements claimed as part of prevailing wage requirements, and further must specify the type of each supplement claimed and the hourly rate for each, or be accompanied by a copy of the applicable “new hire notice” as amended.
Changes to “Recordkeeping” Requirements Under New York Labor Law Section 195(4)
Finally, the WTPA has been amended to impose additional recordkeeping obligations on employers. Section four of the WTPA currently requires employers to maintain, for a time period of not less than six years, “true, and accurate payroll records showing for each week worked the hours worked; the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages for each employee.”
The WTPA, as amended, will require home care employers to additionally maintain records of “the benefit portion of the minimum rate of home care aide total compensation,” as defined by the New York Wage Parity Law, for at least a six-year period. This requirement is scheduled to go into effect on October 1, 2020.
Finally, the WTPA, as amended, will require all employers to additionally maintain records of the “amount of sick leave provided to each employee,” for at least a six-year period. This requirement is scheduled to go into effect on September 30, 2020. Thus, employers will be required to track employees’ sick pay usage and maintain such records for no less than six years.
1 As described in Littler’s article regarding recent amendments to the New York Wage Parity Law, the law establishes a minimum wage rate, additional wages and supplemental benefits for home care aides who perform Medicaid-reimbursed work within New York City and the counties of Nassau, Suffolk and Westchester.