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February 2, 2012

Wage Theft Prevention Act

In addition to providing this notice to employees at the time of hire, the Act requires employers to provide this notice to all employees on or before February 1st each year.

The Act further requires that the notice be updated and provided again to employees at least seven (7) calendar days before any changes are made to the employee's pay. The New York State Department of Labor has taken the position that the notice is not necessary if the employee receives an increase in pay, as long as the increase is reflected on the employee's next pay stub. However, the notice must be issued if the employee experiences a decrease in pay.

The Act requires that employers maintain these records (and the wage statements described below) for six years.

If an employer fails to provide the notice of wages to an employee within ten (10) business days of the employee's first day of employment, the Commissioner of Labor (the "Commissioner") or the employee may bring an action to recover damages of $50 for each work week that the violation occurred (not to exceed $2,500), plus costs and reasonable attorneys' fees.

The Act also requires employers to provide employees with a detailed wage statement listing: the dates of work covered by the specified wage payment; the employee's rate(s) of pay and the basis thereof; the name of the employee, the name, address and telephone number of the employer, whether the employee is being paid by the hour, shift, day, weekly salary, piece, or commission; and any allowances claimed as part of the minimum wage. These are in addition to the already required listing of the employee's gross wages, deductions from such wages, and the employee's net wages. For non-exempt employees, wage statements must also include regular and overtime pay rates and the number of regular and overtime hours worked. For those employees paid by a piece rate, wage statements must include rates of pay and the number of pieces completed at each piece rate.

If the employer fails to provide the wage statement required under the Act, the Commissioner or the employee may bring an action in court to recover damages of $100 for each workweek that the violation occurred or continues to occur (not to exceed $2,500), plus costs and reasonable attorneys' fees.

Anti-Retaliation; Posting Requirements; and Civil and Criminal Penalties

The Act also increases protection for employees for asserting rights regarding their wages. In the event retaliation is found, the Act allows the employee to recover: injunctive relief (i.e. reinstatement to former position), up to $10,000 in liquidated damages, back pay, front pay in lieu of reinstatement, plus costs and attorneys' fees. It also provides that employers who engage in retaliation will be found guilty of a class B misdemeanor.

The Act provides that if an employer is found to have violated New York's wage payment laws, it may be required to post a notice of the violation for up to one year in an area visible to employees. If the employer's violation is deemed to have been willful, then, in addition to posting an employee-visible notice for one year, the employer must post the notice in an area that is visible to the general public for up to ninety (90) days.

Lastly, if an employer fails to pay the proper amount of wages, the Act provides for recovery of liquidated damages of up to 100% of the total amount of wages owed. (As compared to 25% liquidated damages allowable under the existing law). The Act also provides for an additional assessment of damages for willful or egregious violations. Moreover, if an employer is in default on a final judgment for wages owed for more than 90 days, the Act provides for recovery of an additional 15% in liquidated damages. The Act also provides for recovery of prejudgment interest and attorneys' fees.

The Act imposes criminal liability on partnerships and limited liability companies (in addition to the liability currently placed on corporations) and their officers and agents who knowingly permit the nonpayment of wages. Specifically, employers that fail to pay the proper amount of wages are guilty of a class B misdemeanor and, upon conviction, can be fined between $500 and $20,000 or imprisoned for up to one year. If employers are convicted of a second offense within six years of the prior offense, then they are guilty of a felony and, upon conviction, can be fined between $500 and $20,000 or imprisoned for up to one year and one day.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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