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New York State Worker Protection Laws

Wage Theft Prevention Act

The newest amendments to New York State’s labor law, the Wage Theft Prevention Act (WTPA), became effective April 9, 2011. The WTPA is a comprehensive Act that changes many of the notice requirements employers must comply with for each employee. The WTPA is applicable to all private sector employees, including charter schools, private schools and not-for-profit corporations because they are not public entities. The Act is not applicable to federal, state, or local government employees or employees in other states.

The requirements of the WTPA are integrated below into the sections that follow, which discuss the labor law’s worker protection requirements.

Minimum Wage

The New York State minimum wage is $7.25 per hour as of July 24, 2009 as a result of the increase in the federal wage rate. Employers must display a Minimum Wage information poster in their facilities.

Notice of Pay Rates and Regular Payday - Employers

Employers must give employees at the time of hire and each year before February 1, notice of their rates of pay and regular payday. The notice required by the labor law must include: the employee’s rate or rates of pay; the overtime rate of pay, if the employee is subject to overtime regulations; the basis of the wage payments (per hour, per shift, per week, piece rate, commission, etc.); any allowances the employer intends to claim as part of the minimum wage, including tip, meal and lodging allowances; the regular pay day; the employer’s name and any names under which the employer does business (D/B/A); the physical address of the employer’s main office or principal place of business and, if different, the mailing address; and the employer’s telephone number.

The notice must be provided on a form available from the New York State Department of Labor or a form created by the employer that meets the requirements. It must be given to new employees before they do any work and between January 1 and February 1 of each year for all other employees. The notice can be included with other new hire paperwork, but must be on its own form and cannot be waived by the employee. If the notice is provided in electronic format it must be a system where the employee can acknowledge receipt and print a copy of the notice. The notice must be provided in the employee’s primary language as identified by the employee. The employee must sign and acknowledge receipt of the notice and the acknowledgement must be in the employee’s primary language. The New York State Department of Labor has made available on its website several interpretations of the notice to assist employers. See forms LS 55: Notice and Acknowledgement of Pay Rate and Payday and LS 56: Notice for Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week).

In general, written notice is not required when there is an increase in the pay rate and where the new rate is shown on the next paystub. However, in the Hospitality industry, written notice is required every time there is a wage change. In all industries, employees must be notified in writing prior to any wage reduction.

Employers face damages from the state Department of Labor and the worker, him/herself, for violations. The Department of Labor may assess damages of $50 per week per worker that the notice is not provided and an individual employee can sue for up to $2500 in damages.

Notice of Pay Rate and Payday for New Hires – Temporary Help Firms

Employers must give newly-hired workers written notice of the rate at which they will be paid and their regular payday. The notice must be provided on a form available from the New York State Department of Labor, or a form created by the employer that meets the requirements, and must be given to new employees before they do any work. Since the rates of pay at temporary help firms often vary for each assignment, the Department has prepared guidelines to assist temporary help firms in complying with the provisions of that section of the Labor Law. The Department has also prepared a form for temporary help firms to provide the required notice.

Temporary Help Firms (also known as “temp agencies”) are required, at the time of the initial interview or hire, to provide the applicant-employee with the range of hourly wages he/she will likely earn based upon qualifications and assignment suitability. The range must be based on a good faith estimate of typical wages earned by similarly qualified employees working at assignments similar to those for which the applicant-employee is eligible and likely to be assigned. The notice provided must also include the designated payday unless it cannot be established at that time; in which case the notice must inform the applicant-employee that the payday may vary. Lastly, the notice must explain the employees’ rights in general to overtime compensation as contained in Form LS 51: Notice and Acknowledgement of Wage Rate(s) for Temporary Help Firms available on the New York State Department of Labor’s website.

Additionally, temporary help firms must notify employees assigned to perform work or services for other organizations either verbally or in writing of the specific designated payday for the assignment, the actual hourly rate of pay, and the overtime rate or that the position is exempt from overtime requirements and the basis for the exemption. The WTPA also notes that compliance with the guidelines provided by the NYSDOL does not relieve temporary help firms of their obligations under any other sections of the labor law.

Laws Governing the Employment of Minors

An employment certificate, or “working papers,” is required for minors under 18 years of age before they begin work. High school graduates, minors who work for their parents, and minors who do industrial homework are included in this group.

Minors who are 14 and 15 may work in stores and offices and other places, but not in factories. They may do delivery or clerical work in an enclosed office of a factory, and in dry cleaning stores, shoe-repair shops and similar stores. They may mow lawns, do yard work and other household chores. They may not do factory work, or operate washing, grinding, cutting, slicing, pressing or mixing machinery, or do painting or exterior cleaning in connection with the maintenance of a building or structure. Minors 16 and over may do factory work.

Minors under 18 are prohibited from working in certain hazardous occupations such as those in construction work, or in the operation of certain power-driven machinery or in the operation of circular saws, or as a helper on a motor vehicle. The law makes an exception for certain minors who are apprentices.

The law restricts the times of day and the number of hours minors can work in New York. The New York Department of Labor provides a detailed guide called Permitted Working Hours for Minors, which can be obtained from the Department’s website. The guide provides detailed information regarding work hours when school is in session, when school is not in session, when minors are not attending school, in connection with farm work, newspaper carriers or street trades.

The New York Department of Labor has also proposed new rules regulating child performers in the state. As of the publishing of this book the final rules have not been promulgated. Employers of child performers (not child models) should check with the Department of Labor regularly to find out when the final rules are published.

Wage Payment Frequency and Regular PayDays

New York Law requires payment of wages on regularly scheduled paydays. Most manual workers must be paid weekly, within seven calendar days after the end of the week in which the wages were earned. There are, however, two exceptions to this requirement: 1) a nonprofit organization must pay its manual workers in accordance with the agreed terms of employment, but not less frequently than semi-monthly; and, 2) an employer who, after demonstrating reliability in meeting its payroll responsibilities and furnishing proof that it meets other specific criteria, has received permission from the Commissioner of the Department of Labor, may pay its manual workers less frequently than weekly, but not less frequently than semi-monthly. A manual worker means a mechanic, a workingman or woman, or a laborer. Railroad workers must be paid on or before Thursday of each week for the wages earned for the seven day period ending on the preceding Tuesday.

Commissioned salespersons must be paid in accordance with the agreed terms of employment but not less frequently than once in each month and not later than the last day of the month following the month in which the money is earned. If the monthly payments of wages, salary, drawing account or commissions are substantial, then additional compensation such as incentive earnings may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement.

Clerical and other workers must be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular paydays designated in advance by the employer. This requirement applies also to executive, administrative, or professional employees earning $900 a week or less.

No employee, whether clerical, manual, or other worker, may be required as a condition of employment to accept wages...