The Wage Theft Prevention Act, effective April 9, 2011, applies to all New York employers. It modifies current new hire notification requirements that have been in effect since late 2009, imposes an annual notification requirement and modifies the information required to be included on pay stubs.
Guidelines for Notice and Acknowledgment of Wage Rate(s) for Temporary Help Firms
These guidelines apply only to “temporary help firms,” not to other employers in New York State. Also, these guidelines apply only to individuals hired by such temporary help firms, not to individuals hired by other employers for temporary work.
For these guidelines, the term “temporary help firm” has the meaning given in Labor Law Section 916.5: “a business which recruits and hires its own employees, and assigns those employees to perform work at or services for other organizations, to support or supplement the other organization’s workforce, or to provide assistance in special work situations such as, but not limited to, employee absences, skill shortages, seasonal workloads, or to perform special assignments or projects.”
Effective April 9, 2011, Section 195.1 of the Labor Law requires all employers, other than government agencies, to give employees at the time of hire (before work is performed) and on or before February 1 of each year, notice of the following:
1. the employee’s rate or rates of pay
2. the overtime rate of pay, if the employee is nonexempt from overtime regulations
3. the basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.)
4. any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances
5. the regular payday
6. the employer’s name and any names under which the employer does business (DBA)
7. the physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address
8. the employer’s telephone number 
The Department of Labor recognizes that temporary help firms may not be able to supply all of the information required by Section 195.1 (specifically items 1-5 listed above) of the Labor Law, at the time of hire, because wages and paydays may vary by assignment. Therefore, the Department of Labor applies the following interpretations and guidelines of the notice requirements in Section 195.1 of the Labor Law for compliance by temporary help firms.
I. Time of Hire/Interview
At the time of the initial interview or hire, the temporary help firm must:
A. Notify the applicant-employee, in writing, in English and the employee’s primary
language of:
1) The range of hourly wages he or she will likely earn based upon his/her qualifications and assignment suitability.
• The potential hourly wages may not be excessively broad. Base them on a good-faith estimate of the typical wage earned by similarly qualified employees working at assignments similar to those for which the applicant-employee is eligible and likely to be assigned
2) The designated payday, unless the designated payday cannot be established at that time.
• If a fixed payday cannot be established at the time of hire/ interview, inform the applicant-employee that the payday may vary depending upon the usual practice at the assignment and
3) The employee’s rights, ingeneral, to overtime compensation as contained in LS 51 Notice and Acknowledgement of Wage Rate(s) for Temporary Help Firms.
B. Obtain the signature of the applicant-employee on the Acknowledgement portion of form LS 51, give the applicant-employee a copy of the signed form, date it, and keep the original signed form in the employer’s file for 6 years.
• The employer must have the employee sign a statement acknowledging receipt of the written notice in English and the employee’s primary language. Employees must also acknowledge that they have properly identified their primary language to their employer. The employer must keep the signed and dated notice and acknowledgement for six years and provide a copy to the employee.
• The Department of Labor has prepared Notices and Acknowledgements in several languages. If the Department does not make a Notice and Acknowledgement available in a particular language, employers may provide notice to that employee in English only.
• Employers will not be penalized for errors in the dual language Notices issued by the Department of Labor.
II. Time of Specific Assignment
When a temporary help firm assigns an employee to perform work at, or provide services for other organizations, the temporary help firm must notify the employee, either verbally or in writing, of:
• The specific designated payday for the particular assignment
• The actual hourly rate of pay for the assignment and
• The overtime rate of pay he or she will receive; or, if applicable, inform the employee that the position is exempt from additional overtime compensation and the basis for the overtime exemption
Compliance with these guidelines does not relieve temporary help firms of their obligations under any other sections of the Labor Law.
Templates and separate guidelines have been developed by the Department of Labor for use by all other employers (LS 52). They are available on the Department’s web site or in hard copy.
For additional assistance or information please contact the Division of Labor Standards office nearest you, which you can find online at www.labor.ny.gov.
Source: New York State Department of Labor, Division of Labor Standards
Additional Information Required in Wage Statements/Pay Stubs
The Act also increases the amount of information employers are required to provide in employee pay stubs. By April 9, employers must provide a statement with every payment of wages listing the following information:
• the name of the employee;
• the name of the employer;
• the address and telephone number of the employer;
• the dates of work covered by that payment of wages;
• 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 any employees who are not exempt from the overtime wage requirements, the statement must also identify the regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked, and the number of overtime hours worked. Also, for any employees paid a piece rate, the statement must include the applicable piece rate or rates of pay and number of pieces completed at each piece rate.
Under current law, employers need only provide a statement identifying gross wages, deductions and net wages with each payment of wages.
Source: Venable LLP, Labor and Employment Alert, March 2011
Additional and Increased Penalties for Noncompliance Pay Notices
If an employer does not provide a pay notice to an employee within 10 business days of the employee’s date of hire, the Act permits both the employee and the Commissioner of Labor to bring an action against the employer. In an action brought by the employee, the employee will be able to recover $50 for each workweek that he/she did not receive a pay notice, to a maximum of $2500, plus costs and reasonable attorneys’ fees. Courts will also be able to award an employee injunctive and declaratory relief.
In an action brought by the Commissioner of Labor, the Commissioner will also be able to recover $50 for each work week for each employee who did not receive a pay notice. There are no damage caps in actions brought by the Commissioner.
Wage Statements/Pay Stubs – The Act permits both employees and the Commissioner of Labor to bring an action against employers for failure to provide the required pay stubs. In an action brought by an employee, the employee will be able to recover $100 for each work week that he/she did not receive a wage statement, to a maximum of $2500, plus costs and reasonable attorneys’ fees. Courts will also be able to award an employee injunctive and declaratory relief.
In an action brought by the Commissioner, the Commissioner will also be able to recover $100 for each work week for each employee who did not receive a wage statement. There are no damage caps in actions brought by the Commissioner.
Increased Damages for Failure to Pay Wages – Under the Act, the amount of liquidated damages available in cases involving successful claims for unpaid wages increases from 25%, to 100%, of unpaid wages. The Act also clarifies that employees may recover prejudgment interest on unpaid wages.
Additional Penalties for Failure to Comply with Final Judgments or Court Orders – The Act also sets additional penalties for employers who fail to comply with final judgments or court orders within 90 days in an amount equal to 15% of any damages due and owing.
Criminal Liability for Officers and Agents of Partnerships and LLCs – Currently, the New York Labor Law provides for criminal liability for employers and officers and agents of corporations, but not partnerships and LLCs, for failure to pay wages or otherwise comply with related record keeping obligations. The Act expands criminal liability to officers and agents of partnerships and LLCs.
Source: Venable LLP, Labor and Employment Alert, March 2011.
Is Tricom Funding processing your payroll?
If so, Tricom will ensure your pay stubs are compliant with the new requirements. If Tricom isn’t processing your payroll, give us a call at 800-348-4815. We’d love to talk with you on how we may be able to benefit your staffing company in this area.
y once in a while as I speak with staffing company owners, I’ll meet someone who doesn’t use any source of outside payroll funding assistance. 
