• New York State Department Of Labor Issues New Guidance And Model Forms Concerning Required Written Notice Of Pay Information To New Hires
  • April 23, 2010 | Author: Patrick M. Collins
  • Law Firm: McCarter & English, LLP - New York Office
  • Since October 26, 2009, Section 195.1 of New York's Labor Law has required that employers provide written notice at the time of hiring of a new employee's rate of pay and regular payday.  For employees eligible for overtime pay, the written notice must also state the regular hourly and overtime pay rates, and new employees must acknowledge receipt of the notice in writing. 

    The commissioner of labor subsequently issued an "official" employee notice and acknowledgment form, as well as a Fact Sheet stating that employers were required to use such form to comply with Section 195.1.  This mandate was problematic, however, because the Department of Labor's ("DOL" or "Department") official form referred to hourly-rate employees only, thus requiring employers to edit the form to reflect accurate pay data for employees who are paid in other ways, such as by multiple hourly rates, piece rate or salary. Further, the DOL's form required an employer to certify to the truth and accuracy of the information stated, thereby exposing an individual to possible prosecution for making a false statement, a misdemeanor. (To view our November 2009 Alert regarding these new requirements, click here.)

    The Department has now changed course, publishing new guidelines in December.  These new guidelines state that most employers are not required to use a DOL-issued form to comply with Section 195.1 but may create their own forms or use or adapt "model notices" issued by the DOL, so long as the employer's form includes the information required by Section 195.1, and the employee is given a copy and signs an acknowledgment of receipt, which the employer must keep for six years.  (To view the DOL's guidelines, click here.)

    The Department has also published six new "model notices," covering employees paid by hourly rate, multiple hourly rates, weekly rate for fixed hours, day or piece rate, prevailing rate or salary.  With respect to a salaried exempt employee, the DOL's guidelines state that the notice must inform the employee of the specific exemption that applies to the employee.  Notably, none of the DOL's new model notices contains a certification as to the accuracy of the information.  (To view the DOL's model notices, click here.)

    For temporary help firms, the Department has issued separate new guidelines under Section 195.1. The DOL is continuing to mandate that temporary help firms use the specific form issued by the DOL for purposes of notifying new employees of wage information.  The guidelines also require additional notices of wage information to be provided at the time of an employee's assignment and with each paycheck.  (To view the DOL's guidelines for temporary help firms, click here; to view the required notice, click here.)

    For employees paid on a commission basis, Labor Law Section 191 requires that the terms of employment be in writing and signed by the employer and employee. Such a Section 191 statement will satisfy the requirements of Section 195 if it also informs the employee that he or she is eligible for overtime pay or specifies the applicable exemption therefrom, states the method of calculating overtime, and includes the other information required by Section 195.1.