New York Employers Are No Longer Obligated to Provide Annual Wage Notices to Existing Employees

On December 29, 2014, New York Governor Andrew Cuomo signed a bill that repeals the requirement that employers distribute annual wage notices to existing employees on or before February 1 of each year. Although there were technical concerns about whether the signing occurred soon enough to relieve employers from the annual wage notice for 2015, shortly after the bill was signed, a notice appeared on the NYS Department of Labor’s website indicating that it would treat the repeal as being effective for 2015.

In the same notice, the NYSDOL confirmed that the requirement to provide notices to employees at the time of hire remains in place. That law requires every employer with New York employees to provide written wage-notices to employees at the time of hire^[1] containing the following information:

• Rate(s) of pay;
• The basis of payment (i.e., whether paid by the hour, shift, day, week, salary, piece, commission or other method);
• Allowances, if any, claimed as part of the minimum wage (e.g., tip, meal or lodging allowances);
• For employees subject to overtime (i.e., non-exempt), the regular hourly rate of pay and the overtime rate of pay;
• The regular pay day designated by the employer;^[2]
• 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; and
• Such other information as the Commissioner of Labor deems material and necessary.^[3]

The notices must be provided in English and in the language identified by each employee as the employee’s primary language at the time of hiring.

The New York State Department of Labor, as required by the law has prepared form notices in English and now in many other languages. While use of the Department of Labor’s form is not required (provided all the necessary information is given), it is generally advisable.

Each time an employer provides a notice, the employer must obtain from each employee a signed and dated written acknowledgement of receipt. Like the notice itself, the acknowledgement must be in English and the primary language of the employee. Moreover, the acknowledgement must contain an affirmation by the employee that the employee accurately identified his or her primary language to the employer and that the notice was in the language identified. When using the Department of Labor’s form, the acknowledgement is part of the notice.

Employers must retain signed acknowledgement forms for at least six years.

Conclusion

New York employers have been relieved from compliance with the annual notice requirement, which, compounded by a six-year record retention requirement, was a costly and time-consuming administrative burden. The NYSDOL has confirmed that no annual notice is required for 2015. New York employers should remain mindful, however, of their continuing obligation to provide notices at the time of hire, particularly as the penalties for non-compliance have been increased.

^[1] The amendment has increased the penalties for failure to comply with the time-of-hire notice.

^[2] Note that Section 191 of the New York Labor Law prescribes certain requirements regarding the frequency of payment.

^[3] To the extent the Commissioner exercises this right, if the employer uses the applicable NYSDOL form, the employer will satisfy the requirement.