LABOR & EMPLOYMENT LAW ALERT

Transcription

1 LABOR & EMPLOYMENT LAW ALERT JANUARY 2010 NEW YORK STATE DEPARTMENT OF LABOR ISSUES NEW GUIDANCE AND MODEL FORMS CONCERNING REQUIRED WRITTEN NOTICE OF PAY INFORMATION TO NEW HIRES Since October 26, 2009, Section 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 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, See Attachment A.) 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 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, See Attachment B.) 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, please visit /formsdocs/wp/ellsformsandpublications.shtm.) For temporary help firms, the Department has issued separate new guidelines under Section 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, See Attachment C; to view the required notice, See Attachement D.) 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 We will continue to keep you informed of any further changes or updates in the Department of Labor s guidance or interpretations of the New York Labor Law. If you have any questions regarding Sections 195 or 191, the DOL s guidelines, or how to navigate the various state and federal employment laws governing the workplace, please contact any of the attorneys in the McCarter & English Labor & Employment Practice Group listed below. Labor & Employment Practice Group M. Carolina Avellaneda cavellaneda@mccarter.com Peter J. Boyer pboyer@mccarter.com Thomas F. Doherty tdoherty@mccarter.com Brian G. Leary bleary@mccarter.com Pamela J. Moore pmoore@mccarter.com Berin S. Romagnolo bromagnolo@mccarter.com Peter D. Stergios pstergios@mccarter.com Patrick J. Bannon pbannon@mccarter.com Patrick M. Collins pcollins@mccarter.com Robert J. Gallo rgallo@mccarter.com John M. McKelway Jr jmckelway@mccarter.com Peter D. Roberts proberts@mccarter.com Adam N. Saravay asaravay@mccarter.com Richard Voigt rvoigt@mccarter.com Disclaimer by McCarter & English, LLP: This publication is for informational purposes only and is not offered as legal advice as to any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice as to the particular facts and applicable law involved McCarter & English, LLP. All Rights Reserved.

2 LaBOR & EMPLOYMENt Law alert NOVEMBER 2009 NEw YORk DEPaRtMENt Of LaBOR IssuEs NOtIcE and acknowledgment form for compliance with LaBOR Law's NEw writing REquIREMENt REGaRDING PaY INfORMatION As of October 26, 2009, an amendment to Section 195(1) of New York's Labor Law requires employers to provide written notice to new employees, at the time of hiring, of the employee's rate of pay and the employer's regular pay day. For employees who are eligible for overtime pay, the written notice must also state the regular hourly rate and the overtime pay rate. In addition to providing this written notice, employers must obtain a written acknowledgment from each employee of receipt of the notice. Prior to this amendment, the Labor Law obligated employers to notify new hires about the rate of pay and regular pay day, but there was neither a writing requirement nor an obligation to notify employees about the overtime rate. The legislative history of this statutory amendment indicates that the new requirements are aimed at facilitating the proper computation of overtime: "These changes will ensure that employees understand a critical feature of the employment relationship with their employers and will help to prevent confusion between an employer and employee regarding overtime pay." On October 28, 2009, the Commissioner of Labor released an official form, entitled "Labor Law Section 195(1) Notice and Acknowledgment of Wage Rate and Designated Payday Hourly Rate Plus Overtime," for use by employers in complying with the Labor Law. (See attachment A - Notice & Acknowledgment Form). The Commissioner also issued Fact Sheets for employers and employees. (See attachment B - Notice of Pay Rate Fact Sheets). According to the Department of Labor's Fact Sheets, employers must use the Department's official form in order to comply with Section 195(1)'s written notice requirement for all new workers, even though that form's notice and acknowledgment sections are geared only at non-exempt, hourly-paid employees. Pending further guidance from the Commissioner, 1 it appears that employers will need to make handwritten or typed adjustments to the official form to properly disclose pay information to exempt employees in order to express their pay in some way other than hourly and to eliminate the inapplicable reference to overtime pay. Notably, the Department's official form requires employers to certify to the truth and accuracy of the information being disclosed to the employee at the time of hire, thereby exposing the employer to punishment for a Class A misdemeanor in the event of a knowingly false statement. If you have any questions regarding this change to New York's Labor Law, the Department of Labor's new official form, or how to navigate the various state and federal employment laws governing the workplace, please contact any of the attorneys in the McCarter & English Labor & Employment Group listed below. As always, we are happy to help you with any legal compliance concerns or employment litigation needs that you may have. Labor & Employment Practice Group M. Carolina Avellaneda cavellaneda@mccarter.com Peter J. Boyer pboyer@mccarter.com Thomas F. Doherty tdoherty@mccarter.com John M. McKelway Jr jmckelway@mccarter.com Peter D. Roberts proberts@mccarter.com Adam N. Saravay asaravay@mccarter.com Richard Voigt rvoigt@mccarter.com Patrick J. Bannon pbannon@mccarter.com Patrick M. Collins pcollins@mccarter.com Brian G. Leary bleary@mccarter.com Pamela J. Moore pmoore@mccarter.com Berin S. Romagnolo bromagnolo@mccarter.com Peter D. Stergios pstergios@mccarter.com 1 The New York Department of Labor has prepared a separate form of Notice and Acknowledgment to address the unique needs of temporary help agencies in complying with the amendment to Labor Law 195. (See attachment C). Disclaimer by McCarter & English, LLP: This publication is for informational purposes only and is not offered as legal advice as to any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice as to the particular facts and applicable law involved McCarter & English, LLP. All Rights Reserved.

3 New York State Department of Labor Division of Labor Standards Guidelines for Written Notice of Rates of Pay and Regular Payday Starting on October 26, 2009, Section of the Labor Law provides as follows: Every employer shall: 1. Notify his or her employees, in writing, at the time of hiring of the rate of pay and of the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article, and obtain a written acknowledgement from each employee of receipt of this notice. Such acknowledgement shall conform to any requirements established by the commissioner with regard to content and form. For all employees who are eligible for overtime compensation as established in the commissioner's minimum wage orders or otherwise provided by law or regulation, the notice must state the regular hourly rate and overtime rate of pay. This law requires all employers, other than governmental agencies and school districts, to give newly hired employees a written notice of: Their rates of pay Their regular payday. If the employee is covered by an overtime provision of labor law, the written notice also must include: The overtime rate of pay. The written notice must be given at the time of hiring, before any work is performed. No particular form is required but model notices for several common types of pay agreements are available on the Department website and in hard copy. The Department reserves the right to require use of Department-provided forms in the future if employer notices do not meet requirements. Most employees must receive overtime pay at 1½ times their regular rates of pay for all hours worked over 40 in a workweek. In a few occupations that are exempt from overtime under the federal Fair Labor Standards Act, New York State Labor Law requires the employees be paid at least 1½ times the minimum hourly rate for their overtime hours. A few occupations are exempt from the overtime pay provisions of the both state and federal law. The notice to exempt employees must state the specific exemption that applies. The regular payday must be at least weekly for manual workers, at least twice a month for clerical and other workers, and at least monthly for commissioned salespeople. The employer must have the employee sign a statement acknowledging receipt of the written notice. The employer must keep the signed notice for six years. Commissioned salespersons: Section 191.1(c) of the Labor Law requires that the terms of employment for commissioned salespersons be in writing, signed by both the employer and the employee, and kept on file by the employer for not less than three years. The written statement will satisfy the employer s obligations under Section of the Labor Law if the following conditions are met: it meets all of the requirements of Section 191.1(c); it tells the salesperson if he or she is eligible for overtime pay, and if not, specifies the exemption under which the salesperson falls;

4 it notifies the eligible salesperson of the method of calculating his or her overtime rate of pay. This must include commissions as part of the regular rate; it notifies the salesperson of his or her designated pay day or method for determining when the salesperson will be paid; it is acknowledged in writing as received by the employee; and it is kept on file for six years. Farm employees: New York Code of Rules and Regulations (NYCRR) Section requires that employers notify each farm employee, in writing, of the conditions of employment (work agreement) at the time of commitment to hire, including: the full name, address and telephone number of the employer; the location and type of work; housing arrangements, including cost, number of rooms, cooking facilities; allowances if any, for meals and lodging to be deducted from wages; benefits to be provided by the employer; wages to be paid and time of payment; period of employment; all other planned payroll deductions; non-economic terms and conditions of employment; and overtime provisions. Such writing will satisfy the employer s obligations under Section of the Labor Law if it meets all of the requirements of NYCRR , it is acknowledged in writing as received by the employee, and it is kept on file for six years. Temporary Help Firms: A notice form and separate guidelines have been developed by the Department for use by temporary help firms. It is available at the Department s website or in hard copy. The use of those guidelines and form is strictly limited to employers meeting the definition of the term temporary help firms in Section of the Labor Law. For more information or assistance, please contact the NYS Department of Labor, Division of Labor Standards office nearest you or visit our website at Albany District New York City District Rochester Sub-district State Office Campus 75 Varick St., 7 th floor 109 S. Union St., Rm. 318 Bldg. 12, Rm. 185A New York, NY Rochester, NY Albany, NY (212) (585) (518) Garden City District Syracuse District Binghamton Sub-district 400 Oak St., Suite East Washington St., Rm Hawley St., Rm. 900 Garden City, NY Syracuse, NY Binghamton, NY (516) (315) (607) Buffalo District White Plains District 65 Court St., Rm Bloomingdale Rd. Buffalo, NY White Plains, NY (716) (914) LS 52 (12/09)

5 New York State Department of Labor Division of Labor Standards Guidelines for Notice and Acknowledgment of Wage Rate(s) for Temporary Help Firms Section of the Labor Law, effective October 26, 2009, states every employer must: notify employees in writing at time of hiring of the rate of pay and of the regular pay day designated by the employer; state in writing the regular hourly rate and overtime rate of pay for all employees eligible for overtime compensation according to minimum wage orders or other law or regulation; obtain a written acknowledgement from each employee of receipt of this notice. This acknowledgment must conform to any requirements set by the Commissioner concerning content and form. Temporary help firms cannot supply this information at the time of hire because wages may vary by assignment. Therefore, the Department of Labor applies the following interpretations and guidelines of the notice requirements in Section of the Labor Law for compliance by temporary help firms. 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. 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. 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, of: 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 and must be based 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; the designated pay day, unless the designated pay day cannot be established at that time. If a fixed pay day cannot be established at the time of hire/interview, the applicant-employee must be informed that the pay day may vary depending upon the usual practice at the assignment; and the employee s rights, in general, to overtime compensation as contained in the attached form.

6 B. Provide the applicant-employee with the Department of Labor Notice and Acknowledgement of Wage Rate(s) /Temporary Help Firms form (LS 51), obtain the signature of the applicant-employee on the form, give the applicant-employee a copy of the signed form and keep the original signed form in the employer s files. II. Time of Specific Assignment When a temporary help firm assigns an employee to perform work at or services for other organizations, the temporary help firm must notify the employee, either verbally or in writing, of: The specific designated pay day 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. III. Statement with Each Paycheck In addition to any other statements required by law, employees of temporary help firms must receive with each paycheck or paystub a statement listing the following: Number of hours worked, regular and overtime, for the wages in the paycheck; and Actual regular and overtime wage rates paid for the hours worked. IV. Recordkeeping Requirements Temporary help firms must establish, maintain and preserve for not less than six years the original signed copy of the form Notice and Acknowledgement of Wage Rate(s) /Temporary Help Firms (LS 51). Compliance with these guidelines does not relieve temporary help firms of their obligations under any other sections of the Labor Law. For additional assistance or information please contact the Division of Labor Standards office nearest you. Albany District Garden City District Syracuse District State Office Campus 400 Oak St., Suite East Washington St., Rm. 121 Bldg. 12, Rm. 185A Garden City, NY Syracuse, NY Albany, NY (516) (315) (518) Binghamton Sub-district Buffalo District White Plains District 44 Hawley St., Rm Court St., Rm Bloomingdale Rd. Binghamton, NY Buffalo, NY White Plains, NY (607) (716) (914) New York City District Rochester Sub-district 75 Varick St., 7th Floor 109 S. Union St., Rm. 318 New York, NY Rochester, NY (212) (585) LS 50 (12/09)

7 New York State Department of Labor Division of Labor Standards Notice and Acknowledgement of Wage Rate(s) for Temporary Help Firms Section of the Labor Law requires employers, upon hiring, to provide written notice to employees of their regular and overtime rates of pay. Since the rates of pay for employees at temporary help firms often vary for each assignment, this form provides the expected ranges of pay the employee will receive. Employees will be notified of the actual rates of pay for each assignment prior to commencing work on each assignment. Temporary Help Firm Company name: FEIN: Street address: City and state: Zip code: Phone: ( ) - Preparer s name: Applicant-Employee Name: Street address (include apartment): City: State and zip code: Phone: ( ) - Preparer s title: Average wage ranges: The average wage range cannot be excessively broad and is based on the average wages earned by similarly qualified employees working at assignments similar to those for which the applicant is eligible and likely to be placed with. Designated pay day: If you do not know the designated pay day because it is based on the pay day of the assigned organization, state unknown. I certify that I read the above, and the information contained in this form is true and accurate to the best of my knowledge and belief. I understand any false statements knowingly made are punishable as a class A misdemeanor (Section of the New York State Penal Law). I affirm that the above statements are true. Date: / /20. mm / dd / yyyy Preparer s signature Rules Governing Overtime Pay in New York Most employees in New York must be paid wages of 1½ times their regular rate of pay for all overtime hours worked over 40 per workweek (44 hours for certain residential employees). The number of hours worked is the total number of hours worked in all of the employee s assignments for the temporary help firm. Some employees are not required to receive overtime wages of 1½ times their regular rate of pay for overtime and must instead receive overtime wages of 1½ times the minimum wage. Very few employees (mostly executive, administrative, or professional employees) are not eligible for overtime pay at all. Your employer will inform you of the overtime rate that will apply to a specific assignment when you receive it. If you are not eligible for overtime based upon your assignment, the employer will explain the reason why at that time. I have been notified of my wage rate, overtime rate, and designated pay day on the date set forth below. Date: / /20. mm / dd / yyyy Applicant-employee signature The employee-applicant must receive a duplicate signed copy of this form. The employer must keep the original. LS 51 (12/09)