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New York Employers Must Provide New Hires Prescribed State Labor Department Wage Notification Form

Many Questions Still Unanswered

Effective October 26, 2009, New York employers are required to notify all new hires in writing of their hourly rate, overtime rate (if applicable) and payday and receive a written acknowledgment of such notification.  The enactment indicated that the Department of Labor would provide guidelines to assist employer compliance. 

Shortly before the effective date, the Department issued a mandatory form and explanatory notice to be used by temporary agencies.  On October 28, 2009, the Department posted on its website a mandatory form that must be used by all other New York State employers in order to comply with the requirement, as well as an explanatory notice.  (The notice is not required to be posted in the workplace and is purely informational.) 

The Department of Labor is taking the position that neither a countersigned offer letter containing the required information nor a new hire document prepared by the employer and acknowledged by the employee is sufficient, even if such document contains all required information.

Below are links to the forms and explanatory guidance:

• Guidelines for Temporary Help Firms (updated 10/23/2009)
• Form - Notice and Acknowledgement of Wage Rate(s) / Temporary Help Firms (updated 10/23/2009)
• Fact Sheet - Notice of Pay Rate and Payday for New Hires - P705E
• Form - Notice & Acknowledgement of Wage Rate and Designated Payday - LS 52

Unfortunately, as drafted, the general form is intended for non-exempt hourly employees who work at one rate of pay.  The Department of Labor advised that it has received numerous inquiries from employers and law firms asking how to adapt the form to all other employees, such as exempt employees, employees who receive two base pay rates and a blended overtime rate, commissioned employees, employees who receive bonuses or shift differentials and employees paid overtime under the fluctuating workweek method. 

In response to questions from Jackson Lewis, a DOL representative advised that the Department intends to post additional forms in the “near future,” including forms for use with commissioned employees and exempt employees. Until such forms are issued, the Department advised that employers should use the model form and modify or cross out all information that does not apply and insert appropriate language.  

For example, with exempt employees: (i) “rate of pay” can be crossed out and “annual salary” inserted; and (ii) the reference to "overtime rate" should be crossed out.  In the same vein, for commissioned employees who also receive a base rate, after inserting the standard overtime rate, the employer should write in “subject to increase based on earned commissions.” 

Jackson Lewis attorneys are available to discuss your compliance with the new New York State DOL wage notification requirements, as modifications to the prescribed form in many instances may require detailed analysis to ensure an employee’s pay is properly stated.  As further information is provided, Jackson Lewis will offer additional updates.