New York DOL Issues New Guidelines and Forms Addressing Employer Obligations Under Section 195(1)

January 5, 2010

The New York State Department of Labor (“NYSDOL”) recently posted guidelines and instructions on its website addressing employer obligations under New York Labor Law § 195(1). This recently amended statute requires employers to notify newly-hired employees in writing of their pay rates, pay dates, and, if applicable, overtime rates. The statute also requires employers to obtain written acknowledgments from new employees confirming receipt of this information.

NYSDOL also posted several new “model” forms for employers to use when complying with Section 195(1). The new forms supplement the problematic, one-size-fits-all form published by the agency last year. These new forms are intended to cover several different employee groups, including non-exempt employees who are paid either: (a) an hourly rate; (b) multiple hourly rates; (c) a weekly rate or salary for a fixed number of hours (40 or fewer in a week); (d) a salary for varying hours, day rate, piece rate, flat rate, or other non-hourly pay; or (e) a prevailing rate on a public work project. There is also a new model form for exempt employees.

Consistent with its earlier reversal of position, NYSDOL’s guidelines and instructions state that use of the new model forms is not mandatory at this time. Rather, according to the guidelines, employers may create their own forms, or use or adapt the model agency forms, as long as: (a) the required information is given at the time of hiring, before any work is performed; (b) the employee is given a copy; and (c) the employee signs an acknowledgment of receipt, which the employer must retain for six years.

Several additional aspects of the new materials are also noteworthy. First, NYSDOL takes the position that notices to exempt employees —which apparently include employer-created notices—“must state the specific exemption that applies.” This requirement does not appear in Section 195(1). Second, the new model forms do not require the preparer to certify that the contents are true and accurate under penalty of perjury, which represents a change from the original one-size-fits-all form previously published by the agency. Third, the NYSDOL guidelines discuss how employers can craft written notices for commissioned salespersons, which will satisfy both Section 195(1) and Section 191(1)(c) of the New York Labor Law. Section 191(1)(c) requires that the terms of employment for commissioned salespersons (how wages, salaries, drawing accounts, and commissions are calculated) be reduced to a writing.

Overview