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New Labor Effective April 1, 2011, Will Heavily Impact Restaurants and Small Businesses in New York

Posted by attorney Elizabeth Franqui

The New York Wage Theft Prevention Act, signed into law in December 2010 and effective April 1, 2011, imposes new requirements on employers to provide written notice to all employees with details about their wages. By April 1, 2011, all new employees are required to receive a written notice in English or the employee’s primary language – outlining details of their pay - salary, rate or pay, overtime rate of pay, whether they are exempt or non-exempt; paid by the hour, shift, or piece; and whether the employer will withhold allowances such as tips and meals. An employer is required to obtain a signed acknowledgement of receipt of the notice from the employee and retain copies for six (6) years. By April 12, 2012, employers will need to have completed distributing such written notices to all existing employees.

This revision to the New York Labor Law has serious implications for restaurants and small businesses that employ individuals for whom English is not their primary language as notices will need to be translated. Violation of this part of the Labor Law may expose a business owner to a Department of Labor audit of wage records – which can reach back six (6) years – and result in additional penalties if other violations, such as unpaid overtime or misclassification of employees as exempt, are found.

The Wage Theft Prevention Act increases the penalties for wage/hour violations, and adds additional penalties for failure to provide the wage notice within ten (10) days of an employee’s first day of work. Current New York Labor Law penalties for wage/hour violations include payment of unpaid wages plus interest, and reasonable attorneys’ fees and costs, with an additional 25% of the unpaid wages as liquidated damages where an employer fails to show a “good faith" or “reasonable" basis for the violation. The revised law increases the liquidated damages to 100% of the unpaid wages, plus pre-judgment interes t. The additional penalties under the new law include the ability of an employee to recover in a civil action $50 per work week (up to $2,500), plus attorneys’ fees and costs, for each new employee that does not receive the notice within 10 days of their date of hire.

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