In previous Employment Law Alerts, we reported on the New York Department of Labor’s (“NYDOL”) new Notice of Pay statute under New York Labor Law Section 195.1. The NYDOL has now issued detailed guidelines and instructions, as well as model notices, for employers to comply with these new requirements, which are available on its website.
The guidelines are available here:
The instructions are available here:
The instructions provide that employers may create their own notices so long as the information required is included, the employee receives a copy, and the employee signs an acknowledgement of receipt, which the employer retains for six years. The NYDOL no longer appears to require the notice to be certified by its preparer under penalty of perjury.
The NYDOL’s model notices appear to address several issues that arose as employers attempted to comply with Section 195.1 after its passage. There are now separate model forms available for employees paid:
- one hourly rate;
- multiple hourly rates;
- a weekly rate for a fixed number of hours less than 40;
- a salary for varying hours, day rate, piece rate, flat rate, or other non-hourly basis; and
- prevailing rates.
There is also a new form for exempt employees. Notably, the instructions go beyond Section 195.1’s statutory requirements, and indicate that employers should identify the specific overtime exemption claimed for that employee. Employers should proceed with caution in making such determinations.
The guidelines also provide instructions for employers on how to create a compliant notice for commissioned salespeople, whose terms of employment must be in writing and maintained by employers pursuant to New York Labor Law Section 191(c). The guidelines provide that such a written statement will also comply with Section 195.1 if it: (1) informs the salesperson if he or she is eligible for overtime pay, and if not, specifies the exemption under which the salesperson falls; (2) notifies the eligible salesperson of the method of calculating his or her overtime pay; (3) notifies the salesperson of his or her designated pay day or method for determining when the salesperson will be paid; (4) is acknowledged in writing as received by the employee; and (5) is kept on file for six years.