Effective April 9, 2011, New York employers must provide a notice to all new hires containing the following information:  rate of pay, overtime rate for hourly employees, pay frequency, any allowances taken against the minimum wage (tips, meals, lodging, etc.), exempt or non-exempt status. In addition, the notice must include the company name and any other names used, as well as the phone number, physical address of the company’s main office and mailing address if different.

• The most noticeable aspect of the law is that these notices must be provided in the employees’ primary language. To assist employers in complying with the law, the New York State Commissioner is in the process of preparing the templates to be used, along with the appropriate translations.   The Commissioner has determined that the notices will be prepared in English, Haitian-Creole, Spanish, Chinese, Korean, Polish and Russian.  If an employee identifies any other language as his/her primary language, the employer is only required to provide the English version of the document.
•  The first of the forms, in English, Chinese, Spanish and Korean, were just released, and they are accessible to employers through the state’s website.  We anticipate that the rest will be made available prior to April 9. 
•  Also, please be advised that these forms must be completed and distributed to any employee seven (7) days in advance of any change in the information contained in the notice, i.e. exempt status or pay rate.
• Between January 1 and February 1, 2012, and each year thereafter, employers are required to provide these notices to all employees. 
•  Lastly, the new law enhances the penalties New York State employers face if they fail to comply with The Wage Theft Prevention Act; they can easily range into the thousands of dollars.  Employers are liable for unpaid wages plus interest and attorney fees, but up to 100% of unpaid wages can also be awarded as liquidated damages.

New York employers should review their new hire documentation to ensure compliance with these new regulations.

For more information, please go to the State of New York’s Frequently Asked Questions section of their website.

First, employers will be eligible for the HIRE Act Payroll tax exemption if they hire self-employed individuals, who are not regarded as “employed” for purposes of the Act.  Accordingly, an employer can also claim the exemption if they hire an independent contractor as an employee, although this is risky and a thorough analysis must be done to determine whether the employee was correctly classified as an independent contractor in the first place.  If the IRS takes the position that the new employee should have been hired as an employee initially, the employer could be subject to penalties and back taxes. 

Also, the HIRE Act states that an employee does not qualify for the exemption if hired to replace another employee.  The IRS has clarified exceptions to this rule.  An employee who replaces another employee who voluntarily terminated employment, or was terminated due to gross negligence, poor performance or due to a reduction in force, does qualify for the exemption.

Lastly, the IRS clarifies that a minor can sign the W-11 Form.

For more information, see the IRS FAQs at http://www.irs.gov/businesses/small/article/0,,id=220746,00.html

The State of New York has issued its own form, Labor Law Section 195(1) Notice and Acknowledgement of Wage Rate and Designated Payday Hourly Rate Plus Overtime.  The State has mandated the use of this form, effective immediately.  Therefore, effective today, all enrollments forms for new hires, regardless of exempt status, must include the attached form.  The State of New York has indicated it may introduce a separate form for exempt employees in the future.

The form can be found at http://www.labor.state.ny.us/workerprotection/laborstandards/PDFs/LS_52_Hourly_Rate_Plus_Overtime.pdf

New York state law also requires that employers provide to terminated employees, within five days of their termination date, a letter specifying the exact termination date as well as the exact date of the termination of benefits.  Failure to comply with this statute may result in fines, penalties, and you may be responsible for continuing payment of benefits beyond the normal termination date specified by Company policy.

All employers of commissioned sales people in New York State must have written commission agreements in place with all commissioned employees.  The agreements must be signed by the employer and employee, be retained for three (3) years and contain information concerning the calculation methodology of wages, salary, draw on commissions and all other amounts earned and payable; the amount, duration and reconciliation provisions of draws and earned commissions, where the agreement provides for a recoverable draw; and dispute resolution procedures and details regarding payment of wages, salary, draw, commission and all other monies earned and payable upon termination of employment by either party.  If the commissioned employee is an “at will” employee, an “at will” disclaimer should be included in the commission agreement.