Employment laws comprise some of the most complex and extensive laws, not only in New York but in other states as well. Therefore, it is very critical for you, as an employer, to be cognizant of what laws, whether local or federal, apply to specific employment issues and jurisdictions, especially owing to the ubiquity of an explosion in lawsuits in the U.S., which has been coherent with a public obsession for litigation, a growing lawyer population, and the enactment of new laws and amendments of others.
Under this context, this blog is an overview of a myriad of requirements concerning recordkeeping and record retention for employers under the New York Minimum Wage Act, a significant state employment law in New York, in relation to its applicability to employment issues such as minimum wage, among others. Accordingly, some of the key elements identified include applicable statutes of the New York Minimum Wage Act, types of records required to be retained by employers under this law, duration of which records must be retained, penalties and citation for failure to comply, and other relevant information for employer concerning compliance with requirements for recordkeeping and the retention of records.
However, it is crucial to mention that the information provided herein does not address requirements for the retention of records when a complaint or charge has been filed by an employee under the New York Minimum Wage Act. Nonetheless, although the requirements may apply to both public and private employers, the information is intended for the latter.
Types of Records that Must be Retained Pursuant to the New York Minimum Wage Act
Pursuant to the New York Minimum Wage Act, employers in the hospitality industry are required to maintain and retain accurate and true payroll records, which should indicate a variety of information for (1) all employees, (2) all nonexempt employees, (3) all employees paid a piece rate, (4) all professional, administrative, and executive employees, (5) staff counselor in a children’s camp, (6) employers of persons alleging student status, and (7) employers needed to provide written notice of pay day, tip credit, and rates of pay.
Firstly, for all employees, payroll records must indicate (1) name and address of employee, (2) employee identification or social security number, (3) cash pays, (4) credits for lodging, meals, and tips, (5) net wages, (6) allowances (if any), (7) deductions, (8) gross wages (9) whether paid by commission, piece, salary, week, day, shift, hour, or other basis (10) overtime and regular wage rates, (11) daily and weekly hours worked, (12) occupational classification, (13) student classification, and (14) any other information that may be deemed necessary and material by the New York Commissioner of Labor.
Secondly, for all nonexempt employees, payroll records must show (1) hourly pay rates, (2) overtime pay rates, (3) count of regular hours worked, and (4) count of overtime hours worked. Thirdly, for employees paid a piece rate, payroll records must show (1) applicable piece rates of pay and (2) the count of pieces completed at every piece rate.
Next, for all professional, administrative, and executive employees, payroll records must indicate (1) the name and address of each employee, (2) employee identification or social security number, (3) occupation classification and description, and (4) total wages and the value of lodging and meal credits, if any, per every payroll period.
Further, for a staff counselor in a children’s camp, payroll records must indicate (1) the name and address of each employee, (2) employee identification or social security number, and (3) occupation classification and description. However, the records are not required to show total wages and the value of lodging and meal credits, if any, per every payroll period.
Additionally, for employers of persons alleging student status, payroll records must include a statement from the learning institution attended, showing whether or not the person is (1) needed to obtain directed or supervised vocational experience to meet the requirements of the curriculum, (2) completing a degree’s requirements for residence, and (3) a learner whose course of instruction will end up in a certificate, diploma, or degree.
Finally, for employers needed to provide written notice of pay day, tip credit, and rates of pay, employers are required to obtain a receipt acknowledging having received the required notice, which the employee should then sign.
Duration of Retention Requirements Pursuant to the NYWTPA
Pursuant to N.Y. Lab. Law § 661 and N.Y. Comp. Codes R. & Regs. tit. 12, § 146- 2.2, such payroll records must be maintained and retained for a duration of six years.
Penalties and/or Citations Following Failure to Comply
Pursuant to N.Y. Lab. Law § 662, an employer would be committing a felony by (1) falsifying payroll records or refusing to provide or make required records accessible to the Commissioner of the New York Department of Labor, (2) denying the Commissioner access to any business or employment premises, and (3) failing (intentionally or otherwise), to maintain, furnish, and retain payroll records as required under the New York Minimum Wage Act. This is because such an employer would be hindering the Commissioner from carrying out his/her duties as mandated under the New York Minimum Wage Act.
Accordingly, such an employer would be found guilty of a misdemeanor and, if convicted in a court of law, would serve an imprisonment term of not more than 12 months and/or pay between $500 and $5000 in fines. Notably, employers found to have committed subsequent felonies within six years would be found guilty as well and, if convicted, would serve an imprisonment term not exceeding 12 months and one day and/or pay between $5000 and $20000 in fines.
Other Key Information for Compliance
Every employer is responsible for complying with all the requirements and provisions of the New York Minimum Wage Act. For instance, as codified under N.Y. Lab. Law § 661, an employer should ensure that accurate and true payroll records have been furnished and made readily available and accessible to the New York Commissioner of Labor or his/her appointed agent(s), assistant(s), or representative(s).
When furnishing the information, employers must ensure that records for each employee show a sworn statement showing the number of weekly or daily hours worked, allowances (if any), deductions, gross wages, pay rate(s), and basis thereof, whether paid by commission, piece, salary, week, day, shift, hour, or other basis, and any additional information that may be deemed necessary and material by the New York Commissioner of Labor. Compliance also includes ensuring that such records are readily available and accessible for inspection and review by the Commissioner or his/her appointed agent(s), assistant(s), or representative(s).
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