Employment and labor 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 Wage Theft Prevention Act (NYWTPA), an important state employment law in New York, in relation to its applicability to employment issues such as hour and wage, among others. Accordingly, some of the key elements identified include applicable statutes of the NYWTPA, 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 Wage Theft Prevention 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 NYWTPA
Pursuant to the N.Y. Lab. Law § 195(4), employers in New York are required to establish, maintain, and retain accurate, true, and contemporaneous payroll records for each employee, which should show, for each workweek (1) records for all employees, (2) records for employees whom New York law has not exempted from overtime compensation, (3) records for all employees paid a piece rate, and (4) records of employee acknowledgment.
Firstly, records for all employees must indicate (1) net wages, (2) allowances, if any, an employee may claim as part of the minimum wage, (3) deductions, (4) gross wages, (5) number of hours worked, and (6) pay rate(s) and basis thereof, whether payable by commission, piece, salary, week, day, shift, hour, or any other.
Secondly, records for employees whom New York law has not exempted from overtime compensation should indicate (1) number of overtime hours worked, (2) count of hours worked on a regular basis, (3) the rate(s) of overtime pay, and (4) the rate(s) of regular hourly pay.
Thirdly, records for all employees paid a piece rate must indicate (1) the count of completed pieces and rate per piece and (2) the applicable rate(s) of pay per piece.
Finally, pursuant to N.Y. Lab. Law § 195(1)(a), each employer is required to preserve a written acknowledgment of a notice that every employee dates and signs for each and every time an employer, pursuant to N.Y. Lab. Law § 195(1), provides notice.
Duration of Retention Requirements Pursuant to the NYWTPA
On the one hand, N.Y. Lab. Law § 195(4) requires payroll records to be retained for up to six years. On the other hand, N.Y. Lab. Law § 195(1)(a) requires records of written employee acknowledgment to be retained for a duration of six years as well.
Penalties and/or Citations Following Failure to Comply
Pursuant to N.Y. Lab. Law § 198- a(2), (3), any employer who fails to comply with and violates the recordkeeping requirements as mandated by the NYTPA is punishable under NY law (1) for having knowledge about noncompliance or violations by an agent, officer, or employer with a past conviction within the prior six years, the employer is guilty of a felony punishable by imprisonment of up to 12 months and one day and fine ranging between $500 and $200000, or both, (2) for violating or failing to comply with the inquiries of the agents or officers of any limited liability company (LLC), partnership, or corporation is a misdemeanor punishable by imprisonment of up to 12 months in prison or a fine ranging between $500 and $5000, (3) for violating or failing to comply with recordkeeping and retention requirements under the NYTPA, an employer may be guilty of a misdemeanor punishable by imprisonment of up to 12 months or a penalty ranging from $500 to $5000.
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