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NYSDOL No Longer Requires Use of Official Form to Satisfy Section195(1) Notice Requirement

As we advised in our November 2009 Client Alert, the New York State Department of Labor (“NYSDOL”) had previously taken the position that employers must use the Department’s official Notice and Acknowledgement Forms in order to comply with the recent amendments to Section 195(1) of the Labor Law, requiring employers to provide written notice to employees of their wages, overtime rates (if applicable) and pay days.

The NYSDOL has now decided, as stated on its website, that employers are not required to utilize the DOL’s official form in order to comply with Section 195(1) and may now utilize their own forms, which may consist of an offer letter that includes the requisite notice information.

Employers may nevertheless still elect to utilize the NYSDOL form, though employers should note that the only forms currently available on the NYSDOL web site are for hourly non-exempt employees and staffing agencies. The NYSDOL’s web site, however, does state that “[i]n the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided.”

Based on the DOL’s newly stated position, employers will be deemed to be in compliance with Section 195(1) if: (i) the employer’s notice form includes the employee’s rate of pay, regular pay day, and overtime rate (for non-exempt employees); (ii) the form is provided to the employee before he or she performs any work; (iii) the form is signed by the employee; (iv) the original form is maintained by the employer for a minimum of six years; and (v) a copy of the signed form is provided to the employee.

This alert is a publication of Loeb & Loeb LLP and is intended to provide information on recent legal developments. This alert does not create or continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations. For more information about the content of this Alert, please feel free to contact Mark J. Goldberg or any other member of our Employment & Labor Practice Group.

Circular 230 Disclosure: To ensure compliance with Treasury Department rules governing tax practice, we inform you that any advice contained herein (including any attachments) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer; and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.