Does your company perform “prevailing wage” work? If so, you now have additional obligations under New York’s Wage Theft Prevention Act (WTPA), which was amended by Governor Andrew Cuomo’s signing of the 2020-2021 state budget. Examples of prevailing wage work include non-union positions in construction or building service jobs.

The WTPA requires employers to give written notice of pay information (including but not limited to pay rate(s), basis of pay, allowances claimed, frequency/method of pay and designated pay day) to each employee on a “Wage Notice,” and to include specific information on each wage statement or pay stub. The notice must be given upon hiring and when there is a change in status, such as a change in pay rate or if an employee becomes exempt or is no longer exempt from the overtime law requirements. The failure to provide a timely and accurate notice brings penalties of up to $5,000 per employee.

The WTPA also requires employers to provide a “Wage Statement” with each paycheck. This is usually accomplished with a pay stub showing all withholdings and deductions. Like its Wage Notice counterpart, a Wage Statement violation also brings a $5,000 penalty per employee.

Under the amendment, which became effective June 23, 2020, the Wage Notice and Wage Statement must now include information regarding benefits provided to employees that are claimed to satisfy any part of the supplemental portion of the prevailing wage law.

Specifically, “[w]here such prevailing wage supplements are claimed, the [Wage Notice] shall identify, for each type of supplement claimed:

• the hourly rate claimed;
• the type of supplement, including when applicable, but not limited to, pension or healthcare;
• the names and addresses of the person or entity providing such supplement; and
• the agreement, if any, requiring or providing for such supplement, together with information on how copies of such agreements or summaries thereof may be obtained.”

The Wage Statement will likewise need to identify any prevailing wage supplements claimed as part of the prevailing wage law. Wage Statements should now detail the type and hourly rate of each prevailing wage supplement claimed. This should appear as a separate line item on a paystub, ensuring that one can easily see that wage supplements have, in fact, been paid and that the correct rate has been applied.

These recent amendments mean employers are now tasked with updating and issuing new Wage Notices to all employees as well as updating payroll practices to incorporate accurate and individualized supplemental benefit information on each employee’s pay stubs.

As the updated 2020-2021 prevailing wage schedules for the Construction industry (Article 8) and the Building Service industry (Article 9) went into effect on July 1, 2020, this would be a good time to update the Wage Notices and to ensure that the Wage Statements contain the newly required information.

Although not directly in the scope of this Alert, similar WTPA amendments were made for health care employees subject to the Wage Parity Law.