When does your boss have to provide you with detailed wage information under New York law? The answer may depend on the judge.

Wage theft – the practice of employers withholding rightful pay or benefits owed to their employees – has been illegal in the United States since 1938, when Congress passed and Franklin Roosevelt signed into law the landmark Fair Labor Standards Act (FLSA). This federal law, which FDR himself called the “most important Act” of New Deal legislation since Social Security was created, is the reason that Americans have a minimum guaranteed wage at all. According to the FLSA, if your boss denies you money or benefits that you rightfully earned, you may sue him or her in federal court and receive your stolen back-pay, and in some cases, additional “liquidated” damages.

Maybe you can already spot the problem here: why should you have to file a lawsuit in the first place? Shouldn’t there be some mechanism, some regulation, to help ensure that employers stay on the “straight and narrow,” something that gives them a greater incentive not to steal their employees’ earnings than a hypothetical future lawsuit?

New York State has attempted to deal with this problem in a few ways. In effect, New York has a legal regime that requires employees to be informed about the wages they are due under the law. The thinking is clear: an employee who is knowledgeable about their rights and about the obligations of their employer is an employee who is less likely to be taken advantage of. New York’s labor laws thus work in conjunction with the FLSA to prevent employers from illicit wage alterations (read: stealing) and further provide employees with a civil “cause of action” (the ability to file a lawsuit) in case the employer decides to do so anyway.

On December 13, 2010, New York signed into law the Wage Theft Prevention Act (WTPA). The law went into effect on April 9, 2011, and required employers to inform their employees in a few different ways. Let’s take a look at one provision of the law, an important one, mandating that employees receive detailed information about their pay at a few specific times during their employment.

First, as per the WTPA, employees must be informed, in writing, about the following: their rate of pay (including their overtime rate – overtime pay is guaranteed by the FLSA and New York’s laws), how they are to be paid (hourly, weekly, etc.), their payday, the legal name, address, and phone number of their employer, and any deductions or allowances the employer is legally allowed to take (this is usually at issue for employees who receive a portion of their wages in tips). The employer has to inform them on two occasions, one of which is recurring: on or shortly after they are hired, and “on or before February first of each subsequent year of the employee’s employment.” Under the regulations covering restaurants and hotels, the employer must also inform its employees in writing whenever the employer changes their rates of pay. If an employer fails to provide these notices, the employee may sue them for the violation.

These rules, coupled with a few others beyond the purview of this blog post, go a long way toward encouraging employers not to even attempt to play games with owed wages: their employees have a piece of paper to inform and remind them of the monies they are owed. Two recent decisions, though, both issued in the federal courts of New York’s Southern District, have revealed a possible loophole in the new law: what if you were employed before April 9, 2011, the day the law took effect? Does that void your right to sue if you do not receive a notice at the appropriate times?

Two courts have answered this question in two different ways. In Guan Ming Lin v. Benihana New York Corp. (2012 WL 7620734), the plaintiffs, employees of various New York City-based Haru restaurants, sued the Japanese restaurant chain’s owners, claiming (among other things) that they never received proper wage notices. The problem? The plaintiffs had begun their work at Haru prior to the enactment of the WTPA. The question for the court, then, was do employees who were employed prior to April 9, 2011 have a claim if they do not receive a wage notice? After all, the employees had at one point been hired – why should they be excluded from the suing for not receiving a notice, while newly hired employees would can bring a suit when they do not receive such notice at the time of hiring?

According to the Ming Lin court, the prior-hired employees are out of luck. The court, purporting to be relying on the “plain language” of the law, found that the right to a wage notice was only created by New York law on April 9, 2011, and as such, if you were hired before this right existed, you have to wait around another year (“prior to February first”) before your boss has to provide you with detailed information about your pay.

If this seems unfair to you – if it seems contrary to the purposes of the WTPA and divides workers up arbitrarily into two classes, with different rights – you aren’t the only one. The court in Cuzco v. F&J Steaks 37th Street LLC (2014 WL 2210615) came to a different conclusion, finding that “the [New York] legislature could not have intended to confer a private right of action upon new employees, while depriving existing employees of the same right.” The court continued: “That result would make little sense in light of the legislature’s intent in enacting the WTPA: to expand the rights of all employees.” As such, even employees who were employed on April 9, 2011 could sue if they did not receive the required wage notices.

So, two different courts, two different views of what employees have a right to wage notices, and when they have a right to them. While this is frustrating in that it puts this aspect of the law in a state of uncertainty, it also sheds some light on the way different judges read laws differently. The Ming Lin court claimed to focus only on the language of the law, on the “plain meaning” of the words at issue. In contrast, the Cuzco court took into account what the WTPA as a whole meant to accomplish, the protections it granted workers, and generally what the legislature intended to compel employers to provide. Since the WTPA is clearly a law aimed at protecting workers, the Cuzco court didn’t put much stock into the idea that it excluded such a large contingent of employees from wage notice requirements.

Regardless, know this: if you were hired after April 9, 2011, you have a statutory right to wage notice at the time of that hiring, and in each subsequent year of employment. If you were hired before this date, at the very least you have a right to detailed wage information at each further year you’re employed. Also, if you work for a restaurant or hotel, you must receive a notice whenever your rate of pay changes. If you feel like your employer isn’t complying, speak to an attorney – it’s your right.

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