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Labor and Employment Law

What Payroll Records Must My Business In New York Keep?

New York State, like the federal government, does not require any particular order or form for the records that an employer must maintain concerning employees' wages and hoursCf. 29 C.F.R. § 516.1(a) ("No particular order or form of records is prescribed by" 29 C.F.R. Part 516 (Records To Be Kept By Employers)).  An employer in New York may use any timekeeping method it chooses.  Cf. 29 C.F.R. § 785.48 ("Time clocks are not required" by the federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the "FLSA")).  For example, an employer may use a time clock, have a timekeeper keep track of employees' work hours, or instruct its workers to write their own times on the records.  Cf. 29 C.F.R. § 785.48.  Any timekeeping plan is acceptable as long as it is complete and accurate.  Cf. 29 C.F.R. § 785.48.

That said, effective April 12, 2011, the New York Wage Theft Prevention Act, A. 11726/S. 8380 ("the Wage Theft Prevention Act"), substantially increased the obligations of employers in New York State to maintain certain records concerning employees' wages and hours.  This author's December 2010 post on the passage of the New York Wage Theft Prevention Act is linked here.  This author's March 2010 post on the (then-pending) Wage Theft Prevention Act is linked here.

Sections 195 and 661 of the New York Labor Law, as amended by the Wage Theft Prevention Act, require employers in New York to establish, maintain and preserve for not less than six years contemporaneous, true, and accurate payroll records.  N.Y. Labor Law §§ 195, 195(4), 661.  These payroll records must contain "for each employee":

  • "[F]or each week worked the hours worked";
  • The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other basis;
  • Gross wages;
  • Deductions;
  • Allowances, if any, claimed as part of the minimum wage; and
  • Net wages.

N.Y. Labor Law §§ 195, 195(4), 661.

In addition, a regulation promulgated under the New York Labor Law requires employers within this State to establish, maintain and preserve for not less than six years, weekly payroll records which show "for each employee":

  1. name and address;
  2. social security number;
  3. wage rate;
  4. the number of hours worked daily and weekly, including the time of arrival and departure of each employee working a split shift or spread of hours exceeding 10;
  5. when a piece-rate method of payment is used, the number of units produced daily and weekly;
  6. the amount of gross wages;
  7. deductions from gross wages;
  8. allowances, if any, claimed as part of the minimum wage;
  9. net wages paid; and
  10. student classification.

12 N.Y.C.R.R. § 142-2.6.  By regulation, covered employees who work overtime in New York must be paid at a rate that is 1½ times their regular, "straight-time" hourly rate of pay.  12 N.Y.C.R.R. § 142-2.2.  For all employees who are not exempt from overtime compensation requirements, an employer's payroll records further must contain:

  • The regular hourly rate or rates of pay;
  • The overtime rate or rates of pay;
  • The number of regular hours worked; and
  • The number of overtime hours worked.

N.Y. Labor Law §§ 195, 195(4), 661.

By New York State regulation, for each employee who is an executive employee, an administrative employee, or a professional employee within the meaning of these 'white collar' exemptions from the FLSA's and New York's overtime compensation requirements, an employer's records must show:

  1. name and address;
  2. social security number;
  3. description of occupation; and
  4. for individuals working in an executive or administrative capacity, total wages, and the value of allowances, if any, for each payroll period.

12 N.Y.C.R.R. § 142-2.6.

An employer must make its records containing the information required by section 142-2.6 of Title 12 of the New York Code of Rules and Regulations, or sworn certified copies of these records, available upon request of the New York State Commissioner of Labor ("the Commissioner") "at the place of employment."  12 N.Y.C.R.R. § 142-2.6(d).  The employer must make these records available upon request of the Commissioner even if the employer maintains the records "at a place outside of New York State."  12 N.Y.C.R.R. § 142-2.6(d).

Section 161 of the New York Labor Law mandates that every employer operating, among other establishments, a factory, mercantile establishment, hotel or restaurant allow every person employed in such establishment at least twenty-four consecutive hours of rest in any calendar week.  N.Y. Labor Law § 161(1).  In order for an employer to document its compliance with New York's statute requiring one day of rest in seven, the employer must keep a time book showing the names and addresses of its employees and the hours worked "by each of them in each day."   N.Y. Labor Law § 161(4).

Call the Law Offices of David S. Rich, LLC at (212) 209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other wage and hour litigation.

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