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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 hours. Cf. 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":
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
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:
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
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
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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