New York Labor Law

Required Forms for New Hires in New York

What are the required forms for new hires in New York? If you are an employer in New York, there are several forms that you should have each of your new hires fill out under New York and federal law. The following post sets forth the required forms for new hires in New York.  If you need help with these, or any additional forms (like wage statement forms, performance improvement plans, offer letters, contracts, severance agreements, personnel manuals, etc.) we can help.  Call or e-mail us.  We have attorneys standing by.

Our firm drafts custom tailored documents for businesses throughout the country, and we do it on a flat fee basis - and can usually prepare your forms within 24-hours.  For a list of some of the documents we can prepare for you as well as pricing, click here.

  1. Form I-9, Eligibility to work in the United States. This is one of the required forms for new hires in New York. You must verify that each new employee is legally eligible to work in the United States. So, have each new employee you hire fill out a Form I-9. Here is a link to Form I-9 and the Employer Instructions: http://www.uscis.gov/sites/default/files/files/form/i-9.pdf

  2. Form W-2. This is one of the required forms for new hires in New York. You are required to get each employee's name and Social Security Number (SSN) and to enter them on Form W-2. (This requirement also applies to resident and nonresident alien employees.) You should ask your employee to show you his or her social security card. You may, but are not required to, photocopy the social security card if the employee provides it. Here is a link to a sample W-2: http://www.irs.gov/pub/irs-pdf/fw2.pdf. To e-file the W-2 and verify the name/SSN of employee via Social Security Administration, please visit: http://www.socialsecurity.gov/employer/

  3. Form W-4, wage Withholding Allowance Certificate. This is one of the required forms for new hires in New York. To know how much income tax to withhold from your employee's wages, you should have a Form W-4 on file for each employee. Ask all new employees to give you a signed Form W-4 when they start work. Make the form effective with the first wage payment. A Form W-4 remains in effect until the employee gives you a new one. Ifan employee claims exemption from income tax withholding, he must give you a new Form W-4 each year. If an employee gives you a Form W-4 that replaces an existing Form W-4, begin withholding no later than the start of the first payroll period ending on, or after the 30th day, from the date you received the replacement Form W-4. Here is a link to Form W-4: http://www.irs.gov/pub/irs-pdf/fw4.pdf

  4. Form IT-2104, Employer Allowance Certificate (NYS). This is one of the required forms for new hires in New York. This form must be completed to withhold New York State taxes, if working within New York state (depending on the employee’s withholding, IT-2104-1 or IT-2104-E must also be completed). Here is a link to Form IT-2104: http://www.tax.ny.gov/pdf/current_forms/it/it2104_fill_in.pdf. If the employee is a nonresident of New York, he needs to complete Form IT-2104-1: http://www.tax.ny.gov/pdf/current_forms/it/it2104_1_fill_in.pdf. And if the employee is claiming exemption from withholding for New York State personal income tax, he must complete Form IT-2104-E: http://www.tax.ny.gov/pdf/current_forms/it/it2104e_fill_in.pdf.

  5. IRS Form 940. You must file IRS Form 940 to report your federal unemployment tax for any year in which you paid wages of $1,500 or more in any quarter or for any year in which an employee worked for you in any 20 or more different weeks of the year.

  6. Report each new hire to state new hire reporting agency. General Information about new hire reporting: http://www.tax.ny.gov/bus/wt/newhire.htm. You can either report the new hire online (https://www.nynewhire.com/index.jsp) or mail in Form IT-2104 (online reporting or hard copy mailing info set forth at general info website above).

  7. Forms required by New York Labor Laws. There are other forms mandated by the New York Department of Labor. To see which forms are applicable to your business and employees, please visit: https://labor.ny.gov/formsdocs/wp/LS53.pdf

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Wage & Hour Employment Law for NY Small Business

Small business owners in New York are often so inundated with the day-to-day hustle of increasing revenue, marketing, and actually working, that they often overlook federal and state wage and hour laws.  But be warned: failure to properly pay employees can significantly harm your business.  However, a few simple pointers will go a long way towards avoiding a devastating wage and hour class action: First, pay your employees the minimum wage.  Sounds easy enough.  The minimum wage in New York and New Jersey is $7.25/hour.  But there’s a bill in New Jersey to increase the minimum wage to $8.50/hour (see this prior blog entry).   And make sure to pay the minimum wage for all hours worked (and see this entry).

Also, as we’ve previously discussed, classify your employees correctly (see this entry).  In terms of classifying your employees as exempt or non-exempt from overtime pay, it is advisable to err on the side of non-exempt.  And don’t think that just because you give an employee a title like “manager” it changes anything -- titles are meaningless and what matters is the nature of the work that the employee actually performs (for more detailed information, please visit http://www.dol.gov/whd/overtime_pay.htm).  The same goes with respect to classifying your employees as employees or independent contractors -- err on the side of employee.  To be an independent contractor, the individual must be truly “independent” (e.g., is available to work for other employers, uses his/her own materials, sets his/her own hours, etc. but for more detailed information, please see http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf).

Keep good records.  It is worth investing in an automated system which tracks employees hours worked and all compensation paid to employees.  This way you can prove exactly how much a given employee worked and how much he or she was paid for their time.

The last point is probably the most obvious of all:  it is better to be safe than sorry.  The potential damages in wage and hour actions can be financially devastating to a small business -- you are better off treating your employees as non-exempt, paying them for all time worked, and when necessary contacting an employment lawyer, than defending a legal battle that will likely not end well.

If you are a small business owner in NY and have any employment law questions, please contact us for a free initial consultation.

NY Wage Theft Prevention Act

Employers Beware: the NY Wage Theft Prevention Act is a Potential Misclassification Minefield! The NY Wage Theft Prevention Act, which became effective April 9, 2011, requires all private sector employers with New York employees (regardless of how many) to provide those employees with a "pay notice" at the time of hire and, subsequently, on a yearly basis. The notice must be in English and the employee’s primary language.  The notice can be paper or electronic.  Under the Wage Theft Prevention Act, the first annual notice period began January 1, 2012.  The pay notice must contain the following:

Rate of pay (including overtime, if applicable)

  • Method of payment (hourly, shift, day, week, commission, etc.)
  • Regular pay day
  • Official name of the employer, and any d/b/a's
  • Address and phone number of the employer's main office or principal location
  • Any allowances taken as part of the employee's wage (for example, tip, meal and lodging deductions).

Because these notices require an employer to state the method of payment and regular rate of pay, it is critical that the employer understand whether the employee is exempt from overtime.

This annual notice requirement is not a one-time event. Employers must provide these notices every year between January 1 and February 1, even if the information has not changed from the prior year.  The Act further requires that the notices be kept by the employer for six years and available for inspection by the NY Department of Labor.

Classification issues abound here.  If you have any questions about how to classify an employee (e.g., as exempt or non-exempt), or general questions about the Wage Theft Prevention Act contact us.  A mistake can cost you.

NY Overtime Pay

Am I entitled to NY overtime pay? Both the New York overtime pay laws (New York Minimum Wage Act) and the Federal Fair Labor Standards Act (FLSA) require that employers pay overtime to those individuals who are not “exempt” from the overtime requirements. A non-exempt employee must be paid time and a half for all hours worked over 40 in a given week.  It is important to determine whether you are a “exempt” or “non-exempt” employee.

Even if your employer pays you a salary, calls you an “executive” or “manager”, or tells you that you are exempt, you may still be entitled to overtime compensation.  According to recent studies, the majority of employees today are entitled to minimum wage and overtime pay and many employers misclassify their employees for their own benefit.   It is therefore critical that you understand the laws regarding overtime and what you are entitled to under the law.

Employers in violation of the New York Minimum Wage Act and the FLSA can be forced to provide their employees with the overtime money they are owed in addition to attorney fees and court costs.  A two-year statute of limitations applies to most actions under FLSA, though the time to act is increased to three years if the employer’s violation was willful, and not simply negligent.

If you feel you have been wrongly classified as an exempt employee or that you are otherwise due overtime, contact us today.