New Year and New California Requirement: Wage Theft Prevention Act Notices to Non-Exempt Employees

January 19, 2012

The Wage Theft Prevention Act (“WTPA”) which went into effect on January 1, 2012 requires all California employers to provide non-exempt employees1 specific information in a notice ('Notice") at the time of hire. The Labor Commissioner has taken the position that all of the information on the Notice must be provided in a single stand-alone document rather than as part of an offer letter. While the WTPA only identifies seven types of information, the WTPA provides authority for the Labor Commissioner to require any other information it deems “material and necessary,” creating some question as to what types of information may be required.

Information Prescribed by Statute

The WTPA (Section 2810.5 of the Labor Code) requires employers to provide new hires with the following information:

  • The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
  • Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
  • The regular payday designated by the employer;
  • The name of the employer, including any “doing business as” names used by the employer;
  • The physical address of the employer’s main office or principal place of business as well as a mailing address, if different;
  • The telephone number of the employer; and
  • The name, address and telephone number of the employer’s workers’ compensation insurance carrier.

Information Added by the Labor Commissioner as “Material and Necessary”

The Labor Commission has posted a sample Notice to Employees. Pursuant to its regulatory authority, the Labor Commissioner is requiring employers to provide the following additional information:

  • Hire date;
  • Type of employer entity (i.e. sole proprietor, corporation, limited liability company, general partnership, other type of entity, staffing agency (e.g. temp. agency or professional employer organization));
  • Whether the “employment agreement” is oral or written;
  • The name, physical address, mailing address or telephone number of “any other business or entity used to hire employees or administer wages or benefits” other than a recruiting service or a payroll processing service;
  • The workers’ compensation policy number or certificate number for consent to self-insure;
  • An acknowledgement of receipt by the employee; and
  • A statement informing employees of their right to receive a notice in writing of any changes in the information on the Notice within seven calendar days of the changes, unless all changes are provided on a timely wage statement or notice of all changes is provided in another writing required by law.

Two of these requirements are particularly challenging for employers. First, with respect to whether the “employment agreement” is oral or written, the Notice simply provides for the employer to check a box for “oral” or “written.” The Labor Commissioner has not provided any information on what constitutes an employment agreement for purposes of this form. Employers, especially those who wish to confirm in writing that the employment relationship is at-will, should proceed cautiously prior to checking a box that may later be used to suggest that the employee has an employment agreement with the employer.

Second, employers must identify “any other business or entity used to hire employees or administer wages or benefits.” Examples of “other business entity” are listed as professional employer organization, employee leasing company or temporary services agency. While an “other” box is available for employers to check, there are no examples for when this box is applicable. It appears that a goal of this section is to inform the employee of any other potential “employer” who could be responsible for the nonpayment of wages. The concern for employers, however, is whether completing this section will be used later as an admission by the employer that it is a joint employer with the “other business entity” and potentially subject to liability for its employment practices.

Employers Should Use the Template Notice

While the Labor Commissioner advises that employers can create their own forms, given the liberty taken by the Labor Commissioner in adding information allegedly “material and necessary,” the conservative approach would be to use the template Notice and consult with counsel about the issues raised above.

For more information on this alert, please contact the lawyers listed below:

John Adkins,, 617.951.8551
Jenny Cooper,, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group,, 617.951.8340

Los Angeles/Orange County 
Jacqueline Cookerly Aguilera,, 213.229.8439
Debra Fischer,, 213.680.6418
Jessica Boar,, 213.680.6674

San Francisco
James Severson,, 415.393.2242

New York
Douglas Schwarz,, 212.705.7437

Mie Fujimoto,, 81.3.6721.3138

1 In addition to exempt employees, employees directly employed by the state or a political subdivision or those covered by valid collective bargaining agreements that expressly provide for the wages, hours of work, and working conditions and provide for premium wage for all overtime worked are exempt from the notice requirement.

This article was originally published by Bingham McCutchen LLP.