wage notice requirements in new york

If You Are a Manual Worker in New York - You Must Be Paid Weekly

How Often Should I Be Paid if I Perform Manual Work?

Unless your employer has authorization from the New York Commissioner of Labor (and, among other things, employs at least 1,000 workers in New York) or is a non-profitmaking organization, employees who perform manual work need to be paid weekly within seven days of the work performed.[1]  This means that a lot of manual workers in New York State should be paid weekly.  Even if the exception applies, manual workers cannot be paid any less than twice a month.[2]

If you are a manual worker, and are being paid less often than every week, you may be entitled to considerable damages.

Who is a Manual Worker?

A manual worker can perform a variety of tasks.  For example, courts have found that janitors, cooks, carpenters, and supermarket employees fit the bill and may be entitled to payment on a weekly basis.[3]

What if My Employer Paid All of My Wages Biweekly Instead of Weekly?

You still may be entitled to recovery since an accompanying statue provides that certain violations of the New York Labor Law render employees eligible for damages in the sum of 100% of the delayed wages, attorneys’ fees, and interest on the sum of the delayed wages.[4]  More than one court recently determined that the damages are necessary to remedy the delayed payments.  Otherwise, an employer could ignore the weekly payment requirement—and the law—and avoid a penalty just by paying the employee when the employer felt like it.[5] 


What if My Employer Knew It Was Supposed to Pay Me Weekly, But Decided Not to?

An employer who knows about the obligation to pay manual workers weekly, but actively decides not to do so, could be liable for triple the sum of the delayed wages.[6] As you can imagine, that sum could really add up—especially when you take New York’s 6-year statute of limitations applicable to such claims into consideration!

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 


[1] NYLL §191(1)(a).

[2] NYLL §191(1)(a).

[3] Scott v. Whole Foods Mkt. Grp., Inc., 18 CV 0086 (SJF)(AKT), 2019 U.S. Dist. LEXIS 61726 *8, 2019 WL 1559424 (E.D.N.Y. Apr. 9, 2019)(collecting cases).

[4] NYLL §198(1-a); Scott, 2019 U.S. Dist. LEXIS 61726 *10-11.

[5] Scott, 2019 U.S. Dist. LEXIS 61726 *10-11; see also Vega v. CM & Assoc.Constr.Mgt., LLC, 9733, 23559/16E, 2019 N.Y. App.Div. LEXIS 6464*, 2019 N.Y. Slip Op 06459, 2019 WL 4264384 (1st Dept. Sep. 10, 2019)

[6] NYLL §198(1-a).

Paid off the books? Your employers are (probably) crooks.

If you are being paid off the books, in cash or via personal check, your employer may be breaking the law. And you might be entitled to compensation.

Are you being paid off the books?  Chances are, your employer is breaking New York wage and hour law.  Just by failing to provide you with notifications regarding your wages and legally compliant pay stubs, your employer is breaking the law. 

If you are being paid off the books, you might be entitled to recover as much as $10,000 or more.

New York Labor Law requires employers to provide all employees with a wage notice when they start, spelling out the terms of their compensation.  The penalty for failure to do so can be as high as $5,000. 

New York Labor Law also requires employers to provide all employees with wage statements when they are paid, spelling out their rate of pay, deductions, and other wage-related matters.  The penalty for failure to do so can also be as high as $5,000.

The attorneys at Granovsky & Sundaresh can help you recoup this penalty - and maybe more.  We are experienced and aggressive wage and hour lawyers who fight to make our clients whole.  Not only will we examine whether we can recover these penalties for you, but we will also try to find other avenues to increase your recovery such as unpaid overtime, minimum wage or wrongful termination issues.

Call now. 646-524-6001. We have attorneys standing by to take your call. Or you can e-mail us - all e-mails receive a response within 24 hours.

Proposed Changes to FLSA Overtime Rules - Part I

On June 30, 2015, the United States Department of Labor (DOL) released proposed regulations that would amend various provisions of the Fair Labor Standards Act (FLSA).  In particular, the DOL proposed changes to the regulations governing the “white collar” exemption for executive, administrative, and professional employees.   The FLSA (and wage and hour laws, generally) are complicated but we will try to break down the key changes as simply as possible.

FLSA Overview

The FLSA generally requires employers to pay its employees at least the federal minimum wage plus overtime at a rate of at least 1.5 times the employee’s regular rate of pay for any hours worked over 40 in a week.  However, the FLSA provides for various exemptions from the overtime requirement.

The most commonly used exemptions are for executive, administrative, and professional employees, and are often referred to as the “white collar” exemptions.  However, the FLSA does not define the terms “executive,” “administrative,” “professional,” or “outside salesman” and the regulations have generally required that each of the following three tests be satisfied for the exemption to apply: (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”). 

The regulations also exempt “highly compensated” employees who “customarily and regularly” perform one of the exempt duties of an administrative, executive or professional employee, but who do not otherwise meet the duties test.  Currently, and since 2004, an employee earning $100,000 in total annual compensation (with at least $455 paid weekly on a salary or fee basis) would be exempt from overtime as a highly compensated employee.

Salary Basis Test – NO CHANGE

There were no proposed changes to the first requirement that employees be paid on a predetermined and fixed salary that is not subject to reduction.

Salary Level Test – BIG CHANGES!

Currently, and since 2004, any employee earning less than $455 per week ($23,660 a year) is considered “nonexempt” and therefore entitled to overtime pay for hours worked over 40 in a week, regardless of whether the employee is paid on an hourly or salary basis.

Under the DOL’s proposal, the salary level required for an executive, administrative or professional employee to qualify for exemption from the FLSA minimum wage and overtime requirements would increase from $455 a week ($23,660 a year) to $921 a week ($47,892 a year), based on 2013 data.  This means that anyone who makes less than $47,892 a year will be entitled to overtime pay for hours worked beyond 40.

The proposed regulations also set forth mechanisms for annually updating the minimum salary and if one of the annual update mechanisms is implemented, the DOL anticipates that the annual salary requirement in 2016 will be $970 a week, or $50,440 a year.

Duties Test – STAY TUNED

The DOL did not propose any changes to the duties requirements but did seek comments as to whether the duties tests should be updated.  Please stay tuned for Part II of this series for an outline of the current duties test. 

Highly Compensated Employees - CHANGED

The DOL’sproposed regulations increase the required salary for “highly compensated employees” to $122,148, indexed to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers.

The DOL’s proposed rule would effectively extend overtime protections to nearly 5 million white collar workers within the first year of its implementation.  Because the overtime regulations have not been updated in so long, employers have been able to classify more and more employees as exempt and therefore avoid paying overtime.  The overtime exception was originally meant to apply to highly-compensated executive, administrative, and professional employees although it now applies to workers earning as little as $23,660 a year. 

The DOL is expected to release its final rule later in 2016. 

I am being forced to work off the clock. What should I do?

In general, an employee’s “hours worked” include all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. All employees must be paid for all time worked. So if your employer is forcing you to work off the clock, you may be entitled to additional compensation (even if you are paid a salary).

Common examples of work off the clock:

  • Your employer asks to you set up, open a store or facility prior to clocking in.
  • Your employer makes you clock out for a meal break, but nonetheless makes you work during that period.
  • Your employer automatically deducts some period of time from your hours (usually for an assumed “break”), but does not compensate you for work you performed during that time.
  • Your employer asks you to clock out and then, after you are clocked out, perform additional work (e.g. cleaning up, shutting down, etc.).

Am I entitled to additional compensation:

Probably. This comes down to a determination of whether an employee is exempt or non-exempt. For further information that should help you determine whether or not you are exempt, these links may be helpful:

What to do if you are being forced to work off the clock:

  • Collect the facts – you need to get a sense of how much you are working off the clock, whether any additional employees are also working off the clock. Get any documents you have about off the clock work together.
  • Contact an employment lawyer – get a better understanding of your rights. We offer a free initial consultation. In most situations involving work off the clock we do not collect a fee unless we get recovery for our client.  Contact us today for a free consultation.

Wage Theft Prevention Act Annual Notice Requirement

On December 29, 2014 Governor Cuomo signed a bill that repealed the Wage Theft Prevention Act annual notice requirement. Essentially, under the New York Wage Theft Prevention Act (WTPA), employers were required to notify and receive written acknowledgement from every worker about their rate of pay, allowances, pay day, etc. before February 1 of each year -- this was the Wage Theft Prevention Act Annual Notice Requirement. Although the Wage Theft Prevention Act Annual Notice Requirement will no longer be effective as of 2015, employers are still required to provide written notice of wage rates to each new hire at the time of hire. Specially, the written notice must include:

  • Rate or rates of pay, including overtime rate of pay (if it applies)
  • How the employee is paid: by the hour, shift, day, week, commission, etc.
  • Regular payday
  • Official name of the employer and any other names used for business (DBA)
  • Address and phone number of the employer's main office or principal location
  • Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

The repeal of the Wage Theft Prevention Act annual notice requirement is cause for celebration for employers in New York as it eliminates a burdensome administrative requirement!  For more information on the Wage Theft Prevention Act, including the recent amendment, please visit the New York Department of Labor's website.