Category: Wage & Hour

New York Pay Frequency

New York Pay Frequency Laws

Do you know how often you must pay your employees? Federal law does not directly address this issue for most employers. But state laws often do. This post describes the most prevalent New York pay frequency requirements for private employers.

New York’s payday laws do not apply to most public (governmental) employers. Many public employees are in unions and have collective bargaining agreements that dictate their pay frequency. While private-sector collective bargaining agreements often also address wage payment issues, they rarely trump state law.

When New York employers must pay employees depends on the nature of the employee’s work. Let’s look at each of the categories.

Manual Workers

New York’s labor law says that employers must pay “manual workers” weekly. More specifically, not later than seven calendar days after the end of the week in which the employee earned the wages.

The law defines “manual worker” to mean “a mechanic, workingman, or laborer.”

There is an exception for all non-profit organizations, who must pay manual workers at least semi-monthly. The New York Commissioner of Labor can also authorize an exception in the case of for-profit companies with at least 1,000 employees in the state, permitting them to pay manual workers no less frequently than semi-monthly.

Commissioned Salespersons

Employers must have a written compensation plan for all “commissioned salesmen” in New York. Then an employer must pay each commissioned salesperson at least once per month, usually by the last day of the month following the month in which they were earned. If there are substantial recurring monthly wages, then the employer need not pay all forms of compensation on a monthly basis. Certain additional compensation can be paid less frequently than monthly, as set forth in the compensation plan.

The law defines “commission salesman” to mean “any employee whose principal activity is the selling of any goods, wares, merchandise, services, real estate, securities, insurance or any article or thing and whose earnings are based in whole or in part on commissions.” This does not include employees whose principal activity is supervisory, managerial, executive, or administrative in nature.

Other Workers

The labor law requires employers to pay “clerical and other workers” not less frequently than semi-monthly. The employer must pay these employees “in accordance with the agreed terms of employment.” It must also designate regular paydays in advance.

The law defines “clerical and other worker” to mean all employees not included as manual workers, commissioned salespersons, or railroad workers. It also does not include employees who work in an qualified executive, administrative or professional capacity who earn more than $900 per week.

There are also special rules for payment of “railroad workers”.

Final Pay Check

When an employee’s employment ends, the employer must pay all wages earned by the next regular payday for the pay period during which the employment ended.

Sometimes the employer cannot determine the final compensation by that time period. For example, commissions or bonuses may depend on ongoing projects. In these cases, the employer must determine when the compensation will be earned and then pay by the applicable payday.

Review Your Pay Practices

Now is a good time to make sure your company is complying with the New York pay frequency rules. While you’re at it, you should also review these related topics especially for New York employers:

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Employee Travel Time

Do Employers Have To Pay for Employee Travel Time?

Under the Fair Labor Standards Act (FLSA), employers have to pay minimum wage and overtime based on hours worked. But it’s not always clear what hours worked are. One perplexing question is whether employers have to pay for employee travel time. Let’s try to answer it.

What Is Work Time?

Most FLSA compensation requirements are based on time worked.  Work time is generally any time that an employer “suffers or permits” an employee to work.

Interestingly, the law doesn’t actually tell us what “suffer or permit” means. But it’s clear that time worked goes beyond time that the employer intends the employee to be working. It typically includes any time spent working on the employer’s behalf, with or without permission.

What Isn’t Work Time?

The FLSA does say something about what doesn’t count as work time:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such a vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

What does all of that mean in the context of travel time?

When You Do/Don’t Have To Pay for Employee Travel Time

Standard commuting time to and from work is usually not work time. Travel during the work day as part of the employee’s principal work activity is work time.

However, things get more complicated if the employee travels out of town.

If an employee who normally works at one fixed location travels out of town and returns home the same day, then the extra travel time is work time. But the employer can subtract the normal commuting time.

Overnight out-of-town work travel adds another wrinkle. Then, the general rules are that:

(1) Any time the employee actually spends working is work time (this includes travel time driving a car).

(2) The portion of the day(s) when travel time crosses the employee’s normal work hours is also work time (this includes time as a passenger).

The first of these rules is easy enough to follow/apply/accept. The second is harder. Consider the case of an employee who normally works 9:00 a.m. to 5:00 p.m. When she travels out of town for an overnight stay, the employer has to count any travel time during those hours as work time, even if she isn’t actively working or even driving. And this even includes travel on days of the week that the employee doesn’t normally work, such as weekends.

Employee Travel Time Caveats

These rules pertain to federal minimum wage and overtime requirements for non-exempt employees.

The FLSA does not require employers to pay exempt employees for their travel time.

State wage and hour laws may impose additional requirements.

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New York Meal Period

Got Lunch? A Primer on the New York Meal Period Requirements

The federal Fair Labor Standards Act does not require employers to give their employees time off for lunch, dinner, etc. However, many states impose such requirements. Here’s a helpful reminder about the New York meal period rules.

Standard New York Meal Period

Every person employed in or in connection with a factory must be allowed at least an hour for the “noon day meal.” If a factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must also be allowed an hour meal period in the middle of the shift.

Employees other than those employed in or in connection with a factory must be allowed at least 30 minutes for the “noon day meal” if they work a shift of at least 6 hours that includes the hours from 11:00 a.m. to 2:00 p.m.

If a non-factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must be allowed a meal period of at least 45 minutes in the middle of the shift.

Additional Meal Period for All Employees

Any employee who works a shift that starts before 11:00 a.m. and ends after 7:00 p.m. must be allowed an additional meal period of at least 20 minutes between 5:00 and 7:00 p.m.

Exempt Employees Included

The New York meal period requirements apply to all employees, including those exempt from minimum wage and overtime.

One Employee Shift Exception

In most cases, employees must be completely relieved from duty during the applicable meal periods. Accordingly, eating while working at one’s desk does not count as taking a meal period. And the burden and obligation is on the employer to ensure that each employee receives the required meal period. Usually, the employee cannot consent to forego lunch.

However, in very limited situations where there is only one employee on duty, the New York Department of Labor may permit an employee to voluntarily agree to take their required meal period while still on duty. This is principally recognized in the retail context, where an employee may be able to sit and eat behind a sales counter largely uninterrupted for much of the meal period. Even in these situations, an employee must be permitted to have a completely uninterrupted meal period upon request.

Shorter Meal Periods Permitted

As an enforcement matter, the NYSDOL permits any meal period to be shortened to no less than 30 minutes if there is no indication of hardship to employees.

The DOL may allow shorter meal periods of not less than 20 minutes only in special or unusual cases. This requires an investigation by the DOL and issuance of a special permit.

A New York Meal Period May Be Unpaid

The New York meal period law only requires that employees be relieved of duty to relax and eat. It does not require the employer to pay employees during that time. However, if, such as the case of the one employee shift exception, the employee is not fully relieved from duty, they must be paid for the time even if they eat while working.

Notably, the New York meal period law does not require employers to give employees any further breaks during their shift. However, if employees take breaks of less than 20 minutes during their shift, that break time must be included as hours worked and paid accordingly.

Most employers should require hourly employees to clock in and out (by some method or another) before and after unpaid meal periods, but not around breaks. In all cases, it is the employer’s obligation to have accurate time records showing actual time worked, especially for non-exempt employees. In the event of an audit by the NYSDOL, it is also important to specifically be able to show that employee receive the required New York meal periods.

Check out these other articles about important New York-specific employee requirements:

Are You Complying with New York Wage Notice Requirements?

New York Paid Family Leave Regulations Now Final

Hiring Your First Employee in New York