The frequency with which New York employers must pay their employees depends on the nature of the employee’s work and how they are categorized under New York Labor Law. For relevant purposes, the law classifies private sector (non-governmental) employees under the categories of “Manual Worker,” “Railroad Worker,” “Commission Salesperson,” and “Clerical or Other Workers.” A ruling by a New York appellate court brought new scrutiny to what constitutes a “Manual Worker” and has substantially increased the prevalence of litigation over the subject.

Click here for more on the New York pay frequency requirements for non-manual workers.

Manual Workers

The New York Labor Law states employers must pay manual workers weekly, not later than 7 calendar days after the end of the week in which the employee earned the wages. There are some exceptions to this requirement. for (1) for-profit companies with at least 1,000 employees in the state authorized by the Commissioner of Labor and (2) non-profit organizations. Where the exceptions apply, employers may pay manual workers no less frequently than semi-monthly.

The law defines “manual worker” to mean a “mechanic, workingman, or laborer.” This definition has allowed room for interpretation, but the distinction between manual workers and other categories has not always been among employers’ most pressing concerns.

The New York Department of Labor considers an employee to be a manual worker if they spend at least 25% of their work time doing “physical labor,” which can include an array of physical tasks. In addition to traditional factory or construction work, activities involving heavy lifting, such as moving boxes or luggage, and even mopping or sweeping floors may qualify as physical labor. Even some employees who qualify for so-called “white collar” exemptions to overtime pay requirements might be deemed manual workers.

Vega v. CM & Associates Construction Management, LLC,

175 A.D.3d 1144

This 2019 decision by the First Department of the New York Appellate Division allowed manual workers to sue their employer and recover liquidated damages on late but fully paid wages.

The court stated, “The moment that an employer fails to pay wages in compliance with the [pay frequency laws], the employer pays less than what is required.” Thus, manual workers paid less frequently can seek legal remedies available for underpayment of wages even though they have already been paid the wages owed. Following this opinion, employees are pursuing lawsuits to recover liquidated damages and their attorneys’ fees, amounts potentially larger than the wages initially earned. Previously, such claims typically only resulted in relatively small civil penalties for employers.

The State’s highest court, the Court of Appeals, has not yet weighed in on this ruling.

Classifying Workers

With the stakes now much higher under Vega, defining what constitutes physical labor is increasingly critical for employers.

Many notable retail and hospitality companies are dealing with class action litigation over this subject. These cases may reshape how manual labor is defined within these and other industries. For example, a recent employee complaint cited sizing individuals for suits as an example of physical labor.

Review Your Pay Frequency

Now facing potentially steep damages awards, it is crucial for employers to carefully consider the classification of their employees for pay frequency purposes. Ambiguity in defining what constitutes manual/physical labor allows broad interpretation. Coupled with an onslaught of litigation, employers must proactively protect themselves by reviewing how often they pay all employees in New York.

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