Q: What is the current minimum wage in New York State?
A: For covered employees, the New York State Minimum Wage rate is $7.15 per hour. The Minimum Wage will increase to $7.25 per hour on July 24, 2009. This amount may be modified based upon a number of factors. For example, Food Service workers --waiters and waitresses -- who earn at least $2.55 per hour in tips may be paid at a minimum wage rate of $4.60 per hour. Different rates exist for other types of service employees, specified within a set of regulations called a "Wage Order", which addresses the unique aspects of each industry or occupation.
The minimum wage for janitors in residential buildings is a per unit, rather than an hourly, rate. The current unit rate, for residential janitors earning less than $304.10 per week, is $4.80. In a payroll week, the amount paid to a piece-rate worker must average at least as much as the hourly state minimum wage.
Q: Can employers require their employees to wear uniforms?
A: Yes, however, the cost of purchasing and/or maintaining a uniform must not bring the employee below the minimum wage. If workers at the minimum wage rate must wear a uniform, their employers must clean and maintain them or pay the employees to do so. Ordinary clothing (such as black trousers and white shirts) are generally not considered "uniforms."
Q: Is everyone covered by the minimum wage requirements?
A:
Exceptions to the minimum wage requirements are:
Executives and administrators earning more than $543.75 per week
Professionals
Outside salespersons
Taxicab drivers
Government employees (However, certain non-teaching employees of BOCES are covered)
Part-time babysitters
Companions to the sick or elderly who live in their employer's home and whose principal duties do not include housework
Ministers and members of religious orders
Volunteers, learners, apprentices and students working in non-profit institutions
Students obtaining vocational experience
Independent Contractors - people who are in business for themselves - are not considered "employees" and are not covered by the minimum wage requirements.
These are the major exclusions. For a more complete listing, go to:
A: Covered employees who work overtime must be paid at a rate that is one and one-half times their regular, "straight-time" hourly rate of pay.
For non-residential employees, this overtime rate applies to all time over 40 hours in a payroll week.
For residential employees ("live-in" workers), this overtime rate applies to all time over 44 hours in a payroll week.
The overtime requirement is based on hours worked in a given payroll week. Thus, time and one-half, double-time -- or any amount higher than the agreed rate -- is not required simply because the work is performed after eight hours per day or on a Saturday or Sunday.
Some categories of employees are excluded by federal law from the requirement to receive one and one half times their regular, straight-time rate of pay. The occupations excluded by federal law are outlined in the Fair Labor Standards Act (FLSA), listed by the U.S. Department of Labor, Wage and Hour Division at http://www.dol.gov/elaws/esa/flsa/screen75.asp. New York State follows these exclusions but requires that they receive at least one and onehalf times the minimum rate of $7.15 for their overtime hours.
Where more than one level of government has jurisdiction, workers get the higher amount of pay.
Q: How many hours can an employer ask an employee to work?
A: There are no restrictions on the number of work hours per day, except for children under 18. Likewise, there are no restrictions on how early in the morning, or how late in the evening, an adult employee may work. In some industries and occupations, an employee must receive 24 hours of rest in each calendar week, for example, work in a factory, mercantile establishment, hotel, and restaurant (except resort/seasonal hotels and small, rural restaurants), as well as elevator operator, watchman, janitor or superintendent.
For a complete list of the "day of rest" provision of the law, go to:
Q: Must meal periods and "breaks" be provided to employees?
A: Employees who work a shift of more than six hours starting before 11 A.M. and continuing until 2 P.M. must have an uninterrupted lunch period of at least half an hour between 11 A.M. and 2 P.M.
For meal period requirements, go to:
www.labor.state.ny.us/business_ny/employer_responsibilities/employer/meals.html
Meal periods are not counted as work time, thus employers need not pay for that time.
Other "Breaks", such as for "rest periods" or "coffee breaks," are not required. If a break (of up to 20 minutes) is permitted, then it should be paid as working time.
Q: Must an employer pay employees for holidays, sick time and/or vacations?
A: Under the New York State Labor Law, payment for holidays, sick time or vacation -- i.e. payment for time not actually worked - is not required unless the employer has established a policy to grant such pay. When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.
Fringe benefits may include reimbursement of expenses or tuition, health coverage, and payment for sick time, vacation, personal leave, and holidays.
Q: What is the status of an employer's oral agreement to provide a particular fringe benefit?
A: Section 195.5 of the Labor Law states:
Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.
If an employer does not have a written policy, the oral policy (or past practice) may be enforced -- if the terms of the policy can be confirmed through an investigation. Moreover, violators of § 195.5 are subject to civil penalty.
Q: When an employee resigns -- or is discharged -- from a job, is the employer required to pay the employee for any accrued, unused vacation time?
A: Whether an employer is obligated to pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held [in Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980)] that an agreement to furnish benefits or wage supplements, such as vacation, can specify that employees forfeit accrued benefits under certain conditions. To be valid, the employer must have notified employees, in writing, of the conditions that nullify the benefit.
If an employee has earned vacation time -- and there is no written forfeit policy, the employer must pay the employee for the accrued vacation.
Q: Is either the employer or the employee required to "give notice" of termination?
A: Under the provisions of the Worker Adjustment and Retraining Notification Act (WARN), a bill enacted by Congress in 1988, employers with 100 or more workers must provide at least 60 days notice if a plant closing will affect 50 or more of those employees. Moreover, where a mass layoff occurs that does not result from a plant closing, notice is also required for any furlough of 50 or more workers if they make up one-third of the workforce, or if a total of 500 or more workers are laid off. For more information from the U.S. Department of Labor, go to: www.dol.gov
Q: What agency handles issues related to pensions and retirement funds, 401Ks, health & welfare plans, continuation of health care coverage and severance?
A: The Employee Benefits Security Administration enforces the Employee Retirement Income Security Act (ERISA) and the Consolidated Omnibus Budget Reconciliation Act (COBRA) which cover matters involving pensions and retirement funds, 401Ks, health & welfare plans, continuation of health care coverage and severance.
For more information, go to:
A: Yes. New York State is an "employment-at-will," state. Without a contract restricting termination (such as a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason. This also protects the employee's right to resign. An employer may fire an employee for "no reason" - or even for a reason that might seem arbitrary and unfair -- and the employee is equally free to quit at any time without being required to explain or defend that decision.
There are a few exceptions to "employment-at-will." The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based upon race, creed, national origin, age, handicap, gender, sexual orientation or marital status. For additional information about how the New York State Division of Human Rights proceeds against unlawful forms of discrimination, go to:
www.nysdhr.com.
Other exceptions to the doctrine of "employment-at-will" exist under § 201-d and § 215 of the New York State Labor Law. Section 201-d prohibits an employer from firing an employee for political or recreational activities outside of work, for legal use of consumable products outside of work, or for membership in a union. Section 215 prescribes that no employer shall penalize any employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law. Violation of § 215, can bring a civil fine and separate civil action by the employee. To obtain the text of these statutes, go to:
Q: When is the last check due to a terminated employee?
A: When employment has been terminated, the employer must pay the wages by the regular payday for the pay period worked. If requested, the employer must mail the final wages to the employee.
Q: How can employees obtain assistance in collecting wages owed to them by their employer?
A: The Division of Labor Standards investigates and endeavors to collect claims for unpaid or withheld wages including illegal deductions. Also enforces the prohibition against illegal kickback of wages and tip appropriation.
Q: What deductions can be made from an employee's wages?
A: Section 193 of the Labor Law states:
1. No employer shall make any deduction from the wages of an employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or
b. are expressly authorized in writing by the employee and are for the benefit of the employee (such as payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization).
Employers may not deduct from wages the cost of breakage or spoilage of materials; nor may employers make wage deductions in any indirect manner, such as requiring a worker to pay for shortages by means of a separate transaction.
Q: What information must be maintained in an employer's payroll records?
A: Employers' payroll records must contain the following information regarding their employees:
Name, address and social security number
Wage rate
The number of hours worked daily and weekly
The amount of gross wages, deductions from gross wages and net wages paid
Allowances claimed, if any, as part of the minimum wage
The time of arrival and departure of each employee working a split shift or spread of more than ten hours
The number of units produced daily and weekly by piece-rate workers
Employers in "General Industry" are required to maintain these records for at least six years, while agricultural employers must maintain them for no less than three years.
While the New York State Labor Law requires all employers to display a Minimum Wage Poster, employers in certain, specified industries have additional posting responsibilities. As indicated on the above Website, employers "engaged in the sale or service of food or beverages" must post a reprint of § 193, entitled, "Deductions From Wages," and of § 196-d, entitled "Gratuities." In addition, agricultural and garment industry employers have specific posting requirements, as do those involved in Industrial Homework. Employment Agencies also have specialized posting responsibilities. Employers who hire minors must post a schedule setting forth "the hours of beginning and stopping and the time allowed for meals" of each minor in their employ.
To obtain federal posting requirements, contact the U.S. Department of Labor at their website:
