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Wages and Hours: Frequently Asked Questions

On December 31, 2014, New York State's minimum wage will increase to $8.75 per hour.  New posters will be available for printing on 12/31/14.  A summary listing of rates for all industries can be found on our forms page.  If you have questions, please review our Frequently Asked Questions. If you need additional assistance or to file a complaint, please call: 1-888-4NYSDOL (469-7365).

Q: What are the regulations for the employment of child performers in New York State?

A: You can find the regulations for employing child performers in New York State in the Legal section of the DOL website via this link.


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Q: What is the current minimum wage in New York State?

A:

New York State’s minimum wage will increase on December 31.   Don’t be caught off-guard! 

Minimum Wage Increase

Beginning December 31, 2013, New York State’s minimum wage will increase in a series of three annual changes as follows:

$8.00 on 12/31/13

$8.75 on 12/31/14

$9.00 on 12/31/15

Here you can find updated posters, summary rate sheets and FAQs. Check back frequently for other updates as the increases take effect.

The Minimum Wage regulations showing proposed changes are posted on the Department of Labor’s website under Legal Updates:

Pay special attention to the “Part number” of the New York Codes, Rules and Regulations (“NYCRR”) to be sure you reference the correct document for the industry you seek: 12 NYCRR Part 141 (building service), Part 142 (miscellaneous industries), Part 143 (nonprofit) and Part 146 (hospitality).

NOTE:  Underlined items show the proposed rate changes to allowances or credits which result from the increase in the State Minimum Wage rate. No changes are proposed for rules such as recordkeeping requirements.

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The minimum wage in New York State is $8.00 per hour. Everyone has a right to earn at least the minimum wage.  In New York State, most workers should earn $8.00 an hour.

There are exceptions for youth, farmers and workers who earn tips. In most cases, a full-time job is up to 40 hours a week. There are exceptions for farmers and homecare workers. If you work more than 40 hours a week, you should get higher pay for the extra hours.

The minimum wage and overtime laws apply to ALL WORKERS, even if you are undocumented or paid:

  •  Hourly, daily or weekly
  •  In cash or by check
  •  Off the books
People in the hospitality industry who earn at least $3.00 per hour in tips may receive a minimum wage rate of $5.00 per hour.

Different rates exist for other types of service employees.  A set of regulations called a "Wage Order" specifies these rates. The Wage Order 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 $340.25 per week, is $5.35.

In a payroll week, a piece-rate worker must earn at least $8.00 for each hour worked.


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Q: Can employers require their employees to wear uniforms?

A: Yes. However, the cost of buying and/or taking care of a uniform must not bring the employee below the minimum wage.

IF...

THEN

Workers at the minimum wage rate must wear a uniform

Their employers must clean and take care of the uniforms

OR

Pay the employees to do so

Ordinary clothing (such as black trousers and white shirts) is generally not a "uniform."


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Q: Do the minimum wage requirements cover everyone?

A: Most people are covered by the minimum wage requirements. However, some people are not. Those who are not covered include:

  • Executives and administrators earning more than $600.00 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
The Labor Law does not consider independent contractors - people who are in business for themselves - as "employees." This means that minimum wage requirements do not cover independent contractors.

These are the major exclusions. For a more complete listing, see the NYS Labor Law, Article 19, Section 651.


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Q: Where can I find the required posters that summarize the minimum wage rules?

A: Article 19 of the Labor Law requires employers to post the provisions of the Minimum Wage Act. This poster is available at:


http://www.labor.ny.gov/formsdocs/wp/LS207.pdf


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Q: What are the rules for overtime?

A: 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.

Employees

Overtime Rate

Covered employees

One and one-half times their regular, "straight-time" hourly rate of pay

Non-residential employees

Applies to all time over 40 hours in a payroll week

Residential employees ("live-in" workers)

Applies to all time over 44 hours in a payroll week

 

Federal law excludes some types of employees from the requirement to receive one and one-half times their regular rate of pay. Many people call these "exempt" positions. The Fair Labor Standards Act (FLSA), listed by the U.S. Department of Labor, Wage and Hour Division, outlines occupations excluded by federal law. You can find the act at:

http://www.dol.gov/elaws/esa/flsa/screen75.asp

New York State follows these exclusions. However, the State still requires that they receive at least one and one-half times the minimum rate of $8.00 for their overtime hours in businesses covered by the Miscellaneous Wage Order.


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Q: Where can I find details about the state laws for employing minors?

A: For information on "Child Labor" go to:

http://www.labor.state.ny.us/business_ny/employer_responsibilities/workprot/wphmpg.htm


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Q: How many hours can an employer ask an employee to work?

A: There are no limits on:

  • The number of work hours per day (except for children under 18)
  • How early in the morning an adult employee may work
  • How late in the day an adult employee may work
In some industries and occupations, an employee must receive 24 hours of rest in each calendar week. Such jobs include work:

  • In factories
  • In mercantile establishments
  • In hotels (except resort/seasonal hotels)
  • In restaurants (except small, rural restaurants)
  • As an elevator operator
  • As a watchman
  • As a janitor
  • As a superintendent
For a complete list of the "day of rest" provision of the law, go to:

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS


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Q: Must an employer give meal periods and "breaks" to workers?

A: Employees who:

  •  Work a shift of more than six hours starting before 11 AM
AND

  •  Continue until 2 PM
MUST

  •  Have an uninterrupted lunch period of
AT LEAST

  •  Half an hour between 11 AM and 2 PM
For meal period requirements, go to:

http://www.labor.ny.gov/formsdocs/wp/LS443.pdf

Meal periods do not count as work time, thus employers need not pay for that time.
Employers do not have to provide other "breaks", such as for "rest periods" or "coffee breaks." But, if an employer permits a break (of up to 20 minutes), then they should pay it as work time.


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Q: Must an employer pay workers for holidays, sick time and/or vacations?

A: Under the New York State Labor Law, payment for time not actually worked is not required unless the employer has established a policy to grant such pay. Holidays, sick time and/or vacations fall under 'time not worked.' 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
  •   Payment for      - Sick time       - Vacation       - Personal leave       - Holidays

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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.


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Q: When employees resign -- or are discharged -- from a job, must the employer pay them for any accrued, unused vacation time?

A: Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See 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).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

IF...

AND...

THEN

An employee has earned vacation time

There is no written forfeit policy

The employer must pay the employee for the accrued vacation


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Q: How can employees get help to collect Wage Supplements (fringe benefits) that their employer owes them?

A: The Division of Labor Standards investigates and tries to collect claims for unpaid benefits or wage supplements which the employer has agreed to provide. Wage supplements include:

  • Vacation or holiday pay
  • Paid sick leave
  • Reimbursement of expenses
  • Other similar items

Section 198c of the New York State Labor Law, Benefits or Wage Supplements (opens in a new window)

Notice Requirements for Fringe Benefits and Hours (open in a new window

Claim For Unpaid Wage Supplements LS-425 (open in a new window

 - Submit completed claim to the nearest Division of Labor Standards Office  (open in a new window)


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Q: Does the law require that an employer "give notice" of termination?

A: The New York State Worker Adjustment and Retraining Notification (WARN) Act became a law on August 5, 2008, with the approval of the Governor (passed by a majority vote, three-fifths being present). Under the provisions of the act:

Private sector employers with 50 or more workers (excluding part-time employees as defined under the regulations). Employers must provide at least 90 days notice before closing a plant. A plant closing refers to the shutdown of a single site of employment that results in an employment loss of 25 or more full-time employees during any 30-day period. They must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.
For a mass layoff that does not result from a plant closing. Employers also must provide at least 90 days notice when there is a layoff (excluding part-time employees as defined under the regulations) that affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. They must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

For more details regarding state WARN regulations and Rapid Response re-employment services, go to:
http://www.labor.ny.gov/workforcenypartners/warn/warnportal.shtm.


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Q: Where will I find details on 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). It also enforces the Consolidated Omnibus Budget Reconciliation Act (COBRA).  These acts cover matters that  involve:

  • Pensions and retirement funds
  • 401Ks
  • Health & welfare plans
  • Continuation of health care coverage
  • Severance

For more information, go to:

www.dol.gov/ebsa/


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Q: Can you fire an employee without due cause?

A: Yes. New York State is an "employment-at-will," state. If there is no contract to restrict firing (like 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." An employer may also fire an employee for a reason that might seem arbitrary and unfair. The employee is equally free to quit at any time without needing 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 on:

  • Race
  • Creed
  • National origin
  • Age
  • Disability
  • Gender
  • Sexual orientation
  • Marital status
For more information about how the New York State Division of Human Rights proceeds against unlawful forms of discrimination, go to their website

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
  • - legal use of consumable products outside of work
  • - for membership in a union
  •  Section 215 states 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:  http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS


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Q: When must terminated employees get their last check?

A: When employment has ended, the employer must pay the wages by the regular payday for the pay period worked. If asked, the employer must mail the final wages to the employee


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Q: How can employees get help to collect wages their employer owes them?

A: The Division of Labor Standards investigates claims for unpaid or withheld wages including illegal deductions, and tries to collect these wages. Labor Standards also enforces the prohibition against illegal kickback of wages and tip appropriation.

- Submit completed claim(s) to the nearest Division of Labor Standards Office


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Q: May employers deduct money from 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 including regulations promulgated under paragraph c and paragraph d of this subdivision; or
            b. are expressly authorized in writing by the employee and are for the benefit of the employee, provided that such authorization is voluntary and only given following receipt by the employee of written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made. Whenever there is a substantial change in the terms or conditions of the payment, including but not limited to, any change in the amount of the deduction, or a substantial change in the benefits of the deduction or the details in the manner in which deductions shall be made, the employer shall, as soon as practicable, but in each case before any increased deduction is made on the employee's behalf, notify the employee prior to the implementation of the change.  Such authorization shall be kept on file on the employer's premises for the period during which the employee is employed by the employer and for six years after such employment ends.  Notwithstanding the foregoing, employee authorization for deductions under this section may also be provided to the employer pursuant to the terms of a collective bargaining agreement. Such  authorized  deductions shall be limited to payments for:
            (i) insurance premiums and prepaid legal plans;
            (ii) pension or health and welfare benefits;
            (iii) contributions to a bona fide charitable organization;
            (iv) purchases made at events sponsored by a bona fide charitable organization affiliated with the employer where at least twenty percent of the profits from such event are being contributed to a bona fide charitable organization;
            (v) United States bonds;
            (vi) dues or assessments to a labor organization;
            (vii) discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit;
            (viii) fitness center, health club, and/or gym membership dues;
            (ix) cafeteria and vending machine purchases made at the employer's place of business and purchases made  at gift shops operated by the employer, where the employer is a hospital, college, or university;
            (x) pharmacy purchases made at the employer's place of business;
            (xi) tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions;
            (xii) day care, before-school and after-school care expenses;
            (xiii) payments for housing provided at no more than market  rates  by non-profit hospitals or affiliates thereof; and
            (xiv) similar payments for the benefit of the employee.
            c. are related to recovery of an overpayment of wages where such overpayment is due to a mathematical or  other  clerical error by the employer.  In making such recoveries, the employer shall comply with regulations promulgated by the commissioner for  this purpose, which regulations shall include, but not be limited to, provisions governing: the size of overpayments that may be covered by this section; the timing, frequency, duration, and method of such recovery; limitations on the periodic amount of such recovery; a requirement that notice be provided to the employee prior to the commencement of such recovery; a requirement that  the employer implement a procedure for disputing the amount of such overpayment or seeking to delay commencement of such recovery; the terms and content of such a procedure and a requirement  that notice of the procedure for disputing the overpayment or seeking to delay commencement of such recovery be provided to the employee prior to the commencement of such recovery.
            d. repayment of advances of salary or wages made by the employer to the employee. Deductions to cover  such  repayments  shall be made in accordance with  regulations  promulgated  by the commissioner for this purpose, which  regulations shall include, but not be limited to, provisions governing:  the  timing,  frequency, duration, and method of such repayment; limitations on the periodic amount of such repayment; a requirement that notice be provided to the employee  prior to the commencement of such repayment; a requirement that the employer implement a procedure for disputing the amount of such repayment or seeking to delay commencement of such repayment; the terms and content of such a procedure and a requirement that notice of the procedure for disputing he repayment or seeking to delay commencement  of such repayment be provided to the employee at the time the loan is made.
    * NB Effective until November 6, 2015
    * 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;  provided that such authorization is kept on file on the employer's premises. Such  authorized  deductions  shall  be limited  to  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, and similar payments for the benefit of the employee.
    * NB Effective November 6, 2015
    * 2. Deductions made in conjunction with an employer sponsored pre-tax contribution plan approved by the IRS or other local  taxing  authority, including  those  falling within one or more of the categories set forth in paragraph b of subdivision one of this section, shall  be  considered to  have  been made in accordance with paragraph a of subdivision one of
this section.
    * NB Effective until November 6, 2015
    * 2. No employer shall make any charge against wages,  or  require  an employee  to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under  the  provisions of subdivision one of this section.
    * NB Effective November 6, 2015
    * 3.   a. No employer shall make any charge against wages, or require an employee  to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under  the  provisions of subdivision one of this section or is permitted or required under any provision of a current collective bargaining agreement.
            b.  Notwithstanding  the  existence  of employee authorization to make deductions in accordance with subparagraphs  (iv),  (ix),  and  (x)  of paragraph b of subdivision one of this section and deductions determined
by  the commissioner to be similar to such deductions in accordance with subparagraph (xiv) of paragraph b of subdivision one  of  this  section, the  total aggregate amount of such deductions for each pay period shall be subject to the following limitations:
(i) such aggregate amount shall not exceed a maximum aggregate limit established  by  the  employer  for each  pay  period; (ii) such aggregate amount shall not exceed a maximum aggregate limit established by the employee, which limit may be for  any amount  (in  ten dollar increments) up to the maximum amount established
by the employer under subparagraph (i)  of  this  paragraph; 
(iii)  the employer  shall  not  permit  any  purchases  within these categories of deduction by the employee that exceed the aggregate limit established by  the employee or, if no limit has been set by the employee, the limit set by the  employer;  (iv)  the  employee  shall  have  access  within  the   workplace   to   current   account   information   detailing  individual expenditures within these categories of deduction and a running total of the amount that will be deducted from the employee's pay during the next applicable pay period. Information shall be available in printed form or capable of being printed should the employee wish to obtain a listing.  No  employee  may be charged any fee, directly or indirectly, for access to, or printing of, such account information. c. With the exception of wage deductions required or authorized  in a current   existing   collective   bargaining  agreement,  an  employee's authorization for any and all wage deductions may be revoked in  writing at  any  time.  The employer must cease the wage deduction for which the employee has revoked authorization as soon as practicable,  and,  in  no event  more than four pay periods or eight weeks after the authorization has been withdrawn, whichever is sooner. * NB Effective until November 6, 2015    * 3. Nothing in this section shall justify noncompliance with  article three-A of the personal property law relating to assignment of earnings, nor with any other law applicable to deductions from wages.    * NB Effective November 6, 2015    * 4.  Nothing in this section shall justify noncompliance with article three-A of the personal property law relating to assignment of earnings, with section two hundred twenty-one of this chapter relating to  company stores or with any other law applicable to deductions from wages.    * NB Effective until November 6, 2015
  You may print this section of law here.


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Q: What information must an employer's payroll records contain?

A: Employers must keep payroll records showing, for each week worked by an employee:

  1. the total hours worked each day;
  2. the total hours worked each week;
  3. the rate or rates of pay and basis (by the hour, shift, day, week, salary, piece, commission or other);
  4. if paid more than one hourly rate, the number of hours worked at each rate;
  5. if paid piece rates, the number of pieces completed at each piece rate;
  6. gross wages
  7. deductions
  8. allowances or credits, if any, claimed as part of the minimum wage; and
  9. net wages.
 

If the employee worked overtime and is required to be paid at a higher rate for overtime hours, the payroll records must also include the four items listed below, along with the items listed above:

  1. the number of regular hours worked;
  2. the regular hourly rate or rates of pay;
  3. the number of overtime hours worked; and
  4. the overtime rates of pay.

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Q: What posters must employers display in the workplace? Where can they get the posters?

A: The posters required by New York State law are available at the following website:

http://www.labor.state.ny.us/business_ny/employer_responsibilities/posters.html

New York State Labor Law requires all employers to display a Minimum Wage Poster.  However, employers in certain, specific industries have more posting responsibilities.

As shown 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"
  • A reprint of § 196-d, entitled "Gratuities"
Other employers with specific posting requirements include:

  • Agricultural and garment industry employers
  • Employers involved in Industrial Homework
  • Employment Agencies
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:

http://www.dol.gov/osbp/sbrefa/poster/main.htm

For more information on New York State laws and regulations governing the Apparel Industry, go to:

http://www.labor.state.ny.us/business_ny/employer_responsibilities/workprot/garment.asp

For more information on Farm Labor, Industrial Homework and Employment Agencies, go to:

http://www.labor.state.ny.us/business_ny/employer_responsibilities/workprot/lshmpg.htm

For more information on Child Labor, go to:

http://labor.ny.gov/workerprotection/laborstandards/workprot/minors.shtm


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Q: Where can I find the New York State Labor Laws on the Internet?

A: The New York State Labor laws are available online at the New York State Assembly homepage:

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS


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Q: How do I get details on the new overtime regulations?

A: For more information about the new federal overtime regulations, please visit the US Department of Labor's website.


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