NYLL 191: Frequency of Pay Violations in New York – A Shifting Landscape

New York Labor Law (NYLL) Section 191 governs the crucial aspect of wage payment frequency, aiming to protect workers by ensuring timely compensation. However, the interpretation and enforcement of this law are constantly evolving, with ongoing developments in both the courts and the legislature. This post delves into the core provisions of NYLL 191, common violations, and recent changes that employers and employees need to be aware of.

NYLL 191: The Basics

NYLL 191 mandates specific payment frequencies based on employee classification:

  • Manual Workers: Weekly payments, no later than seven days after the week’s end.

  • Clerical & Other Employees: At least semi-monthly, on pre-designated paydays.

  • Commission Salespersons: As per agreed terms, but no less than monthly.

  • Railroad Workers: Semi-monthly payments.

Common Violations and Their Consequences:

  • Delayed payments, misclassification of workers, and inconsistent pay schedules are frequent violations.

  • These violations can lead to:

    • Civil penalties for employers.

    • Back pay for employees.

    • Liquidated damages (potentially doubling or tripling unpaid wages).

    • Recovery of attorney’s fees and costs.

    • Reputational damage.

Current Status in the Courts:

  • Recent court decisions have increasingly focused on the strict interpretation of "manual worker" classifications. This has led to more litigation on the proper classification of employees, especially in industries with mixed job duties. Courts are leaning towards a broader definition of manual worker.

  • Courts are also becoming more strict on enforcing the timely payments, and are less likely to accept excuses for late payments.

  • There is increased litigation surrounding the "intent" of the employer. Even accidental violations are now being heavily penalized.

Legislative Developments:

  • There's ongoing discussion in the New York State Legislature about strengthening NYLL 191. This includes potential amendments to:

    • Increase penalties for violations.

    • Clarify the definition of "manual worker."

    • Introduce stricter record-keeping requirements.

    • There is also legislative pressure to increase the ability of the labor department to enforce these rules.

  • It is critical to stay up to date on legislative changes, as the rules are currently in flux.

  • Recently, there has been more focus on electronic payments, and how those payments interact with the frequency of pay rules.

Practical Implications:

  • Employers:

    • Review employee classifications meticulously.

    • Implement robust payroll systems and ensure timely payments.

    • Maintain meticulous records.

    • Seek legal counsel to stay abreast of evolving regulations.

  • Employees:

    • Understand your rights regarding payment frequency.

    • Document any payment irregularities.

    • Seek legal advice if you believe your rights have been violated.

    • Be aware of any changes to electronic payment schedules.

      Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with a qualified attorney for advice tailored to your specific situation.

Commission Salespersons in New York: Navigating Overtime and Minimum Wage Minefields

Commission-based sales positions offer the potential for high earnings, but they also present unique challenges when it comes to complying with New York’s labor laws, particularly regarding overtime and minimum wage. Employers and salespersons alike must understand these regulations to avoid costly legal pitfalls.

The Minimum Wage Question:

Even if you're paid solely on commission, you're still entitled to at least the applicable New York State minimum wage for all hours worked. This means that if your commission earnings, when divided by the total hours worked in a pay period, fall below the minimum wage, your employer is legally obligated to make up the difference.

  • Tracking Hours: Accurate record-keeping is crucial. Both employers and employees should maintain detailed records of all hours worked.

  • "Draws" and Deductions: Be wary of “draw” systems or deductions that could bring your effective hourly rate below the minimum wage.

Overtime for Commission Salespersons:

The question of overtime for commission salespersons is more nuanced.

  • Exempt vs. Non-Exempt: The key determinant is whether the salesperson is classified as "exempt" or "non-exempt" under the Fair Labor Standards Act (FLSA) and New York Labor Law.

  • Exemption Requirements: To be exempt, a salesperson must generally meet specific criteria related to their job duties, salary level (if applicable), and decision-making authority. Simply being paid on commission does not automatically exempt a salesperson from overtime.

  • Non-Exempt Salespersons: If a commission salesperson is classified as non-exempt, they are entitled to overtime pay at 1.5 times their regular rate of pay for all hours worked over 40 in a workweek. The "regular rate" calculation can be complex in commission-based scenarios.

  • Inside vs. Outside Sales: Outside salespersons may have different exemption rules than inside salespersons.

Common Pitfalls:

  • Misclassification: Misclassifying a non-exempt salesperson as exempt is a frequent and costly mistake.

  • Improper "Regular Rate" Calculation: Failing to include all forms of compensation when calculating the "regular rate" for overtime purposes.

  • Lack of Accurate Records: Inadequate timekeeping can lead to disputes and legal liabilities.

  • Deductions that lower effective wages: Some deductions can lower the effective hourly wage below the legal minimums.

What Employers Should Do:

  • Conduct Thorough Exempt/Non-Exempt Analysis: Carefully evaluate job duties and ensure proper classification.

  • Implement Accurate Timekeeping Systems: Maintain detailed records of all hours worked.

  • Calculate Overtime Correctly: Consult with legal counsel to ensure accurate "regular rate" calculation.

  • Review Commission Agreements: Ensure commission agreements comply with all applicable labor laws.

  • Stay Updated on Legal Changes: Employment laws are constantly evolving.

What Salespersons Should Do:

  • Track Your Hours: Keep detailed records of your work hours.

  • Review Your Commission Agreement: Understand the terms of your compensation.

  • Know Your Rights: Familiarize yourself with minimum wage and overtime laws.

  • Seek Legal Advice: If you believe your rights have been violated, consult with an employment law attorney.

  • Document Everything: Keep all paystubs and any documents related to your pay.

The Bottom Line:

Commission sales positions require careful attention to labor law compliance. Employers must ensure they are properly classifying employees, paying at least the minimum wage, and calculating overtime correctly. Salespersons should be proactive in understanding their rights and maintaining accurate records.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with a qualified attorney for advice tailored to your specific situation.

Navigating the "Spread of Hours" in New York: What Employers and Employees Need to Know

New York's labor laws are known for their robust worker protections, and one often-overlooked area is the "spread of hours" rule. This regulation can significantly impact both employers and employees, particularly in industries with fluctuating work schedules. Let's break down what you need to know.

What is the "Spread of Hours"?

In New York, the "spread of hours" refers to the total length of the workday, measured from the employee's start time to their end time, including any breaks. According to the New York Labor Law, if an employee's spread of hours exceeds 10 hours in a single workday, they are entitled to an additional hour of pay at the basic minimum hourly rate.

Key Points to Remember:

  • Applicability:

    • This rule applies to most non-exempt employees covered by the New York Minimum Wage Order.

    • Certain industries, such as transportation workers, may have specific exceptions.

  • Calculation:

    • The 10-hour threshold includes all time spent working, as well as any unpaid breaks.

    • For example, if an employee works from 9:00 AM to 8:00 PM with a one-hour unpaid lunch break, their spread of hours is 11 hours (9:00 AM to 8:00 PM), triggering the extra hour of pay.

  • Minimum Wage Rate:

    • The additional hour of pay is calculated at the basic minimum hourly wage rate, even if the employee's regular rate of pay is higher.

  • Record Keeping:

    • Employers are required to maintain accurate records of employees' start and end times, as well as break times, to ensure compliance with the spread of hours rule.

  • Penalties:

    • Failure to comply with the spread of hours rule can result in significant penalties for employers, including back pay and potential fines.

Impact on Employers:

  • Employers must carefully manage employee schedules to avoid exceeding the 10-hour spread of hours.

  • This may require restructuring shifts or hiring additional staff.

  • Accurate timekeeping is crucial to prevent costly violations.

Impact on Employees:

  • Employees should be aware of their rights regarding the spread of hours.

  • They should keep their own records of their work hours and report any violations to their employer or the New York State Department of Labor.

  • Knowing this rule can significantly impact their total compensation.

Common Scenarios:

  • Restaurants and hospitality: Long shifts are common, making this rule particularly relevant.

  • Retail: Seasonal fluctuations can lead to extended workdays.

  • Any industry with on call shifts, and long shifts.

What to do:

  • Employers: Review your current scheduling practices and ensure compliance with the spread of hours rule. Consult with legal counsel to address any potential issues.

  • Employees: Familiarize yourself with your rights and keep accurate records of your work hours. If you believe your rights have been violated, seek legal advice.

  • Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with a qualified attorney for advice tailored to your specific situation.