New York

Labor Compliance Guide

Hours & Pay Regulations

Normal Working Hours

The Fair Labor Standards Act defines the workweek as a fixed and recurring period of 168 hours comprised of seven consecutive 24-hour periods that do not need to coincide with the calendar week. It is adjustable only if the change is designed to be permanent. Each week is considered on its own for purposes of calculating overtime. The hours of two or more weeks may not be averaged.

 

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

Overtime

The overtime requirement is based on hours worked in a given payroll week. In general, if you have worked more than 40 hours in a pay week, and are not “exempt”, you must be paid an overtime rate for all hours over 40.

    • Covered employees: 1.5 times their regular, ‘straight-time’ hourly rate of pay for all hours over 40 in a payroll week.
    • Residential Employees: 1.5 times their regular, ‘straight-time’ hourly rate of pay for all hours over 44 in a payroll week

Effective January 19, 2018, an employer shall grant an employee’s request for a temporary change to the employee’s work schedule relating to a personal event in accordance with the following provisions, with a temporary change meaning a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave. On request, the employer must grant a request for a temporary change to the employee’s work schedule under this section two times in a calendar year for up to one business day per request. The employer may permit the employee to use two business days for one request, in which case the employer need not grant a second request.

Breaks

One Day Rest in Seven

Every employer operating a factory, mercantile establishment, hotel, restaurant, or freight or passenger elevator in any building or place shall, except as herein otherwise provided, allow every person employed in such establishment or in the care, custody or operation of any such elevator, at least twenty-four consecutive hours of rest in any calendar week.

 

Every employer operating a place in which motion pictures are shown shall allow the projectionist or operator of the motion picture machine and engineers and firemen therein at least twenty-four consecutive hours of rest in any calendar week. Every employer operating a place in which legitimate theater productions such as dramatic and musical productions are shown or exhibited shall allow all employees, including the performers in the cast therein and engineers and firemen, at least twenty-four consecutive hours of rest in each and every calendar week, but this shall not apply to any place wherein motion pictures, vaudeville or incidental stage presentations or a combination thereof are regularly given throughout the week as the established policy of such place; except that engineers and firemen employed in such place shall be allowed at least twenty-four consecutive hours of rest in any calendar week.

 

No employer shall operate such establishment, place or elevator on Sunday.  This does not authorize any work on Sunday not permitted now or by law. Every owner, lessee, and operator of a dwelling, apartment, loft and office building, garage, storage place and building, wherein or whereat a watchman or watchmen or engineer or fireman are employed, shall allow such person or persons so employed at least twenty-four consecutive hours of rest in each and every calendar week.

 

Every owner, lessee or operator of a warehouse, storage house, office, dwelling, apartment, loft, and any other building or structure wherein a janitor, superintendent, supervisor or manager or engineer or fireman is employed, shall allow such person or persons so employed at least twenty four consecutive hours of rest in each and every calendar week.

 

Before operating on Sunday, every employer shall designate a day of rest, consisting of at least twenty-four consecutive hours of rest in each and every calendar week for each employee, and shall notify each employee in advance of his or her designated day of rest. No employee shall be permitted to work on his designated day of rest. Every employer shall keep a time book showing the names and addresses of his employees and the hours worked by each of them in each day.

 

Breast Feeding Breaks

As a nursing mother, an employee can take breaks at least once every three hours to pump breast milk. An employee can take these breaks right before or after their regularly scheduled paid break or meal periods.

Annual Leave

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.

Minimum Wage

The applicable minimum wage varies based on the employee’s geographic location. The following table summarizes the new minimum wages, by location, effective December 31, 2018:

      • New York City (11+ employees) – $15.00
      • New York City (10 or fewer employees) – $13.50
      • Nassau, Suffolk, Westchester Counties – $12.00
      • Rest of State – $11.10

 

Nassau, Suffolk and Westchester Counties

The hourly rate is to increase by $1 a year after that, reaching $15 Dec. 31, 2021.

New York City Fast Food Workers

The state’s hourly minimum wage for fast-food workers is $10.50 for those employed in New York City and $9.75 for those employed in the rest of the state, effective Dec. 31, 2015, with annual wage increases to follow until the hourly minimum wage reaches $15, which is to occur Dec. 31, 2018 for workers in New York City and July 31, 2021, for workers in the rest of the state.

Hospitality Industry

Employees in the hospitality industry, other than commissioned salespersons, must be paid an hourly rate. Employers are prohibited from paying employees on a daily, weekly, salary, piece rate, or other non-hourly rate basis. With the approval of the Labor Department, employers may pay less than the minimum wage to disabled persons.

Tips & Gratuities

An employer may take a credit for workers that qualify as tipped employees. The state’s hourly minimum cash wage for all tipped workers in the hospitality industry is a uniform $7.50, effective Dec. 31, 2015, an increase from the three hourly minimum wages that previously applied to different categories of tipped workers: namely, $5 (food-service workers), $5.65 (service employees) and $4.90 (service employees, resort hotels). The $7.50 hourly minimum cash wage for tipped workers in the hospitality industry is based on a tip credit of $1.50, if tips are at least $1.95 in hospitality establishments or at least $5.05 for tipped workers in resort hotels.

Meal Breaks

Every person employed in or in connection with a factory shall be allowed at least 60 minutes for the noon day meal. Every person employed in or in connection with a mercantile or other establishment or occupation shall be allowed at least 30 minutes for the noonday meal. The noonday meal period is recognized as extending from 11 o’clock in the morning to 2 o’clock in the afternoon.

 

An employee who works a shift of more than 6 hours, which extends over the noonday meal period, is entitled to at least 30 minutes off within that period for the meal period. Every person employed for a period or shift starting before 11 o’clock in the morning and continuing later than 7 o’clock in the evening shall be allowed an additional meal period of at least 20 minutes between 5 and 7 o’clock in the evening.

 

Every person employed for a period or shift of more than 6 hours starting between the hours of 1 o’clock in the afternoon and 6 o’clock in the morning, shall be allowed at least 60 minutes for a meal period when employed in or in connection with a factory, and 45 minutes for a meal period when employed in or in connection with a mercantile or other establishment or occupation, at a time midway between the beginning and end of such employment.

Special Leave

Paid Family Leave

As of January 1, 2019, employees will be eligible for up to 10 weeks of Paid Family Leave; an increase of 2 weeks from the previous year. In addition, the maximum rate of pay for leave has increased from $652.96 to $746.41. Finally, employers can require an increased employee payroll contribution of up to $2.07 per week. Paid Family Leave is employee-funded insurance that provides job-protected, paid time off to:

    • Bond with a newly born child or adopted or fostered child;
    • Care for a family member with a serious health condition; or
    • Assist loved ones when a spouse, domestic partner, child or parent is called to active military service abroad.

Paid Family Leave Applying Process

    • Notify the employer at least 30 days in advance, if foreseeable, or as soon as possible.
    • Complete and submit the Request for Paid Family Leave (Form PFL-1) to the employer.
    • Complete and attach the additional forms as required and submit to the insurance carrier listed below within 30 days of starting
      the leave, to avoid losing benefits.
    • In most cases, the insurance carrier must pay or deny benefits within 18 calendar days of receiving the completed request or the employees first day of leave, whichever is later.
Sick and Safe Leave

Effective May 5, 2018, employers may set a minimum amount of safe and sick leave, not to exceed four (4) hours, that employees must use in a day. Employees should be notified of this minimum daily increment in the employer’s written safe and sick leave policy. An employee shall be entitled to use sick time for absence from work due to the employee’s mental or physical illness; or care of a family member who needs medical diagnosis or closure of such employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

An employee shall be entitled to use the safe time for absence from work due to any of the following reasons when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.

Westchester County, New York, just became the latest jurisdiction to enact an Earned Sick Leave Law (“Law”). The Law, effective April 10, 2019, requires that covered employees of an employer with five or more employees earn, at a minimum, up to 40 hours of paid sick time in a year. Employers with fewer than five employees must provide up to 40 hours of unpaid sick leave.

 

Under the law, employees are entitled to 1 hour of leave for every 30 hours worked, up to 40 hours per year (unless the employer sets a higher limit), which must be paid if they work for employers with at least five employees. Leave accrues beginning on the later of 90 days after the effective date of the law or the beginning of employment. Employers can also front-load 40 hours of combined sick and personal time at the beginning of each year to allow employees to use leave for a sick time with no advance notice and with no restrictions on use other than as contained in the law. Employers must compensate employees for earned sick time at the same hourly rate that they normally earn. 

Blood Donation Leave

An employer must either:

      • Grant an employee three hours of leave in any 12-month period to donate blood off of the employer’s premises; or
      • Allow employees to donate blood during work hours at least twice each year at a convenient time and place set by the employer, which includes a blood drive at the employee’s place of employment.
Bone Marrow Donor Leave

An employer must grant leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the physician, but may not exceed twenty-four work hours, unless agreed to by the employer. The employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow.

Crime Victim Leave

The law does not specify the minimum or maximum amount of leave that an employee can take.

Jury Duty Leave

The law does not specify the minimum or maximum amount of jury duty leave. However, employees must be granted the leave required for them to satisfy their required jury service.

Military Service Leave

Employees are entitled to leave in order to fulfill their obligations to the armed forces, national guard and military reserves. This includes participation in drills and other equivalent training, reserve training, instruction, annual full-time training duty, active duty for training or other annual training.

Military Spouse Leave

On August 16, 2006, a new state law went into effect (which has been codified as Section 202-i of the New York Labor Law) that requires certain employers to provide employees who are married to members of the armed forces with up to ten days of unpaid leave upon request. The purpose of the law is to enable employees who are married to members of the armed forces to spend some time with their spouses while the spouses are on leave from the armed forces during a period of military conflict. This information memo describes the coverage of the law, the circumstances under which an eligible employee is entitled to leave, and the obligations of covered employers pursuant to the law.

Voting Leave

If a registered voter does not have sufficient time outside of his working hours, within which to vote at any election, he may, without loss of pay for up to two hours, take off so much working time as well, when added to his voting time outside his working hours, enable him to vote. If an employee has four consecutive hours either between the opening of the polls and the beginning of his working shift or between the end of his working shift and the closing of the polls, he shall be deemed to have sufficient time outside his working hours within which to vote.

If he has less than four consecutive hours he may take off so much working time as well when added to his voting time outside his working hours enable him to vote, but not more than two hours of which shall be without loss of pay, provided that he shall be allowed time off for voting only at the beginning or end of his working shift, as the employer may designate, unless otherwise mutually agreed. If the employee requires working time off to vote he shall notify his employer not more than ten nor less than two working days before the day of the election that he requires time off to vote.

 

On April 1, 2019, New York State passed the 2019‒2020 budget which amended Election Law §3-110, which provides employees with time off to vote.

 

In accordance with the recent amendment, in New York State all employers must provide employees who are registered voters with up to 3 three hours’ time off without loss of pay at the starting or at the end of work hours in order to vote in any election.

Any employee who is a registered voter requiring time off to vote must notify his or her employer at least 2 working days before the election.

 

This amendment increased the maximum time-off allotment from two hours to three hours, and it eliminated the portion of the law that limited time off to employees who did not have sufficient time to vote outside of working hours. Employers may want to update their employee handbooks, voting leave policies, and election notices in light of this development.

Voluntary Emergency Responder Leave

The law does not provide a minimum or maximum amount of time that an employee may take. However, such leave may only be taken during a declared state of emergency.

Adoptive Parent Leave

Employers are required to provide employees who adopt a child the same leave benefits provided to employees for the birth of the child if the adopted child is either younger than school age or a hard-to-place or handicapped child under the age of 18. Employers are prohibited from retaliating against employees for exercising their rights under the law.

Bereavement Leave

No employer who extends to its employees funeral or bereavement leave for the death of an employee’s spouse or the child, parent or other relative of the spouse shall deny the same leave to an employee for the death of the employee’s same-sex committed partner or the child, parent or other relative of the committed partner. For the purposes of this section, same-sex committed partners are those who are financially and emotionally interdependent in a manner commonly presumed of spouses.

 

Accommodation for Victim of Domestic Violence

The New York State Human Rights Law was amended into law A5618/S1040 on August 20, 2019, with respect to protection for victims of domestic violence. The Amendment becomes effective on November 18, 2019. One of the amendments was pertaining to the accommodation of victims of domestic violence by the employer. The Amendment requires employers to reasonably accommodate victims of domestic violence who must be absent from work “for a reasonable amount of time” to:

      • Seeking medical attention for injuries caused by domestic violence including for a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the domestic violence against the child; or
      • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence; or
      • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the domestic violence against the child; or
      • Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, including
        temporary or permanent relocation; or
      • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident or incidents of domestic violence.

An employer is required to provide reasonable accommodation for an employee’s absence unless the employer can demonstrate that the employee’s absence would constitute an undue hardship to the employer. A decision of whether the absence will cause an unnecessary hardship requires an evaluation of factors, such as the size of the employer’s business and the nature of its operation, including the composition and structure of its workforce. Employers may require employees to use any available paid time off during any leave provided as an accommodation.

 

The Amendment requires an employee to provide the employer with reasonable notice of the need to be absent, if reasonable. If the advance notice was not feasible, the employee must, upon employer request, provide a certification confirming the requirement for the time-off accommodation. An employee who must be absent from work who cannot feasibly give reasonable advance notice of the absence within a reasonable time after the absence, provide a certification to the employer when requested by the employer.

Last updated on: September 6th, 2019