Filing a Wage and Hour Claim – New York
Does New York have state overtime laws that are different from federal law?
The State of New York’s overtime provision essentially tracks the federal provision. Employers must pay employees one-and-one-half times the employee’s regular rate for overtime. Overtime is time over 40 hours in one week for nonresidential employees, 44 hours per week for residential employees. For employees of resort hotels, if the employee works seven consecutive days, the hours worked on the seventh day are overtime. Anyone who is not covered under the minimum wage law is also not covered by the overtime provisions (see #2 below).
Does New York have a minimum wage that is different from federal law?
The minimum wage in New York is $8.00 per hour, which is higher than the federal minimum wage of $7.25.
The minimum wage law does not apply to the following workers:
- *Babysitters or persons working as companions for sick or elderly individuals
- *Workers in a bona fide executive, administrative, or professional capacity
- *Outside salespersons
- Taxi drivers
- *Volunteers or apprentices for charitable, religious, or educational organizations
- *Members of religious orders (e.g. priests, rabbis)
- *Students and handicapped individuals working for religious or charitable organizations, as well as people working for such institutions doing incidental work or work in return for assistance
- *Employees of a summer camp operated by a religious or charitable organization if it operates less than three months each year
- *Staff counselors in children’s camps
- Employees of student or faculty associations (e.g. fraternities)
- Employees of federal, state, or municipal governments or their subdivisions
- *Volunteers at recreational or amusement events that do not run longer than 8 days
The employees with asterisks (*) are those who are also not covered under the federal minimum wage requirement. The following individuals not covered under the federal minimum wage requirement are covered by New York State’s law:
- Those working in amusement or recreational establishments not falling into the state exception above, but that do not operate more than 7 months a year or that make the vast majority of their profit in a six-month period of the year
- Employees who work in fishing or deal with aquatic/marine products
- Farm workers (see below)
- Employees of limited circulation newspapers
- Certain switchboard operators
- Seamen on non-American vessels
- Computer professionals (note that these may be exempt under state law under the “bona fide professional capacity” exemption)
There are special wage orders for certaihttp://www.labor.state.ny.us/workerprotection/laborstandards/workprot/minwage.shtm. Employers can use tips and gratuities to reduce the minimum wage required for food service workers to $4.60.
New York State, unlike federal law, has separate legislation that covers farm workers. Under that legislation, farm workers are entitled to the same minimum wage (see directly above) as other workers. This only applies to farms, however, that spent more than $3,000 in wages to workers the year before. The following farm workers are not covered by this provision:
- Domestic service workers
- Employer’s immediate family members
- Minors under 17 employed as hand harvest workers on the same farm as a parent/guardian and who are paid on a piece-rate basis at the same rate as employees 17 or older
- Individuals employed or permitted to work for a federal, state, or municipal government of political subdivision of such
An employer is allowed to count the reasonable cost of meals against the minimum wage ($1.70 per meal), except that this does not apply to migrant workers who earn less than $254 in a two-week period. The same is true for the reasonable value of lodgings ($18.95 per week for single occupancy, $12.65 per week for multiple occupancy). This does not apply to migrant seasonal employees.
Does New York have meal and rest break requirements, unlike federal law?
New York State law does require meal breaks. Factory employees are entitled to a one-hour lunch break. All other employees (whether or not they are covered under the minimum wage or overtime provisions) are entitled to a meal break of thirty minutes if they work for more than six hours and their work hours extend over the midday meal period (defined as being between 11am and 2pm). Anyone who starts work before 11 am and finishes after 7pm is entitled to an additional twenty-minute meal break between 5 and 7pm. Anyone who starts work after 1pm and finishes before 6 am is entitled to a one-hour meal break midway through if (s)he works in a factory, or a 45-minute meal break if (s)he works in another establishment. However, these rules are not strict and it is very easy for employers to get around them. The New York Commissioner of Labor can permit an employer to provide a shorter meal period of 30 minutes minimum; the Commissioner tends to allow this as a matter of course, and employers do not even need to apply for a permit. In some special circumstances, the employer may provide a meal period of only 20 minutes with the Commissioner’s approval. An employer and employee may also negotiate to waive the meal period, as long as it is based on the employer’s business necessity and the employer provides a substitute.
Does New York have other labor standards that are different from federal law?
Under New York State law, deductions from wages are only permissible when law requires it (e.g. taxes) and when the deduction is for the employee’s benefit and the employee has given her/his express permission.
How do I file a wage/hour or labor standards claim in New York?
If your employer owes you wages, and you have asked her/him to pay you, you can file a claim with the New York State Department of Labor. The wage claim form is available at http://www.labor.state.ny.us/formsdocs/wp/ellsformsandpublications.shtm#Claim%20Forms. The Department will investigate your claim and attempt to help you collect your wages. If that is unsuccessful, the Department can bring a court case on your behalf to recover the wages you are owed. If the court finds that your employer acted willfully, it can award you, in addition to what you are owed, an additional 25%.
What are my time deadlines?
Do not delay in contacting the New York State Department of Labor to file a claim. There are strict time limits in which charges of wage-and-hour violations must be filed. It is not clear if there is a time deadline for filing a wage claim form with the Department of Labor, although the Department only has six years within which to bring a legal action on your behalf. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the Department.
How can I or my attorney pursue a claim in court in New York?
Instead of filing a claim with the New York State Department of Labor, you can file a claim in state court for unpaid wages as well. If you win your case, the court can award you the wages you are owed, an additional 25% (if the violation was willful), attorneys’ fees, and litigation costs up to $50. The statute of limitations for bringing such a case is six years.
You can e-mail the Labor Standards Division of the New York State Department of Labor at [email protected].
The following are the district offices of the New York State Department of Labor; to find out which office covers your county, visithttp://www.labor.state.ny.us/workerprotection/laborstandards/workprot/lsdists.shtm.
State Office Campus
Bldg. 12, Room 185A
Albany, NY 12240
Tel. (518) 457-2730
Fax. (518) 457-8452
State Office Bldg. 44 Hawley St. Room 909
Binghamton, NY 13901
Tel. (607) 721-8014
Fax. (607) 721-8013
65 Court Street
Buffalo, NY 14202
Tel. (716) 847-7141
Fax (716) 847-7140
400 Oak Street
Garden City, NY 11530-6551
Tel. (516) 794-8195
Fax (516) 794-1046
New York City District
75 Varick Street
New York, NY 10013
Tel. (212) 775-3880
Fax. (212) 352-6593
109 South Union Street
Rochester, NY 14607
Tel. (585) 258-4550
Fax (585) 258-4556
333 East Washington Street
Syracuse, NY 13202
Tel. (315) 428-4057
Fax (315) 428-4001
White Plains District
120 Bloomingdale Road
White Plains, NY 10605
Tel. (914) 997-9521
Fax (914) 997-8780
This material was originally prepared by attorney Joseph Jaramillo and former law clerks Keia Cole and Adam Weiss of the law firm Goldstein, Demchak Baller Borgen and Dardarian, and was updated by Professor Douglas D. Scherer, of Touro College, Jacob D. Fuchsberg Law Center. Professor Scherer also serves as the Vice President of Workplace Fairness.
© 2015 Workplace Fairness