Labor Law Section 191

Section 191 of New York Labor Law requires that employers pay their manual workers in full every week. Employers must pay these wages no later than seven days after the end of the week during which the workers earned their wages. For example, when a manual worker works and earns wages during the first week of the month, their employer must pay those wages by the end of the seventh day of the following week, the second week of the month.

Employers cannot force employees to accept wage payments less frequently than the law requires as a condition of employment. They also cannot make partial wage payments on a weekly basis to satisfy their legal obligations. Payments to manual workers must be made in full for all hours worked every week. When an employee leaves a job, the employer must pay them any remaining wages by their next regular payday. 

There are limited exceptions to the weekly pay requirement for certain New York employers.

If the employer is a non-profit organization or has received special permission from the labor commissioner, they can pay their manual workers less frequently. However, they still need to pay workers at least semi-monthly (twice a month).

Employers who, on average, have had large workforces (either 1,000 employees in New York or 3,000 outside over certain periods) can get permission to pay less often than every week. These larger employers must prove they can consistently meet their payroll obligations to get this approval, and they must still pay workers at least twice a month. 

Labor Law Section 191 does not apply to local, state, or federal government entities in New York, only private sector employers.

For permission to pay manual workers less frequently, employers must meet several requirements, including the following:

  • They must show a reliable pay history or other financial proof that they can continue to meet their employees’ payroll needs.
  • They must have current workers’ compensation and disability insurance.
  • They must show that they are current on the payments for their state tax and unemployment insurance obligations.
  • They must maintain detailed computerized payroll records for each employee.
  • If the workers are part of a labor union, the employer needs the union’s consent to reduce the payment frequency.

The New York State Department of Labor (NYSDOL) Commissioner can revoke this special permission if they find an employer can no longer meet its payroll responsibilities. 

Who Is a Manual Worker?

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According to Section 190(4) of the New York Labor Law, the definition of a “manual worker” includes only mechanics, workingmen, or laborers. However, the NYSDOL’s interpretations of this definition expand it considerably.

The NYSDOL considers someone a manual worker if they spend more than 25 percent of their working time performing “physical labor.” This interpretation applies to many tasks and is not limited strictly to jobs traditionally considered to be physically demanding, like construction. “Physical labor” encompasses a variety of activities, including tasks that require physical exertion beyond minimal effort.

Due to the broad interpretation of “physical labor,” various job roles across different industries might qualify as manual labor positions. Here are some examples:

  • Cashiers who engage in lifting merchandise and standing for extended periods
  • Bartenders who mix drinks, move heavy items, and work on their feet throughout their shifts
  • Baristas who prepare beverages, often requiring repetitive motions and handling heavy containers of liquids and supplies
  • Hairdressers who stand most of the day and use their hands to cut hair and perform other grooming tasks
  • Retail store workers who stock shelves, manage inventory, assist customers, and perform a variety of other physical tasks throughout the day
  • Pizza makers who knead dough, manage ovens, and perform tasks that require physical exertion
  • Supermarket employees who stock shelves, lift boxes, and handle a variety of tasks that require physical strength
  • Restaurant employees who cook, clean, and move kitchen supplies in fast-paced environments
  • Janitors who perform cleaning tasks like weeping, mopping, and moving heavy equipment
  • Security guards who patrol areas, manage crowds, and handle safety incidents, all of which involve physical exertion

It’s worth noting that an individual’s status as a manual worker does not solely rely on their job title but rather on the actual work they perform. The NYSDOL reviews these situations on a case-by-case basis. This approach allows for flexibility and acknowledges the varied physical demands of different jobs within modern industries.

Importantly, not everyone who works in a physically demanding role is considered a manual worker under this law. Employees with predominantly skilled or specialized roles might not fall into this category. For example, a previous decision by the New York State Industrial Board determined that dental assistants – who need specific training and perform tasks that require precision – are not manual workers, despite otherwise having much in common with some of the workers described above.

Executives, Administrators, and Professionals

The weekly pay requirements do not apply to “bona fide executive, administrative, or professional” workers who earn at least $900 per week in New York.

To be considered an executive under New York Labor Law, an employee must earn more than $900 per week and satisfy all of the following conditions:

  • Management Role: The employee’s main job is managing the organization or a department.
  • Supervisory Responsibility: The employee regularly directs the work of at least two other employees.
  • Hiring and Firing Authority: The employee has the power to hire or fire other employees, or their recommendations on hiring, firing, and other employment decisions carry significant weight.
  • Discretionary Powers: The employee regularly uses their judgment to make decisions in significant organizational matters.

To qualify as an administrative employee, a worker must earn at least $900 weekly and meet each of the following criteria:

  • Non-Manual Work Related to Business Operations: The employee’s primary duty involves performing office or non-manual work directly related to the company’s management or general business operations.
  • Decision-Making Authority: The employee regularly uses independent judgment and discretion in significant work matters.
  • Supports Management: The employee directly supports the employer or an executive or administrative employee and performs work requiring specialized training, experience, or knowledge.

To be classified as a professional employee, the worker must receive at least $900 per week in wages and meet the following standards:

  • Advanced Knowledge: The employee’s primary duty requires advanced knowledge in a field of science or learning, usually gained through prolonged, specialized intellectual instruction and study.
  • Creativity: In artistic fields, the employee’s work must be original and creative, and the results should depend primarily on the employee’s invention, imagination, or talent.
  • Discretion and Judgment: The employee’s work requires consistent exercise of their discretion and judgment.
  • Intellectual Work: The employee’s work is predominantly intellectual and varied, not routine mental, manual, or physical work, and the output or results cannot be standardized over a specific period.

Railroad Workers

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Employers of railroad workers in New York must comply with the weekly pay requirements of Section 191 as well as several additional, more specific requirements.

In this context, a “railroad worker” is someone employed by any company that operates a steam, electric, or diesel surface railroad or is involved in the sleeping car business. This definition does not include employees who work in an executive capacity or for governmental agencies. Essentially, it covers most people working in various operational roles within the railroad industry in New York.

The law mandates that New York employers pay railroad workers on or before Thursday of each week. These payments must include all the wages that the workers earned during the seven-day period ending on the previous Tuesday. This means that the pay cycle for railroad workers allows only a short waiting period between the end of the pay period and their payday.

Commission Salespersons

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Section 191 of the Labor Law outlines specific payment guidelines for commission salespersons. The law requires employers to pay these workers regularly, but not necessarily on the same weekly schedule that applies to most manual workers.

State law defines a commission salesperson as an employee whose main job is to sell goods, services, or other items and who earns money based on a percentage dollar amount of the sales. This can include sales of goods, real estate, insurance, and more. However, it does not include employees whose primary duties are managerial, executive, or administrative, even if they also make sales.

The law stipulates that commission salespersons must receive their pay at least once a month. Employers must pay these wages no later than the last day of the month following the month in which the salesperson earned the wages. For example, commissions a salesperson earns in January must be paid by the end of February.

If a salesperson’s monthly wages are substantial (more than $900 per week), any extra earnings, such as bonuses or incentive payments, can be paid less frequently than monthly. The law allows these payments to be scheduled differently as long as they adhere to a written employment agreement or compensation plan.

Employers must have written agreements with their commission salespersons that detail how they calculate wages, salary, drawing accounts, commissions, and other earnings. These agreements must be signed by both employers and salespersons, kept on file for at least three years, and be available to the NYSDOL Commissioner upon request.

Clerical and Other Workers

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Section 191 of New York’s Labor Law also outlines payment guidelines for “clerical and other workers” who do not fall into the categories of other workers we have covered already.

A “clerical or other worker” is any employee who does not qualify as a manual worker, railroad worker, commission salesperson, or an executive, administrative, or professional worker earning over $1,300 per week. This category serves as a catch-all for employees not specifically covered by other defined employment categories in New York’s Labor Law. This broad inclusion covers a wide range of job types and roles within various industries, so workers who don’t fit neatly into other categories still get paid on time.

Clerical and other workers must receive their wages according to the terms agreed upon in their employment contract. However, there are specific minimum requirements for the timing of these payments:

  • Minimum Payment Frequency: Employers must pay their clerical and other workers at least semi-monthly (twice per month).
  • Regular Paydays: Employers must establish and stick to regular paydays that they announce in advance for clerical and other workers.

The agreed terms of employment play a significant role in defining how and when clerical and other workers get paid. While the law sets the minimum frequency for wage payments, the exact dates and additional details about wage calculation must be clear in the employment agreement. This promotes transparency and predictability for the employer and the employee, reducing the likelihood of conflicts and misunderstandings about wage payments.

What If I Am Not Paid Weekly as a Manual Worker?

If you are a manual worker in New York and have not received weekly paychecks as the law requires, you have several legal options to consider. First, you should talk to your employer. Sometimes, a simple conversation can resolve payment issues quickly. If this doesn’t solve the problem, you can work with a lawyer to file a complaint with the Department of Labor. The NYSDOL can investigate your case and help you demand the wages you are owed.

A lawyer can give you advice that’s specific to your situation and represent you in legal actions if necessary. For instance, you might be able to sue your employer for not following the state’s pay frequency laws. If you win such a lawsuit, your employer will have to pay you the money you’re owed and possibly additional compensation.

Remember, the law protects your right to get paid on time. If you are a manual worker in New York, and your employer is not paying you weekly, they are breaking the law. You have the right to take legal action to enforce your rights.

Compensation

If you are a manual worker in New York and your employer does not pay you weekly as required by law, you might be entitled to compensation. If you win a wage claim against your employer for not paying you on time, the court can order your employer to pay:

  • Full Underpayment: You are entitled to recover the full amount of any wages your employer has failed to pay you on time.
  • Liquidated Damages: In addition to the wages owed, you can also receive liquidated damages (financial compensation). This compensation is equal to 100 percent of your delayed wages if your employer cannot show that they made the late payment in good faith or compliance with the law. If your case is like most frequency of pay claims, the value of delayed wages is 50 percent of your total wages, assuming your employer paid you every two weeks instead of weekly.
  • Interest and Costs: The court can order your employer to pay you prejudgment interest, which is interest calculated from when your wages were due up to the time of judgment. You could also be entitled to a reasonable sum for costs, up to fifty dollars.
  • Attorney’s Fees: You can recover all reasonable attorney’s fees you spent in pursuing your case, which can virtually eliminate the financial cost of taking legal action to assert your rights.
  • Additional Penalties: If your employer fails to pay you within 90 days after the judgment becomes final or the appeal period expires, the amount you are owed will automatically increase by 15 percent.

In New York, you have up to six years to file a claim for unpaid wages. You can include any unpaid wages or late payments from that six-year period in your claim. This means you can claim compensation for violations going back several years, significantly increasing the total amount you can recover.

Taking action against your employer for not following New York’s pay frequency laws can allow you to secure the wages you are owed and potentially a substantial amount in additional compensation. If you believe your employer has violated your pay rights, contact a New York wage and employment law attorney for advice as soon as possible.

Wage and Hour Laws

In addition to New York’s weekly pay requirement for manual workers, there are other federal and state wage and hour laws that you should know about. Understanding these laws can help you identify possible violations and demand all wages and benefits you are entitled to.

The Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) is a federal law that sets basic labor standards in the United States to ensure workers get fair treatment. The FLSA covers several important aspects of employment and wage practices, including the following:

  • Minimum Wage: The FLSA sets the minimum hourly wage employers must pay their employees. The current federal minimum wage is $7.25 per hour, but many states, including New York, have set higher minimums.
  • Overtime Pay: Under the FLSA, employees who work more than 40 hours in a week are generally entitled to overtime pay. Overtime pay must be at least one and a half times the employee’s regular hourly rate. This rule is designed to compensate workers for extended work hours and encourage employers to hire additional staff instead of requiring long hours from current employees.
  • Child Labor: The FLSA also regulates the employment of minors, setting standards for how old employees must be to perform certain types of work and how many hours they can work. These rules aim to ensure that work does not interfere with the education and well-being of minors.
  • Recordkeeping: Employers must keep accurate records of their employees’ hours and wages. This requirement allows the government to enforce the other provisions of the FLSA and provides clear evidence in disputes about wages or working hours.

If you think your employer has violated your rights under the FLSA, you can file a complaint with the U.S. Department of Labor, which is responsible for enforcing the FLSA. This action can help you recover any wages you are owed and address potential violations.

Minimum Wages

New York’s minimum wage is higher than the federal minimum wage of $7.25 per hour. However, the minimum wage rate can change depending on where you work in the state.

As of January 1, 2024, the minimum wage for New York City, Long Island, and Westchester employees is $16.00 per hour. Meanwhile, employers in the rest of New York State must pay their employees a minimum of $15.00 per hour.

There are also special rates for workers who receive tips as part of their income. For instance, tipped service employees, like those in restaurants, have a cash wage plus a tip credit. This means they get a base cash wage from their employer, and the tips they earn are supposed to make up the difference to reach or exceed the standard minimum wage. 

Starting in 2024, tipped service employees in New York City, Long Island, and Westchester must receive a minimum cash wage of $13.35 per hour and a tip credit of $2.65 per hour. In the rest of the state, the minimum cash wage for tipped service employees is $12.50 per hour with a tip credit of $2.50 per hour. 

Tipped food service workers in New York City, Long Island, and Westchester are entitled to a minimum cash wage of $10.65 per hour with a larger tip credit of $5.35 per hour. In other parts of New York, the minimum cash wage for tipped food service employees is $10.00 per hour with a tip credit of $5.00 per hour. 

If your employer is not paying you the minimum wage, you have the right to report it and work with an attorney to demand the wages you are entitled to.

Unpaid Commissions

If you work as a commission salesperson in New York, you should earn money based on a percentage of the sales you make. You should understand your legal rights if your employer has not paid your commission wages appropriately. New York has clear rules for how employers should handle the payment of commissions:

  • Written Agreement: Your employer must have a written agreement with you that details how they will calculate your commissions and when you will receive them.
  • Timing of Earned Commissions: Your agreement should specify when you will earn a commission. If the agreement doesn’t specify, your commissions are usually based on past practices between you and your employer. Generally, you earn a commission when you have made a sale or secured a contract on your employer’s terms.
  • Statement of Earnings: If you ask for it in writing, your employer must give you a statement showing what you have earned and what you haven’t been paid yet.
  • Protection of Earned Commissions: Once you’ve earned a commission, it is legally your wage. This means your employer must pay it, even if you leave the company. If you have not yet earned the commissions when you leave, your written agreement should explain how and if your employer will pay them.

It’s worth noting that your employer can make certain deductions from your unearned commissions but not from earned commissions, which are protected as wages. In some circumstances, you might receive a draw, which is like an advance on future commissions. While your employer can reconcile these draws against future earnings, they can’t demand repayment if you leave the company unless there’s a specific written agreement about this.

Additionally, New York’s minimum wage and overtime laws still apply to you as a commission salesperson unless you qualify as an outside salesperson. An outside salesperson is someone who regularly works away from their employer’s business location. If your draws and commissions don’t add up to at least the minimum wage, your employer must make up the difference. If your employer isn’t following these rules, you could have the right to file a claim against them for the money you’ve earned.

Contact Lipsky Lowe for Help

Do you know or suspect you have a wage claim in New York? Choosing the right legal team can make all the difference in your case. Here’s why should you choose Lipsky Lowe to pursue your wage claim:

  • Comprehensive Legal Experience: Our attorneys have practiced exclusively in employment law for over four decades, meaning we have a wealth of knowledge about federal, state, and city regulations. We use our extensive background to provide effective representation, whether you’re seeking a trial verdict or a negotiated settlement.
  • Client-Centered Approach: We treat each client we represent as an individual, offering personalized advice every step of the way. We understand that no two cases are the same and will listen carefully to your situation to craft a tailored legal strategy that directly addresses your specific needs.
  • Commitment to Justice: Our team doesn’t shy away from going to trial, and we’re prepared to dedicate all necessary resources to each case we take. We’re not just aiming for quick settlements – we’ll do what it takes to obtain justice.
  • Unique Perspective: Our attorneys spent years representing employers, giving us a strategic advantage now that we work on the other side of the aisle. Our in-depth and first-hand knowledge of the tactics the opposing side might deploy is a significant asset in our advocacy for employees.
  • Success Stories: Our firm has a proven track record of success, having recovered millions in fair compensation for those we represent. We are not just experienced lawyers – we are effective professionals who know how to level the playing field.

If your employer has not been paying you fairly or on time, don’t wait for your situation to improve on its own. Contact Lipsky Lowe LLP today for a free initial consultation. Our dedicated team of attorneys brings years of employment law experience to the fight for your rights. Whether it’s a dispute over wages, unfair labor practices, or wrongful termination, we’re ready to stand with you and provide the legal support you need. Reach out now and take the first step toward resolving your wage and employment issues with confidence.

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