Wages and Hours Frequently Asked Questions

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

IF... 

• Workers at the minimum wage rate must wear a uniform

THEN... 

• 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."

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 75 times the minimum wage rate
• Professionals
• Outside salespersons
• Taxicab drivers
• Government employees (However, certain non-teaching employees are covered)
• Part-time babysitters
• Ministers and members of religious orders
• Volunteers, learners, apprentices and students working in non-profit institutions
• Students obtaining vocational experience

For more detailed information on some of the exclusions in the above list, please see our
Non-Profit making Institutions, Public Agencies, and Children's Camps FAQs.

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.

The overtime requirement is based on hours worked in a given 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.  If you are a farm worker, you must be paid an overtime rate for all hours worked over 56 in a calendar week, and/or for any hours worked on your day of rest.  See the chart below:

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:
https://www.dol.gov/agencies/whd/flsa
New York State follows these exclusions. However, the State still requires that most workers receive at least one and one-half times the minimum rate for their overtime hours in businesses covered by the Miscellaneous Wage Order.

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
• As a farm worker

For a complete list of the "day of rest" provision of the law, go to https://www.nysenate.gov/legislation/laws/LAB

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

View meal period requirements.
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.

Under a new revision to the New York State Labor Law,196-b, employers are now responsible for providing sick leave to their employees as follows:

• employers with 4 or fewer employees in any calendar year, must provide each employee with up to 40 hours of unpaid sick leave in each calendar year
• employers that employ 4 or fewer employees in any calendar year and that have a net income of greater than one million dollars in the previous tax year, must provide each employee with up to 40 hours of paid sick leave in each calendar year
• employers with between 5 and 99 employees in any calendar year, must provide each employee with up to 40 hours of paid sick leave in each calendar year
• employers with 100 or more employees in any calendar year, must provide each employee with up to 56 hours of paid sick leave in each calendar year

For more detailed information on this new law, please visit https://www.ny.gov/programs/new-york-paid-sick-leave.
Payment for time not actually worked, other than sick time, is not required unless the employer has established a policy to grant such pay. Holidays and vacations fall under this '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:
  • Vacation
  • Personal leave
  • Holidays

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.

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...

• An employee has earned vacation time

AND...

• There is no written forfeit policy

THEN...

• The employer must pay the employee for the accrued vacation

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

Learn more about the Labor Standards Complaint Process

Section 198c of the New York State Labor Law, Benefits or Wage Supplements
Notice Requirements for Fringe Benefits and Hours
Unpaid/Withheld Wages or Wage Supplements/Fringe Benefits Claim Information
Labor Standards Complaint Form (LS 223)

Information About Filing a Claim (LS 223.2)

Submit completed claim forms to:
NYS DOL
​​​​​​​Division of Labor Standards
Harriman State Office Campus
Building 12, Room 185B
Albany, NY 12226

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:

View information regarding state WARN regulations and Rapid Response re-employment services.
 

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/

Yes. New York is an 'at-will' employment State. Without a contract restricting termination, generally an employer has the right to discharge an employee at any time for any, or no, reason, providing it is not an act of illegal retaliation or discrimination (see below).

An employee also has the right to leave their job at any time, without needing to defend or explain that decision.
There are, however, exceptions to 'at-will' employment in New York State.
The New York State Division of Human Rights enforces laws which prohibit discrimination based on the following:

• Race
• Creed
• National Origin
• Age
• Disability
• Gender
• Sexual Orientation
• Marital Status

For more information about how the New York State Division of Human Rights handles unlawful forms of discrimination, go to the Division of Human Rights website.
The New York State Department of Labor enforces Labor Law Section 201-d, which prohibits discrimination against the engagement in certain activities, including:

• Political or recreational activities outside of work
• Legal use of consumable products outside of work
• Membership in a union

The New York State Department of Labor also enforces Labor Law Section 215, which prohibits retaliation.

• Section 215 states that no employer shall penalize (including terminating) 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 Section 215 can bring a civil fine and separate civil action by the employee).

To obtain the text of the statutes discussed above, go to: https://www.nysenate.gov/legislation/laws/LAB

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.

View information on Unpaid/Withheld Wages or Wage Supplements/Fringe Benefits Claims.
Labor Standards Complaint Form (LS 223)
Information About Filing a Claim (LS 223.2)
Submit completed claim forms to:
NYS DOL​​​​​​​
​​​​​​​Division of Labor Standards
Harriman State Office Campus
Building 12, Room 185B
Albany, NY 12226

Employers are only allowed to deduct certain items from an employee's wages, such as taxes, insurance premiums, union dues, etc.  They are not permitted to charge employees for breakages, cash shortages, fines or any other losses to the business. 

For more detailed information on deductions, please see Section 193 of the New York State Labor Law.

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.

View notice requirements.

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 here.