New York’s Frequency of Pay Law and Why Employers Should Check Their Payment Practices

New York State employers, are you aware that “manual workers” are required to be paid weekly? If they’re not, employers may be on the hook for back pay, attorneys’ fees, damages, and more. If you’re wondering whether you employ “manual workers” and what your obligations are under New York law, read on.

Several recent court cases[1] have established that the definition of “manual worker” for private sector employers is very broad under New York’s “Frequency of Pay” law. Per New York State Labor Law, a manual worker is a “mechanic, workingman or laborer,” but the NYS Department of Labor (DOL) looks at the duties the worker performs, not the job title, and therefore an employee can also be classified as a manual worker if he or she spends more than 25% of the workday involved in physical labor. “Physical labor” includes a variety of physical tasks and is not limited solely to heavy lifting.[2]

Essentially, whether an employee is a “manual worker” depends on the number and nature of physical tasks the worker performs daily as part of his or her job. The DOL has previously determined that food service workers, mailroom personnel, janitorial staff, hairdressers, pizzeria workers and chauffeurs can all be classified as “manual workers.” In their clarification opinions on the subject, the DOL has stated that physical labor or physical tasks cover a wide range of activities “too numerous to list.” The DOL recommends prudent employers pay their workers weekly if they feel that they might fall under the category of “manual workers.” (Note: there are also specific payroll requirements for railroad employees, who must be paid on or before the Thursday of each week, and salespersons working under commission, who must be paid per the provisions in their employment agreement, but not less than once a month and not later than the last day of the following month for which they are being paid. Please contact us with questions.)

Employers should take this opportunity to review their payment practices and pay schedule to ensure that they are paying all manual workers on a weekly basis in accordance with New York State law.

Please contact our office to discuss your particular situation.

[1] Two 2019 court cases argued under NY Labor Law § 191 (1)(a), highlight a potential area of noncompliance for New York employers. Both the employers in Scott v. Whole Foods Market Group, Inc., 18-CV0086(SJF)(AKT) 2019 WL 155924 (E.D.N.Y. April 9, 2019) and in Vega v. CM and Assoc. Construction Management, LLC, Slip Op 06459 Decided on September 10, 2019, were found to be in violation of the frequency of pay requirement in Section 191 (1)(a) of the Labor Law, despite paying their employees on a regular bi-monthly basis.

[2] Per NYSDOL Op. Ltr. RO-08-0061 (Dec. 4, 2008): Hairdressers cut and style hair. However, the general job duties of a hairdresser, in addition to cutting, coloring, and styling hair could also involve washing hair, cleaning the hairdresser’s own work stations, and cleaning wash sinks, equipment, and other shared work spaces in the salon. Since the cutting and styling of hair, along with any of these other tasks, necessarily involves physical labor, such employees would be considered manual workers.