Frequency of Pay Issues for “Manual Workers” Continue to Present Significant Liability Risks for New York Employers
New York Labor Law (NYLL) Section 191 mandates that employers must pay “manual workers” on a weekly basis within seven calendar days of the week during which the wages are earned. If manual workers are not paid on this weekly basis, recent cases continue to confirm that these employees have a private right of action under Section 191 to seek to recover liquidated damages, which are now mandatory under Section 198(1-a) even though the “manual workers” were paid in full the following week.
To learn more about the implications of NYLL Section 191 and why it may make consultation with an employment attorney advisable for employers in New York, click here to review the Section in its entirety, and read on.
Employees who are successful in establishing their “late payment” claims are entitled to recover liquidated damages in the amount of 100% percent of their delayed wages, in addition to interest, attorneys’ fees and costs. There is virtually no defense to these “delayed wage” claims in cases where employees are considered to be “manual workers” within the meaning of Section 191. Perhaps the most difficult issue for employers is in determining who qualifies as a “manual worker,” as even an unintentional misclassification of a worker can result in significant liability (as explained more fully below).
Section 190(4) of the New York State Labor Law defines a manual worker as “a mechanic, workingman or laborer,” who spends more than 25% of working time engaged in physical labor. Common tasks classified as physical labor include heaving lifting, stocking shelves, unpacking boxes and bagging purchases, cleaning, and standing and walking for long periods of time. The term “manual worker” can therefore refer to individuals working in retail, customer service, and other fields.
The NYS Department of Labor (SDOL) has issued various opinion letters through the years stating that the following job classifications, among others, should be considered as “manual workers”: customer service and sales associates; cashiers; hairdressers; restaurant workers; supermarket employees; pharmacy technicians; security guards; janitors; carpenters; pizza makers and chauffeurs. As made clear by these SDOL opinion letters, the term “manual worker” isn’t necessarily classified by job title, but rather job description and duties. Employers must exercise caution in properly classifying employees, as the cost and consequences of misclassification are greater under this labor law.
Section 191 provides for separate pay frequency requirements for “clerical and other workers” who might otherwise be considered “manual workers” and exempts from this pay frequency law “professional, executive and administrative” employees who earn at least $900 per week. To qualify as a bona fide administrative employee, the employee’s primary duty must consist of the performance of office or non-manual fieldwork, directly related to management policies or general operations, and the employee must customarily and regularly exercise discretion and independent judgment, among other things.
The Section 191 private right of action was first recognized by the NYS Appellate Division, First Department (which covers New York and the Bronx counties), in its 2019 decision in Vega v. CM & Associates Construction Management, LLC, and has continued to be uniformly followed by both federal and NYS courts even though none of the other three Appellate Divisions nor New York’s highest court, the Court of Appeals, have affirmed that such a private right of action exists under Section 191. Prior to the Vega decision, companies faced a $1,000 fine for the first offense of violating this payday law, $2000 for the second offense, and $3000 for subsequent violations. Prior to Vega, the state and federal courts in New York had maintained that there was no private action for untimely payments under Section 191.
As a result of the Vega decision, and the cases following it, employers are strongly encouraged to review they payroll methods and ensure adherence to NYLL Section 191 and other state laws, and to make wage payments in a timely manner.
Please consult the attorneys in our Labor and Employment Practice Group if you have questions concerning the timely payment of wages in accordance with state laws or if your organization employs manual workers. To learn more about the services offered by Bleakley Platt & Schmidt’s Labor and Employment Practice Group, click here.