What are Frequency of Pay and How Do they Affect New York Employers?

March 19, 2024

What is Frequency of Pay and How Does it Affect New York Employers?

Under New York labor law, there is a set “schedule” for the frequency of wage payments for different categories of employees.  Manual workers, for example, must be paid weekly. Manual workers under New York labor law are defined as any “mechanic, workingman, or laborer.” Additionally, it has been a long-standing interpretation by the New York State Department of Labor that individuals who spend more than 25% of working time engaged in “physical labor” fall under the definition of a “manual worker.” This article will discuss new developments in the enforcement of these laws.

The New York labor law contains an exception for manual workers for non-profit entities.  This exception for non-profit entities requires manual workers to be paid in accordance with the agreed terms of employment but not less frequently than semi-monthly. However, recently, there has been an uptick in frequency of pay litigation, but new court developments signal the beginning of the end for such lawsuits. Back in 2019, the First Department ruled in Vega v. CM and Associates Construction Management, LLC, that there is a private right of action for workers to recover damages as to delayed wage payments. The court ruled that liquidated damages were available, along with interest and attorneys’ fees for bringing the case.

However, in the recent 2024 decision of Grant v. Global Aircraft Dispatch, the Second Department declined to follow the ruling from Vega. The court held that payment of full wages for manual workers on an agreed upon biweekly basis does not constitute nonpayment or underpayment under New York labor Law. The court further held that the labor law creates a private right of action only for non-payment or underpayment of wages, not for late payments where wages are paid in full to the worker.

After these decisions, there is a department split on how to handle such litigation now, and geography becomes a determinate factor in where to bring such a claim. The First Department covers Manhattan and the Bronx, while the Second Department covers different counties of Queens, Brooklyn, and Long Island. Where an employer employs manual workers is now an important criterion for determining possible liability for late payments to manual workers.

We will continue to monitor any further developments regarding New York’s frequency of payments law.



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