Many people in New York depend on their employers to deliver their paychecks on time. If employers fail to timely pay wages, employees can experience a myriad of day-to-day difficulties. The federal and state labor laws require New York employers to pay their employees all wages they’ve earned and pay those wages on time. If they fail to do so, employers are directly violating those laws and are risking severe penalties.
Wage theft happens in many forms in New York, and employees are often forced to bring legal claims to recover their unpaid wages. Although employers can make unintentional mistakes, some of them tend to intentionally refuse to pay owed wages on time or at all. This can cause serious consequences to their employees, who need to deal with rent, mortgages, bills, and kids to feed. So, what can they do?
What Is The Frequency Of Wage Payments In New York?
Wages required by the Federal Fair Labor Standards Act (FLSA) must be paid on the regular payday for the pay period covered. The timing of paydays is governed by New York state law. New York employers are generally required to pay wages at least twice per month, on paydays decided in advance. Fringe benefits (such as holiday or vacation pay) must be paid within 30 days after payment is required. However, there are special rules for employers in certain industries, which require them to pay their employees in the following manner:
- Manual workers – Weekly and no later than seven calendar days after the end of the week in which the wages were earned (unless the employer has permission from the commission to pay their employees less frequently, but no later than semi-monthly);
- Railroad workers – On or before Thursday of every week the wages were earned during the seven days ending on Tuesday of the preceding week;
- Commission salespersons – Once per month (at least) and not later than the last day of the month, following the month in which the wages were earned;
- Clerical and other workers – Semi-monthly, on regular paydays, decided in advance by the employer.
A New York City Council law establishes and enhances freelancer protections, including the right to timely payment. The term ‘freelancer’ includes any person or organization composed of no more than one person hired or retained as an independent contractor by a hiring party to provide certain services in exchange for payment. The term, however, does not include lawyers and sales representatives. The compensation must be paid on or before the date such compensation is due in accordance with the contract. If the contract does not specify a payment date or means by which the date will be determined, compensation must be paid no later than 30 days after completion of the worker’s services under the contract.
Employers may pay employees by cash, check (a negotiable instrument where the employer doesn’t impose any fees in connection with the check, including fees for replacing stolen or lost checks), direct deposit, and payroll card.
What Are Wage Notification Requirements?
The New York Labor Law, amended by the New York Wage Theft Prevention Act, expands rules on employee notifications, enhances available remedies for wage violations, and strengthens whistleblower protections. Employers in New York are required to provide employees, at the time of hiring, a written notice containing the following information:
- The rate of pay (including regular hourly and overtime rates for workers not exempt from overtime pay) and the basis of the payment, such as work shift hours, daily/weekly/monthly salary, piece rates, commission payments, etc;
- Allowances claimed as part of the minimum wage, including meal or lodging allowances, tips, etc;
- The regular pay date, which the employer determines; and
- The name used by the employer, including the physical and mailing addresses and telephone numbers of the office or principal place of business.
The notification must be provided in writing, in English, as well as the primary language of the employee. An employer must notify an employee in writing of any changes made to the information from the notification at least seven days in advance unless the change is displayed on the employee’s pay stub.
Getting Your First Paycheck
When an employee receives their first paycheck depends on the timing of their company’s payroll and when they’ve started their employment. Most New York employers pay their workers on a weekly or biweekly basis. Some employers may pay their workers monthly, others may pay their workers on set dates, for example, on the 1st and 16th of every month. An employee can be paid:
- Weekly – An employee is paid on a determined day of the week. (for example, payday is every Friday);
- Biweekly – An employee is paid every two weeks on a determined day of the week. (for instance, payday is every other Thursday);
- Monthly – An employee is paid once a month on a determined date. (for example, on the 1st of each month); and
- Bimonthly – An employee is paid twice a month on scheduled dates. (for instance, they are paid on the 15th and 30th of each month).
Payroll checks can be issued at the end of every pay period, or they may be delayed, and the paycheck may be issued a week or two (in some cases, even longer) after an employee begins their work. At the latest, an employee should get paid by their company’s regular pay date for the first pay period they’ve worked.
New York State Payday Requirements
In general, if a worker is an annual, salaried employee, they should receive their first paycheck four weeks from their start date. If a person is working on an hourly basis, and they’ve begun their employment on the first day of a pay period, they’ve also submitted their timesheet on time, and their supervisor approved it on time as well, then their first paycheck should be paid five to six weeks from their start date, depending on the company’s pay cycle for hourly workers. Let’s break this down further:
1. Starting On The First Day Of A New Pay Period
If an employee starts their new job on the first day of a new pay period, they will likely receive their first paycheck on the same day as their colleagues. However, there is also a chance that their full paycheck will come late because of the paperwork their employer has to complete before processing payrolls, such as the new hire documents and their direct deposit request. The delay duration will depend on the systems an employer has set up.
2. Starting In The Middle Of A Pay Period
If an employee starts working in the middle of a pay period, their employer may pay them on schedule for the days they’ve worked between their starting date and the end of the payroll period. Another option is skipping the immediate payday and paying an employee on the next paycheck for all the time they’ve worked since starting their job. If this happens, the first paycheck will be higher than what an employee might expect from subsequent paychecks.
No matter the start day, if an employee requests to be paid via direct deposit, an employer may issue the first paycheck in the form of a paper check for the amount of pay an employee has earned until the payroll department has their direct deposit information set up.
Getting Your Last Paycheck
The final pay rules ensure that New York employers follow the correct legal process when their worker quits or is let go from a company. This involves ensuring that the final paycheck is paid within the proper time frame and includes all unpaid wages the worker is owed. The last paycheck rules are set to provide stability during the highly stressful process of leaving a job. If employees know their rights and how they are enforced, they can ensure they are paid what they are owed. There are two scenarios when employees may receive their last paycheck – when they are fired and when they quit.
1. Receiving A Final Paycheck When An Employee Is Fired
According to a New York law on final paychecks, an employer must pay all unpaid wages no later than their regular payday for the period when the worker was fired. However, there are some special rules for the payment of sales commissions. In this case, if a sales representative is fired, their earned commissions must be paid within five days of being fired or within five days after they become due (if the earned sales commission is not due when the employment contract is terminated).
2. Receiving A Final Paycheck When An Employee Quits
Employees who quit their role with an employer must receive their final paycheck on or before the scheduled payday for the pay period when they resign. An employee may choose to receive their final wages via mail.
What Deductions Can A New York Employer Make From A Final Paycheck?
There are strict rules covering the deductions that an employer is allowed to make from workers’ wages. In general, an employer isn’t allowed to make unauthorized deductions from an employee’s paycheck, except for federal and state tax or a court-ordered payment (for example, child support). Any other deductions, such as charitable donations or insurance premiums, can be made when an employee gives their written consent.
What Are The Types Of Unauthorized Withholding?
Aside from withholding pay, New York employers may cheat employees out of other types of compensation. Unfortunately, holding back money owed to employees is fairly common, and it can take the following forms:
- Refusing to pay employees for all hours worked, including on-the-job training;
- Refusing to pay bonuses;
- Refusing to pay overtime wages, vacation, or holiday time;
- Reducing hourly rate without prior notice;
- Withholding tips; and
- The paycheck bounced because the employer lacked sufficient funds in their bank account.
How Can You Reclaim Money Owed By Your Employer?
If you have not received your wages, the following courses of action may be available to you to help recover your pay:
1. Check Your Employment Agreement and Manual
If the reason for not receiving your wages is a difference in timing or because you were recently fired, you may find something in your employment manual that addresses this situation. For instance, your employer may withhold your last paycheck until you return your work equipment or uniform or have it deducted from your paycheck. Furthermore, if the payment date falls on a holiday or weekend, your employment manual or agreement may address the timing of your payment.
Even if there is no specific provision in the employment contract or manual, you can always contact the human resources department or the payroll manager about the problem through the proper channels described in the employment agreement or manual for other kinds of disputes.
2. Examine Your Collective Bargaining Agreement
If you are part of a union, you may want to check your union contract, as it may address wage disputes. In some instances, the collective bargaining agreement can require you to arbitrate your claims instead of pursuing other legal actions. Make sure to contact your union representative for more information on pursuing action in this regard.
3. Contact Nonprofit Legal Assistance Organizations
Like in other states, New York has legal services organizations that can provide legal assistance to community members without charge. However, there may be some income guidelines that must be met before you can be approved for assistance and eligible to receive legal advice. Nevertheless, some agencies can make exceptions for labor disputes. Even if you do not qualify for assistance, you may find some valuable free information through their websites.
4. Contact The New York State Department of Labor
The New York State Department of Labor oversees all worker complaints against New York employers. If the DOL decides in your favor, your employer will have to pay the state an additional amount (up to 100%) of your wage claim. The New York Department of Labor will first try to resolve the issue informally by working with you and your employer to resolve your differences. If they fail to reach an agreement between the two of you, a lawsuit can be brought against the employer. New York employers who are found guilty can be required to pay owed wages with interest, together with other civil penalties the judge may order.
However, the worker’s claims for unpaid wages can be filed with the DOL only if the situation meets the right criteria. For instance, you have to perform work in the state of New York. You must work as a regular employee on the payroll, not as an independent contractor or a freelancer. Government workers, sales commission people, and executive and administrative professionals who earn more than $900 per week cannot file claims with the DOL.
5. Contact An Employment Lawyer
While the above mentioned methods may help you bring forth your unpaid wage claim, they may not give you the attention and personalized legal advice you need. A professional employment lawyer can assist you with this challenging process and inform you which of the above options is best for your situation. If the unpaid wage actions affect more people from your company, you may discuss the possibility of filing a class-action lawsuit. In any case, a good employment lawyer will use their years of expertise and experience to fight for your rights as an employee.
If you’ve been working for a New York employer for some time, you probably know when you should receive your paychecks. But, if your employer is late in paying your wages or refuses to pay them, you are probably wondering what you can do to fix this problem. Unfortunately, this is an issue many workers face. However, New York employers have no right to pay you whenever they feel like it because there are federal and state laws that govern how and when they must pay you for the wages you have earned.
To find out whether you have a case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.