New York State labor laws have been put in place to protect employees of all types and industries. Under the jurisdiction of the New York Department of Labor, every employee has the right to be adequately compensated for the hard work they perform in New York State. The Fair Labor Standards Act (FLSA) is a federal labor law out of which all the New York State and City laws branch out.
Every employee in the State of New York has the fundamental right to:
- Sick and safe leave;
- Minimum wage;
- Overtime pay;
- Discrimination-free workplace;
- Safety and health in the workplace; and
- Work breaks and days of rest.
This also applies to domestic workers (nurses, babysitters, housekeepers, etc.), fast-food workers, immigrants, minors, apparel industry workers, freelancers, and others (building service, construction, nail salon, retail, grocery workers, etc.).
The Working Hours Limit in New York
Even though a 40-hour workweek is typically considered full-time, the FLSA does not define full-time or part-time employment. In New York, employers have the right to determine what constitutes full-time or part-time in their organizations.
The Department of Labor does not limit the number of hours employees can work per day. This means employers may legally ask their employees to work shifts of eight, ten, twelve, or more hours each day. By law, every organization has the legal right and ability to designate shift lengths and change them if necessary.
Since employers are not restricted to a 40-hours work week, they have the authority to require employees to work more than 40 hours in any given workweek. However, the laws allow for overtime pay if an employee has worked more than 40 hours in a workweek and require employers to pay them more for every hour in excess of ten that they work in a day.
Employers also have the legal ability to require employees to work any shift and hours throughout the day or night. It is up to each business to set standard shift hours and decide the number of shifts in operation every day. Employers also have the right to terminate or reassign any employee who refuses to work an assigned shift.
Employers are also required to give employees that work a full shift or more than six hours at least one uninterrupted 30-minute lunch break, though they don’t have to pay for this lunch break. All of these laws apply only to adult employees (over 18). Underage children are limited in the number of working hours and the time of day they can work.
The Exceptions to the Rule
1. The One Day Rest in Seven
This rule requires that employers give their employees 24 hours to rest per workweek in specific places of employment. These include factories, restaurants (except small, rural restaurants), mercantile establishments, hotels (except resort/seasonal hotels), or professions like an elevator operator, watchman, janitor, farmworker, or superintendent.
These are examples of employees who must receive ‘one whole day’ break during a workweek. Nevertheless, it’s important to say that other employees may qualify and that even some in the mentioned categories may not qualify based on their specific employment situations and employers. The number of work hours for employees in these occupations isn’t limited, even if they have the right to One Day Rest in Seven. Employees are free to work more than 40 hours in a workweek, and if they do, employers are required to pay them for overtime.
2. The Ten-Hour Rule
If an employee works more than ten hours in a single day or works a split shift, the law requires that the employer pay an extra hour for each hour in excess of ten hours that an employee works. For example, if an employee works eleven hours, their employer must pay them for twelve hours. This ten-hour spread of hours counts the breaks, including lunch breaks.
3. Mandatory Overtime for Nurses
When nurses are asked to work beyond the hours agreed in their contract, that time is known as mandatory overtime. For most nurses, overtime means exceeding 40 hours per workweek. Overtime laws cover professional and licensed practical nurses who provide patient care or work for specific healthcare employers. New York mandatory overtime regulations prohibit nurses from working more than the number of predetermined and scheduled hours they’ve agreed to work in a workweek.
However, this doesn’t apply just to nurses in hospitals. Those working in nursing homes, diagnostic centers, outpatient clinics, rehabilitation hospitals, residential facilities, adult day healthcare programs, and others are also protected. The only time an employer can require a nurse to work overtime is when there is a medical care emergency.
4. Child Labor Hours
New York State has strict child labor laws regarding how many hours minors may work per day and week. Minors under 16 years of age may work 8 hours per day, 40 per week, six days out of the week when school is off. Children under 16 years of age may work 3 hours per day and up to 18 hours per week during a school week.
5. The FMCSA
The Federal Motor Carrier Safety Administration (FMCSA) is a federal body that regulates the safety of commercial motor vehicles. It defines the number of hours that bus and truck drivers can work in a day or workweek. For example, passenger-carrying drivers may drive 10 hours at most after eight straight hours off duty, while property-carrying drivers may drive 11 hours at most after a ten consecutive hour break. Both of these groups of drivers are not allowed to drive for more than 60 hours in seven consecutive days.
Rest and Meal Breaks Laws
New York labor laws include several important employee meal periods and rest break requirements for employers to understand and comply with. Those who fail to comply with these rules risk being subject to liability, including hefty penalties under the state’s wage and hour laws.
Under Labor Law Section 162, in New York, specific protections are in place to protect employees from working too many hours without a break. The New York Labor Law defines the following employees’ rights to breaks:
Most employees working a full-time shift have a right to a meal break period at some point during their shift. Employees who work a shift that is six or more hours long and lasts between 11 AM and 2 PM are entitled to a half-hour unpaid break for lunch. Employees who start their work before 11 AM and end their shift after 7 PM have the right not only to their lunch break but an additional 20-minute meal break between 5 PM and 7 PM.
Employees who work more than six hours starting any time between 1 PM and 6 AM are entitled to a mid-shift 45-minute unpaid meal break. Rules are different for factory workers since instead of the 45-minute meal break, they are entitled to a full hour. Employees who work a shift shorter than six hours are not permitted any break time for meals.
It may surprise employees to hear this, but New York labor laws concerning breaks do not require employers to provide any short reprieve or coffee breaks at any point during an employee’s shift.
However, suppose an employer allows short breaks to employees (less than 20 minutes long). In that case, these short breaks must be paid and included in determining hours worked during the workweek for overtime purposes. Breaks that last 30 minutes or more are not required to be paid or counted as part of hours worked.
While there are no labor laws for bathroom needs, federal labor laws require that employees have reasonable access to bathroom facilities. If an employer is preventing an employee from taking reasonable bathroom breaks, an employee may want to consult with an attorney to discuss their options.
Day of Rest
In certain industries, employers are obliged by labor laws to provide a full 24-hour rest period to all employees. This applies to employees that work in factories, hotels, mercantile establishments, restaurants, and office and apartment buildings.
Employers are required to allow their employees to have a reasonable break time to express breast milk for their nursing child. This break applies for up to three years after a child is born. These breaks can be rest or meal breaks and can be paid or unpaid. Furthermore, employers must provide a separate private room for nursing employees to express milk. This room must be in proximity to the work area. Employees who use breastfeeding breaks cannot be discriminated against for using this break.
Breaks for Home Healthcare Attendants
The rules for home health care attendants are not a law; however, an opinion has been issued by the New York State Court of Appeals. Home health care attendants who work at a residence in a 24-hour shift, but don’t reside there, must be paid for all 24 hours. This includes rest, meals, and sleep breaks. In contrast, state minimum wage law doesn’t require home healthcare workers who work 24-hour shifts to be paid minimum wage for rest and meal breaks.
Even though employees can be required to take meal breaks, they can also request a waiver provided they’ve negotiated it knowingly and voluntarily and received a desirable benefit in exchange for giving up their breaks. Furthermore, employees must be in a job where strict compliance with the break laws is impractical.
Additionally, an employee who works alone or is the only one in a specific occupation may receive a waiver. However, if an employee demands a meal break, the employer must provide it even if there is no one else to cover for the employee. It is important to note that employers can shorten an employee’s meal break to 30 minutes for both factory and non-factory workers unless they face hardship from the shorter break.
Usually, employees cannot forgo their meal breaks to leave their shift sooner since employers are required to provide meal breaks within a specific window of time. However, employers and employees can agree to such terms if employees still have the right to take their break if they want to do so.
The Most Common Labor Law Violations and How to Report Them
The three most frequent labor law violations in New York are:
- Minimum Wage Laws Violations;
- Misclassifying Employees; and
- Overtime Law Violations.
1. Minimum Wage Laws Violations
One of the most common violations of the New York Labor Laws is failing to pay employees their minimum wage. The current minimum wage for workers in New York City is $15.00 per hour. Starting on December 31, 2021, the minimum wage for Nassau, Suffolk, and Westchester County employees is also $15 per hour. For employees in the rest of the state, the minimum wage has increased to $13.20 per hour.
The minimum wages can differ if an employee works in the fast-food industry or is the type who regularly receives tips. But, if an employee is paid less than the minimum, an employer is required to increase their hourly rate of pay or pay back what they owe in unpaid wages.
2. Misclassifying Employees
Independent contractors (freelancers) and employees are not the same things. If an employer hires an employee by signing an employment contract, they must pay benefits and other compensation. However, sometimes employers classify employees as freelancers when they are employees. This misclassification is often done to avoid paying overtime compensation and additional benefits, therefore violating the New York labor law. Another type of misclassification happens when an employer classifies an employee as salaried when they are paid by the hour. This is a common violation that allows employers to avoid paying overtime work.
3. Overtime Law Violations
Another frequently seen violation is when an employer treats their employee as exempt from overtime when they are not. However, only employees with certain job duties, such as administrative or executive positions, can be exempt from overtime compensation. If an employee is not exempt according to the FLSA, they have the right to be paid for their overtime work. In New York, the overtime wage is 1.5 times the regular pay rate for every hour worked overtime.
In addition to this, employers may cheat employees out of other forms of compensation, such as:
- Refusing to pay promised bonuses;
- Refusing to pay holiday or vacation time;
- Not paying the employee for all hours worked, including on-the-job training;
- Reducing hourly rate without prior notice;
- Withholding tips; and
- Paycheck bounced because of the employer not having sufficient funds in their bank account.
A complaint may be filed by mail or in person at an office of the Wage and Hour Division (WHD) of the New York State Department of Labor. In the complaint, an employee must include the following information:
- The worker’s personal information, including name, address, and telephone number;
- The worker’s name, address, telephone number, and type of business;
- The job title and description of work done;
- Payment information, including how much the worker is paid, the method of payment, and how often wages are paid;
- A description of the alleged violations; and
- Dates of the violations.
After a violation complaint is filed, the Wage and Hour Division will review it and conduct an investigation. The Wage and Hour Division will contact the complainant if additional information is needed to pursue this allegation.
The identities of individuals who file complaints are always kept confidential. The employer cannot fire or discriminate against an employee who participates in legal proceedings under the Fair Labors Standard Act. Third parties can also file complaints on behalf of an employee who has suffered a labor law violation.
An employee may also report the employer for retaliation if the employer:
- Cuts their working hours.
- Reschedules them for less desired hours.
- Reassigns them to a less desirable location.
- Demotes or transfers them, puts any disciplinary action, puts them under more critical supervision, or anything similar because they filed a complaint to the Department of Labor.
The fundamental rights of all New York employees are the right to be paid minimum wage, overtime pay, sick and safe leave, the right to have days of rest and breaks, and the right to a discrimination-free and hazard-free workplace.
Although there is no limit to working hours, employers are still obliged to pay their workers for every hour over the standard 40-hours work week. However, if any of the labor laws are violated, employees have the right to report them to the Department of Labor and get compensation.
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 prospective clients, so you have nothing to lose.