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Timely Paying Your Employees Under The New York Labor Law §190 And §191

DEC 28, 2023

Timely Paying Your Employees Under The New York Labor Law §190 And §191

Labor Law Section §191 outlines the frequency by which employees must be paid1 . For employees defined as “manual workers” as defined below, wages must be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned. Manual workers for nonprofit entities must be paid in accordance with their agreed terms of employment but not less frequently than semi-monthly. Large employers of manual workers may apply to the Commissioner of Labor to pay manual workers semi-monthly.

Who is a “manual worker”?
Section §190(4) of the New York State Labor Law (“NYLL”) defines a “manual worker” as “a mechanic, workingman or laborer.” Although a “laborer” has not been defined under the law, it has been the long-standing interpretation of the NYS Department of Labor (“NYSDOL”) that individuals who spend more than 25% of working time engaged in “physical labor” fit within the meaning of the term “manual worker.” Furthermore, the term “physical labor” has been interpreted broadly to include countless physical tasks performed by employees.

The NYSDOL 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 NYSDOL opinion letters, the term “manual worker” isn’t necessarily classified by job title, but rather job description and duties.

In a seminal case, Irma Vega alleged she was a manual laborer but wasn’t paid on a weekly basis. She sued her employer, CM & Associates Construction Management, LLC, for liquidated damages (damages in an amount equal to the unpaid wages), interest, and attorneys’ fees. CM asked the supreme court to dismiss her action, arguing it had paid her all the wages she was owed before she filed suit and an individual employee has no private right to sue her employer under NYLL § 191. The supreme court denied the motion, and CM appealed to the First Department.

On appeal, the First Department held that CM’s failure to pay Vega on time was no different than failing to pay an employee the correct amount she is owed. The First Department also held that the employer’s presuit payment of Vega’s full wages didn’t eviscerate her right to file suit. As a result, the NYLL provisions that allow for liquidated damages, interest, and reasonable attorneys’ fees are available to an employee who is correctly paid, albeit a week late. Vega v. CM & Assocs. Constr. Mgmt., LLC, 2019 WL 4264384 (1st. Dept., 2019).

Wal-Mart has been hit with a slew of class action lawsuits that may very well help New York courts define what constitutes “manual labor” and who falls under the category of a “manual worker.”

The class action centers around allegations of the retail superstore violating the NYLL by failing to pay its workers’ wages on a weekly basis, electing to instead pay them bi-weekly. In one of the most recent complaints, plaintiffs sought “to recover untimely wage compensation and other damages for . . . hourly cashiers, front end associates, stockers, receiving associates, sales associates, and other similar manual labor positions . . .” See Mabe v. Wal-Mart Associates, Inc., 1:20-cv-00591-TJM-CFH, U.S. District court, N.D.N.Y., May 29, 2020.

Wal-Mart contested the allegations—moving to dismiss the case—but was ultimately denied by Judge McAvoy. On appeal, Wal-Mart is looking to petition the Second Circuit for a definitive rule on whether workers are eligible for late-payment damages under state wage law and whether those workers can be considered manual workers.

New York has a six-year statute of limitations for wage claims, which means an employee who should have been paid on a weekly basis could recover an amount equal to all of his/her wages for the past six years, plus interest and reasonable attorneys’ fees.

In light of the First Department’s decision in Vega, employers should consult with knowledgeable employment counsel to ensure timely payment to employees to limit exposure under this new ruling.

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1https://dol.ny.gov/system/files/documents/2021/03/frequency-of-pay-frequently-asked-questions.pdf

Tags: #Employmentlaw,#LaborLaw191,#Manualworker,#Wageandhour