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Employee Classification: New York

Employee Classification requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Christine P. Corrigan, CPC Writing Services

Summary

Minimum Wage and Overtime Exemptions

The New York Minimum Wage Law excludes certain types of workers from the statutory definition of "employee." As a result, these employees are not entitled to be paid the minimum wage or overtime, unless expressly provided for in a Minimum Wage Order.

The excluded workers include the following:

  • Bona fide executives, administrators or professionals;
  • Outside salespersons;
  • Taxicab drivers;
  • Government employees;
  • Part-time babysitters;
  • Companions to the sick or elderly who live in their employer's home and whose principal duties do not include housework;
  • Staff counselors in a children's camp;
  • Ministers and members of religious orders;
  • Volunteers, learners, apprentices and students working in nonprofit institutions; and
  • Students obtaining vocational experience.

+NY CLS Labor § 651(5).

Farm workers are covered by the Minimum Wage Order for Farm Workers and generally are exempt from overtime, but not the minimum wage. 12 NYCRR §§ 190-1.1 - 190-1.9.

The Hospitality Wage Order covers hospitality workers. 12 NYCRR §§ 146-1.1 - 146-1.9.

New York law generally follows the FLSA with respect to payment of overtime and exempts from overtime those employees who are exempt under both the FLSA and New York law. +12 NYCRR § 142-2.2.

Accordingly, if an employee satisfies an FLSA exemption but does not satisfy the more stringent requirements of New York law, or if an exemption does not exist under the New York Minimum Wage Law, the employee must be paid overtime.

To determine whether a job falls under a permitted overtime exemption, the New York Department of Labor typically will examine both the FLSA and the more stringent provisions of the Minimum Wage Law and Wage Orders. Where the criteria in a New York State exception mirror those in the FLSA, the New York State Department of Labor (NYDOL) usually will construe the criteria in its regulations consistently with those contained in the FLSA, its regulations, and interpretations issued by the U.S. Department of Labor. However, the NYDOL is not bound to do so.

Highlighted below are the most common exemptions from the Minimum Wage law.

Executive Employees

Under New York law, executive employees must satisfy both the salary and the duties tests to fall within the exemption.

To be considered an executive, the employee must be paid a salary of at least $675.00 per week. +12 NYCRR § 142-2.14(c)(4)(i)(e)(5). The NYDOL interprets the meaning of paid on a salary basis consistently with the FLSA. See Employee Compensation > Employee Classification > The Salary Basis Test.

The duties test is consistent with the FLSA. See Employee Compensation > Employee Classification > Executive Employees.

Administrative Employees

To be considered an exempt administrative employee, an employee must be paid a salary of at least $675.00 per week. +12 NYCRR § 142-2.14(c)(4)(ii)(d)(5). The NYDOL interprets the meaning of paid on a salary basis consistently with the FLSA. See Employee Compensation > Employee Classification > The Salary Basis Test.

The employee must also meet the following criteria:

  • Have as his or her primary duty the performance of office or nonmanual field work directly related to management policies or general operations of the individual's employer;
  • Customarily and regularly exercise discretion and independent judgment; and
  • Regularly and directly assist an employer or an employee employed in a bona fide executive or administrative capacity (e.g., employment as an administrative assistant) or perform, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge.

+12 NYCRR § 142-2.14(c)(4)(ii).

Professional Employees

There is no salary basis test for professional employees under New York law. (However, to be considered an exempt professional under the FLSA, the employee must be paid on a salary or fee basis. See Employee Compensation > Employee Classification > The Salary Basis Test.)

To be considered an exempt professional employee under New York law, an employee's primary duties require the following:

  • Advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education, an apprenticeship or training in the performance of routine mental, manual or physical processes; or
  • Originality and creativity in a recognized field of artistic endeavor (as opposed to work that can be produced by a person endowed with general manual or intellectual ability and training), the result of which depends primarily on the invention, imagination or talent of the employee.

In addition, persons that are classified as professional employees under New York law must do the following:

  • Perform work requiring the consistent exercise of discretion and judgment in its performance; or
  • Perform work predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) that is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

+12 NYCRR § 142-2.14(c)(4)(iii).

Outside Salespersons

There is no salary basis test for outside salespersons under New York law or under the FLSA. New York law follows the FLSA in its definition of outside salespersons. See Employee Compensation > Employee Classification > Outside Salespersons.

+12 NYCRR § 142-2.14(c)(5).

Companions

Under New York law, a companion means someone who lives in the home of an employer for the purpose of serving as a companion to a sick, convalescing or elderly person, and whose principal duties do not include housekeeping.

New York's companion example is narrower than the FLSA exemption, which permits companions to perform housekeeping as long as it does not exceed 20 percent of the employee's hours. See Employee Compensation > Employee Classification > Companionship Services Providers.

Therefore, under New York law, domestic companions who perform housework of any kind must be paid the minimum wage and overtime.

Staff Counselors in Summer Camps

Under New York law, a staff counselor is a person whose duties primarily relate to the guidance, instruction, supervision and care of campers in a children's camp, whether such work involves direct charge of, or responsibility for, such activities, or merely assistance to persons in charge. +12 NYCRR § 142-2.14(c)(8).

The term staff counselor includes, but is not limited to the following:

  • Head counselor;
  • Assistant head counselor;
  • Specialist counselor;
  • Instructor;
  • Group or division leader;
  • Camp mother;
  • Supervising counselor;
  • Senior counselor;
  • Counselor;
  • General counselor;
  • Bunk counselor;
  • Assistant counselor;
  • Co-counselor;
  • Junior counselor, and
  • Counselor aide.

A children's camp Is any establishment that, as a whole or part of its activities, offers for children, on a resident or nonresident basis, recreational programs of supervised play or organized activity in such fields as sports, nature lore, and arts and crafts. Children's camps may be known as camps, play groups, play schools, or other names. The term children's camp does not include an establishment that is open for a period exceeding 17 consecutive weeks during the year.

New York's summer camp exemption is narrower than the FLSA's exemption for seasonal and recreational establishments. Under the FLSA, other establishments, including amusement parks, carnivals, and circuses, are included within the exemption; whereas, New York's exemption is limited to summer camps. Also, under the FLSA, the establishment cannot operate for more than seven months. See Employee Compensation > Employee Classification > Employees of Seasonal and Recreational Establishments. Therefore, under New York law, staff counselors employed at camps that are open for more than 17 weeks must be paid the minimum wage and overtime.

Farm Workers

Under New York law, farm workers are covered by a specific Minimum Wage Order that covers every farm employer if, during the preceding calendar year, the cash remuneration paid to all persons employed on the employer's farms equaled $3,000 or more. +12 NYCRR § 190-1.1.

All employees who work on a farm must be paid the basic minimum hourly wage, less deductions and allowances permitted by the Wage Order, with the following exceptions:

  • Members of the employer's immediate family; and
  • Minors under 17 years of age who are employed as hand-harvest workers on the same farm as their parents or guardians and paid on a piece-rate basis at the same rate as employees over 17. +12 NYCRR § 190-1.3(b).

Although farm workers must be paid the minimum wage, they are exempt from overtime; provided that they perform agricultural work on a farm. Such work includes the following:

  • Cultivating the soil;
  • Raising or harvesting any agricultural or horticultural commodity, including the raising or hatching of poultry and the raising, shearing, feeding, caring for, training, and management of livestock, bees, fur-bearing animals and wildlife;
  • Producing or harvesting of maple syrup or maple sugar;
  • Operating, managing, conserving, improving or maintaining a farm and its tools and equipment;
  • Operating or maintaining ditches, canals, reservoirs or waterways used exclusively for removing, supplying and storing water for farming purposes;
  • Handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to market or to a carrier for transportation to market, of any agricultural or horticultural commodity raised on the employer's farm. +12 NYCRR § 190-1.3(g).

Agricultural work does not include work services performed in connection with commercial canning, freezing, grading or other processing of any agricultural or horticultural commodity not raised on the employer's farm. +12 NYCRR § 190-1.3(h). Therefore, if farm workers perform such services, the exemption from overtime would not apply.

Also, if a farm worker performs both exempt and nonexempt work in a week, the worker will lose the exemption for the workweek, and overtime, if any, must be paid. See +29 C.F.R. § 780.11; Adkins v. Mid-American Growers, Inc., +167 F.3d 355 (7th Cir. 1999); Skipper v. Superior Dairies, Inc., +512 F.2d 409, 411 (5th Cir. 1975). See also Letter from Jeffrey G. Shapiro, Associate Attorney, New York State Department of Labor (Sept. 2, 2008).

Hospitality Workers

Under New York law, all employees in the hospitality industry must be paid the basic minimum hourly rate, subject to specific credits and allowances (see Minimum Wage: New York). Hospitality employees must be paid overtime at a rate of one-and-one-half times the regular rate for all hours worked in excess of 40 per workweek. +12 NYCRR §§ 146-1.2, +12 NYCRR §§ 146-1.3, +12 NYCRR § 146-1.4.

Only executives, administrators, professionals, outside salespersons and staff counselors in children's camps are exempt from the Wage Order. +12 NYCRR §§ 146-3.2(c)(1)(2)(4).

The hospitality industry is broadly defined to include any restaurant or hotel. +12 NYCRR §§ 146-3.1(a)-(c). Hotels include, but are not limited to, the following:

  • Commercial hotels;
  • Apartment hotels;
  • Resort hotels;
  • Lodging houses;
  • Boarding houses;
  • All-year hotels;
  • Furnished room houses;
  • Children's camps;
  • Adult camps;
  • Tourist camps;
  • Auto camps;
  • Motels;
  • Residence clubs;
  • Membership clubs;
  • Dude ranches; and
  • Spas and baths that provide lodging.

+12 NYCRR § 146-3.1(a)(1).

Future Developments

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