Labor and Employment Law Overview: New York

Labor and Employment Law Overview requirements for other states

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

Author: XpertHR Editorial Team

Summary

  • New York employers are prohibited from discriminating against employees in certain protected categories. See EEO, Diversity and Employee Relations.
  • New York imposes several restrictions on an employer's ability to conduct background checks on applicants for employment in addition to those imposed by the federal government. See Recruiting and Hiring.
  • New York law requires employers to pay employees a minimum wage and specifies when employees must be paid overtime and provided with rest breaks. Child labor is also highly regulated. See Wage and Hour.
  • New York law governs the methods and frequency with which employees must be paid, the types of deductions that may and may not be made from employees' pay and exactly what information must appear in employees' pay statements. New York employers must also comply with pay-related notification requirements and rules regarding final pay and unclaimed wages. In addition, employers are required to provide continuation of benefits in certain instances. See Pay and Benefits.
  • Employers in New York are required to provide several types of leave to employees, such as family and medical leave, jury duty leave and sick leave. See Attendance and Leave.
  • New York employers must comply with various workplace health and safety laws. See Health and Safety.
  • Certain employers must provide advance notice of mass layoffs, plant closings or relocations. See Organizational Exit.

Introduction to Employment Law in New York

New York is generally considered an employee-friendly state.

Select New York employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key New York requirements impacting EEO, diversity and employee relations are:

New York State Human Rights Law

The New York State Human Rights Law (NYSHRL) prohibits employers with four or more employees from discriminating against employees or applicants for employment based on:

  • Age (18 and older);
  • Race;
  • Creed;
  • Color;
  • National origin;
  • Gender;
  • Sexual orientation;
  • Disability;
  • Military status;
  • Predisposing genetic characteristics;
  • Familial or marital status; or
  • Domestic violence victim status.

Unpaid interns are also covered by this law.

Some courts have allowed cases to go forward against employers that have fewer than four employees based on the claim of wrongful termination in violation of public policy established by the state's antidiscrimination laws.

The NYSHRL also prohibits any person from retaliating against any person who has opposed any practices or acts forbidden under the NYSHRL.

New York Compassionate Care Act

The New York Compassionate Care Act (NYCCA) automatically deems a certified medical marijuana patient as having a disability for purposes of the NYSHRL. Accordingly, registered certified patients are protected from adverse employment actions based on their health conditions and resulting marijuana use under the antidiscrimination provisions of the NYSHRL.

The NYCCA allows employers to enforce workplace drug policies that prohibit employees from performing their job duties while impaired by a controlled substance. While the Act does not require an employer to take any action that would cause the employer to lose federal funding or a federal contract, it is unclear under the Act as written whether an employer may otherwise take adverse action against an employee for a positive drug test result due to the employee's use of medical marijuana. An employer should tread carefully if it is informed or has reason to believe that an employee is a certified patient using medical marijuana.

New York Equal Pay Act

The New York Equal Pay Act (NYEPA) prohibits discrimination in regard to the rate or method of wage payment because of an employee's gender. The NYEPA also prohibits retaliation. An employer may pay different rates of pay under systems based on seniority or merit, or those that measure earnings by quality or quantity of production and any factor other than gender. Aggrieved individuals may bring a civil lawsuit or file a complaint with the New York Department of Labor. Employers that violate this law can be liable for back wages and fines.

Women's Equality Act

The New York Women's Equality Act governs the circumstances under which a wage differential is permitted, protects employee wage discussions and addresses damages in equal pay claims.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on EEO, diversity and employee relations practices in New York can be found in the New York Employee Handbook Table of Contents, Disabilities (ADA): New York, Employee Discipline: New York, EEO - Discrimination: New York, EEO - Harassment: New York, EEO - Retaliation: New York, New York Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New York? Federal requirements can be found in Disabilities (ADA): Federal, Employee Discipline: Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal and EEO - Retaliation: Federal.

Recruiting and Hiring

New York imposes several restrictions on an employer's ability to conduct background checks on applicants for employment in addition to those imposed by the federal government. For example:

  • Employers are permitted to request information concerning an applicant's prior criminal convictions, but they may not refuse to hire an applicant based on a prior conviction, unless the criminal offense is directly related to the position in question, or the conviction establishes that the applicant would pose an "unreasonable risk" to other employees or to the general public if hired.
  • There is a unique state requirement limiting most private employers from fingerprinting prospective employees.
  • New York also protects applicants from certain types of discrimination that are not protected under federal antidiscrimination laws.
  • Although the state permits drug testing for job applicants, its highest court has recognized a claim for negligent testing.
  • New York State has legalized medical marijuana for covered medical conditions, but an employer may enforce an existing drug-free workplace policy.
  • New York's Fair Credit Reporting Act (FCRA) largely mirrors the federal statute. It governs an employer's use of a "consumer report" to obtain information regarding prospective employees.
  • In New York, commission agreements for commissioned salespersons must be in writing and signed by the employer and the commissioned salesperson. The written agreement must include a detailed description of how wages, salaries, drawing accounts, commissions and all other monies earned and payable are calculated.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in New York can be found in Preemployment Screening and Testing: New York, Terms of Employment: New York, New York Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New York? Federal requirements can be found in Preemployment Screening and Testing: Federal and Terms of Employment: Federal.

Wage and Hour

Key New York requirements impacting wages and hours are:

Minimum Wage

The minimum wage for employees other than fast food employees in New York is currently $9.00 per hour. Effective December 31, 2016, annual increases will bring the minimum wage to $15.00 per hour, on a schedule that varies depending on an employer's size and location. Currently, the minimum wage is $9.75 per hour for fast food employees in New York State.

New York also has five Minimum Wage Orders that establish wage and hour standards for employees in different industries (i.e., hospitality, farm workers, nonprofit institutions). These may include provisions for:

  • A part-time rate;
  • Daily call-in pay; and
  • A rate for split shift or spread of hours.

In addition to the minimum wage, a specific amount must be paid for the maintenance of required uniforms.

Overtime

In New York, most employees must receive one and one-half times their regular rate of pay for every hour they work over 40 in a given workweek.

Domestic workers who reside in the home of their employer must receive one and one-half times their regular rate of pay for every hour they work over 44 in a given workweek.

Meal Breaks

Employees must be provided break time for meals as follows:

  • Factory workers are entitled to a 60-minute lunch break between 11:00 a.m. and 2:00 p.m. and a 60-minute meal break at the time midway between the beginning and end of the shift for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m. and lasting more than six hours.
  • Non-factory workers are entitled to a 30-minute lunch break between 11:00 a.m. and 2:00 p.m. for shifts six hours or longer that extend over that period and a 45-minute meal break at the time midway between the beginning and end of the shift for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m.
  • All workers are entitled to an additional 20-minute meal break between 5:00 p.m. and 7:00 p.m. for workdays that extend from before 11:00 a.m. to after 7:00 p.m.

These meal breaks do not count as hours worked, so they do not have to be paid.

Day of Rest Breaks

Employees in certain industries and occupations must receive 24 hours of rest in each calendar week. Those industries include:

  • Factories;
  • Mercantile establishments;
  • Hotels (except resort/seasonal hotels); and
  • Restaurants (except small, rural restaurants).

Those occupations include:

  • Elevator operator;
  • Watchman;
  • Janitor; and
  • Superintendent.

Breastfeeding Breaks

Nursing mothers must be provided "reasonable" (at least 20 minutes once every three hours) unpaid break time to express breast milk during the workday, for up to three years after the birth of a child. Employers must make reasonable efforts to provide nursing mothers with a private area or room other than a restroom in which to express their breast milk. The room or area that is provided should be in close proximity to the area in which the employee is located.

Child Labor

Child labor laws in New York restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

New York's child labor law regulates the employment of minors under 18 years of age. It prohibits employers from employing minors in certain occupations. The law also limits the hours minors can work, depending on age. Minors have the same rights to meal and rest periods as adult employees, but there are special rules for child performers. In order to work, minors must have working papers.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in New York can be found in the New York Employee Handbook Table of Contents, Minimum Wage: New York, Overtime: New York, Hours Worked: New York, Child Labor: New York and New York Workplace Labor and Employment Law Posters. Federal requirements can be found in Minimum Wage: Federal, Overtime: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key New York requirements impacting pay and benefits are:

Payment of Wages

Employers in New York may pay wages to employees in cash, by check, by direct deposit or using electronic paycards, if certain requirements are met. The required frequency of wage payments and the amount of lag time allowed before payment after the end of a pay period varies by industry, including:

  • Manual workers;
  • Railroad workers;
  • Commission salespersons;
  • Fair Labor Standards Act-exempt executives, administrators and professionals; and
  • Clerical and other workers.

New York law provides an extensive list of the specific types of wage deductions that employers are permitted to make and the conditions under which they may be made. Anything not on the list is prohibited.

Employers must provide each employee with a pay statement with every payment of wages. Each pay statement must include certain itemized information. Electronic pay statements are permitted subject to certain conditions.

Wage Theft Prevention Act

New York's Wage Theft Prevention Act (WTPA) requires employers to provide written notice to new employees, no later than 10 days after the date of hire, of certain pay-related information both in English and the employee's primary language. Notices under the WTPA must also be provided at least seven calendar days before a change in the information included on the notice, if the change is not listed on the employee's pay stub for the next pay period. Notices may be provided electronically if the employer has a system in place allowing employees to acknowledge receipt, and print copies, of the notices.

Termination Pay

Employers must pay terminated employees their final wage payment within a certain time period. Whether an employer must pay for unused vacation time depends on the terms of the employer's vacation and/or resignation policy.

Deceased Employee Wages

After the death of an employee, an employer must follow a specific set of probate rules in order to properly turn over any compensation owed to the deceased employee's estate or survivors. The amount of compensation that may be paid out, and to whom the payment may be made, is limited by the state's probate law.

Health Care Continuation

Group health policies issued to employers with between two and 19 employees are required to provide continuation of benefits in certain instances. New York's law is more generous than the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and requires group health policies issued to employers of any size to offer continuation coverage for up to 36 months. When group health insurance ends, health plans are required to offer individuals the opportunity to convert from a group policy to an individual policy.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefit practices in New York can be found in Payment of Wages: New York, Health Care Continuation (COBRA): New York, New York Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New York? Federal requirements can be found in Payment of Wages: Federal and Health Care Continuation (COBRA): Federal.

Attendance and Leave

New York has several laws relating to required leaves for employees such as:

  • Adoption leave;
  • Military spouse leave (20 or more employees at one location);
  • Pregnancy disability leave;
  • Voting leave;
  • Military leave;
  • Jury duty;
  • Crime victim/witness leave;
  • Bone marrow donation leave (20 or more employees in at least one worksite);
  • Blood donation leave (20 or more employees); and
  • Emergency responder leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in New York can be found in the New York Employee Handbook Table of Contents, Other Leaves: New York, USERRA: New York and New York Workplace Labor and Employment Law Posters. Federal requirements can be found in Other Leaves: Federal and USERRA: Federal.

Health and Safety

Key New York requirements impacting health and safety are:

Clean Indoor Air Act

The New York Clean Indoor Air Act prohibits smoking in nearly all indoor areas and workplaces. Employers must place signs that either have the words "No Smoking" or have the international no smoking symbol. Smoking of e-cigarettes is prohibited within 100 feet of entrances of schools and public buildings.

Weapons in the Workplace

New York does not have a law that would stop an employer from creating a weapons policy banning employees from keeping a gun in a locked car on the employer's property. In New York, it is illegal to carry, possess or transport a handgun in or through the state without a valid New York permit.

Even with a permit, weapons are generally banned from government buildings, schools or universities, parks or pubic rest stops.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on health and safety practices in New York can be found in the New York Employee Handbook Table of Contents, Employee Health: New York, Workplace Security: New York, New York Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New York? Federal requirements can be found in Employee Health: Federal and Workplace Security: Federal.

Organizational Exit

The New York State Worker Adjustment and Retraining Notification Act requires covered employers to provide 90 days' advance written notice of mass layoffs, plant closings or relocations to affected employees, their union representatives, the New York State Department of Labor and the local workforce investment board. Employment losses due to a physical calamity or an act of war are exempt from the notice requirements.

The penalties for employer noncompliance mirror those under the federal law.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on organizational exit practices in New York can be found in Involuntary Terminations: New York; and Does This Law Apply to My Organization in New York? Federal requirements can be found in Involuntary Terminations: Federal.