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 law prohibits an employer from discriminating and retaliating against employees in a variety of protected classes. Employers must also provide pregnancy accommodations, allow wage discussions and protect whistleblowers. See EEO, Diversity and Employee Relations.
  • New York permits preemployment background checks. See Recruiting and Hiring.
  • In New York, there are requirements relating to the minimum wage, overtime, meal breaks, breastfeeding breaks and child labor. See Wage and Hour.
  • New York has laws that relate to employee pay and benefits, including payment of wages, wage deductions, pay statements, wage notices and health care continuation coverage. See Pay and Benefits.
  • Under New York law, employees are entitled to certain leaves or time off, including paid family leave, military spouse leave, bone marrow and blood donation leave, emergency responder leave and day of rest requirements. See Time Off and Leaves of Absence.
  • New York prohibits smoking in the workplace and using a cell phone while driving. See Health and Safety.
  • When employment ends, New York employers must comply with applicable final pay and mass layoff notification requirements. See Organizational Exit.

Introduction to Employment Law in New York

New York has many laws that provide greater protections to employees than federal law, including broader antidiscrimination protections, pregnancy accommodation rights, a higher minimum wage and health care continuation coverage obligations for smaller employers, but generally follows federal law with respect to topics such as occupational safety and health.

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:

Fair Employment Practices

The New York State Human Rights Law (NYSHRL) prohibits employers with four or more employees from discriminating against employees, applicants and unpaid interns. Protected characteristics include:

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

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. Employees may bring sexual harassment claims regardless of the size of the employer.

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

New York's Compassionate Care Act (CCA) 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.

Pregnancy Accommodation

Under the NYSHRL, an employer with four or more employees must provide reasonable accommodations for medical conditions related to pregnancy or childbirth that inhibit the exercise of a normal bodily function or are demonstrable by medically accepted clinical or laboratory diagnostic techniques.

Equal Pay

New York prohibits discrimination in regard to the rate or method of wage payment because of an employee's sex. An employer may pay different rates of pay based on a seniority system, merit system, system that measures earnings by quality or quantity of production, and a bona fide factor other than sex (e.g., education, training, experience).

Discussion of Wages

An employer may not prohibit employees from inquiring about, discussing or disclosing their wages or the wages of another employee. Exceptions apply.

An employer is permitted to create a written policy establishing reasonable workplace and workday limitations on the time, place and manner of inquiries, discussions or disclosures.

Whistleblower Protections

Similar to federal law, the New York False Claims Act allows whistleblowers to file claims on behalf of state and local governments.

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

Key New York requirements impacting recruiting and hiring are:

Criminal Checks

An employer with 10 or more employees 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. The employer must consider certain factors when deciding whether to deny employment based on a prior conviction.

Credit Checks

New York's Fair Credit Reporting Act (FCRA) largely mirrors the federal statute.  An employer may obtain a consumer report on a prospective employee only if the applicant is informed beforehand in writing that the employer may obtain the report. Similarly, an employer may obtain an investigative consumer report if the applicant is informed in advance that the report may be obtained and if the applicant authorizes the employer to obtain the report.

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, 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.

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 varies depending on an employer's size and location. The minimum wage for fast food employees, other than those employed in New York City is currently $11.75 per hour.

New York also has five Minimum Wage Orders that establish wage and hour standards for employees in different industries (i.e., hospitality, building service, farm workers, nonprofit institutions and miscellaneous industries and occupations).

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 their employer's home 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 unpaid 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.
  • Nonfactory 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.

Breastfeeding Breaks

Nursing mothers must be provided reasonable unpaid break time (at least 20 minutes once every three hours) 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.

Minors under the age of 18 are prohibited from working in a variety of hazardous occupations, including handling explosives, cleaning machinery, construction work and logging. Additional restrictions apply to minors under the age of 16.

Minors who are 16 or 17 years old generally may work:

  • Up to four hours on a day preceding a school day (eight hours on a weekend or holiday or when school is not in session);
  • Up to 28 hours per week (48 hours when school is not in session);
  • Up to six days per week;
  • From 6 a.m. to 10 p.m. (to 12 a.m. with parental permission or when school is not in session).

Minors who are 14 or 15 years old generally may work:

  • Up to three hours on any school day (eight hours when school is not in session);
  • Up to 18 hours per week (23 hours if in a work-study program or 40 hours when school is not in session);
  • Up to six days per week;
  • From 7 a.m. to 7 p.m. (to 9 p.m. from June 21 to Labor Day).

Minors are entitled to the same meal breaks as adult employees.

In order to work, minors must have an employment certificate (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, 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 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, including receiving employees' advance written consent for direct deposit and electronic paycards.

Pay Frequency

The required frequency of wage payments and the amount of lag time allowed before payment after the end of a pay period varies by type of employment. For example, manual workers generally must be paid weekly and no later than seven calendar days after the end of the week in which the wages were earned, while clerical and other workers must be paid at least semimonthly.

Wage Deductions

An employer may make deductions from employees' wages that are:

  • Explicitly required by law, a court or a government agency; or
  • For the benefit of the employee and authorized by the employee in writing (e.g., payments for insurance premiums, pension benefits or health and welfare benefits).

Pay Statements

Employers must provide each employee with a pay statement with every payment of wages. Each pay statement must include certain itemized information (e.g., dates of work covered by the statement, rate of pay, gross and net wages, deductions, allowances). Electronic pay statements are permitted subject to certain conditions.

Wage Notices

New York's Wage Theft Prevention Act (WTPA) requires an employer to provide written notice to new employees, no later than 10 days after the date of hire, of certain pay-related information (e.g., pay rate, pay basis/frequency, regular payday). The notice must be provided both in English and the employee's primary language. Notices 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. The employer must also have employees sign a statement acknowledging receipt of the written notice. Notices may be provided electronically if the employer has a system in place allowing employees to acknowledge receipt, and print copies, of the notices.

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 generally mirrors the federal Consolidated Omnibus Budget Reconciliation Act (COBRA). However, state law is more generous than federal law in that it 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.

Temporary Disability Insurance

New York's temporary disability benefits (TDB) law provides partial wage replacement for up to 26 weeks in a 52-week period to eligible employees who are unable to work due to nonwork-related illnesses and injuries and to pregnancy-related disabilities. An employer may pay the entire cost of providing TDB or share the cost with employees. Employers must pay for plan costs not covered by employee contributions.

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 benefits practices in New York can be found in Payment of Wages: New York, Health Care Continuation (COBRA): New York, Insurance and Disability Benefits: 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, Health Care Continuation (COBRA): Federal and Insurance and Disability Benefits: Federal.

Time Off and Leaves of Absence

Key New York requirements impacting time off and leaves of absence are:

Employees are eligible for eight weeks of paid family leave (PFL) during any 52-week calendar period at 50 percent of their average weekly wage. PFL benefits are paid through weekly payroll deductions. PFL may be taken for the following reasons:

  • To care for a family member with a serious health condition;
  • To bond with a newborn child, newly adopted child or newly placed foster child; and
  • For a qualifying exigency arising out of the employee's spouse, domestic partner, child or parent being on active duty in the armed forces.

An employee returning from PFL must be restored to the same or a comparable position.

Other Time Off Requirements Affecting New York Employers

In addition to paid family leave, a New York employer is also required to comply with other leave and time off laws, such as:

  • Military spouse leave (covering employers with 20 or more employees at one location);
  • Voting leave;
  • Military leave;
  • Jury duty leave;
  • Crime victim/witness leave;
  • Bone marrow donation leave (covering employers with 20 or more employees);
  • Blood donation leave (covering employers with 20 or more employees);
  • Emergency responder leave; and
  • Day of rest requirements.

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 time off and leave of absence practices in New York can be found in the New York Employee Handbook Table of Contents, FMLA: New York, Other Leaves: New York, USERRA: New York, Jury Duty: 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 FMLA: Federal, Other Leaves: Federal, USERRA: Federal and Jury Duty: Federal.

Health and Safety

Key New York requirements impacting health and safety are:

Smoke-Free Workplace

The New York State 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 the international no-smoking symbol. Smoking of e-cigarettes is prohibited within 100 feet of entrances of schools and public buildings.

Safe Driving Practices

New York bans all texting while driving, and similarly prohibits the use of all hand-held cell phones while driving.

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, HR and Workplace Safety: 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 HR and Workplace Safety (OSHA Compliance): Federal.

Organizational Exit

Key New York requirements impacting organizational exit are:

Final Pay

An employer must pay terminated employees their final wages no later than the regular payday for the pay period during which the termination occurred. If the employee requests it, the employer must mail the final 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.

Mass Layoff Notifications

The New York State Worker Adjustment and Retraining Notification Act (NYWARN) Act applies to employers with 50 or more employees (excluding part-time employees) or 50 or more employees (including part-time employees) who, in the aggregate, work at least 2,000 hours per a week. The NYWARN 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 Payment of Wages: New York, Involuntary Terminations: New York and Does This Law Apply to My Organization in New York? Federal requirements can be found in Payment of Wages: Federal and Involuntary Terminations: Federal.