Your Rights As An Employee
YOUR RIGHTS AS AN EMPLOYEE
UNDER NEW YORK STATE LAW
New York State
Office of the Attorney General
New York State Labor Law provides employees with basic protections in the workplace. Keep in mind that federal law also provides employees with protections which sometimes overlap with state law. This information concerns New York law although some references to federal law and information as to where to obtain further information concerning federal law is provided.
Who is covered by New York's Minimum Wage Law?
Private sector (i.e., non-governmental) employees, with the exception of outside salesmen, part-time baby-sitters, taxicab drivers, camp counselors and those employed in an executive, administrative or professional capacity, are entitled to be paid the minimum wage pursuant to New York law.
What is the Minimum Wage?
The basic minimum wage in New York State is presently $6.75 per hour as of January 1, 2006, and will rise to $7.15 per hour as of January 1, 2007. In 2005, the minimum wage in New York was $6.00. Prior to that, it was $5.15 per hour.
An employer must pay most employees for overtime at the rate of one and one-half times the employee's regular rate of pay for hours worked in excess of forty hours in one workweek. If an employee's normal rate of pay is $8.00 per hour, he must be paid $12.00 for each overtime hour.
The federal minimum wage is presently $5.15 per hour. More information concerning those employees covered by the federal minimum wage can be obtained from the United States Department of Labor.
Is there a different Minimum Wage for employees who earn tips?
The minimum wage that an employee who earns tips must be paid varies according to industry. Tipped employees: For employees who regularly receive tips from customers, employers may deduct a limited amount of money-called a "tip credit"-from the minimum wage that would otherwise be required. The allowable tip credits vary by industry and may depend on your job duties. These are the minimum wages allowed for tipped workers:
Restaurant or hotel industry, Tipped Worker
Food Service worker (waiter, busboy)
2005: $3.85 per hour minimum & overtime $6.85 per hour
2006: $4.35 per hour minimum & overtime $7.73 per hour
2007: $4.60 per hour minimum & overtime $8.18 per hour
Other tipped worker (restaurant delivery)
2005: $4.10 per hour minimum & overtime $7.10 per hour
2006: $4.60 per hour minimum & overtime $7.98 per hour
2007: $4.85 per hour minimum & overtime $8.43 per hour
Any Other industry, Tipped Worker (e.g., laundry delivery)
2005: $4.55 per hour minimum & overtime $7.55 per hour
2006: $5.10 per hour minimum & overtime $8.48 per hour
2007: $5.40 per hour minimum & overtime $8.98 per hour
For your employer to use the "tip credit," you must earn sufficient tips during your shift. Contact us if you have questions.
What else affects the Minimum Wage?
An employer who provides meals to an employee may deduct a meal allowance. Lodging furnished by an employer to an employee may be considered part of the minimum wage paid to that employee. The value of the meal and lodging allowance depends on the industry in which the employee works. Contact our agency or the New York State Department of Labor for more information.
How often must employees be paid?
New York law requires that all private sector employees, except for those who are employed in an executive, administrative or professional capacity and earn more than $600 per week be paid in a timely manner. Manual employees must be paid every week, and the wages for any week's work must be paid not later than seven days after the end of that week. Clerical and other employees must be paid at least twice a month. Commission salespersons must be paid their wages and commissions at least once each month, and not later than the last day of the month following the month in which the wages and commissions were earned.
What deductions can my employer make from my wages?
An employer may not make any deductions from the wages of an employee except those deductions required by law (e.g., payroll taxes, child support orders, wage garnishments) or certain deductions expressly authorized in writing by and for the benefit of the employee. Authorized deductions are limited to payments for insurance premiums, pension or health and welfare benefits, charitable contributions, purchase of savings bonds, union dues and similar payments for the employee's benefit . Nor may an employer require an employee to make a payment by separate transaction, unless such a payment would be permitted as a deduction from wages. For example, if an employee takes or damages property belonging to the employer, the employer may not recoup the value of that property by withholding all or a portion of that employee's wages. The employer, like any other party aggrieved by the negligent or criminal behavior of another, must pursue whatever remedies are available at law. He may not simply confiscate wages due to his employee without a court order permitting him to do so. An employer may not compel an employee to pay the cost of acquiring or maintaining uniforms required on the job.
Is my employer entitled to any portion of my tips?
No, an employer may not demand or accept any portion of an employee's tips, nor may an employer require that tips be pooled or that tips received by service employees be shared with non-service personnel.
Provided that it is disclosed to the patron, a restaurant owner may share a portion of the percentage service charge added to the bill for a banquet or other special function with non-service personnel and may reserve a small handling charge there from to the restaurant.
Must an employer provide employees with any fringe benefits such as health insurance?
No, New York State law does not require an employer to pay or provide fringe benefits unless he has promised to do so. No employee has a statutory right to vacation pay, paid sick leave or employer-provided health insurance.
Once a private employer agrees to provide fringe benefits New York makes it a criminal offense to fail to do so. In addition an employer's obligations are governed by federal law, the Employee Retirement Income Security Act of 1974 (known as" ERISA"). An employer, must furnish those benefits which he has agreed to provide until and unless he changes that agreement pursuant to his benefit plan. An agreement to provide fringe benefits, i.e. a benefit plan need not be in writing. In agreeing to provide fringe benefits, an employer may establish the conditions under which they will be provided. For example, it is legal for an employer to have a vacation policy which requires that earned vacation not taken during a specified period be forfeited, as long as that condition is not imposed after the vacation was earned. A benefit accrued in accordance with all the conditions attached to it at the time it was offered, cannot thereafter be lost by the imposition of a subsequent condition. More information concerning ERISA can be obtained from the United States Department of Labor's Pension and Welfare Benefits Administration at http://www.dol.gov/dol/pwba.
If an employer does provide health insurance, New York state insurance law, section 3221, provides for the continuation of health insurance for separated employees of employers who have fewer than twenty employees and are thus not covered by COBRA, federal legislation on the same subject. Information on COBRA may be obtained from the United States Department of Labor at http://www.dol.gov/pwba.
What types of payroll information must employers provide?
At the time of hiring, an employee must be notified of his rate of pay and of the regular pay day designated by the employer. In addition, an employer must either post or notify his employees in writing the employer's policy regarding sick leave, vacation, personal leave, holidays and hours of work. In addition, employers are required to maintain payroll records showing the hours worked, gross wages, payroll deductions and net wages for each employee and must furnish this information to employees with every payment of wages.
If I am fired or laid off when must my employer pay the wages earned?
Upon termination of employment, an employee is entitled to have any outstanding wages paid to him no later than the regular pay day. Upon request the wages must be sent via the mail.
Are employees entitled to breaks?
Certain employees are entitled to have meal periods. Absent an agreement to the contrary, an employee need not be paid for these periods. The noon meal break- factory employees shall be allowed at least sixty minutes for the noon meal. All employees in mercantile or other establishments who work a shift of more than six hours which extends over the period between 11:00 A.M. and 2:00 P.M. are entitled to a half-hour meal break . The dinner break-an additional twenty minute break between the hours of five and seven P.M. shall be allowed to all employees whose work shift begins before 11:00 A.M. and ends after 7:00 P.M. Night shift meal break-persons employed for a shift in excess of six hours commencing between 1:00 P.M. and 6:00 A.M. shall be entitled to a meal period of at least sixty minutes if employed in a factory or forty-five minutes if employed in a mercantile or other establishment. The meal period must be scheduled at a time midway between the beginning and end of the shift.
Can my employer require me to work overtime or Saturdays?
Probably, with certain exceptions most manual employees must be given one day, defined as a consecutive 24 hour period, off per week. There is no limitation on the number of hours in a day which an employee may be required to work. However, as previously discussed, overtime pay may be required.
I have been summoned for jury duty, must my employer pay me?
An employer of ten or fewer employees may withhold the full wages of an employee absent from work on account of jury service. An employer of ten or more employees must pay to an employee serving on jury duty the first $40.00 of that employee's daily wage for the first three days of jury service. An employee who gives notice to his employer that he has been summoned for jury service may not be discharged or otherwise penalized by the employer on account of such service.
I have been injured on the job or contracted an illness on the job and can't work, what are my rights?
A separate Guide to Worker's Compensation Benefits for Occupational Illness is available from the Attorney General's Office.
I took two weeks off to care for my sick child and my employer fired me, can he do that?
New York offers no job protections to employees who must take off work because they must care for a sick relative. However, New York employers of fifty or more employees are subject to the provisions of the Family and Medical Leave Act of 1993, federal legislation which entitles employees to take up to twelve weeks of job-protected leave each year under certain, specified conditions. Information concerning this federal law may be obtained from the United States Department of Labor. In addition a separate publication on discharge, entitled "Can You Be Fired? Your Rights Under New York State Law " is available from the Attorney General's Office.
Where can I complain if my employer is not following the law?
Complaints of violation of the wage and hour provisions of the New York State labor law should be made to the nearest office of the New York State Department of Labor, Division of Labor Standards or to the Attorney General's Office, Labor Bureau at (212) 416-8700.
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Attorney General Consumer Complaint Number: 1-800-771-7755
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