The New York Employment Law Guide

The state laws every business owner should know

Businesses must post all applicable state and federal labor law posters in the workplace.

New York labor law posters to download

Federal labor law posters to download

Wages and Breaks

Minimum Wage
$12.50+

The current minimum wage for New York (except for fast-food workers) is as follows:

In New York City: $15
Remainder of downstate: $14
Rest of state: $12.50

The minimum wage for fast-food workers is:

In New York City: $15
Rest of the state: $12.75

The minimum wage (except for fast-food workers) will increase over the next few years in the following manner:

On December 31, 2021, the remainder of downstate increases to $15.

The New York Labor Commission will increase the minimum wage annually for the rest of New York State starting in 2021 until the minimum wage reaches $15.00. The increase will be announced by October 1 of each year.

Tipped min wage
$7.85+

New York employers are allowed to take tip credits toward their minimum wage obligations for service workers and food service employees.

The rates for service workers other than those at resort hotels are as follows:

In New York City: $12.50 cash wage, $2.50 credit, $3.25 tip threshold
Remainder of downstate: $11.65 cash wage, $2.35 credit, $3.05 tip threshold. (Increases to $12.50 cash wage, $2.50 credit, $3.25 tip threshold on Dec. 31, 2021.)
Remainder of New York State: $9.85 cash wage, $1.95 credit, $2.55 tip threshold. (Increases to $10.40 cash wage, $2.10 credit, $2.70 tip threshold on Dec. 31, 2020.)

The rates for food service workers are as follows:

In New York City employers with 11+ employees: $10.00 cash wage, $5.00 credit, $15.00 total
In New York City employers with 10 or fewer employees: $9.00 cash wage, $4.50 credit, $13.50 total
Remainder of downstate: $8.65 cash wage, $4.35 credit, $13.00 total. (Increases to $9.35 cash wage, $4.65 credit, $14.00 total on Dec. 31, 2020; Increases to $10.00 cash wage, $5.00 credit, $15.00 total on Dec. 31, 2021.)
Remainder of New York State: $7.85 cash wage, $3.95 credit, $11.80 total. (Increases to $8.35 cash wage, $4.15 credit, $12.50 total on Dec. 31, 2020.)

The rates for service employees at resort hotels are as follows:

In New York City: $12.50 cash wage, $2.50 credit, $8.40 tip threshold
Remainder of downstate: $10.74 cash wage, $2.15 credit, $7.30 tip threshold. (Increases to $11.65 cash wage, $2.35 credit, $7.85 tip threshold on Dec. 31, 2020; Increases to $12.50 cash wage, $2.50 credit, $8.40 tip threshold on Dec. 31, 2021.)
Remainder of New York State:  $9.85 cash wage, $1.95 credit, $6.60 tip threshold. (Increases to $10.40 cash wage, $2.10 credit, $7.00 tip threshold on Dec. 31, 2020.)

Employers are allowed to require food service employees to participate in a tip pooling arrangement with a set percentage of tips being distributed to each occupation.

Employer-mandated tip pooling is not allowed for tipped employees outside of the foodservice industry, but a voluntary tip pool may be established.

Overtime
1.5X

Employers are required to pay an overtime rate of 1 ½ times the normal rate to non-exempt employees for all hours worked in excess of 40 hours in a workweek.

The federal overtime rule stipulates that the minimum salary requirement for administrative, professional, and executive exemptions is $684 per week, or $35,568 per year. Workers making at least this salary level may be eligible for overtime based on their job duties. 

Hourly workers whose workday takes place over more than 10 hours are entitled to an extra hour’s pay. The 10 hours includes an off-duty time, meal breaks and time between shifts.

Meal breaks
30min+ per 6 hrs

Employers are required to give meal breaks to all employees who work at least six hours.

Non-factory workers are entitled to a 30-minute lunch break between 11 a.m and 2 p.m. for shifts six hours or longer, or a 45-minute break midway through a shift of more than six hours that starts between 1 p.m and 6 a.m.

Factory workers are entitled to a 60-minute lunch break between 11 a.m. and 2 p.m. for shifts six hours or longer, or a 60-minute break midway through a shift of more than six hours that starts between 1 p.m and 6 a.m.

New York law requires that accommodations be made for employees who are lactating. Reasonable unpaid break time (or paid break time, meal time, or both) must be provided to employees to express breast milk for their nursing children.

Weekly breaks
24 hrs per week

Most employers, particularly those operating factories, hotels and restaurants, are required to provide employees at least 24 consecutive hours rest in any calendar week.

Before operating on Sunday, employers must notify each employee which day of the week they have for their day of rest. Unless otherwise exempted, employees may not work on their rest day.

 

Final Paychecks

Employees who are fired or laid off

If an employee is discharged from employment by the employer for any reason (fired, terminated, laid off), the employer must pay any remaining wages no later than the next regular pay date. The employer must mail the wages if the employee requests they do so. An employer must also notify an employee of their termination in writing within five days of the date of termination, as well as the exact date that the employee’s benefits will end.

Employees who quit

There are no statutes for payment of wages to employees who quit or who separate from employment due to a labor dispute, but employers should pay employees all wages due by the next pay date to ensure compliance with known laws.

Child Labor

Minors 14 and 15 years of age

Minors 14 and 15 years of age may work after school hours and during vacations, but not in factories. They may work no more than three hours on school days, and eight hours on other days with a weekly maximum of 18 hours and six days a week between the hours of 7 a.m. and 7 p.m. When school is not in session, they may work no more than 8 hours daily and 40 hours a week between 7 a.m. and 9 p.m.

Minors 16 and 17 years of age

Minors 16 and 17 years of age may work no more than four hours Monday through Thursday and eight hours on Friday, Saturday and Sunday, as well as holidays. They may work a maximum of 28 hours and 6 days per week between 6 a.m and 10 pm. When school is not in session, they may work a maximum of 48 hours and 6 days per week between the hours of 6 a.m and midnight.

Leave Requirements

Sick days

Employers are not required to provide sick leave, but if they do, they must comply with the terms of the established policy.

New York City Sick Days

All employees who work in New York City will accrue one hour of paid sick leave for every 30 hours worked.

Accrual will begin immediately upon employment. Exempt employees will be presumed to work 40 hours per week unless they are regularly scheduled to work fewer hours, in which case accrual will be based on their usual schedule.

Up to 40 hours of unused sick leave will carry over from year to year. Employers who choose to front load 40 hours at the beginning of each benefit year do not need to allow carryover.

Family and medical leave

There is no state medical leave statute, but some employers may be required to provide unpaid medical leave under the federal Family and Medical Leave Act.

New York State’s Paid Family Leave law provides partial income replacement and job protection while workers are on leave for covered reasons. Employers are required to purchase a PFL insurance policy or self-insure. Employees taking Paid Family Leave will receive 60% of their average weekly wage, up to a cap of 60% of the current Statewide Average Weekly Wage of $1,401.17. The maximum weekly benefit for 2020 is $840.70.

Bereavement Leave

Private employers are not required to provide paid or unpaid bereavement leave, but if they choose to do so, they must comply with the terms of the established policy.

If an employer provides funeral or bereavement leave for the death of an employee’s spouse or the spouse’s child, parent, or other relative, then they must provide the leave for the death of an employee’s same-sex partner or their partner’s child, parent, or other relative.

Vacation time

Employers are not required to provide vacation days, either paid or unpaid, but if they do, they must comply with the terms of the established policy.

An employer is required to pay out any remaining vacation days to an employee when they separate from the position if its policy or contract requires it.

Holiday time

Private employers are not required to provide paid or unpaid holidays, but if they choose to do so, they must comply with the terms of the established policy.

Jury Duty

Employers with more than 10 employees must pay the first $40 of the employee’s daily wages for the first three days of jury service.

An employee may not be penalized or terminated for responding to a jury summons.

Voting time

Employers are required to provide time off so that an employee has enough time to vote while the polls are open.

The employer must only provide two hours of paid time off.

An employee must give 10 days notice before an election, and employers must post a notice informing employees of their rights to take voting leave in a conspicuous location.

Witness Leave

Employers cannot take any adverse action against an employee for appearing as a witness in a criminal proceeding or exercising their rights under the family court act if the employee provided prior notice.

An employer is not required to pay an employee for such leave.

Crime Victim Leave

If the employee provides prior notice of the need for crime victim leave, employers cannot take any adverse action against them for appearing as a witness, consulting with the district attorney, or exercising their rights as a crime victim.

An employer is not required to pay an employee for crime-victim leave.

Volunteer Emergency Responder Leave

Employers must allow their employees to take leave to serve as a volunteer firefighter or a member of a volunteer ambulance service in response to an emergency.

However, if an employee’s absence would cause an undue hardship, the employer can deny the request for leave.

Blood and Bone Marrow Donation Leave

Employers in New York that have 20 or more employees must allow their employees to donate blood in one of two ways, at the option of the employer.

Employees may use any applicable accumulated leave time to donate blood during work hours two times per year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at their workplace. Alternatively, an employer may provide an employee with three hours of leave in any 12-month period to donate blood.

Employers with 20 or more employees must provide their employees with leave to donate bone marrow.

The combined length of bone-marrow-donation leaves must be determined by a physician, but the employer may limit it to 24 work hours. The employer may require verification by a physician for the purpose and length of each leave.

Military Leave

Employers may not discharge an employee for taking military leave. Additionally, employers must reinstate an employee who leaves a job, other than a temporary one, in order to perform military service.

However, such an employee must receive a certificate of completion, still be qualified for the job, and apply for re-employment in the specified time period: Within 90 days of release from active military duty; Within ten (10) days of release from temporary service such as drill or annual training; Within 60 days of release from full time or active duty training.

Military Family Leave

Employers with 20 or more employees are required to grant an unpaid leave of absence of up to 10 days to an employee whose spouse is on leave from service with the armed forces in a combat zone.

Hiring, firing, and more

Discrimination

Federal law makes it illegal for an employer to discriminate on the basis of: Race, Color, Age, Sex, Sexual orientation, Gender, Gender identity, Religion, National origin, Pregnancy, Genetic information, including family medical history, Physical or mental disability, Child or spousal support withholding, Military or veteran status, Citizenship and/or immigration status.

Additionally, the state of New York prohibits discrimination based on the following for employers with four or more employees: Marital status; Familial status; Traits historically associated with race, including hair texture and hairstyles; Domestic violence or stalking victim status; Legal use of consumable products outside of work hours; Legal recreational activities outside of work hours; Political activities; Child or spousal support withholding; Wage garnishment for consumer debt; Non-conviction arrest records, unless pending; Wearing a depiction of the American flag or displaying an American flag at the employee’s workstation (1+ employees); Conviction record, unless directly related to the job or could endanger the public (10+ employees).

New York’s pay equity law requires pay equity among all the following classes: age, race, religion, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.

Pay must be equal for substantially similar work, when viewed as a combination of skill, effort, and responsibility and when performed under similar working conditions in the same establishment. Differentials in pay may be based on: A seniority system; A merit system; A system which measures earnings by quantity or quality of production; A bona fide factor other than sex, such as education, training, or experience.

Click here to read our blog on what is acceptable and unacceptable to ask during an interview.

Termination

New York is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason at any time, provided that the reason is not discriminatory.

An employer must notify an employee of their termination in writing within five days of the date of termination, as well as the exact date that the employee’s benefits will end.

For layoffs or reduction in workforce, the WARN Act requires that employers provide 90 days’ written notice to affected employees and their representatives, the New York State Department of Labor, and the Local Workforce Investment Board before certain workforce reductions. The notice requirement applies to employers with 50 or more full-time workers in New York State in the following situations:

Closings affecting 25 or more workers
Mass layoffs involving 25 or more full-time workers if they comprise at least 33% of all workers at the site
Mass layoffs involving 250 or more full-time workers
More than a 50% reduction of work hours each month during any six-month period
Relocations (i.e., the removal of all or substantially all operations to another location 50 miles or more away)

Record Keeping

Regarding employment and payroll data, under the Fair Labor Standards Act (FLSA) and others, you must:

For at least 3 years: keep payroll records, certificates, agreements, notices, collective bargaining agreements, employment contracts, and sales and purchase records. Also keep completed copies of each employee’s I-9 for three years after they are hired. If the employee works longer than three years, hold on to the form for at least one year after the employee leaves. 

For at least 2 years: Keep basic employment and earning records like timecards, wage-rate tables, shipping and billing records, and records of additions to or deductions from wages. Also keep the records that show why you may pay different wages to employees of different sexes, such as wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements.

For at least 1 year: The Equal Employment Opportunity Commission says employers should keep all employment records for at least one year from the employee’s date of termination. 

Other record-keeping laws that may apply to you: 

Under the Occupational Safety and Health Act, you need to keep records of job-related injuries and illnesses for five years. But some records, like those covering toxic substance exposure, have to be kept for 30 years.

You must keep files of benefit plans and seniority and merit systems while they are in effect and for at least a year after they end. You must also retain summary descriptions and annual reports of benefits plans for six years.

If your company is covered by the Family and Medical Leave Act, you must also retain relevant records of leaves, notices, policies, and more for three years.

Additional laws that may apply to you

Pay Practices

The frequency with which employers must pay their employees depends on the type of work, as follows:

At least semimonthly on regular paydays the employer chooses in advance for clerical and other workers
At least weekly for manual workers, with certain exceptions; for railroad workers, except for executive employees
At least monthly for commissioned salespeople
At any agreed-upon interval for bona fide executive, administrative, or professional employees who are properly classified as exempt.

Employers must provide the following information with an employee’s wages: Beginning and end dates of the pay period; The employee’s name; The employer’s name; The employer’s address and phone number; Their rate of pay; The basis of pay (such as by the hour, shift, day, week, salary, piece, or commission); Gross wages; Itemized deductions; Allowances claimed as part of the minimum wage (such as tip, meal, or lodging allowances); Net wages.

Nonexempt employees must also receive the following information: The regular hourly rate; The overtime rate; The number of regular hours worked; The number of overtime hours worked, If piece rates are used, the number of pieces completed at each rate.

Railroad workers must also receive the following information: Accrued total earnings; Accrued total taxes; Daily wages; How the employee’s wages were computed.

Background checks

Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act, which are available here.

New York requires that employers conduct background checks on the following types of employees: School personnel; Those who install, service, or maintain security or fire alarms; Those working for an entity registered with the federal securities exchange commission or department of law; Those working for a clearing corporation that is affiliated with an entity registered with the federal securities exchange commission; Private detectives; Bail enforcement personnel; Childcare center personnel, including volunteers who may have regular and substantial contact with children.

Credit and Investigative Checks

Employers may not obtain a credit or investigative report on an applicant or employee unless they inform them that they will request it for employment purposes and the employee agrees in writing. This notice must be written with other disclosures required under New York’s fair credit reporting act. Employers must also tell an applicant or employee before they take an adverse employment action even in part because of a credit or investigative report.

Arrest and Conviction Checks

Employers in New York state are prohibited from asking applicants about arrests or charges that did not result in conviction. Employers with 10 or more employees are also prohibited from asking about conviction records, unless the conviction relates directly to the job, or hiring an applicant with such a record would be an unreasonable risk to property, personal safety, or public safety.

NYC Ban-the-Box Law

New York City has a “Ban the Box” ordinance that prohibits employers from inquiring into an applicant’s criminal history prior to a conditional offer of employment. The ordinance also bans job ads that indicate that applicants will be eliminated from consideration or hiring if they have a criminal history. If a New York City employer chooses to run a background check following a conditional offer of employment, they must do the following:

Provide the applicant with a copy of the background check(s)
Conduct the analysis required by New York state law
Provide the applicant with a written copy of their analysis
Provide the applicant with three days to respond, while holding the job open.

Drug and Alcohol Testing

New York does not regulate or prohibit testing of applicants or employees. However, use of marijuana for medical purposes must be accommodated unless the employee is in a safety-sensitive position.

Employers in New York may not discharge or discriminate against an employee or applicant because of their legal use of consumable products outside of work or their legal recreational activities outside of work.

New York City will prohibit pre-employment testing for marijuana, with some exceptions, beginning May 10, 2020.

Accommodations for employees who are lactating

New York law requires that accommodations be made for employees who are lactating. Reasonable unpaid break time (or paid break time, meal time, or both) must be provided to employees to express breast milk for their nursing children.

Employers must provide a place (other than a bathroom) that is reasonably close to the employee’s workplace and is shielded and private.

This must be provided for up to three years after the child’s birth.

Whistleblower Protection

Employers may not discharge or discriminate against an employee for doing any of the following:

Reporting or threatening to report a violation of the law that creates a danger to public health or safety if the employee gave the employer a chance to fix the violation
Participating in an investigation regarding a violation of the law
Refusing to participate in a violation of the law
Exercising their rights under the Labor Law

COBRA

COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” New York’s mini-COBRA allows employees to continue their coverage for up to 36 months. Each individual certification of coverage must contain a notice of the right to continue coverage. Employers should provide an employee with a notice of their COBRA rights by first class mail as soon as a triggering event occurs.

Shift Scheduling

Employees who report for work by request of the employer on any day shall be given call-in pay. This means they must be paid regular wages for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less.

Hourly workers whose workday takes place over more than 10 hours are entitled to an extra hour’s pay. The 10 hours includes an off-duty time, meal breaks and time between shifts.

Most employers must allow their employees to have at least 24 consecutive hours off from work every calendar week. Before operating on Sunday, employers must notify each employee which day of the week they have for their day of rest. Unless otherwise exempted, employees may not work on their rest day.

Uniforms

Employers may require employees to purchase and maintain uniforms required on the job. However, the cost of purchasing or maintaining the uniform (e.g. daily laundering, dry cleaning) must not bring the employee below the minimum wage. Uniforms required for minimum wage employees must be provided and maintained by the employer, or the employer must pay the employee for the cost of purchase and maintenance. Ordinary clothing (such as black trousers and white shirts) are generally not considered uniforms for the purpose of cost shifting.

Collecting Biometric Data

Employers may not make fingerprinting a condition of employment. They may request that employees submit to fingerprinting, but if an employee refuses they may not be terminated or discriminated against in any way as a result. Employers who wish to use biometric data for timekeeping or other purposes may instead require different identifiers, such as scans of facial or hand geometry.

Employee Monitoring

Employers may not video record in any location where an employee would have a reasonable expectation of privacy (e.g., restroom, locker room, area designated for changing, lactation room).

Sexual Harassment Training

All employers must adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees.

The state has provided compliant materials, so employers will not need to create their own. The materials – including a model policy, training materials, poster, and complaint form – can be found here. Employers have the option of creating their own policy and training program, so long as it meets the requirements set by the state.

Employees should receive training on at least a yearly basis. The training may be presented to employees individually or in groups. It may be presented in person, on the phone, or as a webinar or recorded presentation. The training should do as many of the following as possible to meet the requirement that it be interactive:

Ask employees questions as part of the program
Allow employees to ask questions, with answers provided in a timely manner
Require feedback from employees about the training and the materials presented

Compliance Deadlines

Get our Compliance Calendar to stay on top of deadlines throughout the year: View it on your computer. Click + Google Calendar in the lower right to add it to your Google Calendar and subscribe to all updates. You can also download a calendar (.ics) file that you can import into iCal or Outlook, or download a PDF to your computer. 

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 Remember

This summary is not qualified legal advice. Laws are always subject to change, and they can vary from municipality to municipality. It’s up to you to make sure you’re compliant with all laws and statutes in your area. If you need more compliance help, we recommend consulting with a qualified lawyer, checking with your local government agencies, or signing up for Homebase to get help from our certified HR Pros. 

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