What New York Employees Should Know about Minimum Wage Violations
In this guide, we’ll take you through the basics of federal and New York state’s minimum wage laws. We will also explain some exceptions to these regulations, and describe some other ways that employees in New York can have their rights to fair pay violated.
What is the Minimum Wage in New York State?
The foundation of the right to fair pay for work is the Fair Labor Standards Act, or FLSA. This federal law, first passed in 1938, established many of the basic rules that govern the working world we know today. This includes:
- The 40-hour week
- Rules for overtime pay,
- Minimum wage,
- Restrictions on child labor,
- Equal pay for equal work regardless of gender, and
- Standards for pay for time off work.
The FLSA is a federal law, so it applies to workers nationwide. Since 2009, the national minimum wage has been set at $7.25 per hour.
Changes to the minimum wage are controlled by Congress, who must pass a bill that the president signs into law to increase the hourly rate.
However, this doesn’t prevent states and even cities from providing additional or greater protections for workers. For example, in some states — like California and New York — the legal minimum wage is higher than the federal rate.
As of 2023, the statewide minimum wage in New York is $14.50 per hour. For workers in New York City, Long Island, and Westchester County, though, the minimum goes up to $15.00 an hour.
Be aware, though, these numbers are not set in stone. Thanks to statewide legislation passed in 2023, minimum wage pay is set to gradually increase over the next couple of years.
This table breaks down the scheduled changes by year and by region:
|Effective Date||New York City, Long Island, and Westchester County||Remainder of New York State|
|Current Minimum Wage (2023)||$15/hour||$14.20/hour|
|January 1, 2024||$16/hour||$15/hour|
|January 1, 2025||$16.50/hour||$15.50/hour|
|January 1, 2026||$17/hour||$16/hour|
After that — as of January 1, 2027 — the state minimum wage rates will be tied to inflation. Each year, the New York State Department of Labor (DOL) will calculate any changes to the minimum wage based on changes to the Consumer Price Index (CPI) for northeast region urban wage earners and clerical workers.
The DOL will publish the new rates by October 1 of each year, and they’ll take effect for employers and workers January 1 of the following year. There is a cap on increases in a given year: no more than 3%.
Importantly, although the law allows New York’s minimum wage increase potentially every year, no increases will occur if the CPI drops in a given year.
The law also says that the minimum wage won’t go up in years when the state unemployment rate increases by half a percentage point from its law during the previous year, or in years when the total non-farm state employment decreases over a six-month period.
Does the Minimum Wage Apply to all Workers in New York?
State minimum wage laws cover most of the workers in New York, but not all of them. Individuals who work in certain industries, have certain executive or managerial responsibilities, or who are considered not full employees are not included in New York’s basic minimum wage requirements.
For example, individuals who work as independent contractors — e.g. an Uber driver — are not considered “employees” under New York labor law, and are thus not entitled to receive minimum wage.
Here are some of the other special circumstances when individuals working in New York might legally be paid differently from or less than the minimum wage.
Tipped Service Employees
Employers in service industries where tips are available may pay workers less than the established hourly wage, provided the minimum rate is reached when cash tips are included.
For instance, food service workers in New York City can receive up to $5 of the required $15/hour minimum in the form of a cash allowance paid out by the restaurant’s tips.
For non-food service employees, only $2.50 per hour of the mandatory $15 minimum can be covered by tips.
Depending on the industry, the size of the company, and where in New York state it’s located, certain employers may also have other, more specific regulations for the breakdown of wages vs. tips that can be paid.
Executives, Administrators, Professionals
New York’s minimum wage laws don’t apply to executive, administrative, or professional employees who receive a salary that is 75 times the state minimum wage.
This might seem a little redundant — if someone’s receiving 75 times the minimum wage annually, why include them in the exemption to these wage laws?
For workers in these kinds of white collar jobs, what’s really at stake is overtime pay — a different kind of wage violation that can still very much impact even salaried employees (more on that further on).
An outside salesperson is an adult worker (18 years or older) who “customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities.”
The “employer’s place of business” doesn’t have to be an office owned by the salesperson’s company, just any fixed location. It can even include the salesperson’s own home, if that’s where they otherwise fulfill their other responsibilities — e.g. preparing orders, talking to customers on the phone, mailing products or advertisements.
Outside salespersons of this type — who spend their time going door-to-door, or visiting customers’ businesses — can be exempt from minimum wage laws, provided certain requirements are met.
For the outside salesperson exemption to apply, not only must more than half the employee’s time be spent away from the place of business, but they must also be conducting sales-related tasks during that time.
Sales tasks could include meeting with customers outside of the office, soliciting potential advertisers, or conducting promotional work outside of their place of business.
Volunteers, Learners, Apprentices
Anyone working in a volunteer capacity, as well as in a formal apprenticeship with the aim of gaining vocational experience, is also not entitled to receive the minimum wage.
Other Industry Exceptions
Individuals in New York who earn money in the following ways are also not covered by the state’s minimum wage requirements:
- Taxicab drivers
- Government employees (certain non-teaching employees may be covered)
- Part-time babysitters
- Ministers and members of religious orders
Additionally, for some other workers — such as home care aides — New York state actually mandates a minimum wage rate that is higher than the basic employee rate. A full list of the industry-specific “wage orders” and their particular regulations and exceptions can be found on the New York DOL’s website.
How Can I Get Help for Wage Violations in New York?
The most common way that employers violate New York’s wage laws is simply by not paying their employees the legally required minimum wage for their industry, geographic location, or employment status. But failure to pay the minimum wage isn’t the only way that New York employers cheat their workers out of their earned compensation.
Here are three ways that your employer might be violating your right to fair pay:
- Withholding overtime: Many employees falsely believe that only hourly, non-salaried workers can receive overtime pay. Unfortunately, even though this is not true, some employers will exploit the misconception in order to avoid paying certain employees the time-and-a-half pay they deserve for extra work. In actuality, certain white collar workers — such as administrative staff, “inside” sales workers, and IT workers — don’t meet the legal requirements for exemption from certain FLSA benefits, including overtime legally considered qualify.
- Meal and rest breaks: New York labor law entitles employees to unpaid mid-shift breaks for resting and meals: usually to the order of 30 minutes off for every six hours worked. If your boss refuses to let you take your allotted breaks at the designated times, that’s also an illegal wage violation.
- Misclassifying employees: Employers also violate the law when they classify workers incorrectly in order to avoid paying them minimum wage or granting other benefits. For instance, a restaurant in Manhattan might wrongfully claim that all of its dishwashers are technically independent contractors, which would mean that they are not subject to minimum wage or overtime pay, even if they’re working over 40 hours per week.
Any of these behaviors can be considered an illegal wage violation — and a sign to contact an employment lawyer. Wage violations can and do happen to all workers, from financial professionals to hourly food service workers.
Contact an Employment Lawyer for Assistance
An employment attorney familiar with New York’s labor codes can assess your situation and ensure you have the resources you need to make a case that your rights have been violated.
An experienced lawyer can mediate your dispute with an employer and guide you through the process of getting restitution.
Since 1999, Ottinger Employment Lawyers has been helping New York employees across industries and skill levels get the financial compensation they’re owed for wage violations.
If you work in New York and are having issues with unpaid compensation, contact our office today to set up a consultation with one of our attorneys.