Violations of Minimum Wages Act in New York 2023

The New York State minimum wage recently reached an all-time high of $14.20 per hour. The New York Commissioner of Labor issued a special order increasing the amount from $13.20.

In New York City, Long Island, and Westchester County, the minimum wage recently hit an even higher level, at $15 per hour.

Tipped workers are treated a little differently. They get a minimum cash wage, and a tip credit.
In New York State not including New York City, Westchester and Long Island, the minimum wage in cash has hit $9.45. In New York City etc., there is a $10 minimum wage in cash.

A tip credit is something an employer has to keep track of to make sure that customers’ failure to leave adequate tips does not bring an employee below the overall minimum wage of $15 (in the City etc.). Both supervisors and owners of businesses are prohibited by law from demanding or accepting any tip left for an employee, or keeping any part of a customer payment listed or intended as a tip.

The tipping system does not apply to fast food employees, who are treated more like retail or other workers. Workers, like waiters, bartenders, bellhops, maids, and other hotel or restaurant workers may receive a cash minimum wage payment that is reduced by up to $4.75 – or $5 in the City, Long Island, and Westchester – which added to the cash minimum wage equals $14.20 to $15. Other workers who might receive tips are carwash attendants, barbers and hairdressers in salons, most nail salon or facial/ eyebrow/eyelash workers, golf or tennis instructors, valet parking attendants, and doorpersons.

Employers have to clearly disclose that they are using tip credits, and divide pay in wage statements among tip credits and cash minimum wages. These statements have to be accurate by law.

Customers have to be clearly told which payments for service they make are tips, and which are facility or banquet fees. The law assumes that all customer payments other than for food or drink are tips, and the employer has to clearly prove that customers were told that the specific amount was a party, banquet, or package charge that will not be treated as tips will not be given to the tipped employees.

If an employee who normally receives tips is reassigned to do work normally done by non-tipped employees, like washing dishes, they are entitled to the full minimum wage for any day that they do more than two hours of such reassigned work or spend more than 20% of their day on it.

Home care aides also receive a different minimum wage. A 2022 law increased their minimum to $2 per hour above the basic minimum hourly rate.

Employees sometimes do not receive the tips or minimum wages which they deserve due to mistakes or deception by employers. These include telling employees to “work off the clock,” misclassifying employees as not qualifying for minimum wage, not accounting for tips or wages accurately in wage statements, and many others.

Another common problem that employees have is not receiving their overtime pay. This is the “time and a half” earned for working more than 40 hours a week. Overtime pay of $21.30 to $22.50 per hour ($22.50 in NYC, etc.) is due to employees who are not managers, professionals, or administrators earning at least $1,064.25 per week (outside of New York City, Westchester and Long Island).

Just because a worker has assistant manager or office administrator in their job title does not mean that overtime is not required. Both New York and federal law look at the employee’s actual job duties, looking for a leadership or intellectual role and not simply doing the work of the business or office.

Finally, most workers who do physical tasks are entitled to be paid weekly, rather than once every two weeks. This can make a big difference, because workers living paycheck to paycheck can miss bill payments, incur late charges and bad credit, and lose out on quality of life while waiting for their pay.

In New York, a lawyer can help an employee file an action under either the New York Labor Law, the USA Fair Labor Standards Act, or both. These lawsuits can ask for lost wages, fines, emotional distress, and interest. They can be filed either individually or as a collective or class action on behalf of all employees commonly or similarly treated. A lawyer can uncover important documents and pay records, prepare for any necessary hearings, and help negotiate a settlement out of court before trial.

For example, Leeds Brown Law lawyers have helped win final approval of $9.8 million settlement on behalf of Aldi store managers from around the US, working with other law firms. In addition, it helped Jenny Craig weight loss center employees mount a class action for unpaid hours worked off the clock. Judges in New York City, Long Island, and Westchester County have recognized Leeds Brown lawyers’ ability to file and settle minimum wage and overtime pay cases.

Employees who have not received the proper wages may have experienced other unlawful treatment as well, such as retaliation for speaking out, racial or sex-based discrimination, harassment, a failure to accommodate disabilities, no family or medical leave or time off, not enough days off from physical labor, or a lack of health or disability benefits. This kind of treatment also violates employees’ rights.

If you have been told to work off the clock, received wrongful tip deductions or are missing tips, or have been misclassified as to your minimum wage, you may benefit from a free consultation to make sure you are being fully and correctly compensated for the hours you work.

If you are technically non-exempt from overtime pay, but your employer has not compensated you at a rate of 1 ½ your regular pay for the additional time you’ve worked over 40 hours in a given workweek, it may be time to take legal action.