The New York State Department of Labor has issued several opinion letters since the beginning of 2011 that confirm strict interpretations of the NY Labor Law. The opinion letter topics cover areas such as posting of mandatory labor law notices, wage deductions, nursing breaks, and split shifts, to name a few. The opinion letters represent the views of the New York State Department of Labor (NY DOL) based on statutes, statutory amendments and court cases in response to requests from interested parties. Summarizations of the opinions on the above topic areas provided by the NYS Department of Labor are as follows:
- Posting of Labor Law Notices – The opinion letter confirms that posting requirements are not satisfied by providing a copy of postings, whether electronic or otherwise, to employees. Posting requirements intend to ensure employees have continuing and easy access to information regarding their rights; therefore, employers must post New York State and federal posters at all worksite locations. “Continuing” access to posters presupposes that employees, at any time, need the information contained in the poster and that the information is most meaningful when that need arises. Constant viewing of labor law posters in a common area that employees frequent alerts the employee to the fact that rights and obligations exist under the labor laws. Similarly, notices bundled in a binder away from the worksite where workers are located is not sufficient labor law notification since such practice would not provide employees with the conspicuous, continuous notice required by law.
- Wage Deductions – No employer shall make any deduction from the wages of an employee except those made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency or that expressly authorized in writing by the employee (see the complete law for details and specifications thereof.)
- Nursing/Lactation Breaks – Under NYS Labor Law, Section 206-C an employer must provide reasonable unpaid break time or permit an employee to use paid break or meal time each day to allow an employee to express breast milk. The NY DOL’s opinion letter confirms that it is generally permissible for an employer to adjust the wages owed to the employee based upon the time spent taking lactation breaks for exempt employees; however it is not permissible for the employer to force the employee to use unpaid break time for that purpose as a result of the employer’s refusal to accommodate reasonable requests for the employee to use other paid break time afforded the employee. The federal Family Medical Leave Act, FMLA, may impose additional requirements on an employer and should be strictly adhered to according to law.
- Split Shifts – Although the definitions of “spread hours” and “split shift” remain consistent throughout the minimum wage orders, with respect to the restaurant industry, covered under the Hospitality Industry Wage Order, the spread of hours is the length of the interval between the beginning and the end of an employee’s workday. Split shift is applicable to the Hospitality Industry Wage Order and is a schedule of daily hours in which the working hours required or permitted are not consecutive. The interruption of working hours for a meal period of one hour or less does not constitute a split shift. According to the definitions of the spread of hours and split shift, there is considerable potential for overlap between an employee’s “spread of hours” and that employee’s work under a “split shift”. The NY DOL’s opinion letter confirms that although there is no requirement that employees in the restaurant industry receive split shift pay, 12 NYCRR Section 146-2.1 (a)(4) states that among the payroll records required to be kept by employers for each employee in the Hospitality Industry are “the number of hours worked daily and weekly, including time of arrival and departure for each employee working a split or spread of hours exceeding 10”. Records of this nature are necessary as 12 NYCRR Part 146 does contain various provisions in which the facts that an employee worked a split shift, and the hours worked in such a shift, are relevant according to law.
The New York Department of Labor has two offices, acting independently, engaged in legal functions: The Counsel’s Office and the Administrative Adjudications Unit.
The Counsel’s Office provides legal advice and counsel to the Commissioner of Labor and various other Department programs. The Counsel’s Office’s attorneys represent the Commissioner in administrative hearings related to the following areas:
- Underpayment of wages and overtime
- Safety and health violations
- License suspension or revocation, and other important matters
The Counsel’s Office is also responsible for communicating regulations on behalf of the Department.
The Administrative Adjudications Unit schedules hearings and provides the following:
- Hearing officers
- Court reporters, and
- Translators
During the hearings, which can involve the underpayment of wages and supplements, asbestos law violations and other important matters, hearing officers’ act in a quasi-judicial capacity ruling on procedural matters and establish evidentiary records. When hearings have concluded, a hearing officer submits a report and any recommendations to the Commissioner of Labor. Finally, the Commissioner provides all parties with a Final Order.