When people work, any of us, invariably, there is some measure of so-called “manual work” that we all do.  What happens on wage payment, and should anything happen, if the workers doing this type of work are non-exempt people in (mostly) certain industries?  Some states, like New York, have a specific definition for a “manual worker.”  Such workers spend at least 25% of their day doing manual or physical labor.  On that note, activities such as lifting and carrying items, sweeping up, cleaning, stocking shelves, even standing for a length of time have been held to be examples of manual labor. 

The point here is that, across the country, it is fair to state (assume) that the vast majority of employers pay every other week, or bi-weekly.  Very few employers pay weekly, as that is not as administratively convenient or as convenient as bi-weekly.  Well, under New York law, that bi-weekly protocol does not work (so to speak) for “manual workers.”  These workers must get paid weekly.

And if they don’t get paid weekly, what are the consequences?  Well, there have been a number, an increasing number, of class actions premised on the failure to pay weekly.  This disturbing trend escalated after the decision in Vega v. CM & Associates Construction Management, LLC. in which the Appellate Division ruled that this “late” payment of wages, even if the workers received every dime of their wages, was the de facto equivalent of not receiving any pay at all.  That has started an avalanche of similar lawsuits.  Many of these claim that retail workers, working on the retail floor, on manual workers.

The danger here is that in New York workers can receive liquidated, meaning double damages, for unpaid wages which these late-paid wages are deemed.  There is also the stark fact that the statute of limitations is six years.  Thus, the exposure could be astronomical.  If there is a lawsuit brought, the issue of attorneys’ fees also looms large.  An employer can get a waiver of the weekly pay requirement if it applies for such an exemption, but they are not easily granted.

The Takeaway

In New York, every employer must determine if they are employing manual workers and ensure they are paid weekly.  The 25% rule applies, but employers will be in a quandary to evaluate whether even simply standing constitutes manual labor.  The lesson for all employers, in whatever jurisdiction, is to research their state laws for other vagaries of statute or ticking time bombs.  If you discover you are doing something “wrong,” get into compliance right away.

Fast, that is…

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