The New York State Minimum Wage Act, N.Y. Labor Law § 650 et seq., requires that employees in New York be paid at least the New York minimum wage — presently $9.70 per hour to $11.00 per hour, depending on the county and the size of the employer — for all hours worked.
New York State sets forth exemptions from the minimum wage for certain categories of workers. The most common New York State Minimum Wage Act exemptions — often called the “white collar” exemptions — apply to certain:
- Executive Employees
- Administrative Employees
- Professional Employees
- Outside Sales Employees
In New York, a bona fide executive employee, within the meaning of the exemption from the minimum wage, is any employee who is paid for his services at the minimum salary level on a salary basis and:
- Whose primary duty is management of the enterprise or of a customarily recognized department or subdivision; and
- Who customarily and regularly directs the work of two or more other employees; and
- Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees are given particular weight; and
- Who customarily and regularly exercises discretionary powers.
In the Empire State, a bona fide administrative employee, within the meaning of the exemption from the minimum wage, is any employee who is paid for his services at the above-listed, minimum salary level on a salary basis and:
- Whose primary duty is the performance of office or non-manual field work directly related to the management policies or general operations of the employer; and
- Who customarily and regularly exercises discretion and independent judgment; and
- Who regularly and directly assists the employer, or an employee employed in a bona fide executive or administrative capacity (for example, employment as an administrative assistant); or who performs, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge.
The minimum salary level for the executive exemption and the administrative exemption (from minimum wage requirements) is presently:
- $825 per week ($42,900 per year) for employers in New York City with eleven or more employees;
- $787.50 per week ($40,950 per year) for employers in New York City with ten or fewer employees;
- $750 per week ($39,000 per year) for employers in Nassau, Suffolk and Westchester Counties; and
- $727.50 per week ($37,830 per year) for employers in New York State, but outside of Nassau, Suffolk and Westchester Counties.
For more information on the minimum salary level for the executive exemption and the administrative exemption, see this author’s March 28, 2017 blog post.
In New York, a bona fide professional employee, within the meaning of the exemption from the minimum wage, is any employee:
- Who primarily performs work:
- Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study; or
- Which requires originality and creativity in a recognized field of artistic endeavor, and the result of which depends primarily on the invention, imagination or talent of the employee; and
- Whose work:
- Requires the consistent exercise of discretion and judgment in its performance; or
- Is predominantly intellectual and varied in character and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
In the Empire State, an outside salesperson, within the meaning of the exemption from the minimum wage, is any employee who is customarily and predominantly engaged away from the premises of the employer and not at any fixed site and location for the purpose of:
- Making sales;
- Selling and delivering articles or goods; or
- Obtaining orders or contracts for service or for the use of facilities.
Call the Law Offices of David S. Rich, LLC at (212) 209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with minimum wage and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid minimum wage lawsuits or other wage and hour litigation.