State and federal laws set the standards for all employees. New York employees should be aware of the basic employment laws and rights in their state.
No employment advertisement or help wanted ad can advertise for or discriminate against applicants based on personal characteristics such as race, sex, national origin, religion and disability.
When interviewing job applicants, employers may not ask questions regarding national origin, age, sexual orientation, marital status, children or if they have an arrest record. A disabled person may be asked if he or she can perform the job with or without a reasonable accommodation.
Minimum Wage and Overtime
Federal minimum wage and overtime laws are regulated under the Federal Fair Labor Standards Act (FSAL), though states and some localities may have more generous benefits. New York’s minimum wage is the same as the federal rate of $7.25. Employers may pay a training wage of $4.25 per hour to teenagers for the first 90 days and to student learners.
Employers may take a tip credit of $5.12 and be paid $2.13 per hour for tipped employees, who must still earn at least $7.25 per hour or the minimum wage for each hour worked after tips are counted. Eligible employees get overtime at one and a half times the regular applicable minimum wage if they work more than 40 hours per week or 44 hours for residential employees.
Employees who are exempt from the state minimum and overtime laws include certain farm workers; bona fide executive, administrative and professional employees; private domestic workers who reside in their employer’s residence; outside salespersons who earn from commissions; and seasonal and recreational workers
A Safe Workplace
State and federal OSHA and other safety laws require a safe and hazard-free work area for all employees. Employees may report safety violations anonymously and are entitled to protection from retaliation by their employers.
Workers' Compensation Insurance
New York workers compensation laws require nearly all employers having three or to have workers’ compensation insurance coverage. This is a no-fault system for workers injured on the job or who contract an occupational disease or illness. The system provides weekly wage loss compensation, payment of medical bills and prescriptions, vocational rehabilitation, disability payments and death benefits to the surviving spouse and children. Statutory guidelines provide the amount of benefits to be paid.
Those not covered include agricultural workers, New York City police officers, firefighters and sanitation workers covered under the state General Municipal Law, as well as private domestic servants and real estate salespersons.
Leave and Time Off
The federal Family Medical and Leave Act permits workers in companies with at least 50 employees, as well as all public and state employees, who have worked at least 1,250 hours in the past year, to take up to 12 weeks per 12 months of unpaid leave to care for a family member or to care for a newborn or newly adopted child. Eligible employees may take leave if they have a serious medical condition. Further, employees may take up to 26 months to care for a military family member.
New York has no comparable state law more favorable than the federal one.
Employees with less than four hours of consecutive no-working hours between the hours polls are open to closing must request leave between two and 10 days in advance. Workers are entitled to up to two hours paid leave to vote. The employer can specify if leave is granted at the beginning or end of a shift.
Sexual and Other Workplace Harassment
No employee may be subjected to any form of harassment under state and federal laws. This includes making sexually explicit comments or lewd jokes, displaying sexual photos or drawings, or sending offensive email that creates a hostile working environment. Employees and supervisors who engage in conduct that threatens or intimidates another employee, conditions a benefit on a sexual or intimate act, or initiates unwanted physical contact of any kind may be liable.
Although harassment usually means sexual conduct, it refers to any offensive gesture, comment or any other activity that is directed at workers based on their religion, national origin, gender, race or disability. The conduct must be frequent, pervasive and severe.
An employee who has been disciplined, discharged, demoted or who voluntarily resigns based on a hostile working environment may have a claim for harassment against the employer.
Legal and Wrongful Termination
Employers and employees may end their employment relationship at any time with or without a reason if no written contract exists. Otherwise, an employee can only be fired for reasons stated in the contract.
Employers cannot fire someone for a discriminatory reason or if the person was the target of harassment or if it was in retaliation for the employee having filed a complaint against the employer. Other prohibited reasons include pregnancy, age, work-related injuries or illness. Further, a discharge may not be in violation of public policy or if there is an implied contract of employment limiting termination to “for cause.”
There is no federal law pertaining to vacation pay. In New York, an employee who has earned vacation time but has not used it is entitled to it upon termination unless the employer has a written forfeiture policy.
Unemployment Benefits and COBRA
Residents or in-state workers must have been discharged through no fault of their own, not be disabled, be actively seeking work, be filing ongoing claims and not refuse work unless for a good reason.
Federal law requires employers with at least 20 full-time employees to allow discharged workers the right to continue group health benefits for up to 18 months or up to 36 months if there is a “qualifying event.” The state has a mini-COBRA law covering employers with less than 20 full-time employees for up to 36 months for a spouse and dependent child if there is a death and up to 18 months for the employee.
The state’s mini-COBRA law covers companies with fewer than 20 employees and extends coverage to 36 months. Unmarried children to age 29 covered under the parents' group insurance policy are also covered.
Consult an Employment and Labor Law Attorney
This is introduction to state employment laws should be complemented by consulting with an employment attorney. States laws vary and are more complex than presented here. Consult a New York employment attorney if you have concerns regarding employment laws that affect you.