As some New York employers are aware, New York Labor Law (“NYLL”) Section 191 requires that “manual workers” be paid on a weekly basis. Manual workers have been defined as individuals who spend more than 25% of working time engaged in physical labor, and physical labor has been interpreted broadly to include countless physical tasks performed by employees, so the definition is broader than one might think.
There is currently a split of authority among state and federal courts in New York regarding whether liquidated damages are available to manual workers who are paid bi-weekly or semi-monthly rather than weekly.
Following the First Department of the Appellate Division’s decision in Vega v. CM & Assoc. Constr. Mgt., LLC, which held that liquidated damages are available, federal courts in the Second Circuit were bound by Vega because principles of federal law required them to follow the decision in the absence of persuasive data that New York’s high court, the Court of Appeals, would rule differently. However, earlier this year, the Second Department of the Appellate Division held that such damages were not available in Grant v. Glob. Aircraft Dispatch, Inc., opening the door for courts to rule either way.
Until last week, only one court in the Second Circuit had thus far followed Grant instead of Vega. However, in a welcome development for employers, on July 31, in Espinal v. Sephora USA, Inc., a magistrate judge in the Southern District of New York held that a violation of the requirement to pay manual workers weekly under NYLL Sec. 191 does not give rise to a claim for liquidated damages where payment of all wages due is made bi-weekly instead.
We will, of course, continue to monitor decisions in this area until the split of authority is resolved.