By: Ty Hyderally, Esq. and Lorena Meza

New York Labor Law (“NYLL”) §191(1), governs the frequency of pay of certain workers, such as manual workers, railroad workers, commissioned salespeople, and clerical and other workers. NLLL §191(1)(a), mandates that employers pay manual weekly and not later than seven calendar days after the end of the week in which the wages are earned, unless the Commissioner of Labor has authorized the employer to pay its employees in a different frequency, or if the employer is a non-profitmaking organization.

Numerous law firms brought significant class actions contending that the employer was not paying its employees in the correct frequency.  These “frequency of pay” class actions was very much on the rise over the past several years.  However, in a significant development for New York employers, a new Appellate Court decision is likely to sharply reduce the “frequency of pay” class actions brought by manual workers who are not paid every week. The New York Department of Labor defines a “manual worker” as an employee who spends at least 25% of their work time performing physical labor.

In Grant v. Global Aircraft Dispatch Inc., Docket No:2021-03202, the Appellate Division, Second Judicial Department (the “Second Department”), took up a Queens, New York Supreme Court case, where the court dismissed the putative class action’s claim as to a violation of NYLL §191(1)(a).  In this case, the plaintiff alleged that he and others were paid biweekly as opposed to weekly.  The plaintiff claimed a violation of §191(1)(a) and sought liquidated damages, prejudgment interest, and attorneys’ fees.  The Defendant moved to dismiss the claim and contended that no private right of action existed for a claimed violation of NYLL §191(1)(a). The Second Department discussed the historical import of NYLL §191(1)(a), with regard to employees needing to get paid in a timely manner but also discussed that the initial penalties for violations were de minimis penalties as well as a criminal misdemeanor. The court then reviewed the statute to determine whether a private right of action existed under the statute.

The plaintiff admitted that NYLL §191(1) did not expressly allow for a private right of action but argued that because a private right of action existed under NYLL §198, the putative class should be allowed to move forward with its claims in court, for the damages sought, for a violation of NYLL §191(1)(a).  NYLL §198(1-a) allows for the Commissioner of Labor to advance a claim on behalf of aggrieved employees who are not paid their proper wages.  In such an action, the employee can recover unpaid wages, reasonable attorneys’ fees and costs, prejudgment interest, and the possibility of liquidated damages in the amount equal to 100% of the unpaid wages. In Vega v. CM & Assoc. Constr. Mgt., LLC (175 AD3d 1144), the Appellate Division, First Department (“First Department”) ruled that NYLL §198(1-a) not only covered the underpayment of wages, but also the timeliness of payment of wages. In essence the Vega court determined that if an employee was not paid their full wages in a timely fashion, it equated to an underpayment of wages.  Thus, the First Department concluded that NYLL §198(1-a) provided for a party to pursue a private claim under NYLL §191(1)(a).

Unfortunately for the putative class action in Grant, supra, the Second Department held that NYLL §198(1-a) only applied to the non-payment and underpayment of wages. The court ruled that the statute did not apply to the frequency of pay, and thus declined to follow the First Department. The Second Department did a deep dive into the legislative history behind NYLL §191(1)(a) and noted the distinctions between this statute and NYLL §198(1-a), in support of its ultimate conclusion that the court below had properly dismissed the putative class action’s claim with regard to NYLL §191(1)(a). The decision was a split decision with 3 judges supporting the ultimate finding and 1 judge dissenting.  However, it is noteworthy that the dissenting opinion, which is extremely well drafted, declined to allow for the plaintiff to recover liquidated damages on behalf of the putative class members but allowed for him to recover interest on behalf of the class.

So where do these two contrary decisions leave us. For the time being, it appears that if you are pursuing a claim in the First Judicial Department, which covers New York County and Bronx County, you can pursue a private claim to a violation of NYLL §191(1)(a). If, on the other hand, you are pursuing a claim in the Second Judicial Department, which covers Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam County, you cannot pursue a private claim to a violation of NYLL §191(1)(a). So, if you are a New York City plaintiff, you may want to consider staying clear of Brooklyn, Queens, and parts of Staten Island!!

One would hope that the New York Court of Appeals takes up this matter to resolve the conflict between the First and Second Judicial Department.

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