Liquidated Damages Pursuant to Section 191 of the New York Labor Law


Written by Marc Rapaport

New York Requires Weekly Payment of Wages to Manual Workers.

Section 191(1)(a)(i) of the New York Labor Law (NYLL) requires weekly payment of wages to manual workers.  The NYLL defines manual workers broadly. NYLL section 190(4) defines a “manual worker” as “a mechanic, workingman, or laborer.” The New York Department of Labor has long interpreted the term to include “employees who spend more than 25 percent of their working time performing physical labor.” Rankine v. Levi Strauss & Co., No. 22-CV-03362-LTS, 2023 U.S. Dist. LEXIS 89064, 2023 WL 3582323, at * 6 (S.D.N.Y. May 22, 2023) (quoting N.Y. Dep’t of Labor Opinion Letter, No. RO-09-0066 (May 21, 2009)).

If an employer in New York pays a manual worker bi-weekly (rather than weekly), the employer has violated the NYLL because the wages payable for the first week of each two-week pay period were paid late. Even in cases where workers have received their untimely paid wages prior to filing a lawsuit, federal and state courts in New York have held that the employee can file a claim for liquidated (double) damages in the amount of all wages that were paid late.

Background and History of New York’s Weekly Pay Requirement.

New York has long required employers to pay manual laborers on a weekly basis. In 1956, in a criminal case against an employer for nonpayment of wages, the court noted that the purpose of the weekly pay requirement was to “protect the manual worker who was dependent upon the ‘wages’ he received weekly for his existence. People ex rel. Gianotti v. Bloom, 7 Misc. 2d 1077, 1078, 167 N.Y.S.2d 179,181 (City Ct. 1957)(citing former NYLL § 196).  Today, the obligation of employers to pay manual workers on a weekly basis is enshrined in NYLL § 191(1)(a)(i), which states that manual workers must be “paid weekly and not later than seven calendar days after the end of the week in which wages are earned.”

However, until 2018, it was unclear whether the NYLL provided workers with the right (i.e., a private cause of action) to file a court proceeding to enforce their right to be paid on a weekly basis.  In a decision issued on May 14, 2018, in the case Vega v. CM & Assoc. Construction Management, LLC, the Bronx County Supreme Court (Hon. Ruben Franco, J.S.C.), the court held that the worker (and not only the Commissioner of Labor) could seek vindication of their rights.  Judge Franco stated that a private cause of action, allowing the worker to file their own lawsuit, “would promote [NYLL 191(1)(a)’s] legislative purpose, and would be consistent with the legislative intent of Labor Law Article 6.”

In 2019, Judge Franco’s decision in Vega was upheld on appeal by New York’s Appellate Division, First Department.  Vega v. CM & Associates Construction Management, LLC, 175 A.D.3d 1144 (1st Dep’t 2019).  In addition to upholding Judge Franco’s holding that manual workers had private causes of action to enforce their rights to weekly payment of wages, the Appellate Division specifically held that workers who were not paid on time could demand liquidated (i.e., double) damages, even if the workers had received the full amount of their wages prior to their filing of a lawsuit.  In reaching this conclusion, the Appellate Division looked to the U.S. Supreme Court’s interpretation of the NYLL’s federal counterpart, the Fair Labor Standards Act (FLSA).  The Appellate Division quoted the U.S. Supreme Court’s 1945 decision in the case Brooklyn Savings Bank v. O’Neill, 324 U.S. 697, 707 (1945), in which the Supreme Court held that when an employee has not been paid their minimum wages on time, the employee’s claim for liquidated (double) damages is not automatically mooted when an employer belatedly pays the past-due wages.

There was ample basis for the Appellate Court to rely on the Supreme Court’s interpretation of the FLSA as a guidepost in considering the availability of liquidated damages in untimely wage claims under the NYLL.  Courts in the Second Circuit have consistently held that the FLSA and NYLL have similar standards with respect to liquidated damages. For example, the Second Circuit Court of Appeals has stated, “[t]he NYLL and FLSA liquidated damages provisions are identical in all material respects, serve the same functions, and redress the same injuries.” Muhammed Chowdhury v. Hamza Express Food Corp., 666 Fed. Appx. 59, 61 (2d Cir.  2016).

Recent Untimely Pay Decisions.

Recently, judges in New York federal and state courts have consistently enforced the right of employees to receive liquidated (double) damages for late wages, even when the wages were subsequently paid. In other words, an employer does not cure their violation of the NYLL simply by paying the wages before a court case is filed.  On September 5, 2023, the Hon. Laura Taylor Swain (Chief United States District Judge, Southern District of New York), ruled:

An employer’s failure to timely pay wages to a manual worker entitles the employee “to recover the underpayment as liquidated damages.” Williams v. Miracle Mile Props. 2 LLC, No. 20-CV-3127-JS-ARL, 2022 U.S. Dist. LEXIS 19826, 2022 WL 1003854, at *9 (E.D.N.Y. Feb. 1, 2022). In other words, Plaintiffs are entitled to the total amount of late wages as liquidated damages.

Gumaneh v. Vilano Empl. Servs., 2023 U.S. Dist. LEXIS 156383, *19 (S.D.N.Y. Sept. 5, 2023).

The New York employment attorneys at Rapaport Law Firm are representing workers in multiple individual and class action wage lawsuits which seek liquidated damages for late payment of wages.  If you have questions about this article, please contact New York employment attorney Marc Rapaport, the founder and managing member of Rapaport Law Firm.

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