Introduction to the Federal and New York State Wage and Hour Laws

By Clifford Tucker

The Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) are important labor laws that establish the minimum standards for wages, working hours, overtime pay, and other labor practices. The FLSA is a federal law that applies throughout the United States and the NYLL is a state law that applies in the state of New York. Although the two laws share some similarities, there are several practical differences between them. Counsel can help employees recover damages and help employers avoid litigation by understanding the requirements.

The identification of the employers to be named as defendants is a critical first step for plaintiffs. The FLSA and NYLL define terms like “employee” and “employer” broadly, covering some parties who might not qualify as such under traditional agency law principles. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). “Employer” is defined similarly in the FLSA and NYLL, and “employee” is defined nearly identically. Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 922 (S.D.N.Y. 2013) (citing 29 U.S.C. § 203; N.Y. Lab. Law § 190). To identify “employers,” courts are directed to the “economic reality” rather than “technical concepts” and usually consider four nonexclusive and overlapping factors: (1) the power to hire and fire employees, (2) supervision and control over employee work schedules or conditions of employment, (3) determination of the rate and method of payment, and (4) maintenance of employment records. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Employer-defendants can include owners, principals, and managers in their individual capacity, and an emplyee may simultaneously have multiple “employers” for the purposes of the FLSA and NYLL. Martin v. Sprint United Mgmt. Co., 273 F. Supp. 3d 404, 421 (S.D.N.Y. 2017).

Jurisdiction is another important consideration wage and hour cases. The FLSA covers employees who are either “engaged in commerce” (individual coverage) or “employed in an enterprise engaged in commerce” (enterprise coverage). 29 U.S.C. § 206; 29 U.S.C. § 207. For individual coverage, a substantial part of the employee’s work must relate to interstate commerce, such as communicating regularly with out-of-state customers, using the telephone and mail to engage in interstate communication, or regularly traveling across state lines while working. 29 C.F.R. § 779.103; Bowrin v. Cath. Guardian Soc., 417 F. Supp. 2d 449 (S.D.N.Y. 2006). For enterprise coverage, the employer must have a gross volume of sales or business done of at least $500,000 and engage in interstate commerce. 29 U.S.C. § 203. Virtually every enterprise in the nation that does the required dollar volume of business is covered by the FLSA. Archie v. Grand Cent. P’ship, Inc., 997 F. Supp. 504, 530 (S.D.N.Y. 1998). If an employee is covered by the FLSA, they may bring both federal and state claims in one federal action. 28 U.S.C. § 1331; 28 U.S.C. § 1367.

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Loss of Wage Earning Capacity

By William Turley, Esq. 

Loss of wage earning capacity, or LWEC, is a determination made by the Workers’ Compensation Board in cases where a worker has a permanent partial injury as a result of his or her work-related injury. It is meant to show how the permanent injury affects the injured worker’s ability to earn a living. It applies to certain types of permanent injuries, typically those involving the spine, head, pulmonary and cardiac systems. It can also be applied in cases of psychiatric disability, as well as certain types of extremity injuries (hands, feet, arms and legs), usually those involving complex nerve damage. The percentage of loss of wage earning capacity fixed by the Workers’ Compensation Board determines how far into the future an injured worker may receive weekly cash benefits before they run out (anywhere from four to ten years). In cases where an injured worker is found to be permanently totally disabled (100% loss of wage earning capacity) the cash benefits are paid for the remainder of the injured workers’ life.

When determining loss of wage earning capacity, the Workers’ Compensation Board will review the injured worker’s medical records to see what permanent physical damage was caused by the work-related injury. They will also look into the vocational background of the injured worker and consider factors such as age, level of education, specialized training, military service and work history. In addition, the Board will consider the injured worker’s ability to read, write and speak English.

To understand how this works, compare two injured workers with severe back injuries. Both workers are in their fifties and have the exact same back problem. However, one is a white-collar professional with a college degree and the other is a blue-collar construction laborer with a GED. Although the white -collar worker is in pain much of the time, he has a “sit down” job which requires little or no physical effort. Despite the pain, he can still do his job. The blue-collar worker has a very physical job and it is nearly impossible for him to work as a construction laborer given his back problem. So, who has the greater loss of wage earning capacity? Clearly, the blue collar worker. The back problem is severe for both workers, but for the laborer, it has a big impact on his ability to earn a living. By contrast, it may have little or even no impact on the white collar professional’s ability to earn a living.

Why Do I Have to Wait For Benefits?

Erin McCabe, Esq.

If you are injured on the job in New York the workers compensation insurance carrier is required to pay for lost earnings that are related to the disability, but you may not receive benefits immediately.   No compensation is payable to the injured worker for the first seven calendar days when they are disabled.  After the seventh day, the carrier is responsible for payment.  If the injury keeps the injured worker out of work for fourteen days or more, then the injured worker will be entitled to receive payments back to the first day out of work due to the disability.  The law requires that the first payment to the injured worker due to the disability is to be mailed on or before the 18th day of disability or within ten days after the employer has knowledge of the accident, whichever is later.

Why the delay in payments?  To eliminate the carrier having to make payment on cases with little lost time and potentially minor injuries.

It is possible that your employer may pay you when you begin to lose time from work regardless of the waiting period.  However, that is at the employer’s discretion, or per your contract with the employer.  You may be able to use your own paid time off if it is permitted by your employer or by contract.  However, if you use any accumulated sick or paid time off you may not receive it back.  The employer would have to request reimbursement from the insurance carrier for any money paid to you.  If the employer does not request reimbursement, you will not recover your time.

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Form Over Substance - The Claimant Speaks

By Daniel Elias, Esq. 

I was injured on the job and I have a Worker’s Compensation Claim.  I am a woman who is over 60 and I suffered a bad fall at work.  The Worker’s Compensation process has been very frustrating for me.  The Board has decided that form is more important than substance and it nearly derailed my claim.   

Several months ago, I attended a hearing.  I was supposed to produce medical reports of permanency from my doctors.  I and my attorneys contacted the offices and arranged for appointments.  We had all but one.  On the last day before the hearing I was able to get the needed form from my orthopedist.   I thought I was good.  When we went to the hearing, the Law Judge pointed out that the doctor had only sent the first and third pages of the C – 4.3 medical form.  This was the only doctor who was treating my Knees that had been injured.   The Insurance company representative was not even complaining!  But the Law Judge decided that the report did not comply with the form and therefore the doctor would be precluded from testifying regarding my permanent condition. 

What was the rush? We were setting it down for deposition testimony of three other doctors and weren’t coming back to Court for over 2 months.   My Lawyer asked the Judge to let my orthopedist testify if the 2nd page was produced within a few days.  The senior law judge said “NO”!    I got the missing page and it was filed with the Board within 2 days.  What good is an old woman who can’t walk?  Wouldn’t the judge want to know the status of my knees in determining my disability?

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Attachment to the Labor Market

By Erin McCabe, Esq. 

If your doctor finds that you have a 100% disability under the Workers’ Compensation Law then you have no obligation to look for work and are entitled to monetary benefits.  The moment your degree of disability falls below 100% in order to continue to be “attached to the labor market” and entitled to benefits, you have an obligation to show a good faith effort to find employment and to look for work within your medical restrictions.

Pursuant to case law attachment to the labor market can be demonstrated by credible documented evidence showing that you are actively seeking work within your medical restrictions through one or more of the following methods of seeking employment:


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By William Turley, Esq.

There are over 30 different forms used in the New York State Workers’ Compensation system. Some are fairly simple and straightforward while others are quite complicated and require the expertise of an attorney or claims professional. Here is a short list of forms which every injured worker should be familiar with. All of these forms are available on the New York State Workers’ Compensation Board website:


This is the form that every injured worker should complete and submit to the New York State Workers’ Compensation Board immediately after his or her injury, even though the law says that you have two years from the date of accident to file. It covers all of the basic details about your claim: your information, your employer’s information, your salary, accident description (when, where, what and how), parts of the body injured, how and when your employer was notified, time lost from work, medical treatment and prior injuries. After completing the form it can be filed electronically (online), by fax, by  mail or by personal delivery to a local office of the Workers’ Compensation Board. Always keep a copy and make sure to get some kind of proof that you filed; an email or fax delivery confirmation or a stamped copy from the Workers’ Compensation Board.

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