Effective December 31, 2018, the minimum salaries to be exempt from overtime under New York State law under the executive and administrative exemptions were increased to the following amounts:
- Large Employers in New York City with 11 or more employees: $1,125.00 per week
- Small Employers in New York City with 10 or fewer employees: $1,012.50 per week
- Employers in Nassau, Suffolk, and Westchester counties: $900.00 per week
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $832.00 per week
New York does not have a different minimum salary for the professional exemption. So, the federal exemption, currently $455 per week, applies. Note: the federal Department of Labor is expected, in early 2019, to propose an increase in the minimum salary for the white collar exemptions to approximately $600 per week.
As you can plainly see, there are different numbers for New York City—a higher number for “large” employers (11 or more employees) and a lower number for “small” employers (10 or fewer employees). The question is whether all 11 employees must be in New York City for the employer to be a large employer. The answer is “No.” The enforcement position of the New York City Department of Labor is clear:
Any business that (1) employs one or more employees in New York City, and (2) has employed more than 10 employees at any time during the current or prior calendar year and among all worksites. The employer must pay the Large Employer minimum wage rate to any employee who works within New York City during the current calendar year.
That means if you have 200 employees in a state other than New York and only 1 employee in New York City, that one New York City employee is the employee of a large employer, and he or she must be paid the higher minimum salary to qualify for the executive or administrative exemption.
“Large” employers with any employees in New York City also must pay a higher minimum wage to their employees in New York City.
Granted, this blog is not large in terms of excitement. But the potential liability could be large if an employer misinterprets the definition of small employers for purposes of either the minimum salary or the minimum wage.
For more information, check out: https://www.labor.ny.gov/formsdocs/wp/CR142.pdf.
This blog should not be construed as legal advice or as pertaining to specific factual situations.