NY Labor Law

Unless a union contract or other binding document says otherwise, an employee can ALWAYS be converted from “salaried” (meaning they get paid an incrementally doled out annual salary) to “hourly” (meaning they get paid by the hour).

Employees should never be paid less than the applicable minimum wage unless there is a rock-solid reason to declare them exempt from both minimum wage and overtime laws. So long as an employer is keeping accurate payroll records and paying employees in a timely manner, anyone (whether attorneys, librarians, or dentists) can be paid hourly, so long as they are being paid whatever minimum wage applies.

Okay, thanks for a great question! I—wait, you have a follow-up?

Wow. That sounds so simple! So, what is the big deal about “exempt professionals” and such?

Oh, wow. That’s a much bigger question. I could write a book on that.

But I’ll boil it down to seven short paragraphs:

Depending on their duties and salary, some librarians, museum curators and other highly educated employees can be considered “learned professionals,” “professionals,” “executives,” or “administrators” under federal and state labor laws.

Because some librarian job descriptions and rates of compensation can fall into these categories, there is a myth that ALL of them do. This is simply not true; in New York State, the only way a position can fall into the “exempt” category is for it to meet the requirements for exemption under applicable federal regulations AND applicable state regulations.

The confusion about “professionals” being exempt is not made easier by the fact that the federal government uses the categories “creative professional” and “learned professional” (which both have a minimum salary of $684 dollars per week), while the state government has just one “professional” category (which does not have a salary requirement). Under state law, the work of professional employees must be “of such a character that output produced or the result accomplished cannot be standardized in relation to a given period of time.”

In other words, if a library director is required to be on site for certain hours (say, to open or close the library), the director is not an exempt professional, because an aspect of their work can be “standardized in relation to a given period of time.” This means that such a director could fall into the “executive” or “administrative” category, which both have minimum salaries (at least $1,161.65 per week on and after January 1, 2025, or more for downstate counties).

This baseline salary requirement is why some libraries (especially association libraries) may want to consider paying some librarians hourly, rather than considering them exempt from minimum wage laws.

I appreciate why this might sound-counterintuitive; practically speaking, librarians are without question “professionals,” and librarianship is without question a “profession.” However, as shown above, being a professional doesn’t mean a librarian’s job description will match up with an exempt category under state or federal regulations.

What all this “exempt” and “non-exempt” business is about, at the end of the day, is fairness. If an employee is being compensated fairly (meaning that the money is in line with what people doing similar work under similar circumstances are earning), being paid hourly because your job description doesn't qualify as a professional exempt from minimum wage and overtime laws (state or federal) can be a good thing. It means you cannot be required to work more than 40 hours a week without being paid overtime,[1] which helps set boundaries for a job that truly can never be “done.” Our value is not set by our Department of Labor status.

Thank you for a great question.

As used in this article:

1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis.  The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.  The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.

First things first: as private entities (much like private colleges or historical societies) association public libraries in New York are without question subject to both state and federal laws governing minimum wage and overtime, as well as other worker protections that apply to private entities.

So, if you are reading this from the perspective of an association library:

• Your library MUST pay hourly workers at least the state minimum wage;
• Your library MUST provide (paid or unpaid) sick leave as required by law;
• Your library MUST pay time-and-a-half (“overtime”) for any hours over 40 in a standard workweek;
• Your library MUST offer Paid Family Medical Leave; and
• Your library MUST disclose the pay range and duties along with published opportunities for hiring and promotion.

Okay. With that out of the way, we’ll handle the slightly more awkward part of this question: do non-association public libraries have to pay state minimum wage?

The answer is tricky. Non-association public libraries[1] are subject to many state and federal laws, but New York Labor Law Article 19, which controls minimum wage, specifically exempts employees of a “municipal government or political subdivision thereof.”[2] It also exempts school district employees (except “non-teaching” employees).[3]

So, the question really is: Is a non-association public library a “municipal government or political subdivision thereof” under Article 19 of the Labor Law (and thus exempt from state minimum wage)?

The law, regulations, case law, and agency[4] guidance are all SILENT AS THE GRAVE as to this question. Scour as I might, I have not found a definitive answer.[5]

More frustratingly, I suspect the answer could vary from library type to library type.

The reason why is summarized in the 2014 case Tongring v. Bronx Cmty. College of the City Univ. of N.Y.:

Although there is no provided definition for “political subdivision,” New York courts engage in a “particularized inquiry into the nature of the [organization] and the statute claimed to be applicable to it” … “to determine whether—for the specific purpose at issue—the public benefit corporation … perform[s] an essential government function … [and therefore] should be treated like the State… ([the] court must consider “the nature of the employing organization” in determining whether an entity is a political subdivision under the New York Labor Law).

How “particularized” does this “inquiry” get? In 2021, in Matter of Executive Cleaning Servs. Corp. v New York State Dept. of Labor, the State Department of Labor argued that a public library was a “political subdivision”, and thus the cleaning company they contracted with had to pay the prevailing wage for the services. Ruling against the Department of Labor, the Court wrote:

The library at issue undoubtedly performs a public function and is closely intertwined with the school district that it serves, but it is not itself “a municipal corporation, school district, district corporation [or] board of cooperative educational services”—the entities that are considered to be “[p]olitical subdivision[s]” of the state for purposes of public contracts (General Municipal Law § 100 [1]; see General Construction Law § 66 [2]).

...

Consequently, we hold that the library at issue is not a public agency within the meaning of Labor Law § 230 (3).

Now, does not being a political subdivision “for the purposes of public contracts” mean a library is not a political subdivision for purposes of Labor Law Article 19?

NO.

Is either Tongring v. Bronx Cmty. College, or Matter of Executive Cleaning Servs., directly applicable to this issue?

NO.

Is there any clear authority on this issue anywhere?

NO.

Because of this dearth of guidance, I have to answer that it is wise not to rule out the application of New York State Labor Law Article 19 unless an attorney retained by a particular library reviews the specific position of that particular library and offers a very particular written opinion advising otherwise.[6] When generating the opinion, the lawyer should consider the library’s “type” as well as the other aspects of the state Labor Law that apply to that library (or don’t apply).

Of course, I wish I could give a more definitive answer. But without more to work with from case law and enforcement guidance, I must urge caution.

Thank you for a frustrating but important question

The "Prevailing Wage Rate" (or "PWR") is a pay equity concept found in Article 8 and Article 9 of the New York State Labor Law.

Article 8 addresses PWR in construction contracts.

Article 9 addresses PWR in service contracts.

Both articles require that workers on projects falling under the law be paid wages and benefits at least equal to those paid on private projects in the local area (or, as the law phrases it, the "prevailing wage").

Now, here's why (I think) the member had to submit the question.  Since both Article 8 and Article 9 deal with prevailing wage, one would think they apply to the same type of projects.

But the Labor Law—like its friends the Public Officers Law and the Education Law—has no problem casting a variably wide net over who falls under its different sections and sub-sections.[1] 

So, projects governed by Article 8 (construction) won't necessarily be governed under Article 9 (services).

For libraries, this distinction got a lot clearer on January 28th, 2021, with the ruling in the case Matter of Executive Cleaning Services v. NYS Department of Labor.[2]

While ostensibly about a fight over $16,671.57 dollars (plus 6% interest) in alleged wage underpayment by a cleaning service hired by the Ossining Public Library,[3] the ruling is really about the Article 8–Article 9 distinction, and how an entity covered by one might not be covered by the other.

Because the decision turns on the nature of a public library (in the case of Ossining, a school district public library), Executive Cleaning is also a great primer on the chimerical nature of libraries under the law.  If you are ready to hang on for some legal jargon, the case does a great job of laying out how a library can fit under one law but not another.[4]

So, with all that as background, what is the answer to the member's question: Are public library systems and public libraries (association, municipal, special district, school district) required to pay prevailing wage?

Contractors working for association libraries are only required by law to pay the PWR for either construction or service if they are using grant money that requires it.

Contractors working for special district, school district, and municipal public libraries only have to pay the PWR for "construction-like labor."

Of course, a library—of any type—can decide to require contractors to pay PWR for just about anything.  A requirement like that can be included in an RFP, procurement policy, or vendor contract rider.

To address the rest of the questions:

How does one know if a contract is signed with a vendor - and that vendor decides to subcontract?

Any contract for "construction-like labor" for a non-association library should require that PWR and other requirements of the primary contract apply to any subcontract.  While that doesn't guarantee the contractor (or subcontractor) will do the right thing, it at least requires them to do it and to pass the obligation to any subcontractors.

Is it dependent upon the 501 (C) status?

I have learned in this business to "never say never," but the IRS status is not determinative of whether an organization falls under Article 8 or Article 9 of the Labor Law.

And now, for some gratuitous commentary.

I have heard many people comment that a commitment to paying the PWR is regarded as a gold standard of economic justice.

However, for an association library that is not obligated to pay the PWR,[5] it is wise to remember that there can be other ways to assure equitable compensation for those who might be working on a project.

What is important, when in the early planning stages of a project, is to identify how an association library will live up to its stated values with respect to conditions for workers on the job.  While one option is certainly to require all contractors to pay the PWR, but there may be other options on the table.[6]

This same notion applies to ALL libraries when it comes to what types of worker conditions to include in service contracts not subject to PWR requirements. If a library decides to not require a contractor (and all subcontractors) to pay the PWR, it can still use its bargaining power to ensure workers providing services to the library are paid a living wage, have a certain level of benefits, and are afforded other considerations.[7]

If a library board finds it to be in the best interests of the library, a commitment of this nature should be included in the library's procurement policy, after which it can be baked into every phase of the contract process from start to finish.

Thank you for an excellent array of questions.

Great questions!

Let's tackle[1] them:

Is this true?

Yes.  If you would like to look up the text of the law, which went into effect on November 13th, 2023, you can find it here: https://www.nysenate.gov/legislation/laws/LAB/590.

Does this new law really apply to ALL employers in New York (even a town or village public library)?

Yes.  Unlike other sections of the Labor Law, which sometimes define "employer" in a way that can exclude certain public libraries, the new Section 590(2) is part of Article 18 (“Unemployment Insurance Law”) of the Labor Law; Article 18 applies to ALL employers in New York State, even government entities.

Does this new law apply even if the employee is resigning or retiring?

Yes.  It also applies of the employee was on a contract that expired, was on a grant that ran out, was a seasonal employee, or any of a number of other reasons why a person who once has a job no longer has a job.[2]  Basically, if an employee is no longer an employee, or if an employee's hours have been cut to below 30, the notice must be provided.

Does this new law apply to no-show employees, those who requested to work less hours, or others who may have abandoned their employment?

Yes.  Even when an employee quits by attrition, asks to work below 30 hours a week, or goes away on vacation and never comes back,[3] an employer must determine what date is the date they were "separated" from employment, or the effective date of the reduction, and give the required notice.

Is there a form for this notice?

Yes!

The New York Department of Labor's newly revised "Record of Employment" form can be found at https://dol.ny.gov/system/files/documents/2023/11/ia12.3_0.pdf.

When does this notice have to be provided?

The new law requires employers to provide the notice "upon separation."  The DOL form's instructions say to "give this form to anyone who is permanently, indefinitely, or temporarily laid off; discharged; quits; or has their hours reduced to 30 or less each week"—with no mention of precise timing.

For that reason, until there is further guidance, the notice must be given as soon as possible.

For those whose status change is easy to pinpoint (for instance, when an employer tells an employee their job has been eliminated), the completed form should be given at the same time as the notice of termination. 

For slightly less definitive situations—such as when an employee fails to show up but doesn't call or quit—the completed form should be mailed[4] as soon as the failure to show up is converted to a termination.

This means a few things:

First, it means that if an employer has been a bit loosey-goosey[5] about when people are "separated from employment",[6] they need to tighten things up going forward.

Second, it means that if a public library has been a bit unclear on who provides the unemployment insurance (the library? … the municipality?), clarity on that topic must be achieved (and demonstrated via the "Record of Employment" form).

Third, for those employers who maintain a checklist of items to do when an employee is "separated from employment" (return keys, terminate passwords, update website and social media access, etc.), the "Record of Employment" form can be a new item on the "to-do" list.

Fourth, for those employers who must follow Labor Law Section 195(6),[7] your organization is already obligated to confirm separation of employment in writing within 5 days of the date of termination.  For employers obligated to provide this "195(6) letter", the "Record of Employment form" information regarding the last date of employment should be consistent with the information in the 195(6) letter.[8] 

Why was this law passed?

When considering this law, the New York State Assembly wrote in the legislative memo:

Many workers, when laid off or subject to a reduction in working hours, do not realize they are eligible for unemployment assistance.  Particularly in the case of partial unemployment assistance there is a lack of awareness about eligibility. To compound this issue, employers are disincentivized from informing their employees about eligibility because their unemployment insurance payments may increase when employees or former employees file for unemployment assistance. In the wake of catastrophic job losses caused by the COVID-19 pandemic, it has become clearer than ever that underemployed workers need robust public support mechanisms to weather an economic storm.  By requiring employers to inform employees who are laid off, or who have had their hours reduced, of their potential eligibility for unemployment assistance, this bill bestows on workers better awareness of their rights and options for supporting themselves and their families when they need it the most.

In other words: people entitled to benefits didn't know they could get them.  This new notice requirement is to make sure such people are aware and are able to timely apply.

Is there a model policy for this law?

Employers do not have to have a written policy to comply with the law, but for those who want to adopt a policy to help assure compliance, here is a template[9] to work from:

Policy

To document compliance with Labor Law Section 590(2), it is the policy of the INSERT NAME to immediately provide each former employee with a completed "Record of Employment" (as such form is maintained by the New York Department of Labor) upon:

• Notice of termination
• Confirmation of separation from employment due to retirement
• Termination due to abandonment of the job by the employee ("no-show")
• Voluntary resignation
• Reduction of hours to less than 30 per week

Such documentation shall be as contemporaneous with the separation of employment or reduction of hours as possible, but in no event shall it be later than five (5) days after the last date of employment or effective date of the reduction.

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

[1] Of course, "policy" is also used in other ways in the employment context.  A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions).  Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.). 

Huh.  I have never thought about it before now, but we should really develop some more refined terms for different "policies."

[2] New York Labor Law 201-g

[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)

[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars." 

[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.

[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.

[7] For more on the HERO Act, see "Ask the Lawyer" RAQ here: NY Hero Act and libraries.

The letters in the "NY HERO Act" stand for "Health and Essential Rights."[1]

What "essential rights" does it protect? 

• Section one of the HERO Act amends the New York Labor Law to create an "airborne infectious disease standard" covering all private employers.  The standard requires many things that will sound familiar: health checks, sanitization practices, and other preventative measure when there is a declared risk of airborne disease.
• Section two of the HERO Act amends the New York Labor Law to create joint employer-employee "workplace health and safety committees" (where there are 10 or more employees), so workers can collaborate and be involved in safety initiatives.

The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health.  This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.[2]

Which brings us to the question: What types of libraries must comply?

We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply. 

For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

That sounds simple, right?  They should be exempt.  After all, libraries are considered, in some contexts, nigh-governmental entities.

But as many know, a public library's status as "governmental" ebbs and flows.

Here are just two recent examples:

Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities).  So: a governmental entity.

Example #2: A noteworthy new case[3] from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."[4]  In other works:  not a governmental entity.

So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does.  And certainly, we have no case law yet.  That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.

Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:

1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;

AND

2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."

The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).

Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic,[5] a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health."[6]  By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.

Thank you for an important question.

[1] What about the "O?"  I double-checked the bills in both the State Senate and Assembly and apparently, it's just a bonus letter (I guess the "HER" act would imply only women get clean air).

[2] The NYS Department of Labor, as of July 12, 2021, states: "Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect."

[3]  (Matter of Exec. Cleaning Servs. Corp. v NY State Dept. of Labor, 193 AD3d 13 [3d Dept 2021])

[4] Contrast this with the definition of who’s in/excluded from the HERO Act: "'Employer' shall mean any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual in any occupation, industry, trade, business, or service. The term shall not include the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

[5] I know, my stomach turned a bit when I typed the phrase "next pandemic."  But no point putting our heads in the sand.

[6] From the requirements summarized in the NYS Department of Health guidance here: https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-infectious-disease-exposure-prevention-standard-v4.pdf.