The 411 on the Spread of Hours Pay Rule in New York

If Your Time is Short

Spread of hours pay is an exclusive New York rule in which employers are required to pay out additional money to their employees under certain circumstances.

Essentially, every non-exempt employee in the state of New York is entitled to an extra hour of pay at the minimum wage rate ($13-15) when their shift “spread” exceeds 10 hours.

This means if your employee worked from 9am to 10am, then came back at 7pm til 9pm, in total you would owe them for four total hours of work, so a minimum of $52. There are many exceptions and extenuating circumstances for this rule that we will explore further in the section below.

The Deep Dive

The Basics

State law has made it mandatory for employers to pay for an additional hour at the minimum wage rate for any spread of hours that exceeds 10.

It is important to note that you MUST include meals and break time in the spread of hours count. This means if your employee starts their shift at 9am, stops at 2pm, eats lunch for an hour, then comes back at 5pm and leaves at 7:01pm, they are entitled to an additional hour of pay at the minimum wage rate.

This is because the spread of hours from 9am to 7:01pm just exceeds 10 hours. Note that even though the employee was at lunch from 2pm to 3pm, and not working from 3pm to 5pm, they will still qualify for spread of hours pay.

The good news is, you’ll never have to pay for more than one hour at the minimum wage for a single shift from a single employee per day. However, other factors such as overtime, and exempt employees further complicate this process.

Exempt Employees and Factoring in Overtime

Good news first you say? Alright, well what is nice about the New York spread of hours rule is that you don’t have to factor in this rule when it comes to paying overtime. The rule is not actually paying for labor itself, simply compensation in exchange for an employee who must remain work ready on any given day, even if they are not actually working.

This law exists to prevent employer abuses of their employee’s time. That being said, there are some employees of yours that could be exempt from this rule. Generally, the FLSA considers an employee exempt when:

Salaried – Being a salaried employee is not immediate grounds for exemption. To be exempt, typically an employee must be paid at least $455 a week on a salary basis, and perform job duties considered exempt.

Executive Duties – Typically employees that perform “executive duties” are exempt, provided they make over a certain amount AND are salaried. Typically, an executive duty is defined as:

Regularly supervising two or more employees
Tasked with management as a primary duty
Has authority to hire, fire, promote, assign work

It is vital that an exempt executive role has management as a primary task. The FLSA defines management tasks as the following:

Interviewing, choosing, and training employees
Provide security for the workplace
Budget planning
Delegating tasks to employees
Assessing employee productivity
Setting rates and hours of pay
Inventory and deployment/assignment of equipment

These are only a few general managerial tasks, and each executive role can be subject to a case-by-case evaluation.

Learned Professions – Professions that require extensive training are typically exempt employees. These include:

Architects
Clergy
Engineers
Accountants
Lawyers
Actuaries
Scientists
Pharmacists
Teachers
Dentists
Doctors
Lawyers

Note that these are general employee exemption rules, and all are subject to examination. It is best to be certain whether your employee is exempt by speaking to a professional, as failure to abide by these rules can result in civil and criminal penalties that can include jail time, and up to $10,000 in fees per violation.