U.S. Department of Labor Rejects New York Law Regarding Wages Paid To Live-In Superintendents
On March 14, 2019, the U.S. Department of Labor (the “U.S. DOL”) issued an opinion that resolves a conflict between federal law and the New York Department of Labor Building Service Industry Minimum Wage Order (the “NY Wage Order”). Although U.S. DOL opinion letters are not binding law that courts must follow, courts often give great weight to the guidance set forth in them, and employers can rely on such guidance as a good faith defense to a wage claim arising under the Fair Labor Standards Act (the “FLSA”).
The NY Wage Order sets forth the regulations that control the payment of wages to persons employed in the building service industry, and it contains specific provisions that apply to live-in superintendents employed to work in residential buildings (i.e., cooperative, condominium and apartment buildings).
The NY Wage Order does not require the payment of a minimum hourly wage to live-in superintendents. Instead, the minimum wage is a weekly amount based upon the number of units in the building and a per unit rate, which varies depending upon the county in which the building is located. For example, the current weekly rate for Westchester County is $8.00 per-unit. In addition, under the NY Wage Order residential building superintendents are not entitled to overtime pay.
In its opinion the U.S. DOL stated that the minimum wage and overtime requirements set forth in the FLSA supersede the “per unit” minimum wage and overtime exemption contained in the NY Wage Order. Thus, based on the opinion, employers must provide overtime pay to superintendents, and pay the federal minimum wage of $7.25 per hour if the weekly pay at that rate exceeds the weekly pay based upon the per-unit rate required by the NY Wage Order.
The opinion addresses the difficult task of tracking the actual hours worked by live-in superintendents, who are generally “on-call” after business hours to address emergencies and other needed work. The opinion states that an employee who resides on the employer’s premises is not considered as working all the time he/she is there, and that normal private pursuits on the premises, such as eating, sleeping, entertaining and other periods of complete freedom from all duties, are not hours worked.
Finally, the DOL provided guidance as to how to address the difficulty of tracking a superintendent’s on-premises hours by citing to federal regulations, which provide that the employer and employee may establish a “reasonable agreement” that determines which hours on the premises are hours worked.