Keith Markel and Alana Mildner Discuss Pay Frequency Litigation and Whether Retail Salespeople Should Be Considered “Manual Workers”

Labor & Employment Partner & Co-Chair Keith Markel and Associate Alana Mildner co-authored an article for New York Law Journal entitled “Is a Retail Salesperson Really a ‘Manual Worker’?” which discussed the rise of pay frequency litigation in New York, particularly within the retail industry, and the question of what constitutes a manual worker. Since manual workers are entitled to be paid on a weekly basis pursuant to New York Labor Law, retail employees are asking courts to consider them manual workers, even if their jobs involve primarily clerical work, which would allow employers to pay them on a bi-weekly or semi-monthly basis.

The article addressed how the recent spate of court cases stems from a 2019 decision of the New York Appellate Division First Department, Vega v. CM & Associates Construction Management, which found a private right of action for employees to bring lawsuits challenging the frequency of their pay. The authors wrote, “Since then, dozens of cases have been filed, in which employees and retailers strenuously disagree over what constitutes ‘manual’ work under New York Labor Law.” While New York Labor Law says that a manual worker is one who spends more than 25% of their time performing “physical labor,” employers and employees may disagree over what that constitutes and how much time is spent performing “physical labor.”

The authors cited several instances where courts have been faced with questions regarding manual work, going back to a 1915 decision, People ex rel. Mitchell v. Interborough Rapid Transit Co, which determined that bookkeepers, accountants and civil engineers at the railroad were undoubtedly clerical workers, and including a 1997 case that determined that IKEA workers whose job duties were primarily manual with occasional customer assistance, were indeed manual workers entitled to weekly paychecks. 

In order to avoid debate, the authors suggested that retailers with over 1,000 employees in New York can apply to the NY DOL for authorization to pay manual workers on a bi-weekly basis. Several large retailers, including Abercrombie & Fitch, Coach and Nordstrom, have received such permission.

“Until there is greater clarity from the courts or the legislature, retailers should continue to be vigilant about the amount of physical labor their employees perform and consult with their counsel to adjust their pay frequency practices accordingly. At least for now, however, much to the frustration of employers, it appears that pay frequency litigation is a fashion trend in New York that does not appear to be going out of style anytime soon,” the authors concluded.  

A PDF of the article appears below and is available here for Law.com subscribers.