Keith Markel and Alana Mildner Smolow Discuss Latest Court Rulings in Pay Frequency Litigation in New York Law Journal

Labor & Employment Partner & Co-Chair Keith Markel and Associate Alana Mildner co-authored a New York Law Journal (NYLJ) article entitled “The Future of Pay Frequency Litigation in NY: A 'Grant' to Employers?” The article discussed changes in the legal landscape since the authors wrote about the uptick in pay frequency litigation for NYLJ last year.

In their September 2023 article, the authors discussed how the decision in Vega v. CM & Associates Construction Management, in which the Court found a private right of action for employees to challenge pay frequency under New York Labor Law (NYLL), sparked a rise in litigation brought by retail employees who alleged that they were “underpaid” when they received their paychecks on a bi-weekly instead of weekly basis.

However, on January 17, 2024, the Appellate Division Second Department issued a decision in Grant v. Global Aircraft Dispatch that contradicts the Appellate Division First Department’s 2019 decision in Vega. The Second Department found that there is no private right of action under NYLL for a manual worker who is paid their full wages on a bi-weekly basis. The Court noted that Mr. Grant and others in the putative class were not entitled to damages because they were admittedly paid their full wages on regular bi-weekly paydays, and thus there was no “underpayment” entitling them to relief under NYLL.

Several bills have been introduced in the New York State Legislature aiming to curtail pay frequency litigation, yet it remains to be seen whether any of these bills or proposals will become law. However, “as was the case before Grant, without any ruling from the Court of Appeals or legislative changes to NYLL, pay frequency litigation will surely continue to rise,” the authors concluded.  

Law.com subscribers may read the full article here.