Keith Markel and Alana Mildner Smolow Discuss Pay Frequency Litigation for Luxury Brand Retailers in New York in The Global Legal Post

Labor & Employment Partner & Co-Chair Keith Markel and Associate Alana Mildner Smolow co-authored an article in The Global Legal Post entitled “Pay Frequency Litigation in New York; Avoiding an Unfashionable Trend for Luxury Retailers.” In the article, they caution luxury brands operating globally about the increase in pay frequency lawsuits in New York and spotlight recent state and federal cases.

The authors discussed how the recent spate of court cases stems from a 2019 decision in Vega v. CM & Associates Construction Management, in which New York’s Appellate Division First Department found that employees have a private right of action to bring lawsuits if they were paid less frequently than Section 191 requires for manual work.

At the heart of these cases is a debate over who is considered a manual worker. The New York State Department of Labor considers a manual worker any worker who spends more than 25% of his or her time performing physical labor. In several pending cases, retail workers contend that more than a quarter of their time is spent on manual tasks such as handling inventory, stocking shelves, operating cash registers, folding clothes, and operating fitting rooms for customers.

The good news for employers is that a recent contrasting decision by the Second Department in Grant v. Global Aircraft Dispatch found that there is no private right of action under NYLL Section 191 when a worker is paid their full wages on a biweekly basis, even if the employee is deemed a manual worker.

There are also several pending legislative proposals seeking to limit damages or provide employers with additional defenses, but “until the New York Court of Appeals weighs in on this issue or there is legislative action to prevent these claims, pay frequency litigation in New York will continue to be in style.”

Read the article in full here.