Seyfarth Synopsis: We recently reported here that New York adopted an increased salary threshold of $1,300 per week for determining whether an employee serves in an “executive,” “administrative,” or “professional” capacity for purposes of certain provisions of Article 6 of the New York Labor Law (“NYLL”). That increase, enacted in a September 2023 amendment to the NYLL that takes effect in March 2024, did not relate to determination of exempt status with respect to the NYLL’s minimum wage and overtime provisions.
Shortly after that amendment, the New York Department of Labor issued proposed regulations to accomplish what the statutory revision did not: increase the salary threshold for minimum wage and overtime purposes. These proposed regulations are likely to be adopted, but the precise timing of their effective date is uncertain. The comment period expires on December 4, 2023, so if the DOL issues the regulations in final form, they would likely take effect right around the start of 2024. But it is also possible the effective date would be timed to match the March 2024 date of the other statutory revisions.
As before, to be an exempt “executive” or “administrative” employee for purposes of minimum wage and overtime under the proposed regulations, an employee must be paid on a salary basis in an amount that meets the required threshold. In addition, the employee must perform certain duties, which would be unchanged by the new regulations.
New York routinely sets a higher salary threshold than federal law, and the threshold is generally calculated as 75 times the current applicable minimum wage. It also has historically established different levels based on the size and location of the employer. If the proposed regulations take effect, the new salary thresholds for “executive” and “administrative” employees will be:
|New York City, Westchester, and Long Island||The Rest of New York State|
New York does not have a higher salary threshold than federal law with respect to an “employee employed in a bona fide professional capacity.” As such, in New York, the professional exemption will continue to be subject to the federal professional exemption salary threshold of $684.00 per week ($35,568.00 per year).
Seyfarth will monitor the status of the proposed regulations and issue a revised alert if and when they are adopted. Please contact the authors or any Seyfarth attorney with any questions in the meantime.