Payroll and Benefits Guide United States – New York

Employer

Employer Payroll Contributions

Employee

Employee Payroll Contributions

Employee

Employee Income Tax

General

The minimum wage is 14.20 USD.

Payroll Cycle

In general, employees are paid either semi-monthly or monthly, with payment dates stipulated in the employment contract.  However, New York has several different payday interpretations linked to the type of work and seniority or professional status of the employee:

• Manual laborers are paid weekly and cannot be paid later than seven days after the end of the pay cycle (with exception via special approval from the state labor department, non-profit organizations may be able to pay manual laborers twice a month).
• Railroad employees are paid weekly and must be paid on a Thursday.
• Employees who work on commission must be paid at least once a month and paid by the last day of the following month.
• Personnel who work in an office or all other types of employees are generally paid twice a month. However, senior and professional employees may have their pay date set monthly.

13th Salary

There are no provisions in the law regarding 13th salaries.

General

A full-time work week is 40 hours or 8 hours per day.

Overtime

New York adheres to the Fair Labour Standards Act (FLSA), and work in excess of 40 hours per week is considered overtime and paid at the rate of 150% of the regular pay.

If an employee is scheduled to work on weekends or rest days, no additional payment is required. However, should an employer request an employee to work in exceptional circumstances on these days, then overtime is paid at the rate of 150% of the regular pay.

These hours must be linked to the type of work undertaken, e.g., regular employees earn 150% of the regular pay for work over 40 hours per week, live-in employees earn 150% of the regular pay for work over 44 hours per week, and farmers earn 150% of the regular pay for work over 60 hours during the working week or on a rest day.

Working Week

Monday-Friday

Paid Time Off

New York does not have any state laws that govern the amount and payment of vacation time. However, it is common for employers to choose to offer vacation leave, paid or unpaid, to their employees.  This must comply with employment law and must be stipulated in collective bargaining agreements.

Public Holidays

There are 11 public holidays in the state of New York.

Sick Days

Sick leave falls under the Family and Medical Leave Act (FMLA) which provides leave for an employee with a serious health condition that makes them unable to perform the essential functions of their job.

It is common for an employer to follow the FMLA which provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons (maternity leave, serious illnesses, or if the employee needs to care for a spouse or child).

Employees are eligible for FMLA if they have worked for their employer for at least one year, completed a minimum of 1,250 hours over the past year, and worked at a location where the company employs 50 or more employees within 75 miles.

In addition to the FMLA, New York City and Westchester County have their own paid sick leave laws for employers with five or more employees. Employees who have a minimum of 12 months of employment or domestic workers who work more than 80 hours a year are entitled to 1 hour of paid sick leave for every 30 hours worked. This is capped at a maximum of 40 hours per year.

For employers with less than five state employees, the laws state that the employees are entitled to 12 weeks of unpaid leave, which will run simultaneously with the FMLA leave. For non-state employees, there are no statutory laws on sick leave in New York. However, an employer may be obligated to follow the Family and Medical Leave Act (FMLA).

Maternity Leave

Maternity leave falls under the FMLA (see sick leave) which allows a mother:

• Twelve working weeks of leave in any one year for a child’s birth and to care for the newborn child within one year of birth.

New York also offers short-term disability benefits, which an employee can use for the birth of a child. A mother can use this benefit for up to 26 weeks. This benefit is paid at 50% of the employee’s average salary from the previous 8 weeks. This benefit is capped at 170 USD per week and cannot  be used at the same time as FMLA leave.

Paternity Leave

Paternity leave falls under the FMLA (see sick leave), which allows fathers:

• Twelve working weeks of leave in any one year for a child’s birth and to care for the newborn child within one year of birth.

In addition to the FMLA, New York has additional paternity leave laws outlined in the New York Paid Family Leave Act (which also applies to adoption and fostering), entitling employees to up to 12 weeks of paid leave. The leave can be taken at once or intermittently but must be taken in increments of full days. Employees are eligible for paid family leave after 26 weeks of employment or if they work at least 20 hours per week. If an employee has worked less than 20 hours per week, they are entitled to take leave after they have worked 175 days.

The payment for the leave is made bi-weekly through the mother’s insurance carrier. This type of leave can also be permitted for parenting, to care for a family member with a severe health condition, or to handle certain matters arising from a family member’s active-duty deployment in the military).

Parental Leave

Parental leave falls under the FMLA (see sick leave), which allows for:

• Leave for the adoption or foster care of a child and care for the newly placed child within one year of placement.
• Any qualifying necessity arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Other Leave

Leave for the care of an employee’s spouse, child, or parent who has a severe health condition falls under the FMLA (see sick leave).

Alternatively, an employee may take 26 working weeks of leave during a single one-year period to care for a covered servicemember with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Other leave under New York law includes:

• New York law requires all employers to provide their full-time employees, more than ten employees, job-protected paid or unpaid leave for jury duty, as a witness in a case, responding to a subpoena, or acting as a plaintiff or defendant in the courts. The employee is to pay the first 40 USD of the employee’s regular daily wages for the first three days of jury service. An employer is not required to pay an employee for time spent serving on a jury in all instances. Employees must provide a copy of the jury summons to the employer as evidence of requirement.
• In addition to the federal law USERRA, New York law provides protection against discrimination for members of U.S. armed forces, reserves, National Guard, commissioned corps of the public health service, and any other category of persons designated by the president in a time of war or emergency.  In New York, an employee may only take military spouse leave while the military service member is on leave from deployment. Employers with 20 or more employees that work more than 20 hours per week must grant their employees up to 10 days of unpaid leave if they are a spouse to a military service member who has been deployed during a period of military conflict.

Termination Process

Except in mass dismissals or as provided for in an employment contract or a collective bargaining agreement, U.S. law does not impose a formal notice period to terminate an individual employment relationship, and employment is stipulated as “at will.”

This means that either the employer or the employee may end the employment relationship without giving either notice or reason, provided it is not illegal, notable discrimination on the grounds of a category protected by law, etc., and as per the Federal Worker Adjustment and Retraining Notification Act (WARN).

The employment contracts of executives and other highly skilled individuals often incorporate a just cause termination clause which mandates that the employer may only terminate the employee for “cause” and lists the permissible grounds. In such cases, the parties negotiate the foundations for a “just cause” termination.

Notice Period

In New York, most employees are employed at will, and either party can terminate the employment relationship without notice. In Texas, payout of unused vacation time is not required by law. Still, employers will generally pay an employee for unused vacation days, provided the employee gave some advanced notice of resignation.  There is no official notice period. Still, in general practice, two weeks’ notice is a minimum requirement.

In mass dismissal cases the Worker Adjustment and Retraining Notification Act (WARN Act) must be followed, and employers must give 60 days’ notice to impacted employees.

Severance Pay

Except as otherwise provided in an employment contract or collective bargaining agreement, employers are not required to pay severance. Employers who choose to offer severance need to have the provisions outlined in the employee’s contract and both parties must agree.

Many employers choose to provide severance payments linked to the employee’s length of employment.  Most common in the state of New York is one weeks’ pay for every year of service.

Probation Period

No legal provision governs a formal trial or probation period. However, it is common practice for employers to set a performance evaluation after an initially stated period of employment of 90 days.

VISA

Foreign nationals without permanent resident status or a work visa are not permitted to work in the United States. An employer seeking to hire a foreign national may file a petition with the United States Department of Homeland Security or the United States Citizenship and Immigration Services (USCIS) for an employment visa on behalf of the prospective employee.

If the petition is approved, the prospective employee must obtain a visa stamp from a United States embassy or consulate (Canadian citizens are exempt from this requirement).  To get a temporary U.S. work visa, an employer must file a petition with U.S. Citizenship and Immigration Services (USCIS). An approved petition must be part of the visa request.

The types of visas include:

• H-1B: For applicants with a college degree hired to do specialized work. The visa is valid for three years and can be extended for an additional three years. The visa is connected to the employer that filed the petition. If there is a change of employer, the new employer must repeat the process. There are 65,000 H-1B visas available each year.
• H-1B1: For applicants with a college degree from Chile and Singapore. The US government grants up to 1,400 visas to Chilean citizens and 5,400 from Singapore each year.
• H-2A:  For temporary or seasonal agriculture work. It is limited to citizens of qualified countries. Usually valid for up to 1 year and can be extended to a maximum of 3 years.
• H-2B: For temporary non-agricultural work. These visas are limited to citizens of qualified countries. Usually valid for up to 1 year and can be extended to a maximum of 3 years.
• L: For intercompany transfers (people transferred from a foreign company to a US branch of the company). The applicant must have been employed at the company for a year before the transfer and work in a managerial level position or higher with specialized knowledge.
• O: For people with extraordinary abilities in science, arts, education, business, or athletics.

The standard procedure is to obtain a short-term work visa and then apply for an immigrant visa after the employee has started working in the United States.

For those seeking employment-based immigrant visas:

• E-1: Highest priority employment for those with extraordinary ability in science, arts, education, business, and athletics
• E-2: For those with advanced degrees or exceptional ability
• E-3: For skilled workers and professionals, as well as unskilled workers
• E-4: Members of certain immigrant groups
• E-5: Immigrant investors in US companies (substantial investment)

Alternatively, an employer may sponsor a potential employee’s application for permanent resident status, referred to as a “green card” if the employee can establish that the potential employee is a multinational executive or manager transferee, has unique skills, or has been offered a job in the United States.

The employer must have been unable to recruit a U.S. worker who meets the position’s minimum requirements.

All employers are obligated to verify that all individuals they employ are authorized to work in the United States.

General

New York has a minimum combined sales tax rate of 8.49% (state tax is 4.00% and local tax is 4.49%).