New York’s wage and hour law contains some of the broadest wage payment regulations in the nation, but unfortunately one particular class of workers is currently falling virtually completely through the cracks. Under the New York Labor Law’s supporting regulations, which provide the applicable minimum wage rates in effect in the state, residential building superintendents (or, as the regulations refer to them, “janitors,”) are engaged in the only profession categorically excluded from the protection of New York’s federal-law-trumping hourly minimum wage rates. Given that this is an ubiquitous, low-paying profession, particularly in New York City, and one engaged to a significant degree by immigrants — who often speak limited English — and other at-risk worker populations, this is a troubling loophole indeed.
Under the minimum wage orders contained in the Labor Law’s supporting regulations, most employees are currently entitled to $8.75 per hour (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1) and one and one half times their regular rates in overtime pay for hours worked over 40 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2). This is a significant, material improvement on the federal minimum wage, which currently sits at $7.25 per hour.
Unfortunately, residential building superintendents have no access to this additional state law premium, and must resort to less-expansive federal wage and hour law for any hour-based claims. Rather than requiring building superintendents in residential buildings to be paid a minimum hourly rate, the applicable minimum wage order requires only that these employees be paid a minimum weekly rate derived from the number of units in the building in which they work. Currently, a residential building superintendent must be paid $5.85 per building unit per week. The overtime provision of the New York building service industry minimum wage order specifically excludes building superintendents from its coverage (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-1.4).
In addition to normal workday hours, New York City residential building superintendents are frequently also required to field resident inquiries and address issues or incidents within their buildings during evening hours. Some are even subjected to harsh, 24-hour on-call requirements by their employers. The average apartment building in New York City has around 20 units, but despite this potential for round-the-clock work, a superintendent working in such a building is entitled to only $117 per week under New York law. Even superintendents in large buildings are unprotected, as this unit rate is capped at just $372.15 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-2.8).
Fortunately, although they are robbed of New York’s extra protections, New York building superintendents are not completely without minimum hourly or overtime wage recourse thanks to the Federal Labor Standards Act (“FLSA”). In a lawsuit recently filed in federal court, Bahena et al. v. Park Avenue South Management LLC et al., Beranbaum Menken LLP is representing four current and former underpaid New York City building superintendents in a putative collective action seeking recovery for all similarly situated employees. Despite being subject to harsh on-call requirements that compel them to work very significant “overtime” hours, these employees receive only a few hundred dollars for all their work each week. Although New York’s seriously deficient wage order leaves them no recourse, the FLSA guarantees these workers at least $7.25 per regular and $10.88 per overtime hour, and Beranbaum Menken is working hard to see that these rights are vindicated.