October 29, 2025
Frequency of Pay: When Paying Every Penny Owed Isn’t Enough
When it comes to employee pay, the law determines not only who, what and how, but when employees must be paid. New York Labor Law (NYLL) § 191 sets strict rules about the frequency of pay for certain employees, particularly manual workers. Recent court decisions and new legislation have reshaped the landscape, making it essential for employers to review their payroll practices now.
What is a Manual Worker
Under NYLL § 190(4), a “manual worker” is defined as a mechanic, workingman, or laborer. The New York State Department of Labor (“NYSDOL”) and New York State Courts interpret this term broadly to cover employees who spend more than 25% of their working time performing physical labor, which can include tasks such as:
- stocking shelves or moving inventory,
- operating machinery or kitchen equipment,
- delivering goods or driving as part of physical service work, and
- food preparation or handling in restaurants and retail establishments.
Frequency of Pay to Manual Employees
Most manual workers must be paid weekly, and no later than seven calendar days after the end of the week in which wages are earned.
Conflicting Court Opinions
In 2019, a New York appellate court decided that manual workers who were not paid weekly could sue their employers (that is, they had a private right of action) and could collect as damages the full amount of their pay even though they had been paid in full. Vega v. CM & Associates Construction Management LLC, 175 A.D.3d 1144 (1st Dep’t 2019). In 2024, another New York appellate court reached the opposite result, concluding that manual workers do not have a private right of action to enforce the weekly pay requirement. Grant v. Glob. Aircraft Dispatch, Inc., 223 A.D.3d 712, (2nd Dep’t 2024).
The Vega decision led to multi-million dollar lawsuits against employers for failing to pay manual employees weekly, while the split between the appellate courts created uncertainty for all parties.
A Cautionary Tale: The Dairy Queen Lawsuit
A recent CBS New Report illustrated how this issue has played out in real life. A Long Island Dairy Queen franchise was hit with a $6 million class-action lawsuit for allegedly paying its manual employees biweekly, rather than weekly, in violation of NYSLL § 191.
The lawsuit alleged that the workers performed manual labor, such as food preparation, cleaning, and operating kitchen equipment, and were therefore entitled to weekly pay. The franchise owners reportedly were unaware of the frequency of pay law.
The case underscores how common payroll practices can still be noncompliant, and that lack of awareness of the law is not a defense.
Resolution by Legislation
As part of the 2025 budget bill, the NYS legislature and Governor Kathy Hochul agreed to legislation in response to the Vega decision. The new law amended the NYLL by limiting damages available to manual workers who were paid at least semi-monthly. For first-time or technical violations, employers may owe only interest payments on the delayed payroll. Repeat or intentional violations, however, may still expose employers to significant liability. The amendment was signed and went into effect as of May 9, 2025, and applies to “causes of action pending or commenced on or after” that date. The amended law was too late to help the Dairy Queen franchise, which had already settled the frequency of pay claims against it.
Key Takeaways for Employers
Employers across all industries should not assume their current pay schedule is compliant simply because employees are paid in full or because “that’s how it was always done”. Under the law, the frequency of pay is just as important as the amount. Even unintentional violations of the law can trigger claims, penalties, and legal fees. The Dairy Queen case highlights how easily a routine payroll practice can become a multimillion-dollar legal problem.
Employers should conduct proactive payroll audits now to confirm who qualifies as a manual worker and ensure those employees are paid weekly.
If you have questions about frequency of pay or other wage and hour laws, please reach out to Chaim Book at cbook@booklawllp.com, Sheryl Galler at sgaller@booklawllp.com, Rebecca Nathanson at rnathanson@booklawllp.com or Jared Nossen at jnossen@booklawllp.com.
