By Matthew Zwiren and John Flouskakos
Currently, a conflict exists between the United States Department of Labor (“DOL”) and the New York Wage Order. In New York State, live-in superintendents of residential buildings are paid based off the number of units in their building. There is no minimum hourly wage which applies to supers. The “minimum wage” is determined by a minimum wage per unit, and such rate is determined by the county which the building resides in. (1) For example, Superintendent X lives in a county where the minimum wage is $10 per unit per week. If the building has 50 units, Superintendent X must be paid at least $500 per week. Additionally, live-in supers cannot make overtime pay. (1) However, this manner of accounting is not applicable if the live-in super is paid at least a weekly salary of $683.00 in either New York City’s boroughs, Nassau, Suffolk, or Westchester counties, or $561.40 in all other counties. (1)
This payment scheme comes into direct conflict with federal law, as the DOL, which enforces the Fair Labor Standards Act (“FLSA”), claims that the New York Wage Order’s rules are not in compliance with the statute. They maintain that a minimum hourly wage and overtime pay should be used to pay live-in supers. The FLSA prescribes a mandatory federal minimum wage of $7.25 per hour, and overtime for any non-exempt workers (supers included) where one works over 40 hours a week. (1)
On March 14, 2019, the U.S. DOL addressed this discrepancy, in an opinion letter that was meant to resolve the conflict between the state and federal standards. (1) While this opinion letter does not have the binding effect of law, courts may rely on them to make decisions regarding wage claims arising under the FLSA. The opinion stated that federal law superseded that of the New York Wage Order. (1) The letter states that supers must be paid in accordance with federal standards if the amount based on the FLSA rules would be greater than that of the pay under the New York rules. (3)
A major reason the Wage Order rule exists, is because it is difficult to track the hours worked by live-in supers, as they are always on call in the case of building emergencies. It is simply easier to pay someone based on units than the hours they supposedly do or do not work. The opinion letter attempts to rectify this by the creation of agreements between supers and the building owners. These agreements would establish a weekly number of hours worked. During these working hours, supers should not engage in “private pursuits” such as “eating, sleeping, and entertaining.” (2)
To avoid future issues and lawsuits it may be best to follow federal guidelines. However, it may also be best to establish strong and narrowly construed agreements between building owner and super, as to avoid potential conflict.
 12 N.Y.C.R.R. § 141-1.2.
 12 N.Y.C.R.R. § 141-1.4.
 12 N.Y.C.R.R. § 141-2.8.
 29 U.S.C.A. § 206(a)(1)(C).
 U.S. Department of Labor: Wage and Hour Division, 2019. FLSA2019-1. Washington D.C.
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