Building a work schedule for your team requires a full understanding of your state’s labor laws, which aren’t always intuitive. New York’s Spread of Hours law is a prime example. While most labor laws focus only on the hours an employee is clocked in for, the Spread of Hours law takes the whole day into account. The law applies only to businesses in the service industry, and says that if the beginning and end of an employee’s workday are more than ten hours apart — including breaks or off-duty hours — you’re required to pay that employee one extra hour’s worth of pay at minimum wage, on top of their total wages for the day.
While it’s a bit confusing to track, the Spread of Hours law is meant to better reflect the time employees are putting in. Even when a workday includes a break between shifts, employees rarely have enough time to go home, run an errand, or unwind — effectively, their workday is still happening during that time. The Spread of Hours law helps workers get compensated for all the hours they’re giving to their job.
Below, we’re going to break the Spread of Hours law down in greater detail, look at a few examples of how it works, and give you tips to stay compliant.
Who is required to follow Spread of Hours laws?
The Spread of Hours law applies to New York state businesses whose employees who meet the following criteria:
- Work in the service industry
- Are non-exempt, hourly employees
- The beginning and ending of the workday in question are more than ten hours apart.
As a follow-up to that last bullet, we want to emphasize that the ten-hour window applies to the start and end of the workday as a whole, regardless of split shifts, breaks, or off-duty hours — hence the term, “spread of hours.” When these terms are met, the employee earns an additional one hour of pay at minimum wage.
This happens more often than we may realize, either in the case of restaurant workers breaking between lunch and dinner or a home healthcare aide making multiple visits in one workday. Meal breaks also do not alter the spread of hours. It all comes down to when they punch in and when they punch out.
The term “service industry” blankets a wide range of businesses large and small, including restaurants, bars, and hotels. Non-profit agencies are included in this category, unless they are exempt from New York State wage order coverage. Other prominent industries employing hourly workers like building services, farming, and retail aren’t covered by the Spread of Hours law.
Hourly service industry occupations covered by the law would include:
- Wait staff
- Other food service staff
- Hotel and cleaning staff
- Automotive repairs and services
- Entertainment and recreation employees
- Social and healthcare services
- Personal care and laundry employees
If you’re in New York State and employ anyone with one of those job titles, they’re probably covered under the Spread of Hours law. Some positions, however, are exempt from the rule if they have a high enough pay rate — we’ll cover that exception to the rule later in the examples section.
Examples of the spread of hours law in action
The Spread of Hours concept can be hard to picture without seeing it in action. For example, what if the break between shifts is longer than the actual time on the clock? Or what if you spread meal breaks throughout the day? No matter what happens between the start and end time, more than ten hours triggers the Spread of Hours payment.
Let’s look at a few examples:
Karen is a waitress and a New York fine-dining restaurant. The restaurant primarily serves brunch from 10am-2pm and then dinner from 5pm-9pm. Karen works both shifts but is not paid between 2 and 5pm.
The Spread of Hours does apply in this case, as her day began at 10am and ended at 9pm — more than ten hours apart. Karen receives pay for eight hours of work and one hour of minimum wage pay specific to her region. Allowances for tips, meals or lodging cannot be applied to the Spread of Hours rate.
Ashley works as a barista from 8am-5:30pm with one half-hour break.
Ashley’s total workday spans nine hours and 30 minutes, so she does not receive spread of hours pay. She is paid for her nine hours of work at her normal rate.
Mark is on the cleaning crew for an events and catering company. He sets up from 7am – 9am but does not return for cleanup until his night shift from 9pm-11pm.
Even though Mark only worked four paid hours, he receives the Spread of Hours payment, as his start and end time span 16 hours within one workday. In total, he will receive four hours of paid time at his normal rate in addition to one hour of minimum wage pay.
The exception to the rule: Non-hospitality workers with a higher pay grade
Within the hospitality industry, specifically restaurants and all-year hotels, the Spread of Hours law always applies regardless of pay grade.
However, in all other service-industry companies with non-exempt employees, higher hourly rates could offset the Spread of Hours pay. If an employee’s hourly rate is high enough that their weekly pay is sufficient to cover both hours worked and the spread of hours pay they would receive at minimum wage, then you don’t need to give them a Spread of Hours payment.
For example, let’s say minimum wage is $12/hour. Kathy — a home healthcare aid — works from 9am-8pm, Monday, Wednesday and Friday. Each day she takes a one-hour break for lunch. Though she is only on the clock for 30 hours, she starts and ends her day 11 hours apart, triggering the Spread of Hours payment for all three days. Given the minimum wage and Spread of Hours law, She is required to receive at least:
30 hours at $12 + 3 Spread of Hours payments at $12 each = $396
However, if Kathy’s pay rate were $16 an hour, her paid time for just the work itself comes to:
30 hours at $16 = $480
Since her weekly pay covers the minimum wage requirement of hours worked plus Spread of Hours payments, the extra payments are offset.
How to Follow the Spread of Hours Law
You need to go beyond just paid hours and track each employee’s full workday schedule — breaks included — to ensure you never miss a Spread of Hours payment. Even better: If you use a scheduling software, time tracking system, or workforce management platform, it should be able to track the spread of hours for each employee and add the correct payment automatically.
Whenever possible, you can try to avoid Spread of Hours payments by concentrating employees’ shifts into one part of the day, rather than spread them throughout. For instance, consider splitting employees into two groups — one that works in the morning by default, and one that works in the afternoon. It’ll then be much less likely for an employee’s workday to extend pass 10 hours. Increasing hourly pay may also offset the required payment, cutting down on the time and energy required to monitor these payments.
Spread of Hours payments may seem confusing at first glance. It takes the entire daily schedule into account rather than using the traditional method of only counting hours worked. Be sure to monitor the space between your employee’s start and end time of their workday to ensure they receive proper pay under this New York-specific law.