Most people understand a superintendent to be a person who assists with the maintenance of a building and apartment needs of the tenants in the building. However, under the Minimum Wage Order for the Building Service Industry or Section 141-3.4 of the New York Codes, Rules, and Regulation (“NYCRR”), such a person is defined as a “janitor” who is “employed to render any physical service in connection with the maintenance, care or operation of a residential building.” A janitor can be a resident janitor, one who “resides in the building where he or she renders services,” or a nonresident janitor, one who “does not reside in the building where he or she renders services.” Further, under the NYCRR, there can only be one janitor per building.
Under the Federal Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), a non-exempt employee is entitled to be paid time and a half their hourly rate for hours worked over forty. However, Section 141.4 of the NYCRR states that this rule does not apply to “a janitor” who works in a residential building whether they reside there or not. Therefore, under the NYLL, a janitor or superintendent works in a residential building is not entitled to overtime pay, however, they may still recover overtime pay under the FLSA.
Under the FLSA, janitors, like most other employees, must be at a paid at a minimum wage of $7.25 per hour. However, the NYCRR states that janitors who work in residential buildings, are paid at a minimum weekly wage based the number of units they service in a building as well as the region of New York State that they work in. Under the NYCRR, other benefits such as apartments and utilities furnished by the employer may count towards a janitor’s weekly minimum wage. Please consult an experienced New York employment law attorney to understand what rate may be applicable to you if you are a New York janitor or superintendent who works in a residential building.
Further, the United States Labor Department (“DOL”) has provided some guidance in circumstances where a janitor may have a claim for overtime or minimum wage in its Opinion Letter dated March 14, 2019. The opinion confirms that janitors are exempt from overtime under the NYLL but not under the FLSA. Further, although an employer that does not pay overtime to a janitor who works in a residential building may be in compliance with state law, “[c]ompliance with state law does not excuse noncompliance with the FLSA.”
However, under the FLSA ad NYLL there may be other exemptions from overtime, such as the administrative exemption, that could apply to janitors. Employees are exempt from overtime under the administrative exemption if, among other criteria, their “primary duty consists of the performance of office or non-manual field work directly related to management policies or general operations.” There are many other factors, such as the amount and manner of pay that go into determining what exemption may apply thus, it is best to consult an experienced New York employment law attorney to understand if any exemption may be applicable to you.
An employee who has claims under the FLSA has a two-year statute of limitations from the date of the violation to file a civil complaint against their employer or former employer, unless the employer’s violation of the FLSA is willful, where such statute of limitations extends to three years. An employee who has claims under the NYLL has a six-year statute of limitations from the date of the violation to file a civil complaint against their employer of former employer.
If you work or have worked as a janitor or superintendent, you are likely to be covered under this law. Therefore, you should speak to an experienced New York employment law attorney, as your employer may be found accountable for a violation of the FLSA and/or NYLL. To learn more or to schedule a consultation to discuss your situation, contact Borrelli & Associates, P.L.L.C. for a free consultation.
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