The failure to pay earned wages inflicts real harm on a broad range of employees. Labor Law Article 6, and §193 in particular, reflects New York’s “longstanding policy against the forfeiture of earned but undistributed wages.” Bader v. Wells Fargo Home Mortg., 773 F. Supp. 2d 397, 415 (S.D.N.Y. 2011); see also Kolchins v. Evolution Mkts., 31 N.Y.3d 100, 109 (2018).
Labor Law §193 provides: “No employer shall make any [unauthorized] deduction from the wages of an employee[.]” The inequity the Legislature sought to prevent in enacting §193 was employers reaping the benefit of employees’ earned wages. In re Angello v. Labor Ready, 7 N.Y.3d 579, 586 (2006). Accordingly, the Court of Appeals held that an employer’s “neglect to pay” earned wages violates §193. Ryan v. Kellogg Partners Institutional Servs., 19 N.Y.3d 1, 16 (2012); see also Kolchins, supra. That’s hardly surprising, since §193’s protections extend even further, barring wage deductions made through indirect means. Angello, supra.
While many other courts also view §193 as protecting all of an employee’s wages, many have also rejected that view, finding instead that §193 doesn’t apply to employers who reap the greatest benefit from employees’ wages—i.e., those who keep all of an employee’s wages. For example, in Gold v. Am. Med. Alert, 2015 U.S. Dist. LEXIS 108122, at *5 (S.D.N.Y. Aug. 13, 2015), the court found that §193 does not bar “merely the total withholding of wages” (as if keeping all of an employee’s pay is somehow less harmful than keeping part of it). Under this view an employer may face §193 liability for keeping 1 percent, 10 percent, or even 99 percent of an employee’s pay, but not for keeping all of it.
Does Labor Law §193 Contain a ‘Mere Total Withholding’ Exception? The belief in a “mere total withholding” exception to Labor Law §193 begs many questions: Can an employer who wants to keep half of an employee’s next two paychecks avoid §193 liability simply by keeping one of those paychecks altogether? If a deduction from wages is not a wage deprivation, then what is it? If §193 only bars things like fines, payments, and other forms of pay docking, as some courts have held, does a deduction occur if an employee accidentally damages the employer’s property and the employer gives him a smaller paycheck (or no paycheck) without using words like “fine” or “docking”? What if disappointment about the damaged item was just one of two (or three or four) reasons for keeping the employee’s earnings? Should an exemption from §193 liability be granted to employers whose self-interested thinking causes them to underestimate their wage payment obligations if Article 6 liability applies even to employers who act in “good faith”? Labor Law §198(1-a).
Presumably, the main reason some courts see a distinction between “deducting” and “failing to pay” wages is that a “deduction from wages” reminds us of a paystub notation, and a failure to pay wages does not. But a paystub notation is not a deduction; it is only a manifestation of a deduction. An employee’s earned but unpaid wages exist not as a paystub notation, but as a “right, claim, or interest against the employer.” Am. Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 605 n.9 (N.D. 1993).
What, then, does “make any deduction from … wages” mean in §193?
“Make” (as in “make any deduction from … wages”) means “[t]o cause to exist.” Make, Black’s Law Dictionary (6th ed. 1990). “Make” also means “To cause to happen by one’s neglect or omission; as to make default.” Id.
“Any” (as in “make any deduction from … wages”) means “‘all’ or ‘every’ and imports no limitation,” Zion v. Kurtz, 50 N.Y.2d 92, 104, 687 (1980), and “is as inclusive as any other word in the English language.” New Amsterdam Casualty Co. v. Stecker, 3 N.Y.2d 1, 5 (1957). Thus, a law concerning “any” of something generally includes both direct and indirect varieties of that thing. See U.S. v. Lanni, 466 F.2d 1102, 1108-09 (3d Cir. 1972); Ennabe v. Manosa, 319 P.3d 201, 212 (Cal. 2014); U.S. v. Quong, 303 F.2d 499, 503 (6th Cir. 1962).
“Deduction” (as in “make any deduction from … wages”) literally means “an act of taking away or subtraction,” Angello, supra, 7 N.Y.3d at 584, and a “taking” occurs when a deprivation occurs. Take, Black’s Law Dictionary (6th ed. 1990); see also Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 342 (1969) (describing wage garnishment as a “taking of one’s property [that] is so obvious[.]”).
“From” (as in “make any deduction from … wages”) means “out of,” and includes “the crossing of” a “non-tangible” boundary. State v. Tafoya, 285 P.3d 604, 610 (N.M. 2012). Since earned but unpaid wages are intangible, whether a total withholding of wages is a deduction “from” wages depends on whether a number can be deducted “from” itself. A number can be deducted “from” itself. Citizens for Reform v. Citizens for Open Gov’t, 931 So. 2d 977, 987 (Fla. Dist. Ct. App. 2006) (“Mahavira, a 9th century Indian mathematician, understood and explained … [that] any number minus itself equals zero.”). Saying “10 from 10 equals 0” is just as true as saying “5 from 10 equals 5.” And even if that weren’t so, §193 would still prohibit the failure to pay earned wages because §193 does not limit the term “wages” to the wages paid in a single pay cycle, and the withheld wages are almost always less than the total wages paid to the employee during the employment relationship.
“Wages” (as in “make any deduction from … wages”) are an employee’s earnings. Labor Law §190(1). Wages are either owed or they’re not, and “belong to the wage earner until they are pledged or committed to another.” Epps v. Cortese, 326 F. Supp. 127, 133 (E.D. Pa. 1971), vacated on other grounds, Fuentes v. Shevin, 407 U.S. 67 (1972); Sniadach, supra. Employers have a statutory duty to give employees enough information to know what they will be paid. Labor Law §195.
Thus, a deduction from wages occurs when the employer, through its pay-related decisions, causes earned wages that are not yet due to become due-but-unpaid wages that it has no intention of paying. See Ryan, supra. Accordingly, just as a conversion of physical property “can occur even though there is no wrongful intent to possess the property of another,” Spodek v. Liberty Mut. Ins. Co., 155 A.D.2d 439 (2d Dept. 1989), a deduction from wages can occur even though there is no wrongful intent to appropriate the wages of another. See, e.g., Ryan, supra. Moreover, the employer will usually consciously reaffirm its decision to keep the subject wages when it declines the employee’s request for payment.
The Oft-Overlooked Elephant in the Room. Even if §193 could also be reasonably construed to allow total wage deprivations, the issue of which construction of §193 is best is academic because Labor Law §198, as amended, commands that “All employees shall have the right to recover full wages, benefits and wage supplements and liquidated damages[.]” Labor Law §198(3).
Since that legislative command is clear and unmistakable, it provides a substantive basis for recovery. See, e.g., Tini v. AllianceBernstein L.P., 108 A.D.3d 409, 410 (1st Dept. 2013); see also Cavalotti v. Daddyo’s BBQ, 2018 U.S. Dist. LEXIS 154918, at *40-41 (E.D.N.Y. Sept. 8, 2018) (discussing split of authority on issue). And even courts that think otherwise are required to construe §193’s bar against unauthorized deductions in a way consistent with §198’s command that “All employees shall have the right to recover full wages, benefits and wage supplements and liquidated damages[.]” That’s because “[t]he different parts of the same act, though contained in different sections, are to be construed together as if they were all in the same section[.]” Cook v. Carmen S. Pariso, 287 A.D.2d 208, 215 (4th Dept. 2001) (citation omitted).
Conclusion. The belief in a “mere total withholding” exception to Labor Law §193 is entirely misplaced. Courts should not allow employers to violate §193 by reaping the benefit of employees’ wages, and should not disregard §198’s command that “All employees shall have the right to recover full wages, benefits and wage supplements and liquidated damages[.]”
Scott A. Lucas is the principal of the Law Offices of Scott A. Lucas, a New York firm that practices employment law.