New York’s “Spread of Hours” Rule

Last reviewed: October 2026. Rates reflect Labor Law § 652(1-a) as in effect on January 1, 2026: $17.00 an hour in New York City, Nassau, Suffolk and Westchester, and $16.00 in the rest of the state.

Take a hypothetical. A line cook at a diner in Hicksville works a split shift four days a week: in at 7:00 in the morning, off at 11:00, back at 3:00 in the afternoon, done at 9:00 at night. That is ten hours of work, but the workday runs fourteen hours from the first punch to the last. The cook earns $20.00 an hour and has never seen a line on the pay stub for “spread of hours.” Is something owed?

Yes. A diner is a restaurant under the hospitality wage order, which defines the term to include “any eating or drinking place that prepares and offers food or beverage for human consumption” (12 NYCRR 146-3.1(b)). Our Long Island wage and hour attorney page explains how we take these claims. This is general information, not advice about any one claim.

What “spread of hours” means

The spread of hours is not the number of hours you worked. It is the length of the day. The general wage order, 12 NYCRR 142-2.18, defines it as “the interval between the beginning and end of an employee’s workday,” and says it “includes working time plus time off for meals plus intervals off duty.” The hospitality order, 12 NYCRR 146-1.6, uses nearly the same words and gives two examples: “7 a.m. - 10 a.m., 7 p.m. - 10 p.m. = 6 hours worked but a 15 hour spread,” and “11:30 a.m. - 3 p.m., 4 p.m. - 10:00 p.m. = 9 1/2 hours worked but a 10 1/2 hour spread.”

The trigger is a spread that “exceeds 10 hours,” so exactly ten is not enough. The cook’s 7:00 a.m. start and 9:00 p.m. finish make a fourteen-hour spread on each of those four days. The payment is one hour per day, however far past ten the day runs, and it is paid at the basic minimum wage for your region, not at your own rate: $17.00 for the cook in 2026, not $20.00.

The general order adds a second trigger. Under 12 NYCRR 142-2.4 the hour is also owed on a day when “there is a split shift,” which 142-2.17 defines as daily hours that “are not consecutive”; a meal period of one hour or less does not break them. One day earns one hour either way.

Every employer in New York has to have wage records and wage statements. That’s the basics under the labor law: a statement with every paycheck, and payroll records of the hours worked kept for six years. So if you believe that you were shortchanged on spread of hours, you don’t need your employer’s permission to prove it. In a lawsuit, you’d subpoena the ADP records, the time punches at the beginning and end of each shift, as well as the schedules. But keep your own record too. Write down when you started and finished work every day on your phone. Your pay stubs and your notes are where a case starts.

Am I owed spread-of-hours pay?

It depends on which wage order covers your job. The Department of Labor publishes separate orders for hospitality (including fast food), building service, farm workers, nonprofit institutions, and miscellaneous industries and occupations. This post covers the first and the last.

Restaurants and all-year hotels

12 NYCRR 146-1.6 provides that on “each day on which the spread of hours exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hourly rate.” Subdivision (d) settles the question about high earners: the section “shall apply to all employees in restaurants and all-year hotels, regardless of a given employee’s regular rate of pay.” The hour “shall not be offset by any credits for meals or lodging.” For the Hicksville cook: four long days, four extra hours.

Other industries and occupations

The miscellaneous order says the extra hour is owed “in addition to the minimum wage required in this Part.” The Department of Labor reads that as a top-up for workers at or near the minimum. The courts have quoted its opinion-letter test: if the weekly wages actually paid “equal or exceed the total of: (i) 40 hours paid at the basic minimum wage rate; (ii) overtime paid at the particular employee’s overtime rate; and (iii) one hour’s basic minimum wage rate for each day the employee worked in excess of 10 hours, then no additional compensation is due.”

The Second Department, which hears appeals from Nassau and Suffolk, deferred to that reading in Seenaraine v Securitas Sec. Servs. USA, Inc., 37 AD3d 700 (2d Dept 2007), finding it “neither unreasonable nor irrational,” and federal courts have followed it (Almeida v Aguinaga, 500 F Supp 2d 366 [SD NY 2007]). Consequently, a worker paid well above $17.00 an hour under the general order usually has no claim, while a worker at or just above the minimum often does.

How to calculate it at the 2026 minimum wage

Count the days in the week whose spread was more than ten hours and multiply by the regional minimum wage. Under the general order, then compare the week’s actual pay with the floor the week required. Here is the cook’s week under both orders.

One caution: under the general order, a week with overtime adds the overtime owed at your own overtime rate to the floor.

What you can recover, and how far back

An unpaid spread-of-hours hour is an underpayment of the minimum wage, and Labor Law § 663 gives the employee a lawsuit for it. The worker “shall recover in a civil action the amount of any such underpayments, together with costs all reasonable attorney’s fees, prejudgment interest,” and, unless the employer proves a good faith basis for believing it complied, “liquidated damages equal to one hundred percent” of the underpayment. An agreement to work for less “shall be no defense.” Labor Law § 198(1-a) provides parallel remedies for wage claims.

The lookback is six years: an action “must be commenced within six years” (§§ 663(3), 198(3)), and the clock is tolled while a Department of Labor complaint is pending. A claim filed in October 2026 reaches work done since October 2020, each year priced at that year’s minimum wage.

What makes six years provable is the employer’s own paperwork. Labor Law § 195(4) requires “contemporaneous, true, and accurate payroll records” of the hours worked each week, kept for not less than six years.

A Department of Labor complaint or a lawsuit?

Spread-of-hours pay is a private right, not only an agency rule. The Department of Labor can enforce it, and so can you.

You have two doors. The Department of Labor has very broad powers to come in and do an audit after a complaint from someone who believes they are being paid improperly. The wage claim also has a private right of action. That means that you can go straight to court yourself without any government intervention, and the Department’s investigation is neither a prerequisite for nor a bar to going to court. And the first question is always, what are your damages? In terms of spread of hours, it’s very simple math: up to one hour at the minimum wage for every long day that you worked, up to six years, plus liquidated damages equal to one hundred percent unless the employer can prove good faith, plus interest and attorney’s fees.

The Department’s door starts with the Labor Standards Complaint Form (LS223). An investigator contacts the employer and may hold a compliance conference; if the employer does not pay what is found due, the Commissioner issues an order to comply, which the employer can challenge at a hearing. The Department also says it “cannot guarantee” it will collect.

The court door is the one with fee-shifting: a worker who prevails recovers “all reasonable attorney’s fees” from the employer (§ 663(1)), and a judgment still unpaid 90 days after it issues, or 90 days after the time to appeal runs out, whichever is later, grows by 15 percent (§ 663(4)). Consequently, for a few hundred dollars the Department, or small claims court, may be enough; for years of split shifts, or coworkers on the same schedule, a lawsuit is usually the stronger door. If you signed an arbitration agreement, read our note on forced arbitration first.

If you complain and your hours are cut

Labor Law § 215 bars an employer from firing, threatening or penalizing an employee who complained “to his or her employer, or to the commissioner” about conduct the employee “reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner.” The wage orders are orders of the Commissioner, and the complaint “need not make explicit reference to any section.”

Labor Law § 740 also protects an employee who discloses to a supervisor a practice the employee “reasonably believes is in violation of law, rule or regulation.” The remedies differ, which is why both belong in the case: § 215 caps liquidated damages at $20,000 and adds lost compensation, front pay and fees; § 740 adds “a jury trial,” a civil penalty of up to $10,000, and punitive damages “if the violation was willful, malicious or wanton.” See our Long Island employer retaliation attorney page and our post on wage theft retaliation lawsuits.

And then the other thing is retaliation. So an employer who isn’t happy that their employee is exercising their rights can be on the butt end of a lawsuit for retaliation. That’s your retaliation hook. If you complain about your wages and they cut your hours or they fire you, that’s Labor Law section 215. And complaining to a supervisor that your boss is breaking the labor law is also a disclosure under the whistleblower statute, Labor Law section 740, where you get a jury. You have two years to sue under either one.

What to bring to the first call

Bring as many of these as you have:

• Your pay stubs for the period, which show the rate and whether any “spread of hours” line was ever paid.
• Your schedules, or screenshots of the scheduling app, showing first and last shifts on the long days.
• Your own log of start and finish times, even an informal one in your phone.
• Your offer letter or hiring notice, which states your rate and your regular payday.
• Any text or email where you asked about the long days, and what happened to your hours afterward.

Back to the cook in Hicksville: $68 a week in 2026 spread-of-hours pay, owed even at $20.00 an hour, and $6,800 for 50 such weeks once liquidated damages are added, before interest and fees, reaching back six years at each year’s rate. For the rest of the wage picture, see our guides to New York wage and hour laws and the tip credit rules for Long Island restaurants.

If your workdays regularly ran past ten hours from first punch to last and your pay stubs never show the extra hour, contact us or call (516) 750-0595, and have your last few pay stubs and your schedule in front of you when you call.

Sources

• 12 NYCRR 142-2.4, additional rate for split shift and spread of hours
• 12 NYCRR 142-2.17, split shift
• 12 NYCRR 142-2.18, spread of hours
• 12 NYCRR 146-1.6, spread of hours greater than 10 in restaurants and all-year hotels
• 12 NYCRR 146-3.1, hospitality industry, restaurant and hotel defined
• Labor Law § 652, minimum wage
• Labor Law § 663, civil action
• Labor Law § 198, costs and remedies
• Labor Law § 195, notice and recordkeeping
• Labor Law § 215, prohibited retaliation
• Labor Law § 740, retaliatory action by employers
• CPLR 5004, rate of interest
• Seenaraine v Securitas Sec. Servs. USA, Inc., 37 AD3d 700 (2d Dept 2007)
• Almeida v Aguinaga, 500 F Supp 2d 366 (SD NY 2007)
• NYS Department of Labor, minimum wage
• NYS Department of Labor, wage orders
• NYS Department of Labor, the labor standards complaint process