Disclaimer: This article is for educational purposes only and is not tax, legal, or financial advice. Tax rules can change; always check current IRS guidance or consult a qualified tax professional.
Hours44: Time Clock & Tracker
Quick Answer: What Is Spread of Hours Pay in New York?
If your New York workday runs more than 10 hours from your first clock-in to your last clock-out, you are owed one extra hour of pay at the basic minimum wage rate. The clock counts everything between the start and end of your day, including unpaid meal breaks and any off-duty time between split shifts.
2026 amounts:
- NYC, Long Island, and Westchester: $17.00 extra per qualifying day
- Rest of New York State: $16.00 extra per qualifying day
The rule comes from 12 NYCRR §142-2.4 for most industries, and from 12 NYCRR §146-1.6 for hospitality (restaurants and all-year hotels). Hospitality workers get the extra hour regardless of their hourly rate. New York is the only U.S. state with this rule, and unpaid spread-of-hours claims reach back 6 years.
Key Takeaways
- The 10-hour clock counts everything from start to finish. Unpaid lunch breaks, time between split shifts, and any off-duty period between your first clock-in and last clock-out all count toward the 10-hour spread.
- Hospitality workers always qualify. Under 12 NYCRR §146-1.6, restaurant and all-year hotel employees get the extra hour even if they earn well above minimum wage.
- Other industries use an offset rule. Workers under §142-2.4 (retail, building services, and so on) only collect spread-of-hours pay if their daily wages are below the minimum wage floor for that day.
- The 2026 rates are $17.00 (NYC, LI, Westchester) and $16.00 (rest of state). That is paid as a flat extra hour at the basic minimum wage, not your regular rate.
- You can claim 6 years of unpaid spread-of-hours pay. NY Labor Law §198(3) gives you a much longer window than the federal FLSA, and successful claims include 100% liquidated damages.
- Track every clock-in and clock-out, not just paid hours. Use Hours44 to log your full workday so you have time-stamped evidence for any spread that runs over 10 hours.
What Is "Spread of Hours" Pay?
"Spread of hours" is a New York wage rule with a very specific meaning. It is not overtime, and it is not paid for the time you actually work. It is an extra hour of minimum-wage pay tacked onto any day where your workday spans more than 10 hours from start to finish.
Two regulations define it:
- 12 NYCRR §142-2.4 covers most non-hospitality industries (the "miscellaneous" wage order).
- 12 NYCRR §146-1.6 covers restaurants and all-year hotels (the "hospitality" wage order).
How the 10-hour clock works
The spread is the number of hours between when you first start working and when you last stop. Everything in between counts, even time you are not on the clock or being paid:
- Unpaid meal breaks
- Off-duty time between split shifts
- Time waiting between a morning prep shift and an evening service
So if you start at 7:00 a.m., take a 2-hour unpaid break in the middle, and clock out for the last time at 6:00 p.m., your spread is 11 hours, even though you only worked 9.
What you get
One extra hour of pay at the basic minimum wage rate for that location. It is not your regular rate, and it is not multiplied by 1.5. It is a flat hour at the minimum wage in effect for your county on that day.
Why this rule exists nowhere else
New York is the only state in the country with a general spread-of-hours requirement. California has a separate "split shift premium," but it works differently and applies only to specific schedule patterns. If you work in any other state, no equivalent rule exists.
Who Qualifies in 2026?
Two different rules apply depending on your industry. The hospitality version is much friendlier to workers. The miscellaneous version usually only helps people earning at or near minimum wage.
Hospitality workers (restaurants and all-year hotels)
Under 12 NYCRR §146-1.6, every hospitality employee gets the extra hour when the spread exceeds 10. Your hourly rate does not matter. A line cook earning $30/hour gets the same extra hour as a dishwasher earning the cash wage minimum.
Hospitality covers:
- Restaurants of every kind, including fast food, fine dining, cafes, bars, food trucks, and catering
- Hotels and motels open year-round (seasonal resorts have separate rules)
- Servers, cooks, dishwashers, bussers, hosts, bartenders, baristas, housekeepers, front desk staff, bellhops, and all other hourly hospitality workers
Most other non-exempt workers
Under 12 NYCRR §142-2.4, you are technically entitled to spread-of-hours pay no matter what you earn, but the New York Department of Labor and most courts apply an offset. The math works like this:
- Add up your total daily wages.
- Compare that to
(hours worked × minimum wage) + (1 × minimum wage). - If your daily pay is already at or above that floor, no extra payment is owed.
In practice, this means §142-2.4 spread-of-hours pay mostly helps minimum-wage and near-minimum-wage workers in retail, building services, security, and similar fields.
Tipped food-service workers
Tip credits do not change anything. The cash wage rate is what your employer pays directly, but for spread-of-hours purposes you still get the full extra hour at the basic minimum wage. The rule cares about hospitality industry status, not your cash wage.
Who is excluded
Bona fide executive, administrative, and professional employees (the same FLSA "white collar" exemptions used for overtime) do not qualify. But many salaried workers in New York are misclassified. If you do not actually supervise others or exercise independent judgment, your salary alone does not strip you of spread-of-hours rights.
How to Calculate What You Are Owed (2026 Rates)
The math is simple once you know your region. Effective January 1, 2026, New York's basic minimum wage rates are:
- NYC, Nassau County, Suffolk County, and Westchester County: $17.00/hour → spread-of-hours payment is $17.00 per qualifying day
- Rest of New York State: $16.00/hour → spread-of-hours payment is $16.00 per qualifying day
Step 1: Measure the spread
Note the time of your first clock-in and the time of your last clock-out for the day. Subtract. If the result is more than 10 hours, you cleared the threshold.
Step 2: Identify your industry
If you work in a restaurant or year-round hotel, you are owed the extra hour. Stop here.
If you work in any other non-exempt role, run the offset:
- Total your daily pay (regular hours plus any premiums).
- Calculate the floor:
(hours worked × minimum wage) + minimum wage. - If your daily pay is below the floor, your employer owes you the difference.
Step 3: Apply the right regional rate
Use the rate for the location of your work, not where you live. A worker who lives in Buffalo but works at a hotel in NYC gets the $17.00 rate.
Spread of hours and overtime
The extra hour does not count as time worked. It does not count toward the 40-hour overtime threshold, and it does not enter your regular rate when calculating overtime. It is a standalone flat payment, separate from your overtime math.
Common Situations Workers Miss
Most spread-of-hours violations are not dramatic. They happen because workers (and sometimes managers) do not realize the day technically ran over 10 hours. Watch for these patterns.
Split shifts that look short
A 4-hour lunch shift and a 5-hour dinner shift add up to 9 hours of work. But if the lunch shift starts at 11:00 a.m. and the dinner shift ends at 10:00 p.m., your spread is 11 hours. The extra hour is owed.
Long unpaid meal breaks
A scheduled 1.5- or 2-hour unpaid meal break can quietly push a normal 9-hour day past the 10-hour spread mark. The break itself is unpaid, but it still counts toward the spread.
Mandatory pre-shift or post-shift work
Pre-shift training, mandatory team meetings, end-of-shift cleanup, cash-out, or any other required activity counts toward when your workday begins or ends. If your manager makes you stay 30 minutes past your last scheduled shift to count tips, that pushes your last clock-out later, possibly past the 10-hour threshold.
Open-and-close shifts ("clopens")
Closing a restaurant at 11:30 p.m. and being scheduled to open the next morning is a different topic, but a single open-to-close shift on one calendar day is the classic spread-of-hours scenario. Many openers and closers are owed money they have never been paid.
The day-by-day rule
Spread of hours resets every calendar day. You do not need to work an unusual schedule on a regular basis. One qualifying day is enough to be owed the extra hour for that day.
What If Your Employer Does Not Pay?
If your pay stubs do not show spread-of-hours pay on days you qualified, you have real options. New York has one of the strongest wage-recovery frameworks in the country.
Step 1: Document everything
Before you confront your employer or file a complaint, gather the evidence:
- Pay stubs from every period
- Posted schedules (snap photos before they come down)
- Time-clock records or app data
- Text messages and emails about scheduling
- Your own daily log of first clock-in and last clock-out
Step 2: Know the deadlines
Under NY Labor Law §198(3), you have 6 years to file a wage claim for unpaid spread-of-hours pay. That is far longer than the federal FLSA's 2-year window (3 years for willful violations). If you have been working at the same restaurant for 5 years and never received spread-of-hours pay, all 5 years are still claimable.
Step 3: Understand what you can recover
Successful wage claims in New York include:
- Full back pay for every unpaid spread-of-hours day
- Liquidated damages equal to 100% of the unpaid amount under NY Labor Law §198
- Prejudgment interest at 9% per year
- Attorney's fees if you prevail
Liquidated damages basically double what you are owed. Five years of unpaid spread-of-hours pay can become a real settlement once doubled and stacked with interest.
Step 4: File a complaint
Submit Form LS223 (Labor Standards Complaint Form) to the New York State Department of Labor's Division of Labor Standards. You can file online or by mail to the Albany office. The DOL will investigate and can issue an order for back wages.
Many workers also consult an employment attorney directly. New York wage-and-hour firms commonly take spread-of-hours cases on contingency, meaning you do not pay unless you win.
Anti-retaliation protection
Under NY Labor Law §215, your employer cannot legally fire, demote, cut your hours, or otherwise punish you for filing a wage complaint. If they do, that triggers a separate retaliation claim with its own penalties. Document any change in treatment after you file.
How to Track Your Spread-of-Hours Days
The hardest part of any spread-of-hours claim is proving the spread. Pay stubs show paid hours, not the time between your first clock-in and your last clock-out. Without your own records, the only proof is whatever your employer chose to keep.
What to log every day
Three timestamps matter:
- First clock-in for the day (or the start of any required pre-shift activity)
- Last clock-out for the day (after all required post-shift work)
- Any breaks long enough to be off duty (so you can show actual hours worked vs. spread)
That is all you need to calculate the spread. If the difference between the first and last timestamps exceeds 10 hours, flag the day.
Why an app beats a notebook
A real-time, time-stamped log carries far more weight in a wage claim than a handwritten note added later. Courts and the NYS DOL accept worker-kept records as evidence, especially when employer records are missing or inconsistent.
Hours44 logs your shift starts, breaks, and shift ends with timestamps. It runs offline, requires no account, and stores everything on your device. You can export your records as a CSV at any time, which is exactly what you would attach to a complaint or send to an attorney.
Build a weekly review habit
Once a week, take five minutes to scan your log:
- Did any day's spread exceed 10 hours?
- Does your next pay stub show the spread-of-hours payment for those days?
- If not, save a copy of the stub and note the discrepancy.
Six years is a long time. Catching a $17 miss every other week becomes thousands of dollars in unpaid wages over a few years.
Spread of Hours Pay: Real-World Examples
These examples use the 2026 New York minimum wage rates: $17.00/hour in NYC, Long Island, and Westchester, and $16.00/hour in the rest of the state.
- Location: Manhattan restaurant
- Schedule: 11:00 a.m. - 3:00 p.m. lunch shift, then 5:00 p.m. - 10:00 p.m. dinner shift
- Hours worked: 9 hours
- Spread: 11 hours (11:00 a.m. to 10:00 p.m.)
- Industry: Hospitality (§146-1.6 applies regardless of pay rate)
- Spread-of-hours payment owed: $17.00 (NYC minimum wage)
The server qualifies because the spread exceeds 10 hours and the work falls under the hospitality wage order. Even if the server earns $25/hour plus tips, the extra $17 is still owed for that day.
- Location: Suffolk County retail store
- Schedule: 8:00 a.m. open, closes at 7:00 p.m. with a 1-hour unpaid break
- Hours worked: 10 hours
- Spread: 11 hours
- Industry: Miscellaneous (§142-2.4 applies, with offset)
- Daily pay: 10 × $20 = $200
- Floor: (10 × $17) + $17 = $187
- Spread-of-hours payment owed: $0 (daily pay already exceeds the floor)
This worker is in a covered industry but earns above the offset threshold. Daily pay of $200 already covers the minimum-wage equivalent plus the extra hour, so no additional payment is owed under the offset doctrine.
- Location: Year-round hotel in Manhattan
- Schedule: 6:00 a.m. - 10:00 a.m. morning rooms, 4:00 p.m. - 6:00 p.m. evening turn-down
- Hours worked: 6 hours
- Spread: 12 hours (6:00 a.m. to 6:00 p.m.)
- Industry: Hospitality (year-round hotel, §146-1.6)
- Spread-of-hours payment owed: $17.00
Even though the housekeeper only worked 6 hours, the 12-hour spread triggers the rule. Hospitality wins again: no offset, no rate-based exclusion.
- Location: Restaurant in Buffalo (rest of state)
- Schedule: 10:00 a.m. - 2:00 p.m., then 5:00 p.m. - 9:00 p.m.
- Hours worked: 8 hours
- Spread: 11 hours (10:00 a.m. to 9:00 p.m.)
- Industry: Hospitality (tipped, but rule still applies in full)
- Spread-of-hours payment owed: $16.00 (rest-of-state minimum wage)
The tip credit does not reduce the spread-of-hours payment. The worker still gets the full extra hour at the basic minimum wage. Over a year of working three split shifts per week, that is roughly $2,500 in additional pay.
Frequently Asked Questions
Tips for New York Workers: Protect Your Spread-of-Hours Pay
- Track first clock-in and last clock-out every day, not just paid hours. Spread of hours is measured from start to finish, including unpaid breaks. Use Hours44 to log time-stamped shift starts and ends so you have evidence for any day the spread exceeds 10 hours.
- Snap photos of posted schedules before they come down. Schedules often disappear after the week ends. A photo on your phone with a date stamp is admissible evidence if you ever file a complaint.
- Save every pay stub. Spread-of-hours pay should appear as a separate line item or be included in your gross pay calculation. If you cannot find it on a day you qualified, save the stub and the schedule together.
- Compare your daily log to your pay stub each pay period. Catching a $17 miss right away is much easier than reconstructing months of records later. A 5-minute weekly review is the difference between knowing and guessing.
- Know which wage order applies to you. Restaurants and year-round hotels fall under 12 NYCRR 146 (hospitality). Most retail, security, building service, and similar work falls under 12 NYCRR 142 (miscellaneous). The hospitality rule is much more generous, so confirm your industry classification.
- Do not be afraid to file a claim. NY Labor Law 215 prohibits retaliation for filing wage complaints. The 6-year lookback and 100% liquidated damages mean even modest unpaid amounts can grow into real settlements.
References
- NYS Department of Labor: Minimum Wage — Official 2026 New York minimum wage rates by region, including the $17.00 NYC/LI/Westchester rate and $16.00 rest-of-state rate.
- 12 NYCRR 146-1.6 (Cornell Legal Information Institute) — Full text of the hospitality wage order's spread-of-hours rule, applicable to restaurants and all-year hotels.
- 12 NYCRR 142-2.4 (Cornell Legal Information Institute) — Miscellaneous industries wage order covering spread-of-hours pay for non-hospitality workers.
- NYS Department of Labor: Hospitality Industry Wage Order (Part 146) — Official NYS DOL hub for the hospitality wage order, including the full Part 146 PDF and FAQ.
- NY Labor Law Section 198 (Justia) — Statute establishing the 6-year statute of limitations and 100% liquidated damages for unpaid New York wage claims.
- NYS Department of Labor: File a Labor Standards Wage Theft Claim — Official portal for filing Form LS223 to recover unpaid spread-of-hours and other wages.