New York Labor Law • 12 NYCRR Part 146 • 12 NYCRR Part 142

New York Spread of Hours Rules: 10-Hour Span, Split Shifts & Wage Orders

A comprehensive statutory analysis of New York's unique "spread of hours" regulation. Discover how elapsed workday spans over 10 hours trigger an additional hour of pay, how hospitality rules differ from general retail and office settings, and how court offset doctrines apply.

Published: October 2026•Audited for: 2026 Statutory Rate ($17.00 Downstate / $16.00 Upstate)•Reviewed by: StateWageCalc Legal Research Group

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1. What Is the New York "Spread of Hours" Rule?

Unlike most states where overtime compensation is triggered exclusively by cumulative hours worked in a day or week, New York labor law contains a distinctive regulation known as the spread of hours (also referred to as the 10-hour span rule).

Under official New York State Department of Labor (NYSDOL) Wage Orders:

  • Hospitality Industry Wage Order (12 NYCRR § 146-1.6): Governs restaurants, bars, diners, catering establishments, and all-year hotels.
  • Miscellaneous Industries Wage Order (12 NYCRR § 142-2.4): Governs retail, office workplaces, professional service firms, and non-profit employers.
  • Building Service Wage Order (12 NYCRR § 141-1.4): Governs non-exempt janitorial, doorman, and building maintenance staff.

Under each of these wage orders, the spread of hours is defined as:

"The spread of hours is the interval between the beginning and end of an employee's workday. The spread of hours for any day includes working time plus time off for meals plus intervals off duty." — 12 NYCRR § 146-1.6(a)

Whenever the elapsed time between an employee's first clock-in and final clock-out exceeds 10.0 hours on any calendar workday, the employer must compensate the employee with one additional hour of pay at the basic statutory minimum wage rate.

2. Elapsed Clock Span vs. Cumulative Hours Worked

The most common point of confusion among both employees and employers is the distinction between hours worked and spread of hours. The spread of hours does not require 10 hours of active labor. It measures the clock span of the worker's day.

Shift ScenarioHours WorkedElapsed SpanSpread Pay Triggered?
9:00 AM – 5:00 PM (1h unpaid lunch)7.0 hours8.0 hoursNo (Span ≤ 10h)
8:00 AM – 6:30 PM (1.5h unpaid breaks)9.0 hours10.5 hoursYes (Span > 10h → 1 hr pay)
10:00 AM – 2:00 PM & 5:00 PM – 9:30 PM (Split Shift)8.5 hours11.5 hoursYes (Span > 10h → 1 hr pay)
11:00 AM – 9:01 PM (Continuous Shift)10.01 hours10.01 hoursYes (Span > 10h → 1 hr pay)
11:00 AM – 2:00 PM & 5:00 PM – 8:30 PM (Split Shift ≤ 10h)6.5 hours9.5 hoursHospitality: No (Span ≤ 10h)
Miscellaneous: Yes (12 NYCRR § 142-2.4 split-shift trigger)

Crucial Split Shift Distinction: Under 12 NYCRR § 146-1.6, hospitality employers owe spread pay only when the actual clock span strictly exceeds 10 hours; a split shift of 10.0 hours or less does not trigger the extra hour. In contrast, under Miscellaneous Industries (12 NYCRR § 142-2.4), a qualifying split shift can trigger the one-hour premium regardless of total span (subject to court offset for higher earners).

3. The Critical Divide: Hospitality vs. Miscellaneous Industries

New York law applies the spread-of-hours mandate very differently depending on whether the business falls under the Hospitality Wage Order or the Miscellaneous Industries Wage Order.

A. Hospitality Industry (Restaurants, Bars, Hotels) — Strict No-Offset Rule

Under 12 NYCRR § 146-1.6(d):

"The spread of hours regulations shall apply to all employees in restaurants and all-year hotels, regardless of a given employee's regular rate of pay."

This means:

  • Even if an executive chef earns $35.00 per hour, if their shift spans 11 hours, the employer must pay them an extra hour at the basic statutory minimum wage ($17.00/hr in Downstate NY for 2026).
  • Employers cannot claim that paying above minimum wage satisfies or "offsets" this obligation.
  • Tip credits may never be taken against spread of hours pay. Tipped servers earning an $11.35 cash wage must receive the full $17.00 basic minimum wage for their spread of hours premium.
  • Resort Hotel Exemption (12 NYCRR § 146-1.6(d) & § 146-3.1): The spread-of-hours rule applies strictly to restaurants and all-year hotels; resort hotels are exempt from the spread-of-hours mandate. Furthermore, under NYSDOL P717, resort hotels require significantly higher service employee weekly tip thresholds ($9.00/hr Upstate, $9.55/hr Downstate in 2026) to claim a tip credit.

B. Miscellaneous Industries (Retail, Offices, Services) — Judicial Offset Doctrine

Under the Miscellaneous Industries Wage Order (12 NYCRR § 142-2.4), the text of the order does not contain subsection 146-1.6(d)'s explicit "regardless of wage rate" clause.

Federal courts in the U.S. Second Circuit and the Southern District of New York have consistently held that in miscellaneous industries, employers paying an hourly wage well above the statutory minimum wage can offset spread-of-hours liability (Espinosa v. Delgado Travel Agency, Inc., 2007 WL 656271; Zheng v. Liberty Apparel Co., 560 F.Supp.2d 276; Almeida v. Aguinaga, 500 F.Supp.2d 366).

The Espinosa Offset Formula: If the employee's total straight-time wages for the workweek equal or exceed:

Statutory Floor = (Total Regular Hours Worked + Number of Spread Days) × Statutory Minimum Wage Rate

then the employer has satisfied the statutory minimum and no additional spread-of-hours pay is owed.

C. Building Service Industry (12 NYCRR Part 141) — Complete Spread Pay Preclusion

Under New York law, building service workers (including porters, janitors, doormen, building cleaners, handypersons, and superintendents) are governed exclusively by 12 NYCRR Part 141 (Building Service Wage Order CR141).

In Navarro v. Building Service (E.D.N.Y. 2024), federal court precedent confirmed that Part 141 occupies the field for building service workers and does NOT contain a spread-of-hours premium. Employers of Part 141 workers are not subject to the spread-of-hours provisions of Part 142 or Part 146, nor do Part 142's 44-hour live-in overtime rules apply to building service personnel.

4. 2026 Statutory Rate Schedule (NY Labor Law § 652)

Under New York Labor Law § 652, New York maintains two regional minimum wage tiers. Effective January 1, 2026:

Downstate New York Tier$17.00 / hour

Covers New York City (all five boroughs), Nassau County, Suffolk County, and Westchester County.

Food Service Cash Wage: $11.35/hr
Max Tip Credit: $5.65/hr
Spread Pay per Day: $17.00
Remainder of State (Upstate)$16.00 / hour

Covers all other 53 New York counties outside NYC, Long Island, and Westchester.

Food Service Cash Wage: $10.70/hr
Max Tip Credit: $5.30/hr
Spread Pay per Day: $16.00
Service Employee Cash Wage: $13.30/hr (Tip Credit: $2.70/hr)

2027 Rate Schedule & Economic Off-Ramp (NY Labor Law § 652(1-b)): Under NY Labor Law § 652(1-b), annual minimum wage increases beginning in 2027 are indexed to the Northeast Region CPI-W, subject to economic "off-ramp" trigger conditions (e.g., negative inflation, rising unemployment, or declining total state jobs). Under the NYSDOL published determination pursuant to § 652(1-b)(d), 2027 minimum wage rates remain frozen at 2026 levels ($17.00 Downstate, $16.00 Upstate).

5. How Spread of Hours Interacts with Weekly Overtime

Spread of hours and weekly overtime are two distinct statutory requirements that operate independently:

  • Overtime Threshold: Non-exempt employees accrue overtime for all hours worked over 40 in a payroll workweek. Under 12 NYCRR § 142-2.2 and § 142-2.14(b), the 44-hour weekly threshold applies strictly to residential employees who live on the premises of the employer; non-live-in employees in residential buildings are subject to the standard 40-hour threshold.
  • No Double-Counting: Under 12 NYCRR § 146-1.6(c), spread of hours pay is an additional statutory supplement. It is not considered hours worked. Therefore, qualifying for spread of hours does not add hours toward reaching the 40-hour overtime trigger.
  • Exclusion from Regular Rate: Spread of hours payments are excluded from the calculation of the employee's regular hourly rate used to determine overtime premiums.
  • Tipped Food Service Overtime Formula: In the hospitality industry, overtime for tipped food service workers is calculated as:
    Overtime Cash Rate = (1.5 × Basic Minimum Wage) − Allowable Tip Credit
    For Downstate NY in 2026–2027: (1.5 × $17.00) − $5.65 = $19.85 per overtime hour.

6. Legal Remedies: Recovering Unpaid Spread of Hours Pay

Failure to pay spread of hours pay is considered an unlawful wage withholding under the New York Labor Law. Workers whose employers fail to include spread of hours pay on their paystubs have strong statutory protections:

6 YearsStatute of Limitations (NY Labor Law § 198(3))
100%Liquidated Damages Mandated by Law
Full CostsAttorney's Fees & 9% Statutory Interest

Employees can recover unpaid wages by filing an administrative claim with the NYSDOL Division of Labor Standards using form LS-223, or by filing a civil wage claim in New York state or federal court.

Frequently Asked Questions: New York Spread of Hours

Direct answers to common worker and employer questions based on official NYSDOL regulations.

What does spread of hours mean under New York labor law?

Under 12 NYCRR § 146-1.6 and § 142-2.4, the spread of hours is the elapsed interval between the beginning and the end of an employee's workday, including working time, meal periods, and off-duty intervals between split shifts. When this span exceeds 10 consecutive hours, the worker is entitled to an extra hour of pay at the basic statutory minimum wage rate ($17.00 Downstate / $16.00 Upstate in 2026–2027).

Does a split shift alone trigger spread of hours pay in the hospitality industry?

No. Under 12 NYCRR § 146-1.6, restaurants and all-year hotel employers owe spread of hours pay only when the actual clock span exceeds 10 hours. A split shift that begins and ends within a 10-hour span does not trigger the extra hour. In contrast, under Miscellaneous Industries (12 NYCRR § 142-2.4), a qualifying split shift can trigger the one-hour premium regardless of total span.

Does a worker qualify for spread of hours pay if they work only 7 or 8 hours?

Yes. Spread of hours is measured solely by elapsed clock span, not cumulative hours worked. A restaurant worker on a split shift from 10:00 AM to 2:00 PM and 5:00 PM to 9:30 PM worked only 8.5 hours, but has an 11.5-hour clock span (> 10h), entitling them to 1 extra hour of pay.

Do restaurant and hospitality employers have to pay spread of hours to high-earning staff?

Yes. Under 12 NYCRR § 146-1.6(d), in the hospitality industry (restaurants, bars, hotels), the spread-of-hours requirement applies to all covered employees regardless of their regular wage rate. Employers cannot offset this obligation against wages paid above the minimum wage.

Can an employer pay the spread of hours premium at the lower tipped cash wage rate?

No. The spread-of-hours premium must always be paid at the full basic statutory minimum wage ($17.00/hr Downstate or $16.00/hr Upstate in 2026). Tip credits cannot be applied to reduce this premium.

Does spread of hours pay count toward weekly overtime hours?

No. Under 12 NYCRR § 146-1.6(c), spread of hours pay is a statutory supplemental premium, not hours worked. It does not count toward the 40-hour overtime threshold, nor is it included in the regular rate divisor for calculating overtime.

What is the statute of limitations for recovering unpaid spread of hours pay in New York?

Under New York Labor Law § 198(3), the statute of limitations for wage claims, including unpaid spread of hours premiums, is six (6) years. Workers may also recover 100% liquidated damages, pre-judgment interest, and attorney's fees.

Do building service workers (porters, janitors, doormen) receive New York spread of hours pay?

No. Under 12 NYCRR Part 141 (Building Service Wage Order CR141) and federal court precedent (Navarro v. Building Service, E.D.N.Y. 2024), building service employees such as porters, janitors, doormen, building cleaners, superintendents, and handypersons are governed exclusively by Part 141, which does NOT contain a spread-of-hours premium requirement. Employers of Part 141 workers are not subject to the spread-of-hours rules of Part 142 or Part 146.

Are resort hotels exempt from the New York spread of hours rule?

Yes. Under 12 NYCRR § 146-1.6(d), the hospitality spread-of-hours rule applies strictly to restaurants and all-year hotels. Resort hotels (defined in 12 NYCRR § 146-3.1) are legally excluded from the spread-of-hours mandate. Additionally, under NYSDOL P717, resort hotels require significantly higher weekly average tip thresholds ($9.00/hr Upstate, $9.55/hr Downstate in 2026) for service employees before an employer may claim a tip credit.

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