and the implied covenant of good faith and fair dealing are duplicative if they arise from the same facts as the breach of contract claim. The Court then stated that “[h]ere, all of plaintiffs’ causes of action incorporate the entire complaint by reference, which makes it clear that this entire action is solely premised on the alleged unlawful termination of the Plan in 2015 and the failure to pay sums due under the Plan in 2019 when the company was acquired ... .” Therefore, the Court dismissed the following claims as duplicative: (1) fraud; (2) fraud by omission; (3) fraudulent inducement; (4) fraudulent concealment; (5) negligent misrepresentation; (7) violation of the covenant of good faith and fair dealing; (10) and unjust enrichment.The Court then addressed the plaintiffs’ remaining claims for (8) failure to pay compensation due under New York labor law, (9) failure to pay compensation due under New Jersey labor law. The Court quickly determined that the plaintiffs’ claims under New York Labor Law § 190 failed, because the incentive compensation in the Plan did not constitute wages under New York labor law and were therefore outside of the ambit of § 190. The Court also held that the results were the same under New Jersey Labor and Workmen’s Compensation § 34:11-4.1 and the definition of wages under that statute. Therefore, the Court dismissed these claims as well, leaving the plaintiffs with just their breach of contract claim.Conclusion The Commercial Division decision in Chen provides a unique example of a defendant introducing documentary evidence at a pre-answer motion to dismiss.Chen, 2022 NY Slip Op 50986(U) at 15.Chen, Index No. 800365/2022, Doc. No. 12 at 1 (Amended Complaint).Id. at 6.Id. at 4–6.Id. at 21–25.Chen, Index No. 800365/2022, Doc. No. 17 at 18 (Memorandum in Support of Defendants’ Motion to Dismiss).Id. at 14.Chen, 2022 NY Slip Op 50986(U) at 6Id. at 7.Id. at 8.Chen, Index No. 800365/2022, Doc. No. 12 at 4–5.Chen, Index No. 800365/2022, Doc. No. 19 at 13 (Plan).C

This is particularly troubling because if stock options are "wages" under the New York Labor Law, the employer could be required to pay a prevailing plaintiff's attorneys' fees and also could be subject to other damages and penalties.In Guiry v. Goldman, Sachs & Co., 2006 N.Y. App. Div. LEXIS 6630 (1st Dept. May 18, 2006), the New York Appellate Division, First Department, held that unvested, contingent rights to restricted stock and options to purchase such stock do not constitute "wages" under the New York Labor Law §190(1) because they are "incentive compensation." In Guiry, pursuant to a compensation agreement between the parties, the plaintiff held unvested, contingent rights to restricted stock and unvested options to purchase the stock.

imed at limiting the use of noncompete agreements:Bill Int. No. 140 – This bill would categorically ban all noncompetes, with such agreements broadly defined as “an agreement between an employer and a worker that prevents, or effectively prevents, the worker from seeking or accepting work for a different employer, or from operating a business, after the worker no longer works for the employer.” The proposal generally extends such prohibitions to cover anyone who does work “whether paid or unpaid” for an employer, including individuals classified as independent contractors. The proposal also requires employers to rescind any existing noncompetes and prohibits employers from representing to workers that they are subject to a noncompete where the employer “has no good faith basis to believe that the worker is subject to an enforceable non-compete agreement.”Bill Int. No. 146 – This bill proposes a ban on noncompetes with any low-wage employee, defined broadly to cover those identified in Section 190 of the New York Labor Law, and provides an exception for certain “bona fide executive, administrative or professional” employees whose earnings exceed $1,300 per week. Employers would be required to disclose to employees who do not meet the low-wage classification that they may be subject to a noncompete at the beginning of the hiring process, which presumably means that, at a minimum, it would have to be provided prior to making an offer of employment.Bill Int. No. 375 – This bill would ban noncompetes with freelance workers, subject to certain exceptions, such as lawyers and licensed medical professionals. Such noncompetes would be prohibited unless the agreement requires the hiring party to pay a “reasonable and mutually agreed upon sum” to the freelance worker on either a bi-weekly or monthly basis for the duration of the noncompete. Failing to provide this payment will render the noncompete null and void. The proposal also provides for a private right of action, in which workers may obtain a declaratory j

of non-compete agreements.Unlike legislation in other states, there is also no exception for non-competes entered in connection with the sale of a business. Moreover, this bill does not allow non-competes above a certain income level, which is the issue that reportedly caused Governor Hochul to veto the statewide ban.If this bill is successful, NYC would be the first city to broadly ban non-competes, joining states like California, Minnesota, Nebraska, North Dakota, and Oklahoma.Ban on Non-Competes for Low-Wage WorkersAn alternate measure, 0146-2024, aims to prohibit non-compete agreements for “low-wage employees.”Under this proposal, a “non-compete agreement” refers to any agreement that limits an employee’s ability to work for a different employer for a specified duration of time or in a specified geographic region or to engage in similar work for a different employer compared to what they did for their employer.The bill adopts the definition of “clerical and other worker” found in New York Labor Law 190 to define “low-wage employee.” Consequently, this ban would cover all employees except: manual workers (somewhat oddly); railroad workers; commission salespeople; or bona fide executive, administrative, or professional employees earning over $1,300 per week (equivalent to $67,600 per year).Like the first proposal, this law would ban non-compete agreements for low-wage employees, although it does not appear to invalidate any existing agreements.Additionally, this bill would require employers to disclose in writing at the outset of the hiring process any requirement for workers who are not classified as low-wage employees to enter non-compete agreements.Enforcement would be left to the NYC Office of Labor Policy & Standards, and there is no private right of action contemplated for violations.Ban on Non-Competes for Freelance WorkersThe final proposal, 0375-2024, contemplates a ban on non-competes for freelance workers. This legislation would bar any agreements that restrict a freelance

moving forward, but would also require them to nullify any existing non-compete agreements. The bill would further prohibit employers from even representing to a worker that they may be subject to a non-compete “where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete agreement.” Importantly, the bill does not provide for a private right of action. Instead, if found in breach, the NYC Office of Labor Standards could subject an employer to a civil penalty of $500 per violation.This New York City bill, like the New York State bill, is overly broad and lacks the carveouts (e.g. a sale of business exception) and other limitations (discussed more here), that led in part to Governor Hochul declining to sign the State bill into law.Alternatively, bans on non-competes for low-wage employees and freelancers were also introduced. Bill 146 would prohibit employers from requiring low-wage workers, defined as a “clerical or other worker” under Section 190 of the New York Labor Law, or employees other than those employed in a bona fide executive, administrative, or professional capacity and earn at least $1,300 per week, to enter non-compete agreements with such employees. Crucially, the bill would create a disclosure requirement for non-low-wage prospective employees at the outset of the hiring process that they may be subject to a non-competition agreement.Lastly, Bill 375 targets non-competes for freelance workers, broadly defined as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, which is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation,” excluding sales representatives as defined under section 191-a of the labor law, lawyers, doctors, and “any individual, partnership, corporation or other legal entity admitted to membership in the Financial Industry Regulatory Authority.” The bill bans the use of non-co

y or charge incurred by the employee arising from his or her reliance on the validity of the instrument (Nev. Rev. Stat. §§ 608.130, 608.140, 608.195)New YorkManual workers2 must be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned. Manual workers for nonprofit entities must be paid in accordance with their agreed terms of employment but not less frequently than semi-monthly.Clerical or other non-manual workers must be paid in accordance with the agreed terms of employment and not less frequently than semi-monthly (N.Y. Lab. Law § 191 (McKinney)).Commissioned salespersons must be paid in accordance with the agreed terms set forth in a written commission agreement but not less frequently than once a month and not later than the last day of the month following the month in which the wages are earned. (N.Y. Lab. Law § 191).New York has no frequency of pay requirements for exempt executive, administrative, or professional employees (N.Y. Lab. Law §§ 190(7) and 191(1)(d)).Employers must pay fringe benefits or wage supplements within 30 days after payment is due. (N.Y. Lab. Law § 191 (McKinney)).Employers must pay wages to discharged employees on next regular payday, and wages can be mailed upon employee request. (N.Y. Lab. Law §§ 191-c, 195 (McKinney)).NYDOL may bring action against employers for the full amount of wage underpayment and additional liquidated damages, which are capped at 100% total wages owed. (N.Y. Lab. Law §§ 191, 196, 197, 198, 198-a (McKinney)).Employees bringing wage actions can receive full recovery of the underpayment, all reasonable attorney's fees, ordinary costs, prejudgment interest, and an additional amount as liquidated damages equal to 100% of the total amount of wages owed. (N.Y. Lab. Law §§ 191, 198 (McKinney)).NY employers that fail to pay wages may be fined $500 per failure. (N.Y. Lab. Law § 197 (McKinney)).Misdemeanor carrying fines between $500-$20,000 and up to 1 year imprisonment for first offense; s

On the other hand, states like New York specifically define “wages” to include “reimbursement for expenses.” See N.Y. Labor Law §§190(1), 198c(2). Consequently, the operative state’s definition of “wages” may pose an insurmountable hurdle to the expense reimbursement offset strategy.