Provided by:  Jennifer Kirschenbaum, Esq.

December 3, 2019



Hi Jennifer, 

I am getting ready to brace myself for employee demands for bonuses.  What is the best approach here?  I usually give everyone the same amount ($100 for staff) and then a few get a little more that are merit based.   Is this ok? 

Thanks, Dr. S

Depends.  We have to be careful you are not setting yourself up for a claim of disparate treatment among the employees.  Under NYS law, and other similarly situated states, Employers are absolutely legally entitled to award discretionary bonuses, but the fact a bonus is discretionary should be documented by contract or policy.See Buckman v Calyon Sec. (USA), Inc., 817 F.Supp.2d 322, 338 (S.D. N.Y. 2011).  So here, where everyone gets $100 except for a few on "merit basis", I would ensure you have a policy that bonuses are 100% discretionary and then I encourage you to internally document why some are being awarded a merit based additional sum than everyone else.  Documentation can be as simple as an email to your office manager or controller distributing payment and a rationale as to why some are receiving more than others.  Documenting the discretionary bonus is also easy - we can capture in a policy or the employee handbook, or by individual contracts.   Similarly, if we are not awarding a bonus to any employee, while others are receiving, you may elect, as a best practice, to document as well. 

For assistance in proper papering of policy, including bonuses, email ( or call Jennifer directly.