June 23, 2015
New York Law
NYS Acting Commissioner of Labor Accepts the Wage Board's Recommendation to Increase the Minimum Wage for Tipped Employees in the Hospitality Industry
February 23, 2015
New York State's Acting Commissioner of Labor, Mario Musolino, issued an Order today, accepting most of the recommendations made by the Hospitality Industry Wage Board, including the recommendation to increase the minimum wage for all tipped employees in the Hospitality Industry to $7.50 per hour effective December 31, 2015. The one recommendation that the Acting Commissioner rejected was the one that would have provided certain employers with some relief from this significant increase in labor costs -- namely, the recommendation to allow employers to take $1.00 off the hourly minimum wage for tipped employees if the weekly average earnings of their employees (wages paid plus tips received) equals or exceeds 150% of the regular minimum wage in New York City or 120% of the regular minimum wage in the rest of the state. So, to summarize, the Acting Commissioner's Order will: (1) increase the minimum wage for all tipped employees in the Hospitality Industry (regardless of whether they are classified as food service workers, service employees, or resort hotel service employees) to $7.50 per hour effective December 31, 2015; and (2) implement a $1.00 increase in the minimum wage for tipped employees in the Hospitality Industry who work in New York City, which would take effect if and when the legislature enacts a higher minimum wage rate for New York City. The Acting Commissioner also accepted the Wage Board's recommendation to review whether the current system of cash wages and tip credits should be eliminated. The Acting Commissioner's Order will be effective 30 days after notice of its filing is published in at least 10 newspapers of general circulation in the state. Employers in the hospitality industry should begin to consider how this significant increase in labor costs attributable to the employment of food service workers and service employees will impact their businesses in 2016 and beyond.
February 4, 2015
December 30, 2014
December 23, 2014
- the identifiable cost, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;
- the number of individuals who will need the leave; and
- for an employer with multiple facilities, the degree to which the geographic separateness or administrative fiscal relationship of the facilities will make granting the leave more difficult or expensive.
December 19, 2014
An Early Holiday Present For New York Employers: The Annual Wage Notice Requirement Will Be Eliminated
December 18, 2014
December 5, 2014
October 17, 2014
- The law does not prevent employers from enforcing policies and procedures prohibiting employees from performing their job duties while impaired by a controlled substance. Accordingly, employers can lawfully prohibit all employees, including those that utilize medical marijuana, from working while impaired. As a practical matter, an employer who is on notice that an employee is certified to use medical marijuana may find it helpful to request information from the employee’s doctor to determine if and to what extent the employee may be impaired in the performance of his/her job duties. The employer may need to consider whether accommodations can be provided to allow the employee to work unimpaired (such as modifying the employee’s hours of work based on his/her medical use regime).
- The law does not require employers to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding.
- An individual must obtain a registration identification card and must carry the registration card whenever the individual has marijuana in his or her possession. This registration card will make it easier for employers to verify whether employees are lawfully in possession of marijuana in the workplace. If an employee has marijuana in his or her possession and is not able to produce the registration card upon demand, the employee is not lawfully utilizing the drug and is not entitled to the employment protections detailed above.
- In addition to a registration card, an individual must also have a valid prescription from a certified physician in order to lawfully use medical marijuana. Employers should be aware of this in the event an individual tests positive for marijuana use. That is, a positive result for marijuana may not necessarily be a test result that justifies adverse employment action.
- Certified individuals are strictly prohibited from smoking medical marijuana. Therefore, if an employee smokes marijuana in the workplace or if the employer reasonably concludes based on other evidence that the employee is smoking marijuana recreationally (e.g., smelling of marijuana smoke), the employee will be outside the scope of employment protection.
- Certified individuals are prohibited from consuming marijuana (in any form) in a public place. Public place is not currently defined; however, the Commissioner of Health was granted the authority to issue regulations defining “public place.” If the Commissioner defines “public place” to include the workplace, employers will not be required to accommodate employees by allowing them to consume the drug in the workplace (and, of course, if ingestion at work would result in impairment, this would not be required in any event).
July 22, 2014
On July 22, 2014, Governor Cuomo signed a bill that amends the New York Human Rights Law by adding a new Section 296-c entitled, “Unlawful discriminatory practices relating to interns.” The amendment prohibits employers from discriminating against unpaid interns and prospective interns on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, with respect to hiring, discharge, and other terms and conditions of employment. The amendment further prohibits employers from retaliating against unpaid interns who oppose practices forbidden under the Human Rights Law or who file a complaint, testify, or assist in a proceeding brought under the Human Rights Law. The amendment also makes it unlawful for employers to compel an intern who is pregnant to take a leave of absence, unless the pregnancy prevents the intern from performing the functions of the internship in a reasonable manner. The amendment also prohibits employers from subjecting interns to sexual harassment or any other type of harassment based on a protected category. This legislation was introduced following a 2013 case in which the United States District Court for the Southern District of New York dismissed a sexual harassment claim asserted by an unpaid intern who alleged that her boss had groped her and tried to kiss her. In that decision, the Court was bound by the language of the statute that existed at that time and the court decisions interpreting that language, which provided that the Human Rights Law only applied to paid employees and did not apply to unpaid interns. The purpose of the legislation is to give unpaid interns the same right to be free from workplace discrimination and harassment as paid employees. Employers who have unpaid interns or expect to have unpaid interns in the future should consider revising their anti-discrimination and anti-harassment policies to explicitly provide that discrimination and harassment against interns will not be tolerated, and that complaints made by interns regarding alleged unlawful harassment will be investigated in the same manner as complaints made by employees. In addition, as we noted in a 2010 blog post, employers should also make sure that unpaid interns truly qualify as unpaid interns, and would not be considered "employees" who are entitled to the minimum wage and overtime protections of the Fair Labor Standards Act and New York wage and hour laws.
June 20, 2014
Transportation Industry Beware: New York Quietly Enacts New Legislation Targeting Worker Misclassification
April 9, 2014
[A]ny sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity that compensates a driver who possesses a state-issued driver’s license, transports goods in the state of New York, and operates a commercial motor vehicle as defined in subdivision four-a section two of the transportation law.The term “commercial goods transportation services” is defined as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in the state of New York, and operates a commercial motor vehicle as defined in subdivision four-a section two of the transportation law.” In turn, the referenced section of New York’s transportation law defines a “commercial motor vehicle” as including a “motor vehicle used on a highway in intrastate, interstate or international commerce [that] has a gross vehicle weight rating or gross combination weight of ten thousand one pounds or more, whichever is greater.” Rebutting the Presumption of Employment Status A covered business can rebut the presumption of employment status in one of two ways. First, the business can show the driver is a bona-fide “independent contractor.” To do so, all of the following criteria must be met under the Act’s so-called “A-B-C” test: A. the individual is free from control and direction in performing the job, both under his or her contract and in fact; B. the service must be performed outside the usual course of business for which the service is performed; and C. the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue. Second, the business can show the driver is a “separate business entity.” To establish this alternative defense, the business must specifically show that each and every part of a detailed, eleven-factor test is met. Significantly, one of the “technical corrections” to the Act made explicit that even if one of the above tests is otherwise met, a person performing transportation services will be presumed to be an employee if his/her services are not reported on an IRS Form 1099. What are the Penalties for Non-Compliance? The Act imposes new, significant penalties for businesses failing to properly treat covered drivers as employees. Violations deemed to be “willful” are punishable by substantial civil and criminal penalties. Willful violations are defined as violations where a party “knew or should have known that his or her conduct was prohibited.” Civil remedies include a penalty of $2,500 per misclassified worker for a first violation, and a penalty of $5,000 per misclassified worker for subsequent violations. Criminal penalties include up to 30 days imprisonment or a fine not to exceed $25,000 for the first violation, and up to 60 days imprisonment or a fine not to exceed $50,000 for subsequent violations. These civil and criminal penalties may also be imposed under certain circumstances against corporate officers and against shareholders who own or control at least ten percent of the corporation’s outstanding stock. Further, non-compliant businesses, as well as certain corporate officers and shareholders, may be “debarred” from public works contracts in New York for a period of up to one year for a first violation and up to five years in the event of subsequent violations. Agency Information Sharing In the event of a violation, the Act additionally mandates prompt information sharing among the New York State Department of Labor (“NYSDOL”), Workers’ Compensation Board, and Department of Taxation and Finance. Thus, a misclassification finding by one state agency will in all likelihood raise other significant legal issues before other state agencies. Other Requirements The Act imposes other additional requirements for New York businesses in the transportation industry, some of which appear to apply regardless of whether the respective business actually uses independent contractors. For example, the Act expressly prohibits employers and their agents from retaliating “through discharge or in any other manner against any person in the terms of conditions of his or her employment” for:
- making, or threatening to make, a complaint to an employer, co-worker or to a public body that rights guaranteed under [the Act] have been violated;
- causing to be instituted any proceeding under or related to [the Act]; or
- providing information to, or testifying before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer.
- the responsibility of independent contractors to pay taxes;
- the rights of employees to workers’ compensation, unemployment benefits, minimum wage, overtime and other protections; and
- the protections against retaliation.