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New York state rang in 2020 with a sweeping change to its minimum wage and tip credit rules that is expected to impact roughly 70,000 workers. On December 31, 2019, the New York State Department of Labor (the NYSDOL) recommended to Governor Andrew Cuomo that the state eliminate the tip credit for all miscellaneous industry workers (don’t worry, we will explain what that means). Governor Cuomo has announced that he will implement the recommendation, which will go into effect later this year.

By way of background, both federal and New York state laws generally require that employers pay non-exempt – i.e., hourly – employees at least the applicable minimum wage rate. Both laws, however, contain an exception that permits employers to pay tipped employees less than the minimum wage, provided that the employees’ direct wages plus tips equal or exceed the minimum wage rate or overtime rate, as applicable. The difference between the minimum wage rate – which presently varies between $12.50 and $15 per hour in New York (depending on location within the state) – and the reduced wage for tipped employees is known as a “tip credit.” In practical terms, the tip credit means that certain employers are permitted to pay employees at a rate lower than the minimum wage so long as the employees receive sufficient tips in the course of their work.

Continue Reading New year, new changes to New York state’s minimum wage and tip credit rules

New York state employers, it’s time to dust off and update your employee handbooks again.  Earlier this month, Governor Andrew Cuomo signed a law that protects employees against discrimination on the basis of their reproductive health decision-making. The law, which mirrors a recent bill passed by New York City lawmakers, also requires that employers in…

New York City’s Human Rights Law (NYCHRL) is one of the broadest anti-discrimination statutes in the country. But does it apply to all Big Apple employers, regardless of size? A recent amendment passed by the City Council clarifies precisely which entities are considered “employers” for purposes of the NYCHRL.

In its current incarnation, the NYCHRL simply states that it does not apply to any employer with fewer than four persons in its employ. This definition has been subject to debate, however, due to the statute’s broad definition of employee, which currently encompasses employees that are full- or part-time, permanent or temporary, paid on or off the books, or are paid or unpaid interns. However, the amended law expands these protections to (1) independent contractors, (2) freelancers and (3) an employer’s parent, spouse, domestic partner or child, if employed by the employer.Continue Reading NYC Council amends the New York City Human Rights Law definition of covered employer

For decades, the New York City Human Rights Law (NYCHRL) has provided protections against discrimination, harassment, and retaliation on the basis of an individual’s actual or perceived immigration status or national origin. However, last week, New York City’s Commission on Human Rights (NYCCHR) issued new guidance (the Guidance) that greatly expands the basis on which an employer can be penalized under the law. The Guidance provides examples to illustrate prohibited harassment and retaliation against individuals, based on their immigration status or national origin. Below is a list of the hiring practices and employee policies which can often lead employers to inadvertently violate the NYCHRL.
Continue Reading New York City’s Commission on Human Rights issues new guidance on immigration status and national origin discrimination

Effective April 10, 2019, certain employers must comply with Westchester County’s Earned Sick Leave Law (WESLL). Westchester County’s Human Rights Commission recently released additional guidance about the new law, which can be found here.

Eligibility, accrual and carryover

Generally, under the law, full- and part-time Westchester County employees who work 80 hours or more during a calendar year are eligible to use sick leave for the care and treatment of themselves or a family member. The law requires employers with five or more employees to allow eligible employees to accrue one hour of paid sick leave per every 30 hours worked, with a cap of 40 hours of leave per calendar year. Employers with one to four employees must provide the same benefits, but the leave may be unpaid. WESLL leave begins accruing on the later of July 10, 2019, or the first date of employment.

Employers have the option of applying the WESLL or, alternatively, the employer can front-load sick and personal time equal to 40 hours or more, at the beginning of a calendar year. In addition, employees are permitted to carry over a maximum of 40 hours of unused sick leave at the end of the year.Continue Reading Attention employers: Westchester’s earned sick leave law is now in effect

On April 9, 2019, New York City Council passed a bill amending the New York City Human Rights Law (NYCHRL), to bar NYC employers from testing prospective employees for marijuana use. The Bill comes in the wake of the City’s efforts to reduce the legal consequences of marijuana use, including reducing arrests and prosecutions for low-level marijuana-related crimes.

The text of the Bill declares it to be “an unlawful discriminatory practice for an employer … to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” However, the Bill excludes the following jobs from the ban:

  • Police officers
  • Peace officers
  • Positions with a law enforcement or investigative function at the New York City Department of Investigations
  • Workers on construction sites
  • Positions requiring a commercial driver’s license
  • Positions requiring the supervision or care of children, medical patients, or vulnerable persons
  • Positions with the potential to significantly impact the health or safety of employees or members of the public

Continue Reading New York City Council gives the green light to a ban on marijuana testing for job applicants

Though the business community might not have had a vote in it, New York legislators have amended the State’s election laws to provide employees with an additional hour of paid time off to vote on election days.

Until recently, New York law required employers to provide workers with up to two hours of paid time off to vote. A convoluted scheme, however – hinging, in large part, on the employee’s specific election day work schedule – governed whether and to what extent employees were entitled to take such time off. Under the new, more streamlined law, employees may take up to three hours of paid time off to vote – a one-hour bump – regardless of their work schedule (although the employer may designate that the time be taken at the beginning or end of a shift).Continue Reading New York provides employees with additional hour of paid time off to vote

By now, our readers are aware that New York State and City law require annual workplace sexual harassment prevention training. The State law requiring such training took effect last October, and mandates that employers complete the initial training by October 9, 2019. The separate City law became effective just a few weeks ago, on April 1. It requires that covered employers – meaning businesses with 15 or more employees in NYC – comply with the City-specific training requirements by year-end.

In conjunction with the rollout of the City law, the NYC Commission on Human Rights (NYCCHR), the agency tasked with administering the law, issued a series of FAQs to help employers navigate their new training-related obligations. The FAQs – which are not binding law, but do suggest how the NYCCHR will interpret and enforce the law – provide valuable insight. Consistent with the NYC Human Rights Law’s (NYCHRL) definition of “employee,” for instance, the FAQs note that “[a]n employer is required to train independent contractors who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year.” As the NYCCHR explains, “independent contractors – regardless of the number of days or hours they work – are considered employees for the purposes of determining whether an employer is obligated to provide the annual sexual harassment training.”Continue Reading Are non-NYC employees subject to the City’s new sexual harassment prevention training law?

Recently, New York’s highest state court, the Court of Appeals, held that the New York Labor Law (NYLL) does not automatically entitle New York home health care providers to wages for each hour worked during a 24-hour shift.

The ruling is the result of an appeal of two state court class actions in which home health aides accused their employers of violating NYLL by failing to pay minimum wage for each hour of their 24-hour shifts. The dispute arose due to a phrase in the New York State Department of Labor’s (DOL) Minimum Wage Order Number 11 for Miscellaneous Industries and Occupations (the regulation), which states that workers must be paid minimum wage for the time they are “required to be available for work at a place prescribed by the employer.” Plaintiffs in both cases alleged that they were entitled to 24-hour pay because their patients could not be left alone and often needed assistance throughout the night, thereby requiring them to be available for work for their entire shift.Continue Reading New York’s highest court holds that home health aides are not entitled to 24-hour pay

A New York City Council member recently proposed an amendment to the New York City Human Rights Law (NYCHRL) that would restrict fast food establishments from firing employees without “just cause.” The purported reason for this amendment is to provide more job security to fast food workers.

The bill defines “just cause” as an “employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful” to the business. If enacted, the proposed bill would require that a termination for just cause be the result of the fast food establishment’s use of “progressive discipline” within a one-year window from the date of the employee’s termination. “Progressive discipline” refers to “a disciplinary system that provides a graduated range of reasonable responses” to an employee’s failure to perform their job satisfactorily. Any discipline issued to the employee outside of the one-year timeframe would not be considered a part of the progressive discipline supporting a just cause termination. The bill would also require employers to provide the employee with a final, written explanation of the specific reasons for their termination. However, these protections would not extend to any fast food employee (1) covered by a collective bargaining agreement or (2) within their probationary period (30 days from date of hire).Continue Reading Not so fast … New York City Council proposes ban on no-cause firings