December 12, 2018

December 12, 2018

Subscribe to Latest Legal News and Analysis

December 11, 2018

Subscribe to Latest Legal News and Analysis

December 10, 2018

Subscribe to Latest Legal News and Analysis

Wage Orders Likely Pose Compliance Issues for New York Employers

For New York employers, many wage-and-hour obligations are not set forth in the statute. Rather, they are outlined in Wage Orders promulgated by the New York State Department of Labor. The New York DOL has published proposed modified Wage Orders in the State Register, implementing changes to the existing Wage Orders based on the recently passed increase to the state minimum wage. These Orders – Building Services, Hospitality, Miscellaneous Industries and Occupations, and Agriculture – which are effective December 31, 2016 (absent unanticipated delay), mandate review of wage-and-hour practices by all New York employers, especially those with operations throughout the state, as many of the proposed modifications derive from the recently enacted state minimum wage legislation which provides for different schedules for the increased minimum wage throughout the state.

Some of the most significant proposed changes and the manner in which they differ across the state are summarized below.

Salary Basis

While much attention has been paid to the upcoming increase of the minimum salary for exempt white collar employees under federal law, consistent with the Department’s past practice, the Wage Orders set the minimum salary for exempt executives and administrators (there is no minimum salary requirement for professionals under the Wage Orders) at 75 times the state minimum wage. With the state minimum wage increasing to $15.00 per hour in most of the state (on different timetables, depending on location) the state salary requirement will rise above the new federal standard. For “large” New York City employers with more than 10 employees, this will occur on December 31, 2017. The following summarizes the increased minimum salary requirements throughout the state over the next few years:

(1) New York City for

(i) Large employers of 11 or more employees
  • $825.00 per week on and after 12/31/16;

  • $975.00 per week on and after 12/31/17;

  • $1,125.00 per week on and after 12/31/18;

(ii) Small employers of 10 or fewer employees
  • $787.50 per week on and after 12/31/16;

  • $900.00 per week on and after 12/31/17;

  • $1,012.50 per week on and after 12/31/18;

  • $1,125.00 per week on and after 12/31/19;

(2) Remainder of downstate (Nassau, Suffolk, and Westchester counties)

  • $750.00 per week on and after 12/31/16;

  • $825.00 per week on and after 12/31/17;

  • $900.00 per week on and after 12/31/18;

  • $975.00 per week on and after 12/31/19;

  • $1,050.00 per week on and after 12/31/20;

  • $1,125.00 per week on and after 12/31/21;

(3) Remainder of state (outside of New York City, Nassau, Suffolk, and Westchester counties)

  • $727.50 per week on and after 12/31/16;

  • $780.00 per week on and after 12/31/17;

  • $832.00 per week on and after 12/31/18;

  • $885.00 per week on and after 12/31/19;

  • $937.50 per week on and after 12/31/20.

Uniform Allowance

The uniform allowance also varies throughout the state. For example, under the Hospitality Wage Order, the following weekly uniform maintenance pay requirements apply (the “High” rate applicable to employees who work over 30 hours per week; “Medium” rate for employees who work more than 20, but less than 30 hours per week; and the “Low” rate for employees who work 20 hours or less per week):

(1) New York City for

 (i) Large employers of 11 or more employees
  • $13.70 High, $10.80 Medium, $6.55 Low on and after 12/31/16;

  • $16.20 High, $12.80 Medium, $7.75 Low on and after 12/31/17;

  • $18.65 High, $14.75 Medium, $8.90 Low on and after 12/31/18;

(ii) Small employers of 10 or fewer employees
  • $13.05 High, $10.35 Medium, $6.25 Low on and after 12/31/16;

  • $14.95 High, $11.80 Medium, $7.15 Low on and after 12/31/17;

  • $16.80 High, $13.30 Medium, $8.05 Low on and after 12/31/18;

  • $18.65 High, $14.75 Medium, $8.90 Low on and after 12/31/19;

(2) Remainder of downstate (Nassau, Suffolk, and Westchester counties)

  • $12.45 High, $9.85 Medium, $5.95 Low on and after 12/31/16;

  • $13.70 High, $10.80 Medium, $6.55 Low on and after 12/31/17;

  • $14.95 High, $11.80 Medium, $7.15 Low on and after 12/31/18;

  • $16.20 High, $12.80 Medium, $7.75 Low on and after 12/31/19;

  • $17.40 High, $13.75 Medium, $8.30 Low on and after 12/31/20;

  • $18.65 High, $14.75 Medium, $8.90 Low on and after 12/31/21;

(3) Remainder of state (outside of New York City, Nassau, Suffolk, and Westchester counties)

  • $12.05 High, $9.55 Medium, $5.75 Low on and after 12/31/16;

  • $12.95 High, $10.25 Medium, $6.20 Low on and after 12/31/17;

  • $13.80 High, $10.90 Medium, $6.60 Low on and after 12/31/18;

  • $14.70 High, $11.60 Medium, $7.00 Low on and after 12/31/19;

  • $15.55 High, $12.30 Medium, $7.45 Low on and after 12/31/20.

Under the Hospitality Order, employers must ensure employees who maintain uniforms receive these monies on top of wages to cover this expense. Under the other Orders, as it is an allowance against minimum wage, any wages paid above minimum set off this obligation. Ambiguity persists regarding the precise interpretation of the term “uniform,” though courts have generally considered logo attire to constitute same.

Tip Credit

The tip credit that can be taken against the minimum wage for employees who customarily and regularly receive tips also will vary throughout the state. For example, for food service workers under the Hospitality Order, the minimum cash wage, permissible credits, and applicable totals would be:

(1) New York City for

(i) Large employers of 11 or more employees

  • $7.50 Cash Wage, $3.50 Credit, $11.00 Total on and after 12/31/16;

  • $8.65 Cash Wage, $4.35 Credit, $13.00 Total on and after 12/31/17;

  • $10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after 12/31/18;

(ii) Small employers of 10 or fewer employees

  • $7.50 Cash Wage, $3.00 Credit, $10.50 Total on and after 12/31/16;

  • $8.00 Cash Wage, $4.00 Credit, $12.00 Total on and after 12/31/17;

  • $9.00 Cash Wage, $4.50 Credit, $13.50 Total on and after 12/31/18;

  • $10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after 12/31/19;

(2) Remainder of downstate (Nassau, Suffolk, and Westchester counties)

  • $7.50 Cash Wage, $2.50 Credit, $10.00 Total on and after 12/31/16;

  • $7.50 Cash Wage, $3.50 Credit, $11.00 Total on and after 12/31/17;

  • $8.00 Cash Wage, $4.00 Credit, $12.00 Total on and after 12/31/18;

  • $8.65 Cash Wage, $4.35 Credit, $13.00 Total on and after 12/31/19;

  • $9.35 Cash Wage, $4.65 Credit, $14.00 Total on and after 12/31/20;

  • $10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after 12/31/21;

(3) Remainder of state (outside of New York City, Nassau, Suffolk, and Westchester counties)

  • $7.50 Cash Wage, $2.20 Credit, $9.70 Total on and after 12/31/16;

  • $7.50 Cash Wage, $2.90 Credit, $10.40 Total on and after 12/31/17;

  • $7.50 Cash Wage, $3.60 Credit, $11.10 Total on and after 12/31/18;

  • $7.85 Cash Wage, $3.95 Credit, $11.80 Total on and after 12/31/19;

  • $8.35 Cash Wage, $4.15 Credit, $12.50 Total on and after 12/31/20.

Further, the Hospitality Order reintroduces separate tip credits that apply to food service workers (as noted above) and service workers, such as delivery persons. New York employers must ensure the appropriate rates are utilized. For service employees, the Hospitality Order also imposes minimum tip thresholds that are greater than the amount of the permissible credit.

Meal Credit

Similar variations for meal credits would be effective throughout state. For example, under the Hospitality Order, the permissible credits would be the following (the “Food Service” rate is applicable to food service workers, “Service” rate is applicable to service employees, and “Other” rate is applicable to non-service employees):

(1) New York City for

(i) Large employers of 11 or more employees
  • $2.85 Food Service, $3.05 Service, $3.80 Other per meal on and after 12/31/16;

  • $3.25 Food Service, $3.60 Service, $4.50 Other per meal on and after 12/31/17;

  • $3.60 Food Service, $4.15 Service, $5.15 Other per meal on and after 12/31/18;

(ii) Small employers of 10 or fewer employees
  • $2.80 Food Service, $2.90 Service, $3.60 Other per meal on and after 12/31/16;

  • $3.05 Food Service, $3.35 Service, $4.15 Other per meal on and after 12/31/17;

  • $3.35 Food Service, $3.75 Service, $4.65 Other per meal on and after 12/31/18;

  • $3.60 Food Service, $4.15 Service, $5.15 Other per meal on and after 12/31/19;

(2) Remainder of downstate (Nassau, Suffolk, and Westchester counties)

  • $2.70 Food Service, $2.80 Service, $3.45 Other per meal on and after 12/31/16;

  • $2.85 Food Service, $3.05 Service, $3.80 Other per meal on and after 12/31/17;

  • $3.05 Food Service, $3.35 Service, $4.15 Other per meal on and after 12/31/18;

  • $3.25 Food Service, $3.60 Service, $4.50 Other per meal on and after 12/31/19;

  • $3.45 Food Service, $3.90 Service, $4.80 Other per meal on and after 12/31/20;

  • $3.60 Food Service, $4.15 Service, $5.15 Other per meal on and after 12/31/21;

(3) Remainder of state (outside of New York City, Nassau, Suffolk, and Westchester counties)

  • $2.65 Food Service, $2.70 Service, $3.35 Other per meal on and after 12/31/16;

  • $2.75 Food Service, $2.90 Service, $3.60 Other per meal on and after 12/31/17;

  • $2.90 Food Service, $3.10 Service, $3.80 Other per meal on and after 12/31/18;

  • $3.00 Food Service, $3.30 Service, $4.05 Other per meal on and after 12/31/19;

  • $3.15 Food Service, $3.45 Service, $4.30 Other per meal on and after 12/31/20.

Jackson Lewis P.C. © 2018

TRENDING LEGAL ANALYSIS


About this Author

Jeffrey Brecher, Jackson Lewis, Management Arbitration Lawyer, Labor Litigation Attorney
Principal

Jeffrey W. Brecher is a Principal in the Long Island, New York, office of Jackson Lewis, and is Practice Group Leader of the firm's Wage and Hour practice. He has litigated hundreds of cases, defending management at arbitration, before state and federal administrative agencies and at trial.

Mr. Brecher regularly advises clients on compliance with various state and federal laws affecting the workplace, including discrimination and related claims arising under Title VII, Family and Medical Leave Act, Americans with...

631-247-4652
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free. With respect to employee relations matters, Mr. Greenberg has extensive experience assisting clients in numerous industries with the development and maintenance of personnel policies and personnel infrastructures. In this regard, Mr. Greenberg often works on these issues with clients as business needs and culture change as a result of business transactions, such as mergers and acquisitions.

212-545-4080
Daniel J. Jacobs, Jackson Lewis law firm, Labor Employment Attorney
Shareholder

Daniel J. Jacobs is a Shareholder in the New York City, New York, office of Jackson Lewis P.C. He assists both unionized and union-free clients with a full-range of labor and employee relations matters.
With respect to traditional labor matters, Mr. Jacobs represents clients in collective bargaining negotiations, contingency planning, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court.
Mr. Jacobs also has experience assisting clients in numerous industries with the...

212-545-4000
Jonathan Kozak, Jackson Lewis Law Firm, Employment Litigation Attorney
Principal

Jonathan M. Kozak is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is an employment law litigator, defending employers in a variety of state and federal employment matters in court and before government agencies.

Mr. Kozak has litigated matters before government agencies, and in state and federal courts involving claims of unlawful harassment, discrimination, retaliation, invasion of privacy, breach of contract, and discrimination in places of public accommodations. Mr. Kozak also represents...

914-872-6885
Noel Tripp Principal Employment lawyer at Jackson Lewis Law Firm
Principal

Noel P. Tripp is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining Jackson Lewis as a summer associate in May 2005, he has practiced exclusively in employment law.

Mr. Tripp has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principal focus is the defense of class and collective action...

631-247-0404