Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Top Posts of 2020

Top Posts of 2020

As 2020 (finally?) comes to an end, we again look at the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2020?

These posts reflect some topics that most interested New York employers in 2020. Do they also suggest what will be top of mind in 2021?

Curious about last year? Click to see what posts made the list in 2019.

Coronavirus

We never saw this coming, but most of 2020 was spent addressing issues related to the COVID-19 pandemic. This generated numerous posts on closing and reopening requirements specific to various industries. But the most viewed were those that applied across the board.

Both the federal government and New York State implemented COVID-19 related leave laws in March. We discussed them here:

Congress: Some Employers Must Give Paid COVID-19 Leave

New York State Creates COVID-19 Quarantine Leave for Employees

Once non-essential businesses were able to reopen in New York, they had to have a COVID-19 safety plan. This requirement remains in place as of year-end. Here’s our popular Closer Look at the COVID-19 New York Safety Plan Template.

2021 New York Minimum Wage

Our annual post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law remained a must-read.

Remember, these changes take effect on December 31, 2020, not January 1st. If you haven’t adjusted accordingly yet, now’s the time!

Some required pay levels will continue to rise in the coming years. This post includes charts showing those planned increases.

New York Paid Sick Leave

Perhaps spurred by the coronavirus pandemic, New York passed a universal sick leave law affecting all private-sector workplaces in the state. The law grants all non-government employees sick leave starting January 1, 2021. Many will be eligible to receive paid leave of up to 40 or 56 hours based on company size.

This post provides the basics of the new leave obligations.

The New York State Department of Labor provided initial guidance on the law through FAQs, discussed here. The DOL recently proposed regulations that are subject to a 60-day comment period. We plan a follow-up post when the regulations become final.

We also presented a webinar for employers on the New York Paid Sick Leave law. You can watch the recording here:

Other New York Developments

Our readers were also interested in more targeted New York employment law changes.

In 2019, the State expanded its paid voting leave requirements. Apparently perceiving the shift as too burdensome on employers, the law was amended back in 2020.

The NYS DOL also took action to reduce and eventually eliminate tip credits toward minimum wage outside of the hospitality industry. The phaseout will be complete as of the end of 2020. Read more here.

How Far Will New York Go?

In the 2019 top posts article, I predicted that New York would continue to regulate the workplace more in 2020. I couldn’t have predicted the COVID-19 outbreak and related restrictions, but the paid sick leave law alone was a gamechanger.

Two items I mentioned a year ago that didn’t get enacted in 2020 may be back on the table sometime in 2021.

In 2019, the Legislature passed a bereavement leave bill that Governor Cuomo vetoed. The Legislature now has enough Democratic votes to override a veto if they want to,

And after previous close calls, might workplace bullying get over the hump next year?

Plus, New York City is eliminating at-will employment for fast-food workers. Could that development spread statewide? Beyond the fast-food industry?

Don’t Stop at the Top Posts of 2020!

I hope you find it helpful to look back at what happened last year, but you should also look forward. For some of the reasons stated above, and others, 2021 could be another big year in employment law. Please continue to follow the New York Management Law Blog for updates.

One great way to keep up with emerging topics in New York labor and employment law is to subscribe to our monthly email newsletter. If you want more frequent news and insights, be sure to follow us on LinkedIn!

See you in 2021!

Proposed New York Paid Sick Leave Regulations

Proposed New York Paid Sick Leave Regulations

On December 2, 2020, the New York Department of Labor issued long-anticipated draft regulations under the New York Paid Sick Leave Law. Companies across New York have been preparing for the new law, which becomes operative on January 1, 2021. Earlier informal State guidance left many important questions unanswered. Unfortunately, the same is true of the proposed New York paid sick leave regulations.

The DOL is expected to accept public comments on the proposed regulations before finalizing them. Details on the comment period and whether the DOL will initially implement the regulations on an emergency basis were not included with the original release of the proposed regulations on this NYS website.

Update: The DOL published the proposed regulations in the New York State Register on December 9, 2020. There is a 60-day comment period that will end on February 8, 2021. Final regulations will not be in place until sometime after that.

As drafted, the regulations provide several definitions of terms in the law and address documentation, employee counting, and accrual issues. They do not tackle some critical open questions, including the interplay of the new law and existing collective bargaining agreements.

This webinar provides more details regarding employers’ obligations under the New York Paid Sick Leave Law.

New York Paid Sick Leave

Definitions

The proposed New York paid sick leave regulations define nine terms used in the law.

For the following terms, the regulations reference preexisting definitions/explanations from other NYS statutes:

  • Domestic Partner
  • Family Offense
  • Human Trafficking
  • Mental Illness
  • Net Income
  • Sexual Offense
  • Stalking

The regulations introduce new definitions for two phrases:

Confidential Information means individually identifiable health or mental health information, including but not limited to, diagnosis and treatment records from emergency services, health providers, or drug and alcohol abuse prevention or rehabilitation centers. Confidential information also means information that is treated as confidential or for which disclosure is prohibited under another applicable law, rule, or regulation.”

Preventative Medical Care means routine health care including but not limited to screenings, checkups, and patient counseling to prevent illnesses, disease, or other health problems.”

Documentation

A section with the heading “documentation” expands on statutory restrictions prohibiting employers from seeking information from employees to substantiate their sick leave usage.

The law provides that “An employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.”

Employers have wondered what, if any, documentation they may require to corroborate sick leaves.

3 or More Consecutive Days

The DOL first draws a bright line based on the length of leave. Employers may not require any verification for leaves of less than three consecutive “previously scheduled workdays or shifts.”

If an employee seeks sick leave for three or more consecutive days, their employer may request limited documentation to substantiate the need for leave.

Limited Documentation

The proposed regulations address this scenario as follows.

Requests for documentation shall be limited to the following:

(1) An attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work, or

(2) An attestation from an employee of their eligibility to leave.

It is ambiguous whether the employer can insist on either one of the above categories of documentation. Presumably, many employers would find the doctor’s attestation somewhat more authoritative than the employee’s. But it seems unlikely that such documentation is available for the “safe leave” categories covering absences due to domestic violence and related situations. In those cases, employers likely must accept the employee’s attestation.

The proposed New York paid sick leave regulations further reiterate that “An employer cannot require an employee or the person providing documentation, including medical professionals, to disclose the reason for leave, except as required by law.”

Employee Counts

Some employers have found themselves uncertain how much leave they had to provide employees or whether it had to be paid leave.

Coverage Factors

By law, employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year. However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

Employers with 100+ employees must provide employees with at least 56 hours of paid sick leave each year.

Neither the law itself nor the State’s initial informal guidance clearly explained how to count employees to determine into which category they fall.  Fortunately, the proposed New York paid sick leave regulations expand on this subject.

Counting Employees

Essentially, the DOL proposes that the paid/unpaid and 40/56 hours thresholds will always be determined based on the largest number of employees the employer has had on any day to date within the current calendar year (e.g., 2021, 2022, etc.).

For example, if an employer starts 2021 with 95 employees, they must allow employees to begin accruing up to at least 40 hours of paid sick leave that year. If, however, the company hires more employees, bringing them up to 100 or more on any day, then, at that point, the employer must increase the maximum annual accrual and usage to 56 hours prospectively. The maximum accrual/usage would not fall back to 40 hours for the rest of the year under any circumstances. Even if the company let everyone go except one person, the last employee could still earn and/or use up to 56 hours of paid sick leave that year. However, on January 1, 2022, the employer could reset its obligations based on the number of employees as of that date, subject to future increases during the year.

When the employee count crosses a new threshold, the employer does not have to retroactively give any additional sick time based on hours worked before the employer moved into the new coverage category. But this counting mechanism means that employers close to a new employee threshold should carefully track their employee count and make immediate changes to their sick leave policy when the 5th or 100th employee joins the company.

Who Counts?

The proposed regulations note that employees count toward the total for any day even if they are on paid or unpaid leave, disciplinary suspension, “or any other type of temporary absence . . . as long as the employer has a reasonable expectation that the employee will later return to active employment.” Conversely, employees who have been laid off or separated from employment would not be counted.

Irreconcilable Differences?

The law and proposed regulations require that the employee count be based on the standard calendar year. However, the law permits employers to structure their annual sick leave accruals and usage caps based on any other 12-month period. This divergence could create some confounding scenarios and may warrant clarification, if possible, before the DOL finalizes these regulations. But, for now, it seems employers must look back as far as the most recent January 1st to count employees even if their plan year started on a different date.

Accruals

In their final section, the proposed New York paid sick leave regulations briefly address the subject of leave accruals. By default, the law requires that employees earn sick leave at the rate of at least one hour of leave for every 30 hours worked.

The regulations first note that “Employee accruals of leave must account for all time worked, regardless of whether time worked is less than a 30-hour increment”. In other words, an employee who works 35 hours in a week doesn’t only accrue one hour of sick leave that week. Instead, they accrue one full hour, plus some fraction of an hour. The DOL further allows that employers may round accrued leave to the nearest 5, 6, or 15 minutes. But the rounding must not “result, over a period of time, in a failure to provide the proper accrual of leave to employees for all the time they have actually worked.”

Initial Reaction to the Proposed New York Paid Sick Leave Regulations

Employers must comply with the New York Paid Sick Leave Law by January 1, 2021. That does not allow enough time for the DOL to accept and meaningful review the anticipated volume of comments this proposal will invite. (Update: Comments are due by February 8, 2021.) The DOL may be able to implement the proposed regulations temporarily on an emergency basis. Whether that happens or not, employers should generally try to follow the proposed regulations. Or at least should obtain advice from an experienced New York employment lawyer before deciding not to do so.

In any event, these proposed regulations do not answer all the reasonable questions raised by the new law. And the law applies to all private employers in the state, creating new financial obligations for many of them. So, concerted efforts (from both employer and employee interests) to obtain additional DOL clarification seem likely.

For more on the New York Paid Sick Leave Law, watch this recorded webinar.

For further updates related to these new requirements, follow Horton Law on LinkedIn.

2021 New York Minimum Wage

2021 New York Minimum Wage

Do you know the 2021 New York minimum wage? Actually, there are different minimum wages for different parts of the states and different industries. Employers must be ready before the end of the year to meet the new requirements that apply to their employees.

The 2021 New York minimum wage rates are shaded in blue in the tables below. Note that the changes take effect on the last day of the year, not January 1st.

[Follow us on LinkedIn for frequent updates for New York employers.]

Standard New York Minimum Wage

The 2021 New York minimum wage varies by geographic location, employer size (where applicable), and sometimes by industry.

For most private employers, the 2021 New York minimum wage in the following chart applies. This chart also applies for non-teaching employees of public school districts or a BOCES. However, there is no New York minimum wage for other employees of public (governmental) employers (but the federal minimum wage of $7.25 does apply).

General Minimum Wage Rate Schedule
Location12/31/1912/31/2012/31/21
NYC – Large Employers (of 11 or more)$15.00$15.00
NYC – Small Employers (10 or less)$15.00$15.00
Long Island & Westchester$13.00$14.00$15.00
Remainder of New York State$11.80$12.50TBD*

* Annual increases for the rest of the state will continue until the rate reaches a $15 minimum wage. Starting in 2021, the annual increases will be published by the Commissioner of Labor by October 1. They will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index.

Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry. These rules apply to businesses running a restaurant or hotel.

The minimum wage rates for most non-tipped employees in the hospitality industry are set as per the schedule above. However, employers may count a portion of certain tipped employees’ gratuities toward the minimum wage requirements. This is known as a “tip credit.”

New York State has two separate cash wage and tip credit schedules for tipped hospitality employees who qualify as “food service workers” and “service employees.”

Food Service Workers

A food service worker is any employee who is primarily engaged in serving food or beverages to guests, patrons, or customers in the hospitality industry who regularly receive tips. This includes wait staff, bartenders, captains, and busing personnel. It does not include delivery workers.

Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)
Location12/31/1912/31/2012/31/21
NYC – Large Employers
(of 11 or more)
$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

NYC – Small Employers
(10 or less)
$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

Long Island & Westchester$8.65 Cash

$4.35 Tip

$9.35 Cash

$4.65 Tip

$10.00 Cash

$5.00 Tip

Remainder of New York State$7.85 Cash

$3.95 Tip

$8.35 Cash

$4.15 Tip

Service Employees

The next schedule applies to other service employees. A service employee is one who is not a food service worker or fast food employee who customarily receives tips above an applicable tip threshold (which also follows schedules, not shown here).

Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)
Location12/31/1912/31/2012/31/21
NYC – Large Employers
(of 11 or more)
$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

NYC – Small Employers
(10 or less)
$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

Long Island & Westchester$10.85 Cash

$2.15 Tip

$11.65 Cash

$2.35 Tip

$12.50 Cash

$2.50 Tip

Remainder of New York State$9.85 Cash

$1.95 Tip

$10.40 Cash

$2.10 Tip

Fast Food Minimum Wage

Non-exempt employees at some “fast food” restaurants are subject to an alternative minimum wage schedule.

This schedule applies to employees who work in covered fast food restaurants whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

These special New York minimum wage rates only apply to fast food restaurants that are part of a chain with at least 30 restaurants nationally.

The final scheduled increase for fast food workers outside of New York City takes effect mid-year on July 1, 2021.

Fast Food Minimum Wage Rate Schedule
Location12/31/1912/31/207/1/2021
New York City$15.00 $15.00
Outside of New York City$13.75$14.50 $15.00

Note: No tip credit is available for fast food employees.

Overtime Threshold

Along with increases to the 2021 New York minimum wage, the salary requirement to maintain some overtime exemptions will also increase.

The salary threshold for New York’s executive and administrative exemptions go up on December 31st. These amounts are all higher than the federal Fair Labor Standards Act (FLSA) threshold of $684/week. But most New York employers (other than governmental entities) must satisfy the higher New York threshold to ensure full overtime exemption.

There is no salary requirement for New York’s professional exemption. But employers must also satisfy the FLSA threshold for most professional employees. Doctors, lawyers, and teachers do not have a salary requirement for exemption.

Executive & Administrative Exemption Weekly Salary Threshold Schedule
Location12/31/1912/31/2012/31/21
NYC – Large Employers (of 11 or more)$1,125.00$1,125.00
NYC – Small Employers (10 or less)$1,125.00$1,125.00
Long Island & Westchester$975.00$1,050.00$1,125.00
Remainder of New York State$885.00$937.50TBD*

Prepare Now for the 2021 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2020. Updates might result in increasing an employee’s hourly wage or salary or reclassifying exempt employees to non-exempt if they will no longer meet the exemption salary requirement.

And, remember, the 2021 New York minimum wage rates only last one year in some cases. Companies will have to review this again next year (or sooner).

To keep up on New York and federal wage and hour requirements and other employment law topics, you can sign up for our email newsletter here or follow us on LinkedIn!