Category: Employment Law

2022 New York Minimum Wage

2022 New York Minimum Wage

Do you know the 2022 New York minimum wage? Actually, there are different minimum wages for different parts of the state and different industries. Employers must be ready before the end of the year to meet the new requirements that apply to their employees.

The 2022 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.

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Standard New York Minimum Wage

The 2022 New York minimum wage varies by geographic location and sometimes by industry.

For most private employers, the 2022 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
Location12/31/2012/31/21
NYC – Large Employers (of 11 or more)$15.00$15.00
NYC – Small Employers (10 or less)$15.00$15.00
Long Island & Westchester$14.00$15.00
Remainder of New York State$12.50$13.20

* Annual increases for Upstate New York will continue until the rate reaches a $15 minimum wage. 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. The report on the December 31, 2021 increase is available here.

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)
Location12/31/2012/31/21
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$9.35 Cash

$4.65 Tip

$10.00 Cash

$5.00 Tip

Remainder of New York State$8.35 Cash

$4.15 Tip

$8.80 Cash

$4.40 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)
Location12/31/2012/31/21
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$11.65 Cash

$2.35 Tip

$12.50 Cash

$2.50 Tip

Remainder of New York State$10.40 Cash

$2.10 Tip

$11.00 Cash

$2.20 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.

As of July 1, 2021, the minimum wage for fast food workers throughout the state is $15.00 per hour. No further increases are currently scheduled.

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

Overtime Threshold

Along with increases to the 2022 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
Location12/31/2012/31/21
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$1,050.00$1,125.00
Remainder of New York State$937.50$990.00

Prepare Now for the 2022 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2021. 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 2022 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!

GINA COVID-19

GINA and COVID-19

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from collecting and discriminating based on employees’ genetic information. Even though most businesses aren’t conducting genetic tests on their workers, GINA has widespread workplace implications related to the COVID-19 pandemic. As companies evaluate how to move forward in an era of renewed health concerns despite the availability of vaccines, it is critical to be familiar with how GINA and COVID-19 interact.

What’s GINA?

GINA is a federal law that applies to U.S. employers with at least 15 employees. It generally prohibits the use of genetic information in making employment decisions. The law also restricts employers from requesting, requiring, or purchasing genetic information about applicants and employees.

Many overlook GINA, given its emphasis on “genetic information.” Yes, that includes actual genetic test results, for example. But, more significantly, it broadly includes employees’ family medical history.

Specifically, “genetic information” includes “the manifestation of disease or disorder in family members of the individual.”

Under GINA, “family members” include:

(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or

(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.

Collectively, that means that an employee’s “genetic information” includes medical information about people who aren’t even related to the employee by blood. In other words, it doesn’t matter whether the employee shares any genes with the “family member.”

For more on GINA generally, click here.

COVID-19 Meets GINA

GINA limits what employers can ask about employees’ family members’ medical conditions, including COVID-19 positivity and symptoms.

Asking About Family Member Health Conditions

If your business is covered by GINA (15 or more employees), then you shouldn’t ask specifically if any of your employees’ family members have COVID-19. However, you can more generally ask whether an employee has been in close contact with anyone who tested positive or has exhibited symptoms. As the EEOC notes, asking only about contact with family members is unduly limited anyway as an inquiry about the risk of COVID-19 exposure.

Vaccine Mandate

GINA does not prevent employers from requiring their employees to receive the COVID-19 vaccine. However, if an employer provides vaccines to employees, the pre-vaccination screening cannot ask for information about family medical history.

Incentivizing Vaccination

The EEOC has explained that GINA does not prevent employers from offering an incentive to employees who prove that they or their family members have received a COVID-19 vaccine. According to the EEOC, “the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member.”

GINA could apply, however, if an employer asks questions about a family member’s medical situation in connection with a vaccination inquiry. For example, asking “why” an employee’s family member is not vaccinated could solicit medical information.

Likewise, there are GINA implications when an employer offers to provide vaccines to family members of employees. The required screening questions would inquire into information that qualifies as the employee’s family medical history. GINA would prohibit incentivizing the disclosure of this information to the employer. But if there is no incentive or requirement (from the employer) for the family member to receive the vaccination, then the employer can provide the vaccine as long as it “ensure(s) that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.”

Not Just GINA

Remember that GINA is far from the only law employers must heed regarding COVID-19. The Americans with Disabilities Act and similar state laws establish restrictions related to employee’s personal medical conditions. Typically, the laws don’t prohibit inquiries and mandates regarding COVID-19. But they may at least dictate parameters you should follow.

 

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Mandatory Employee Vaccination

Mandatory Employee Vaccination? EEOC Updates Workplace Guidance

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers considering a mandatory employee vaccination requirement. The short answer? Your company probably can insist that most employees get vaccinated. But there may be limits and related compliance risks.

You Can Require On-Site Employees to Get the Shot

The new EEOC guidelines advise employers that they can, if they wish, require that their on-site workers be vaccinated against COVID-19 before returning to work.

If you decide to require your employees to get the vaccine, you will still need to keep a few things in mind.

First, the EEOC says that employers can only mandate vaccines for employees physically present at a worksite. If you still have staff working from home, and they don’t need to set foot in the office or other work location any time soon, then you shouldn’t require those workers to get the vaccine.

Second, the EEOC stresses that any vaccine mandate must comply with the ADA and Title VII. If you have an employee who wants to return to work but cannot receive the vaccine for health reasons or based on a sincerely held religious belief, you must consider reasonable accommodations for that person. For example, you may require that the unvaccinated employee wear a face mask or work physically distanced from other employees or customers. As is always the case, a worker requesting an accommodation doesn’t have to receive the exact one they want. The employer need only make an effective accommodation under the circumstances, if there is one that doesn’t create an undue hardship.

Be Cautious In Obtaining Medical Information

The EEOC says that asking for proof of vaccination is not a restricted disability-related inquiry under the ADA. But, remember, you must keep employee health information, including information on whether an employee has received the vaccination, confidential.

And you can’t require, or even incentivize, an employee to ensure that members of their family be vaccinated. By seeking proof of family member vaccination, you would be inquiring into an employee’s family health information. The Genetic Information Nondiscrimination Act (GINA) prohibits such inquiries for covered employers. The law allows some exceptions to this if your business administers vaccines to the general public and an employee’s family member chooses to get one from you. But for most companies, collecting any health information on the family members of its employees would violate GINA.

Incentives Are Fine (As Long As They Aren’t Coercive)

As far as the EEOC is concerned, you can offer all sorts of incentives to your employees to get the vaccine. Examples may include cash bonuses, gift cards, or various other prizes. (Note: There may be tax implications!) The EEOC also says that incentives can include penalties, although fewer companies are using this option.

Stay Tuned

Because everything having to do with COVID-19 has moved so quickly, expect further developments on mandatory employee vaccination issues. Remember that the EEOC only oversees specific federal discrimination laws. Other sources of law may have different implications. Individual states may interpret/apply existing laws differently or pass new restrictions surrounding this subject. But for now, the EEOC continues to endorse the view that as long as you follow the standard ADA, Title VII, and GINA rules, your company can do what it finds appropriate for the health of your workers and the safety of your business regarding COVID-19 vaccines. Just make sure you work with experienced employment counsel in implementing any vaccination requirements!

 

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