Tag: exemption

Top Posts of 2017

Top Posts of 2017

As the year comes to a close, I thought I would review the New York Management Law Blog’s top posts of 2017.

These posts reflect some topics that most interested New York employers in 2017. Do they also suggest what will be top of mind in 2018?

New York Minimum Wage Increases on 12/31/17

This post reminded New York employers of the scheduled increases to both minimum wage and the salary threshold for overtime exemptions under state law.

If you haven’t already checked whether your company is paying enough, act fast! If you’re reading this, new requirements are already in place.

For those looking ahead, this post contains full charts of all scheduled increases to New York minimum wage and overtime exemption salary requirements. This includes increases taking effect on December 31st of 2018, 2019, 2020, and beyond.

New York Paid Family Leave

The New York Paid Family Leave Program kicks off on January 1, 2018. Companies throughout the state have spent much of 2017 preparing for this significant change in New York employment law. As a result, 3 of our 10 top posts of 2017 addressed this topic.

New York Paid Family Leave Notice Requirements

If you still haven’t determined what the employer and employee notice requirements are, then don’t wait any longer.

There are several things all covered employers must do beginning January 1, 2018, including:

  • Post a Notice Confirming Coverage
  • Provide Written Guidance to Employees
  • Provide a Notice of Rights When Employees Request Leave

If you still have questions about the New York Paid Family Leave Program, check out these two top posts that include replays of webinars I presented on the topic:

In Case You Missed It: New York Paid Family Leave Webinar 9-12-17

I presented this webinar in September. It addresses many of the paid family leave basics. If you still don’t know whether your organization is covered or what it means if you are, start here.

Are You Ready for New York Paid Family Leave? (Webinar)

This more recent webinar gets into some of the latest details about what employers need to know to comply with the New York Paid Family Leave Benefits Law.

This webinar will help you get your written policy in place and prepare you for administering paid family leave in 2018.

Who Will Get the Last Seat on the NLRB?

In his first year in office, President Trump appointed two new members to the National Labor Relations Board: Marvin Kaplan and William Emanuel. Both are Republicans, which temporarily gave the 5-member Board a 3-2 Republican majority. Chaired by Philip Miscimarra (R), the NLRB reversed several key Obama-era precedents in December.

However, Chairman Miscimarra’s term ended on December 16, 2017, creating a new vacancy. President Trump named Kaplan the new Chairman, but has not yet formally nominated a new member to fill the Board.

Two names surfaced over the past several months as potential Miscimarra replacements. Our top posts of 2017 featured both of these individuals:

Report: Attorney John Ring May Replace Miscimarra on NLRB

Mike Stoker for NLRB?

Although Trump has not made his selection official, it now appears that Ring will be the pick in early 2018. A Republican management-side labor and employment lawyer, Ring will likely join Chairman Kaplan and Member Emanuel in continuing to move away from the Obama NLRB’s pro-union decisions.

5 Best Reasons for Anti-Harassment Training

2017 brought to light an extensive pattern of sexual harassment and assault by powerful men in the entertainment industry. This placed a spotlight on employers’ duties to prevent and remedy harassment in the workplace.

If your organization is still not sure where to start, this top post of 2017 is for you.

What Employers Didn’t Know About Existing New York Labor Laws

The 3 remaining top posts of 2017 shed light on several legal issues that were not new this year. This follows the blog’s purpose of providing useful information even about topics that are not being discussed elsewhere. Posts like these are another reason you should sign up for my email newsletter so you don’t miss out on critical guidance that you didn’t even know you needed!

New York Law Protects Employees’ Off-Duty Conduct

Are you familiar with Section 201-d of the New York Labor Law? Well, for starters, it applies to all New York employers. Click above to find out more!

New York’s Shared Work Program Provides a Layoff Alternative

Many employers were interested in this post about a little-known aspect of New York’s unemployment insurance benefits program. Sometimes companies can reduce their employees’ hours while offsetting the lost wages with partial unemployment benefits. This arrangement can help employers who would otherwise have to lay off employees during slow periods and risk losing them to other jobs before business picks up.

Disciplining Public Employees in New York Under Civil Service Law Section 75

This was a top post of 2017 among public employers. This includes governmental entities such as counties, municipalities, school districts, and state agencies. If you work in one of these organizations and have a role in employee discipline, you may need to understand how Section 75 of the New York Civil Service Law works. Or, at least, you must make sure it doesn’t apply, then determine what other due process requirements you have to comply with instead.

Don’t Stop at the Top Posts of 2017!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2018.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to my monthly email newsletter. It not only recaps my recent blog posts, but also announces upcoming complimentary webinars that help you manage the people in your organization.

See you in 2018!

 

New York Minimum Wage

New York Minimum Wage Increases on 12/31/17

Don’t forget that the New York minimum wage will increase for most employers on December 31, 2018.

Note that the change takes effect on the last day of 2017, not the first day of 2018.

Standard New York Minimum Wage

The chart below shows the current minimum wage and scheduled increases, by geographic location and employer size (where applicable), for most New York private employers. These also apply for non-teaching employees of public school districts or a BOCES. 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
Location12/31/1612/31/1712/31/1812/31/1912/31/202021
NYC – Large Employers (of 11 or more)$11.00$13.00$15.00
NYC – Small Employers (10 or less)$10.50$12.00$13.50$15.00
Long Island & Westchester$10.00$11.00$12.00$13.00$14.00$15.00
Remainder of New York State$9.70$10.40$11.10$11.80$12.50TBD*

* Annual increases for the rest of the state will continue until the rate reaches a $15 minimum wage. Starting 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.

New York Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry.

The hospitality industry includes any restaurant or hotel.

The minimum wage 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)
Location12/31/1612/31/1712/31/1812/31/1912/31/202021
NYC – Large Employers
(of 11 or more)
$7.50 Cash

$3.50 Tip

$8.65 Cash

$4.35 Tip

$10.00 Cash

$5.00 Tip

NYC – Small Employers
(10 or less)
$7.50 Cash

$3.00 Tip

$8.00 Cash

$4.00 Tip

$9.00 Cash

$4.50 Tip

$10.00 Cash

$5.00 Tip

Long Island & Westchester$7.50 Cash

$2.50 Tip

$7.50 Cash

$3.50 Tip

$8.00 Cash

$4.00 Tip

$8.65 Cash

$4.35 Tip

$9.35 Cash

$4.65 Tip

$10.00 Cash

$5.00 Tip

Remainder of New York State$7.50 Cash

$2.20 Tip

$7.50 Cash

$2.90 Tip

$7.50 Cash

$3.60 Tip

$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)
Location12/31/1612/31/1712/31/1812/31/1912/31/202021
NYC – Large Employers
(of 11 or more)
$9.15 Cash

$1.85 Tip

$10.85 Cash

$2.15 Tip

$12.50 Cash

$2.50 Tip

NYC – Small Employers
(10 or less)
$8.75 Cash

$1.75 Tip

$10.00 Cash

$2.00 Tip

$11.25 Cash

$2.25 Tip

$12.50 Cash

$2.50 Tip

Long Island & Westchester$8.35 Cash

$1.65 Tip

$9.15 Cash

$1.85 Tip

$10.00 Cash

$2.00 Tip

$10.85 Cash

$2.15 Tip

$11.65 Cash

$2.35 Tip

$12.50 Cash

$2.50 Tip

Remainder of New York State$8.10 Cash

$1.60 Tip

$8.65 Cash

$1.75 Tip

$9.25 Cash

$1.85 Tip

$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.

Fast Food Minimum Wage Rate Schedule
Location12/31/1612/31/1712/31/1812/31/1912/31/207/1/2021
New York City$12.00$13.50$15.00
Outside of New York City$10.75$11.75$12.75$13.75 $14.50 $15.00

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

Overtime Threshold

The salary threshold for New York’s executive and administrative exemptions will also increase on December 31st. These amounts are all higher than the federal Fair Labor Standards Act (FLSA) threshold, which remains at $455/week. But most New York employers (other than governmental entities) have to 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 $455/week FLSA threshold for most professional employees. There is no federal salary requirement to exempt doctors, lawyers, and teachers.

(For more on the FLSA salary threshold, read How Much Should Exempt Employees Get Paid.)

Executive & Administrative Exemption Weekly Salary Threshold Schedule
Location12/31/1612/31/1712/31/1812/31/1912/31/202021
NYC – Large Employers (of 11 or more)$825.00$975.00$1,125.00
NYC – Small Employers (10 or less)$787.50$900.00$1,012.50$1,125.00
Long Island & Westchester$750.00$825.00$900.00$975.00$1,050.00$1,125.00
Remainder of New York State$727.50$780.00$832.00$885.00$937.50TBD*

Review and Revise Now

New York employers should review their compensation levels and make necessary changes by December 31, 2017. This may mean 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.

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

What Are Employers Thankful For in 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

  • Joint employer doctrine
  • Mandatory arbitration/class-action waivers
  • Micro bargaining units
  • Union election procedures
  • Social media policies
  • Graduate student collective bargaining
  • Employee use of employer-provide email accounts
  • Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.