Tag: FLSA

November 22, 2019

2020 New York Minimum Wage

Do you know the 2020 New York minimum wage? Employers must be ready before the end of the year to meet the new requirements.

The 2020 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 2020 New York minimum wage varies by geographic location, employer size (where applicable), and sometimes by industry.

For most private employers, the 2019 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**
Location	12/31/18	12/31/19	12/31/20	12/31/21
NYC – Large Employers (of 11 or more)	$15.00	$15.00
NYC – Small Employers (10 or less)	$13.50	$15.00
Long Island & Westchester	$12.00	$13.00	$14.00	$15.00
Remainder of New York State	$11.10	$11.80	$12.50	TBD*

* 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)**
Location	12/31/18	12/31/19	12/31/20	12/31/21
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)	$9.00 Cash $4.50 Tip	$10.00 Cash $5.00 Tip
Long Island & Westchester	$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 $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)**
Location	12/31/18	12/31/19	12/31/20	12/31/21
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)	$11.25 Cash $2.25 Tip	$12.50 Cash $2.50 Tip
Long Island & Westchester	$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	$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**
Location	12/31/18	12/31/19	12/31/20	7/1/2021
New York City	$15.00	$15.00
Outside of New York City	$12.75	$13.75	$14.50	$15.00

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

Overtime Threshold

Along with increases to the 2019 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, which will increase from $455/week to $684/week on January 1, 2020. 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**
Location	12/31/18	12/31/19	12/31/20	12/31/21
NYC – Large Employers (of 11 or more)	$1,125.00	$1,125.00
NYC – Small Employers (10 or less)	$1,012.50	$1,125.00
Long Island & Westchester	$900.00	$975.00	$1,050.00	$1,125.00
Remainder of New York State	$832.00	$885.00	$937.50	TBD*

Prepare Now for the 2020 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2019. This 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 2020 New York minimum wage rates only last one year in many cases. Companies will have to review this again next year.

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!

May 11, 2019

Federal Employment Law Remedies

You’ve probably read news stories where employees win incredible amounts of money by suing their employer. The good news is lawsuits like those are rare. And most lawsuits end in settlement, where each side ends up compromising. However, if both parties have extremely different views and high confidence of winning, they might go to court. What employees have a chance of getting from lawsuits varies depending on not only the facts of the case, but also what laws they sue under. Here are the primary employment law remedies under several significant federal statutes.

Types of Employment Law Remedies

If courts find employers liable, they are responsible for paying damages to the employee. There are three main types of remedies: lost pay, compensatory damages, and punitive damages. Courts award employees lost pay and compensatory damages to make them “whole”. “Making whole” refers to placing the employee back in the position as if the employer hadn’t violated the law. This theoretically includes reinstatement to the employee’s former position, but more often lost pay and benefits. Reinstatement is rare. Courts will not reinstate an employee if they find the employee/employer relationship has become too hostile or the position is no longer available. By the time litigation reaches a verdict, much time has usually passed, with significant negative feelings between the parties. This makes reinstatement untenable in most cases.

Backpay and Front Pay

Lost pay can include backpay and front pay.

Backpay generally begins at the start of the adverse treatment and lasts until the judgment date or until the employee finds comparable employment. Backpay is calculated by factoring in salary or wages, interest, overtime, shift differentials, lost benefits, and potentially even raises the employee would have received. The court usually offsets the award by what the employee was able to or should have been able to earn through reasonable effort in alternative employment.

When reinstatement isn’t possible, courts might award “front pay” to compensate for future lost wages. Similar to backpay, front pay also includes compensation for lost benefits.

Compensatory Damages

“Compensatory damages” include additional monetary awards for out-of-pocket expenses (e.g., medical bills), as well as “pain and suffering” or “emotional distress.”

Under most federal employment laws, losing employers must also pay the employee’s attorney fees and litigation costs.

Punitive Damages

Sometimes courts can award punitive damages when they find the employer’s actions were especially malicious or offensive. Punitive damages seek to deter employers beyond the limits of compensatory relief.

Liquidated Damages

Liquidated damages serve a similar purpose. Where applicable, employees might receive a specific amount in addition to their lost pay as a further deterrence to employers. Often this results in employees receiving twice what they actually lost.

Employment Law Remedies under Specific Statutes

Title VII of the Civil Rights Act of 1964

Title VII law prohibits employment discrimination based on race, color, religion, sex, and national origin. It limits employees’ compensatory and punitive damages based on the size of their employer’s workforce.

Employer Size	Combined Damage Cap
15-100 employees	$50,000
101-200 employees	$100,000
201-500 employees	$200,000
Over 500 employees	$300,000

These caps do not apply to backpay and front pay awards.

Americans with Disabilities Act

The ADA forbids employers from discriminating against employees with disabilities. It also requires employers to provide reasonable accommodations to employees with disabilities in some cases.

These caps on compensatory and punitive damages also apply to the ADA.

Age Discrimination in Employment Act

The ADEA prohibits employment discrimination against employees age 40 or over.

Damages available under the ADEA are similar to those of Title VII and the ADA, except that employees cannot receive any compensatory or punitive damages. Instead, they can recover liquidated damages equal to the amount of backpay.

Equal Pay Act

The EPA prohibits employers from discriminating in compensation based on sex. Similar to the ADEA, the EPA allows recovery of lost pay and an equal amount of liquidated damages.

Fair Labor Standards Act

The FLSA sets the federal minimum wage, currently at $7.25 per hour. It also sets overtime pay requirements after 40 hours in a workweek for nonexempt employees.

Under the FLSA, employees can recover underpaid minimum wage and overtime, plus an additional amount of liquidated damages.

National Labor Relations Act

The NLRA establishes the right for employees of non-government companies to form unions. It also provides employees, whether unionized or not, the right to engage in concerted activity.

The NLRA only permits make-whole remedies. It does not allow punitive damages.

Damages	Title VII	ADA	ADEA	EPA	FLSA	NLRA
Backpay	✅	✅	✅	✅	✅	✅
Compensatory	✅	✅	✅	✅	✅	✅
Reinstatement or Front Pay	✅	✅	✅	✅	✅	✅
Liquidated			✅	✅	✅
Punitive	✅	✅
Attorney fees	✅	✅	✅	✅	✅	✅

What Does This All Mean for Employers?

Most importantly, employers should try to avoid violating employment laws in the first place. Despite variations between laws, all of these federal employment statutes have an array of serious consequences. If you are concerned about whether your company is in compliance, contact an experienced employment attorney.

To receive regular updates on employment law developments and announcements of our free informative webinars, sign up for the Horton Law newsletter.

November 23, 2018

2019 New York Minimum Wage

Do you know the 2019 New York minimum wage? Employers must be ready before the end of the year to meet the new requirements.

The 2019 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.

[Have employees who work remotely? We’re presenting a free live webinar on “The Law of Telecommuting”. Click to register now!]

Standard New York Minimum Wage

The 2019 New York minimum wage varies by geographic location, employer size (where applicable), and sometimes by industry.

**General Minimum Wage Rate Schedule**
Location	12/31/17	12/31/18	12/31/19	12/31/20	2021
NYC – Large Employers (of 11 or more)	$13.00	$15.00
NYC – Small Employers (10 or less)	$12.00	$13.50	$15.00
Long Island & Westchester	$11.00	$12.00	$13.00	$14.00	$15.00
Remainder of New York State	$10.40	$11.10	$11.80	$12.50	TBD*

* 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.

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.

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

**Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)**
Location	12/31/17	12/31/18	12/31/19	12/31/20	2021
NYC – Large Employers (of 11 or more)	$8.65 Cash $4.35 Tip	$10.00 Cash $5.00 Tip
NYC – Small Employers (10 or less)	$8.00 Cash $4.00 Tip	$9.00 Cash $4.50 Tip	$10.00 Cash $5.00 Tip
Long Island & Westchester	$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 $2.90 Tip	$7.50 Cash $3.60 Tip	$7.85 Cash $3.95 Tip	$8.35 Cash $4.15 Tip

Service Employees

**Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)**
Location	12/31/17	12/31/18	12/31/19	12/31/20	2021
NYC – Large Employers (of 11 or more)	$10.85 Cash $2.15 Tip	$12.50 Cash $2.50 Tip
NYC – Small Employers (10 or less)	$10.00 Cash $2.00 Tip	$11.25 Cash $2.25 Tip	$12.50 Cash $2.50 Tip
Long Island & Westchester	$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	$8.65 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.

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**
Location	12/31/17	12/31/18	12/31/19	12/31/20	7/1/2021
New York City	$13.50	$15.00
Outside of New York City	$11.75	$12.75	$13.75	$14.50	$15.00

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

Overtime Threshold

Along with increases to the 2019 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, which remains at $455/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 $455/week 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**
Location	12/31/17	12/31/18	12/31/19	12/31/20	2021
NYC – Large Employers (of 11 or more)	$975.00	$1,125.00
NYC – Small Employers (10 or less)	$900.00	$1,012.50	$1,125.00
Long Island & Westchester	$825.00	$900.00	$975.00	$1,050.00	$1,125.00
Remainder of New York State	$780.00	$832.00	$885.00	$937.50	TBD*

Prepare Now for the 2019 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2018. This 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 2019 New York minimum wage rates only last one year in most cases. Companies will have to review this again next year.

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