Tag: New York Department of Labor

Youth Worker Bill of Rights

New York Youth Workers Bill of Rights

On May 29, 2024, New York Governor Kathy Hochul unveiled her anticipated Youth Workers Bill of Rights. Announced during her 2024 State of the State address, this initiative seeks to better inform young workers about their rights and protections in their workplaces. This initiative does not impose affirmative new obligations on employers. But that does not mean it won’t have serious consequences.

The Youth Workers Bill of Rights is available for download here.

Essential Protections for Young Workers

The Youth Workers Bill of Rights doesn’t create new legal protections. Instead, it’s an informational resource that outlines several key protections for young employees, including:

  • Minimum Wage Assurance: Ensuring that young workers are paid at least the state-mandated minimum wage.
  • Anti-Discrimination Measures: Creating a workplace free from discrimination and harassment.
  • Safe Working Conditions: Maintaining a safe and healthy work environment.
  • Protection Against Retaliation: Allowing young workers to file complaints without fear of reprisal.

Employers may already have existing notice requirements regarding these topics, such as through minimum wage and employment discrimination rights posters. But this new document will likely increase the chance that minors and their parents are aware of the legal parameters of the workplace.

Access and Distribution

The Youth Workers Bill of Rights will be provided with working papers that minors typically obtain through their schools. In addition to increasing the likelihood that employees know their rights, this initiative may also lead the Department of Labor to raise its expectations regarding employer compliance. Again, nothing has changed in the law. However, the DOL may exercise its enforcement discretion differently following efforts to increase knowledge and awareness of the legal requirements.

The Youth Worker Information Hub

The New York State Department of Labor has also introduced a Youth Worker Information Hub. A comprehensive educational resource, this hub provides detailed information on topics such as:

  • Permissible Working Hours: Guidelines on the allowed working hours for minors.
  • Minimum Wage Compliance: Ensuring adherence to wage laws.
  • Restricted Occupations: Identifying jobs that are prohibited for those under 18.

According to the State, this resource is part of a larger administrative effort to address rising child labor violations and ensure young workers are treated fairly and lawfully.

Building on Previous Efforts

These developments build on Governor Hochul’s 2023 measures to tackle child labor issues, including the creation of an interagency Child Labor Task Force and the Protect Youth Workers Pledge for businesses.

What To Do for Your Business

The Youth Workers Bill of Rights was strategically launched with summer approaching. With schools out, an influx of young people enter the workforce–many for the first time. Review of the Youth Workers Bill of Rights provides a good start for employers looking to avoid child labor violations–many of which are incredibly nuanced and non-obvious.

Here are some steps you may want to take in response to these new NYS initiatives:

  1. Educate Yourself: Ensure you and your team are familiar with the key protections and guidelines outlined in the Youth Workers Bill of Rights.
  2. Inform Your Employees: Distribute the Youth Workers Bill of Rights to your staff, particularly those involved in hiring and managing young workers.
  3. Utilize Available Resources: Make use of the Youth Worker Information Hub for guidance on compliance and best practices.
  4. Update Workplace Policies: Review and update your workplace policies to ensure they align with the applicable standards and avoid potential violations.

By taking these proactive steps, businesses can help protect young employees and themselves, while cultivating a positive, supportive work environment.

For more information and resources, visit the NYS Youth Worker Information Hub.

 

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New York HERO Act

New York HERO Act Goes Far Beyond COVID

On May 5, 2021, New York Governor Andrew Cuomo signed new State laws regulating workplace safety, known as (though not formally entitled) the Health and Essential Rights (HERO) Act. The HERO Act requires employers to implement safety plans and permits employees to form workplace safety committees. The Act only applies to private (i.e., non-government) businesses and organizations.

In approving this legislation, Governor Cuomo issued a memorandum indicating that “technical” amendments will be forthcoming. This wrinkle complicates forecasting when the new requirements will ultimately take effect.

Airborne Infectious Disease Exposure Prevention

A new section 218-b of the New York Labor Law will impose new requirements regarding “prevention of occupational exposure to an airborne infectious disease.”

Airborne Infectious Disease

This term is defined to mean “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”

Covered Employees

The HERO Act is unusually expansive in its definition of “employee”. The term broadly includes “any person providing labor or services for remuneration for a private entity or business within the state.” Beyond workers with a direct employment relationship, it expressly includes:

  • independent contractors;
  • individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual work site; and
  • any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Worksites

Likewise, the term “worksite” is relatively broad in scope. It is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed”. This definition includes employer-provided housing and transportation, but does not include an employee’s residence (unless provided by the employer).

Supervisors

The HERO Act defines supervisors as “any person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.” Any employee who is a member of a bargaining unit that primarily represents non-supervisory employees does not qualify as a supervisor under the Act.

Forthcoming Standards

The law requires the New York Department of Labor to publish industry-specific model airborne infectious disease exposure prevention standards. These will establish minimum requirements that employers must meet.

In addition to whatever else the DOL, in consultation with the NYS Department of Health, mandates, the standards must address:

  • Employee health screenings.
  • Face coverings.
  • Personal protective equipment (PPE) for eyes, face, head, and extremities.
  • Protective clothing.
  • Respiratory devices.
  • Protective shields and barriers.
  • Accessible workplace hand hygiene stations.
  • Regular cleaning and disinfecting of shared equipment and frequently touched surfaces and all surfaces and washable items in other high-risk areas.
  • Social distancing for employees, consumers, and customers.
  • Compliance isolation and quarantine orders.
  • Engineering controls, such as airflow and exhaust ventilation.
  • Designation of a supervisory employee to enforce compliance. (“Non-supervisory line employees shall not bear responsibility for overseeing compliance with the requirements of the model policy.”)
  • Compliance with applicable laws or guidance on notification of potential exposure to airborne infections disease at the worksite.
  • Verbal review of the infectious disease standard, employer policies, and employee rights under the HERO Act with employees.
  • Anti-retaliation protections.

Once the model airborne infectious disease exposure plans are available from the State, employers must either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum standards included in the model standards.

In unionized companies, the employer may only adopt an alternative to the model plan if the union agrees. Moreover, even where there is no union representing employees, the employer can only implement an alternative plan “with meaningful participation of employees.”

Once adopted, employers must provide their plans in writing to all employees. The plan must also be posted “in a visible and prominent location within the worksite.” If the employer has an employee handbook, it must also include the plan there.

Retaliation Prohibitions

The HERO Act prohibits employers and their agents from taking adverse action against an employee for:

  • Exercising their rights under the law or applicable infectious disease exposure prevention plan.
  • Reporting violations of the law or plan.
  • Reporting an airborne infectious disease exposure concern.
  • Refusing to work based on a good faith belief of an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws or other government orders, despite notice to the employer of the inconstant working conditions that the employer failed to address.

Penalties for Violations

The DOH may assess a civil fine upon any entity or person who violates the HERO Act. The penalty is at least $50 per day for not adopting an airborne infectious disease exposure plan and between $1,000 and $10,000 for failure to abide by an adopted plan. These penalties rise to at least $200 per day and $1,000-$20,000, respectively, for repeat violations.

In addition, any employee may sue an employer for any violation of an airborne infectious disease exposure plan that allegedly “creates a substantial probability that death or serious physical harm could result”. Employees may receive “all appropriate relief,” including reimbursement of attorneys’ fees and liquidated damages of up to $20,000.

In his approval memorandum, Governor Cuomo cautioned that amendments to the enforcement procedures are necessary. He wants to “limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

Workplace Safety Committees

In addition to the airborne infectious disease plan requirements, a new section 27-d of the NY Labor Law permits employees to organize workplace safety committees that employers (with at least 10 employees) must recognize and deal with to address any safety and health issues. These issues are by no means limited to airborne infectious disease prevention.

Note that the workplace safety committee provisions are in a separate statutory section from the airborne infectious disease exposure plan requirements. As a result, some terms are defined differently between the two components. For example, independent contractors do not appear to be “employees” who qualify to be committee members.

Committee Structure

The law requires that these workplace safety committees must include both employer and employee representatives. At least two-thirds of the members must be non-supervisory employees. One “employee” representative and one “employer” representative must co-chair the committee.

More than one committee may exist to represent “geographically distinct work-sites.”

Committee Activities

Workplace safety committees may do all of the following:

  • Raise health and safety concerns, hazards, complaints, and violations to which the employer must respond.
  • Review any policy put in place in the workplace required by the NY Labor Law or the Workers’ Compensation Law and provide feedback to such policy.
  • Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
  • Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
  • Review any report filed by the employer related to the health and safety of the workplace.
  • Regularly schedule a meeting during work hours at least once a quarter.

In addition to paid quarterly meetings, employers must allow “safety committee designees” to attend a training on “the function of workers safety committees, rights established under [§ 27-d], and an introduction to occupational safety and health,” “without a loss of pay.”

Employers may not retaliate against employees for their participation in the activities of a workplace safety commission.

Collective Bargaining Waiver

Companies with unionized employees may negotiate out of the workplace safety committee requirements in their collective bargaining agreements. However, any such waiver must specifically reference NY Labor Law § 27-d.

When Must Companies Act?

No aspect of the HERO Act took effect immediately.

The airborne infectious disease exposure plan requirements could take effect in as little as 30 days, which would be June 4, 2021. However, employers won’t have to adopt these plans until the Department of Labor sets the minimum standards and issues the industry-specific models.

The workplace safety commission provisions are not scheduled to take effect for six months, on November 1, 2021.

Either of these effective dates could change based on the statutory amendments Governor Cuomo requested.

For now, New York businesses are already subject to COVID-19 safety requirements along the lines of what the HERO Act will require to be addressed in permanent airborne infectious disease safety plans. This new law primarily mandates that employers remain prepared to avoid and/or deal with future pandemics.

The more dramatic impact of the HERO Act will likely be the creation of workplace safety committees. This development essentially imposes an ongoing “union-like” bargaining obligation for New York companies with at least 10 employees. Among the unanswered question is whether even a single employee’s request is sufficient to mandate the creation of a safety committee.

The Department of Labor will be busy coming up with standards and regulations regarding many aspects of these new laws. Employers must remain alert to future developments to prepare for implementation and ensure ongoing compliance.

 

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Tip Credit

New York Eliminates Tip Credit for Most Industries

On January 22, 2020, the New York Department of Labor issued a proposed rule toward eliminating the tip credit for employees in most industries. The rule change follows a report in which the Commissioner of Labor recommended this approach. Governor Cuomo endorsed the report’s findings on December 31, 2019. The new rule will modify the State’s Minimum Wage Order for Miscellaneous Industries and Occupations.

The proposed rule is subject to a 60-day public comment period. However, it appears quite likely the Department of Labor will finalize this rule before the initial June 30, 2020 partial implementation date.

Affected Employees

The New York Minimum Wage Order for Miscellaneous Industries and Occupations covers most industries. Limited exceptions include the hospitality industry (restaurants and hotels), building services, and farmworkers.

This rule change does not affect tipped restaurant or hotel workers. But it does generally encompass the following types of positions where employees commonly receive tips:

  • car wash attendants
  • nail salon workers
  • tow truck drivers
  • dog groomers
  • wedding planners
  • tour guides
  • tennis instructors
  • valet parking attendants
  • hairdressers
  • aesthetician
  • golf instructors
  • door persons

Current Tip Credit Allowance

Employers have historically been able to pay such employees below the standard New York minimum wage by relying on a tip credit allowance. To apply a portion of the employee’s tips or gratuities toward satisfying the hourly minimum wage requirement:

  • The employee’s occupation must be one in which tips have customarily and usually constituted a part of the employee’s remuneration;
  • The employer must be able to show substantial evidence that the employee has earned at least the amount claimed for the tip credit allowance; and
  • Any tip credit allowance must be recorded on a weekly as a separate item in the wage record.

Where currently allowed, the amount of the tip credit available to employers depends on the level of tips earned by a particular employee. In each case, there is a “low” and “high” tip credit allowance based on the employee’s weekly average of tips received.

New Tip Credit Rule

Under the new rule the tip credit allowance under the New York Miscellaneous Industries and Occupations Wage Order would be cut in half effective June 30, 2020, Then, as of December 31, 2020, it would be eliminated. Thus, by year end, employers will have to pay full minimum wage without the benefit of any tip credit.

Commissioner of Labor Investigation and Report

The New York Commissioner of Labor has the authority to declare that a policy must be eliminated as rapidly as practicable without substantially curtailing opportunities for employment or earning power. Governor Andrew Cuomo had directed the Commissioner to examine the overall impact of the minimum wage tip credits on employees and employers.  The Department of Labor held seven public hearings resulting in approximately 40 hours of testimony, and the Commissioner issued an 11-page “New York State Subminimum Wage Hearing Report and Recommendations.”

The Commissioner’s Report addresses the overall intent behind the project, what action was taken by the Commissioner and his team to investigate the overall impact of the tip credit allowance, the data collected during the investigation, and his recommendations for changes moving forward.

Report Findings

The Commissioner’s Report includes the following findings:

  • There are at least 70,000 workers in the state of New York that fall under the Miscellaneous Wage Order who likely receive tips.
  • 62% of these employees are female, 41% are non-white, and 27% are Hispanic or Latino.
  • Tipped workers are twice as likely to be in poverty, with a below-poverty status of 13%–more than two times that of the broader workforce–and are more likely to rely on public assistance.
  • Tipped workers outside of the hospitality industry are often confused about whether they are entitled to earn minimum wage, leading to wage theft.
  • The testimony cited lower tipping rates in miscellaneous industries due to tip pooling and a lack of broad public awareness of tipping in these types of businesses.

Report Conclusions

The Commissioner concluded that the existing tip credit language in the Miscellaneous Industry Minimum Wage Order:

  • allows employers outside of the hospitality industry to employ workers “at wages that are insufficient to provide adequate maintenance for themselves and their families”;
  • threatens the health and well-being of the people of this state; and
  • injures the overall economy.

Minimum Wage for Tipped Employees (Non-Hospitality)

The charts below show the 2020 minimum wage requirements for employees covered by the Miscellaneous Industries Minimum Wage Order.

New York City
Effective DateMinimum WageLow Tips ($2.25 to $3.64)High Tips ($3.65+)
12/31/2019$15.00$12.75$11.05
6/30/2020$15.00$13.85$13.15
12/31/2020$15.00$15.00$15.00

 

Long Island & Westchester County
Effective DateMinimum WageLow Tips ($1.95 to $3.19)High Tips ($3.20+)
12/31/2019$13.00$11.05$9.80
6/30/2020$13.00$12.00$11.40
12/31/2020$14.00$14.00$12.50

 

Remainder of New York State
Effective DateMinimum WageLow Tips ($1.75 to $2.89)High Tips ($2.90+)
12/31/2019$11.80$10.05$8.90
6/30/2020$11.80$10.90$10.35
12/31/2020$12.50$12.50$12.50

In some parts of the State, the minimum wage will increase again on December 31, 2021. On that date, the minimum wage for Long Island and Westchester will rise to $15.00 per hour. Additional increases for other parts of the state are also likely, but not yet scheduled.

Click here for more details on New York State’s minimum wage rates.

Potential Changes to the Hospitality Tip Credit

This rule change does not apply to individuals employed in the hospitality industry. However, it remains possible that restaurants and hotels will face similar changes in the future.

Several years ago, the Labor Commissioner convened a Hospitality Wage Board to investigate modifications to the required cash wage rates and the allowable credits for tips, meals and lodging for employees in the hospitality industry. In February 2015, based on the Wage Board’s recommendations, the Department of Labor modified tip amounts and criteria for all tipped workers in the hospitality industry. These include food service workers and other restaurant and hotel service employees.

The Hospitality Wage Board found that the tipped employee minimum wage adversely affects “especially low-paid employees, women, and minorities.” It recommended “a complete elimination” of the “subminimum wage” in favor of “a single minimum wage [that] would simplify a complicated system.” However, both restaurants/hotels and their employees have expressed opposition to the elimination of the tip credit for hospitality workers.

Recommendations for Employers in Non-Hospitality Industries

Employers (other than restaurants and hotels) currently taking advantage of the tip wage credit must evaluate their current practices and determine how they intend to comply with the planned changes. In some cases, it may not even be clear whether the hospitality or miscellaneous wage order technically applies. Given the complexity of these regulations, it is critical to carefully review and modify your operations and pay practices as necessary.

 

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