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New York’s Paid Family Leave Law Provides Paid Leave to Families

On July 20, 2017, the New York Workers Compensation Board adopted the final regulation for implementation of the New York Paid Family Leave Law (NYPFLL). This is significant because the federal counterpart, the Family and Medical Leave Act (FMLA), does not obligate an employer to provide paid leave. In order to qualify to take paid leave in New York, an employee must be employed by a covered employer at the time they apply for the PFL. Additionally, if the employee works at least 20 or more hours per week, they become eligible after 26 weeks of employment. Alternatively, if an employee works less than 20 hours per week, they become eligible after 175 days worked.

An employee will be permitted to use paid leave if they are a new parent; have a serious health condition; or is called to active military duty. A serious health condition includes illness, injury, impairment, or mental condition.

An employee can apply for paid leave and once effective, the length of the maximum available leave varies based on the year. Each January 1 from now until 2021, the percentage of payment required to be paid to an employee for paid family leave will increase based on what the employee receives weekly. This January the PFL requires an employee to be given 8 weeks of paid leave at 50% of the employee’s weekly wage or the state average weekly wage, whichever is less. By 2021, the paid leave rate will increase to 12 weeks paid at 67% of the employee’s weekly wage or the state average weekly wage, whichever is less.

For more information on how on how an employee can claim Paid Family Leave and how an employer can prepare for the new regulation, call Gilbert Law Group at 631-630-0100.

Submitted by: Alexander Gilbert

Second Circuit Lowers Bar for FMLA Retaliation Claims

Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.

The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.

Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.

Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (RJ) Cherpak

DOL Abrogates Obama Administration’s Efforts to Decrease Misclassification of Independent Contractors and ‘Joint Employment’ Standards:

Earlier this month, the U.S. DOL (Department Of Labor) announced that it was revoking the standards set for by the Obama Administration for when a company is considered to be a “joint employer” of contract and franchise workers. The prior administration’s regulations were designed to protect against employers’ misclassification of employees as independent contractors.

 The particular guidance letters that were removed included the 2015 “administrator’s interpretation” regarding the classification of independent contractors and 2016 “administrator’s interpretation” relating to joint employment. The 2015 “administrator’s interpretation” regarding the classification of independent contractors stated that “ most workers are employees” under the Fair Labor Standards Act (FLSA). The 2016 joint employment “administrators interpretation” presented guidance on joint employment under the FLSA and included a distinction between “horizontal” and “vertical” joint employment. The two letters, which were implemented by the Wage and Hour Division (WHD) administrator, were met with much controversy as the purpose of the letters was to decrease the number of instances in which a worker was misclassified and increase the number of situations in which a business may be considered a joint employer of a worker.

The 2015 “administrator’s interpretation,” titled “Administrator Interpretation 2015-1” construed the definition of an “independent contractor” in a more narrow context than previously used. This particular letter provided that the DOL would shift its focus from whether the business “controls” the operations of the individual’s work to the “economic realities” of the individual’s job situation and whether the individual is financially dependent on the employer. This shift in focus was a substantial change from the “controls test” which resulted in more workers falling under the “employee” classification than “independent contractor” classification. The significance of this result, i.e., of more workers being classified as employees, was that these workers became eligible for overtime compensation and other benefits that come with being considered an employee rather than an independent contractor.

 The 2016 “administrative interpretation,” titled “Administrative Interpretation 2016-1” issued guidelines on how the WHD would deal with the question of which employer has obligations owed to the specific worker. With the implementation of this particular letter, the WHD was to evaluate working relationships through a “vertical” analysis of the employment relationship. Vertical joint employment is when a worker has an employment relationship with one worker such as a subcontractor, labor provider, staffing agency or other employer and the “economic realities” show that the person is financially dependent on another employer who is involved in the work. This form of vertical joint employment analysis lead to a substantial increase in the chances of an employer being liable to workers that they secured through a third party. This analysis was designed to decrease employee misclassification as an independent contractor, particularly where there is joint employer relationship.

On June 7, 2017, the U.S. Secretary of Labor Alexander Acosta announced that these “administrator interpretation” letters regarding independent contractors and joint employment would be nullified. Acosta also stated in his announcement that “removal of administrative interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.”

 The removal of these liability expanding guidance letters were met with high praise across the labor community including the National Association of Home Builders (NAHB). Chair of the NAHB and Texas-based builder Granger McDonald expressed his satisfaction with the removal stating “given that independent contractors and subtractors are critical to housing, we were very concerned about recent efforts attempting to limit their participation in the home building process. Withdrawing these documents will provide more certainty and clarity for home building firms and other small businesses who work closely with subcontractors and independent contractors.”

 The rollback of these guidance pieces should be encouraging to employers directly involved in work with independent contractors, leasing agencies, temp workers, and other potentially joint employment relationships. Additionally, the fact that Secretary Acosta wasted little time reversing these guidance pieces indicates that the reversal of other Obama-era enforcement strategies may be on the horizon. On the other hand, transient workers such as employees who gain employment by virtue of employment will see their protection from being misclassified as an independent contractor be vitiated by this change.

 Although the nonprofit worker advocacy group expressed its disappointment with the removal of these guidance letters, the removal has not done anything to alter the legal landscape regarding joint employment and independent contractor conflicts. In New York, the US Court of Appeals for the second circuit has ruled that joint employment should be evaluated on a case-by-case basis based on the totality of the circumstances. The Second Circuit has adopted two different tests for determining joint employer status, which depends on whether the court is looking at the employer’s formal or functional control over the employee.

 When determining the issue of whether the secondary employer exercises sufficient functional control over the relevant employees to be considered a joint employer, the Second Circuit applies a six part test which looks at: whether the employee at issue used the secondary employer’s premises and equipment, whether the primary employer had a business that may or did shift as a unit from one secondary employer to another, the extent to which the employees performed a job that was integral to the secondary employer’s production process, whether one subcontractor may pass responsibility under the contracts to another subcontractor without material changes, the degree to which the secondary employer or its agents supervised the employee’s work, and whether the employees worked exclusively or predominantly for the secondary employer. There are also other factors that may be considered when addressing this issue of functional control as long as those factors are pertinent to the court’s assessment of economic realities. The issue of joint employment is a mixed question of both law and fact that is properly decided by a jury.

 Another approach that may be used by courts in the Second Circuit is focusing the analysis on whether the secondary employer exercised sufficient formal control over the employees at issue. When using this type of analysis, courts in the Second Circuit apply a four-factor test that focuses on whether the secondary employer had the power to hire and fire the employees, supervise and control employee work schedules or conditions of employment, determine the rate and method of employment, and maintain employment records.

 Despite the removal of these particular guidance letters, these second circuit tests regarding joint employment issues that govern the Fair Labor Standards Act and New York Labor Law remain in tact and unaffected by the recent removal of these guidance letters.

Contributed by Richard (R.J.) Cherpak

If you have questions regarding misclassification and/or New York Labor Law, call Gilbert Law Group today at (631) 630-0100.

Federal Court Affirms NLRB’s Change In Calculation For Job Search Expenses In Wrongful Termination Cases

The U.S. Court of Appeals for the District of Colombia Circuit just recently upheld the National Labor Relations Board’s (NLRB) decision for a change in its method of calculation for how unlawfully discharged employees should be compensated by their former employers. The NLRB will now allow employees who were wrongfully discharged to seek out compensation for the costs they incurred while searching for a new job. This change can have a significant impact on wrongful termination cases.

The decision leading to this change involved grocery store chain King Soopers, a division of Kroger Co. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the Service Employees International Union, and an International Brotherhood of Electrical Workers local in Kansas all filed amicus briefs in favor of the proposed changes. The majority opinion was written by NLRB chairman Mark Gaston Peirce, NLRB member Kent Y. Hirozawa and NLRB member Lauren McFerran.

Previously, the NLRB had not awarded these job search costs to employees who claimed that they were unlawfully terminated as these expenses were only used to offset the interim earnings which limited the back pay to which an employee would be entitled to. As a result of this previously used policy, the compensation that a worker could be awarded was limited.

To illustrate the method historically used by the NLRB, say the plaintiff bringing suit has incurred $250 in expenses searching for a new job and has also lost $5,000 in gross earnings from his employer while failing to secure another job in the interim meaning that he has $0 in interim earnings. Under the traditional approach, the Board would award the plaintiff $5,000 in back pay which in reality would only result in the plaintiff recovering $4,750 once you subtract the $250 the plaintiff spent job searching. In this situation using the traditional approach, the plaintiff would not receive the $250 incurred in job search expenses because traditionally this amount was only awarded as an offset against interim earnings. Therefore, under the traditional approach, the only circumstance under which one could recover the expenses they incurred in job searching was if they were able to secure interim employment. Now, under this change in direction by the NLRB, the plaintiff will be able to be compensated for their job search expenses even if they are unable to secure interim employment.

Despite a strong showing of support for this change, NLRB member Phillip A. Miscimarra, who concurred in part and dissented in part, made some intriguing points in support of the traditional approach in his dissent. He felt that the traditional method of calculation was an effective method in most cases stating it “makes claimants whole in most cases, and the change adopted by my colleagues will result in greater than make-whole relief in other cases.” He continued to explain his worries regarding the change in approach stating “I do not discount the fact that parties and claimants experience substantial, often oppressive non-monetary consequences as the result of unfair labor practices, nonetheless, the [National Labor Relations Act] only permits the Board to award the relief that is remedial” not relief that compensates the plaintiff for everything they have lost. Additionally, he explained that the change in approach would open the door for “protracted board litigation” over job search expenses and that this newly adopted approach does not correlate with the method of calculation used by other statutes when calculating back pay.

Due to the impact of this decision, workers who are discharged and later ordered to be compensated with back pay will likely be awarded with greater amounts of money. However, it is still up in the air as to how much of an impact this change by the NLRB will truly have as David Rosenfeld, of Weinberg, Roger & Rosenfeld who also filed an amicus brief stated that job search expenses is a scarcely addressed topic in unfair labor practice cases. In an interview with Bloomberg BNA, Rosenfeld explained “people do find jobs, often they do find jobs that are the equivalent of what they lost, so there isn’t a lot of back pay.” In the majority opinion, the board wrote “Board proceedings have rarely involved litigation over search-for-work and interim employment expenses.”

If you have questions regarding a labor or employment issues, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (R.J.) Cherpak

New Legislation to Promote Equal Pay and Suppress Discrimination

Contributed by Richard Cherpak

         The issue over whether a potential employer’s interview questions regarding an applicant’s previous salary should be banned has sparked an intriguing debate that will impact the legal and business landscape. These laws will not just impact pay equity, but will also effect the number of claims for gender discrimination, age discrimination, and discrimination based on race or national origin.

            Massachusetts, Philadelphia and New York City have all recently passed laws prohibiting employers from asking questions regarding job applicant’s current or previous salary. The ban is expected to come into effect in Massachusetts in the summer of 2018. The statutes are being implemented to encourage equal pay by making employers configure salary numbers based on job requirements and market salary rates for the position being hired instead of the applicant’s past or current salary. Back in early April, the New York City Council approved New York City public advocate Letitia Jame’s bill that prohibits private and public employers from asking job applicants about their past and current salary during the interview process. The bill, which was signed by Mayor Bill de Blasio back on May 4, also prohibits employers from factoring in an applicant’s previous and current salaries when determining what salary they are going to offer. Legislation of this nature has been met with much controversy in Philadelphia. Earlier this month, the city of Philadelphia announced that it would wait to enforce the legislation until a federal judge decided on a petition to block the legislation from the Chamber of Commerce for Greater Philadelphia.

            Significantly for employers, in New York City, there are going to be severe penalties for violating the ban. If the city feels that the employer violated the ban in a malicious and willful manner, she or he may be held liable in fines of up to $250,000.

            Although the penalties for violating the ban are severe, there are a few exceptions to the law. One such exception allows for applicants and potential employees to use their own discretion in deciding whether or not to share their salary history. Accordingly, once employers receive this information from the applicant voluntarily, they may lawfully take it into consideration when offering a salary number.

            The potential benefits of implementing such a ban include that it may create more transparency between employers, employees and prospective employees when negotiating offers and raises, which in turn, may ease any tensions over lack of compensation that an employee may feel. By forcing employers to take more of an objective market-based approach when they are deciding what salary figure they are going to offer to an applicant, it becomes less likely that an applicant will claim unequal pay, or gender or racial discrimination. Using a market based approach allows employers to look at the standard market rate for what an employee of a similar position and skill level at another company makes while still providing the employer with some discretion what actual salary their prospective employee should earn based on their own individual skill set and experience.

            Although there is a strong argument for implementing this law, there is also a compelling argument against it. One argument currently being made by the Chamber of Commerce of Greater Philadelphia, which is representing around 600,000 businesses, is that implementing such a ban would violate free speech rights of employers and make it more difficult for companies to recruit top talent. The lawsuit in Philadelphia says that employers’ use of wage history information is a valuable tool in assessing whether they can or cannot afford to hire a particular candidate. They further contend that it is used to help businesses figure out an appropriate salary for a particular job. Another potential downfall of implementing such a ban is that it could expose businesses to major lawsuits opening the flood gates for a overwhelming stream of litigation. Say for example that a company leaves a question on their application regarding salary information, this could lead an applicant to file suit against the company. Additionally, there may be confusion and debate over the interpretation of a salary based question on an application because a question that the employer has regarding one’s salary expectations may be misconstrued by a potential employee or applicant to be a question regarding one’s salary history.

            According to the National Conference of State Legislatures, implementation of legislation of this nature is likely to expand across the country and continue as this year alone, 21 other states and Washington D.C. have proposed laws that would forbid questions regarding salary history. These states include: California, Connecticut, Delaware, Georgia, Iowa, Idaho, Illinois, Maryland, Maine, Mississippi, Montana, North Carolina, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, Vermont, and Washington.

2d Circuit Court Issues Blueprint for Avoiding Misclassification; Business Owners Classifying Workers as Independent Contractors

The United States Court of Appeals for the 2d Circuit recently issued a decision that could potentially save certain business owners both money and stress. The 2d Circuit, which encompasses the states of New York, Connecticut, and Vermont, in a recently decided case (Saleem v. Corporate Transportation Group, Ltd.) provided guidelines for employers as to whether their workers are employees or independent contracts. The issue of classification of workers as an employee or independent contractor is significant. For example, an independent contractor is exempt from minimum wage and overtime requirements. Further, such a classification can have significant tax consequences for a business. The above-referenced case clarifies longstanding issues regarding classification workers as employees or independent contractors. The hope is that the by issuing said guidelines, the Court will help employers avoid troublesome allegations of misclassification.

The case involved a driver service and its workers. Corporate Transportation Group and its affiliate companies (CTG) run a black-car service in the New York City area. The Company requires its drivers to sign a contract that acknowledged they were “not an employee or agent” of the company “but merely a subscriber to the services offered” by CTG. The drivers filed a class action lawsuit against CTG seeking unpaid overtime pay pursuant to the federal Fair Labor Standards Act (FLSA) and New York state wage and hour law.

In its decision, the Court established a three pronged analysis for determining whether a worker is an independent contractor or an employee. The Court initially noted that any independent contractor misclassification dispute arising under the FLSA must be examined under an “economic realities” test. The Court then listed the following three factors to be crucial to its decision:

  1. The Drivers Had Entrepreneurial Opportunities Not Available to Employees;
  2. The Drivers Made A Heavy Investment In Their Business and;
  3. The Drivers Maintained A High Level Of Flexibility.

The Court cautioned however, that its ruling was based on the fact-specific “totality of the circumstances” comprising the relationship between CTG and the drivers in this specific case. “In a different case, and with a different record, an entity that exercised similar control over clients, fees, and rules enforcement in ways analogous to CTG might well constitute an employer within the meaning of the FLSA.”

As a result it is clear that each case is to be determined on a case by case basis. Further, there is a lot of gray area as to how each of the above-referenced guidelines may be applied to difference business. Each case can turn on several variables. It is always best to consult an experienced employment attorney. If you have questions regarding employee or independent contractor classificication status, or are facing potential misclassification issues, call Gilbert Law Group today at 631.630.0100.

Recent Special Education Reimbursement Case

Under the IDEA, states receiving federal funds are required to “provide ‘all children with disabilities’ a free appropriate public education [FAPE].” A free appropriate public education consists of special education and related services tailored to meet the unique needs of a particular child, which are reasonably calculated to enable the child to receive educational benefits.  To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (‘IEP’) for each such child. An IEP is “a written statement that sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives,  and it “must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement.

In New York, Committees on Special Education (“CSEs”) are responsible for creating IEPs. They are “comprised of members appointed by the local school district’s board of education, and must include the student’s parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. Parents who believe their child is not being provided a FAPE “may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district.

Recently, a federal district court in New York ruled that a student’s father was entitled to reimbursement for his son’s private school tuition after a person at his son’s school said that the school was not appropriate for his son and suggested he seek an alternative placement. L.R. v. New York City Dep’t of Educ., No. 15CV1542-FBRML, 2016 WL 3390413 (E.D.N.Y. June 20, 2016). The district court credited the findings of the Independent Hearing Officer (“IHO”), which differed from the State Review Officer.  The IHO’s decision may be appealed to a State Review Officer (“SRO”). The SRO is the final arbiter of whether the state and the district have afforded the student a free  appropriate public education. Although the SRO is the final state administrative decision maker, the district court deferred to the IHO’s analysis because the SRO’s determinations were “insufficiently reasoned to merit deference.” This willingness to defer to the IHO is significant in that it it indicates that the Courts may look more closely at the SRO’s rationale. If the Court determines that the SRO does not adequately support its decision, it may more readily defer to the IHO.

EEOC: Employers, be Proactive vs. Workplace Harassment

Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

Uber Misclassification? Employee or Independent Contractor?

In July 2015, the Department of Labor issued guidelines regarding the “misclassification” of workers. It argued that any worker who is “economically dependent” on the employer should be considered an employee. A worker who is involved in a business independently however, on behalf of himself or herself should be regarded as an independent contractor. Multiple factors are considered in determining whether a worker is an employee or an independent contractor. This test is sometimes referred to as the “economic realities test.”

The classification of a worker as either an employee or independent contractor is significant for a company and its workers. The rationale behind such classification is that employees should be better protected and entitled to benefits as they are financially and professionally dependent on their employer. Independent contractors, however, are seen as having their own business and thus cannot claim several benefits from the business for which they are providing services including, but not limited to, minimum wage, overtime compensation, family and medical leave, unemployment insurance, and protections ensuring a safe workplace. As such, whether a business classifies its staff as employees or independent contractors will inevitably have major implications as it relates to overhead, payroll, profit margins, and taxes.

This classification again became newsworthy for Uber drivers when Uber, an on-demand car service, was confronted with the issue of whether its drivers should be considered independent contractors or employees. It is Uber’s longstanding practice of classifying its drivers as independent contractors rather than employees. Now the California Labor Commissioner, presented with this specific question, has opposed, in its interpretation of law, Uber’s basic and longstanding practice.

On September 16, 2014, an Uber driver named Barbara Ann Berwick filed a wage complaint with the California Labor Commissioner. Berwick sought, among other things, reimbursement for business expenses, such as gas and bridge tolls. Uber argued that since Berwick was not an employee, she could not be compensated for such expenses. In June 2015, the California Labor Commissioner argued in favor of the driver. It disagreed with Uber and awarded Berwick over $4,000 in business expenses and interest. In arriving at its decision, the Labor Commissioner applied the “economic realities” test adopted by the California Supreme Court in S. G. Borello& Sons, Inc. v. Department of Industrial Relations. Variations of this “economic realities” test are applied throughout the country, including New York. Based on this multifactor test, the Labor Commissioner held that Berwick was in fact an employee. Uber lost the case but has appealed the Commissioner’s decision.

            If you have questions regarding the classification of employees, independent contractors, and the implications of either classification, or need advice regarding labor and employment law, please call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan

New Developments of the Minimum Wage in New York State

Since 2009, the federal minimum wage has been at $7.25 per hour. Recently however, New York State has made significant changes regarding the minimum wage, increasing it from $8.75 to $9 per hour. Further, under the new law, the minimum wage at fast-food chains with at least 30 locations nationwide, will continue climb in incremental steps. Its initial increase occurred on December 31, 2015. It is also required that employers  post a Minimum Wage Information poster at their workplaces.

Moreover, the State has established a separate pay rate for fast-food workers in large chains. In response, restaurant owners have challenged the Department of Labor’s wage order, arguing it to be ‘arbitrary, capricious and contrary to law. At the time of this publication, the issue is pending before the court.

Bigger increases will be granted to tipped workers in New York. The hourly minimum wage will rise from $4.90, $5 or $5.65 to $7.50 an hour for tipped workers, such as waiters, depending on the type of establishment. State employees not working in New York city are seeing an increase to $9.75 while the minimum wage for workers in New York City is now $10.50. At fast-food chains with 30 or more restaurants nationally, workers’ wages will increase from $8.75 to $9.75. The chart below depicts the current minimum wage for the city, New York State as well as future scheduled increases.

DATE NEW STATE WAGE NEW YORK CITY WAGE
Today $9.75 $10.50
January 1, 2017 $10.75 $12
January 1, 2018 $11.75 $13.50
January 1, 2019 $12.75 $15
January 1, 2020 $13.75 $15
January 1, 2021 $15 $15

Employers and business owners should fully understand these new laws and regulations, particularly whether they are in compliance. Failure to do so could lead to significant liability. Should you have questions or concerns regarding these developments to the minimum wage, or related matters, please call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan, Esq.