New York Labor and Employment Law Report
February 1, 2021
On Jan. 14, 2021, New York State Department of Labor (DOL) Commissioner Roberta Reardon signed an Order to temporarily modify the unemployment benefit charging system and ease the burden for unemployment insurance charges incurred by all employers during the COVID-19 pandemic.
Read More >> NY DOL Indefinitely Cancels Unemployment Insurance Charges
January 25, 2021
On Jan. 20, 2021, the New York State Department of Labor issued guidance regarding the use of COVID-19 sick leave. This guidance clarifies certain issues and provides new obligations for employers.
December 11, 2020
Employers in New York will be required to comply with the new state minimum wage rates and the new state salary thresholds to qualify for the executive and administrative exemptions, effective December 31, 2020.
November 17, 2020
Employers issuing notices pursuant to the New York State Worker Adjustment and Retraining Act (NY WARN) are now subject to additional requirements due to a statutory amendment that Gov. Cuomo signed into law on November 11, 2020. This amendment, which is effective immediately, expands the list of entities whom covered employers must notify prior to implementing a plant closing or mass layoff. The list now includes: (1) the chief elected official of the unit(s) of local government and the school district(s) in which the plant closing or mass layoff will occur; and (2) each locality which provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the plant closing or mass layoff.
October 21, 2020
On October 20, 2020, the New York State Department of Labor released its long-awaited Guidance (the Guidance) on Paid Sick Leave (PSL). Although the Guidance provides some clarity for employers, it also leaves many questions unanswered. The following is a summary of some the information provided by the Guidance.
October 16, 2020
On September 28, 2020, New York City Mayor Bill de Blasio signed a bill amending the Earned Sick and Safe Time Act (ESSTA). The amended ESSTA took effect on September 30, 2020. Although the intent of the amended law was to make ESSTA synchronous with the New York State Paid Sick Leave Law (NYSSL), the revisions also made significant changes to the law unrelated to the NYSSL.
January 27, 2020
The New York State Department of Labor, after holding multiple hearings across the state regarding the impact of tip credits for employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations, issued a report recommending the elimination of the tip credit for all miscellaneous industry workers. Governor Cuomo recently announced that this recommendation will be implemented in two phases. Effective June 30, 2020, the tip credit will be cut in half. Effective December 31, 2020, the tip credit will be eliminated entirely. This will affect an estimated 70,000 employees, in occupations such as car wash attendants, nail and hair salon workers, tow truck drivers, dog groomers, wedding planners, tour guides, and valet parking attendants. This will not affect employees covered by the Hospitality Industry Wage Order, such as service employees and food service workers in hotels and restaurants.
March 27, 2019
On March 26, 2019, the New York State Court of Appeals issued a ruling that will have a significant positive impact on home care agencies across the state. In a five-to-two decision, the Court upheld the validity of the New York State Department of Labor’s “13 Hour Rule” for cases involving 24-hour live-in care. Under the “13 Hour Rule,” a residential employee assigned to work a 24-hour shift need only be paid for 13 of those hours, so long as he or she is provided with an 8-hour sleep break and three hours of meal breaks. (If the employee’s meal breaks are interrupted, or if the employee does not get five uninterrupted hours of sleep, the employer must pay for the entire break.) Bond, Schoeneck & King, PLLC, participated in the case, representing amicus curiae (“friend of the court”) Consumer Directed Personal Assistance Association of New York State.
February 28, 2019
The New York State Department of Labor announced recently that it does not intend to implement its proposed regulations that would have imposed burdensome requirements on employers to provide call-in pay to employees under a variety of circumstances not currently covered under existing regulations. The regulations were initially proposed in November 2017, and then were revised in December 2018 after public comments were received and reviewed. The NYSDOL now intends to let the regulatory process expire with respect to the proposed regulations and potentially revisit this issue in the future.
Read More >> New York State Department of Labor Drops Proposal Regarding Call-In Pay . . . For Now
December 6, 2018
Although the minimum wage rate under the Fair Labor Standards Act remains $7.25 per hour and the U.S. Department of Labor has not issued any new proposed regulations to raise the minimum salary to qualify for a white-collar exemption under federal law, employers in New York will be required to comply with the new state minimum wage rate and the new state salary threshold to qualify for the executive and administrative exemptions, effective December 31, 2018.
November 13, 2017
Employers in New York will be subject to new “call-in” pay and scheduling requirements under recently-proposed state Regulations. Governor Andrew Cuomo recently announced these proposed Regulations, which the New York State Department of Labor (“DOL”) will reportedly publish in the State Register on November 22, 2017.
New York regulators have recently focused their enforcement sights on the so-called “just-in-time” or “on-demand” scheduling of workers. According to Governor Cuomo, this practice entails the scheduling or cancelling of a worker’s shift with little or no advance notice. At the Governor’s direction, the DOL recently held hearings across the state on this issue, which then led to issuance of the proposed Regulations.
If enacted, the proposed Regulations would amend New York’s catch-all “Miscellaneous Industries” minimum wage order, including those portions applicable to non-exempt “nonprofitmaking institutions” across the state.
Call-In Pay Under Current New York Law
Under the Miscellaneous Industries minimum wage order, non-exempt employees who report to work are currently entitled to call-in pay equal to the lesser of four hours of pay or pay for the number of hours in the regularly-scheduled shift, at the state minimum wage rate. Notably, the DOL has interpreted this provision, such that it only effectively applies to non-exempt workers who earn at or very near the state minimum wage. In this regard, the DOL previously stated in Opinion Letter No. RO-09-0133, dated December 2, 2009: “[I]f the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum wage rate for any call-in pay owed, no additional payment for call-in pay is required during that workweek.” (emphasis added).
In other words, under DOL’s interpretation, New York employers could potentially apply an “offset” — for amounts paid to workers above the state minimum wage and overtime rates during the same workweek — against any “call-in” pay otherwise due to workers.
Additionally, under current law, employers are generally free to schedule, and, when necessary, cancel shifts before employees report for work, without incurring any additional payment obligation.
Call-In Pay Under the Newly-Proposed DOL Regulations
Under the Regulations, the above call-in pay must be calculated at the current state minimum wage rate (which now varies by location and workforce size) without any allowances, and employees must receive their “regular rate” for their actual time of attendance. However, these new requirements will not apply to otherwise covered employees whose weekly wages exceed 40 times the applicable state minimum wage.
The proposed Regulations will also replace current “call-in” pay requirements with the following:
Notably, the proposed Regulations state: “Call-in pay shall not be offset by the required use of leave time, or by payments in excess of those required under” the applicable minimum wage order. Although this provision is not entirely clear on its face, conceivably, it was drafted with the intent of curtailing application of the above-referenced weekly “offset” provided under prior DOL interpretation.
Finally, the proposed Regulations state that the above requirements will not apply to certain employees “who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.” Further, the requirements may not apply in certain other circumstances, such as when a business cannot begin or continue operations due to a state of emergency or other “Act of God” beyond its control.
Employers should also be mindful that New York City recently passed a similar law that will become effective on November 26, 2017. This other local law places somewhat similar requirements on retail employers, and also places additional requirements on certain fast food establishments.
According to DOL, the proposed Regulations will be subject to a 45-day comment period after official publishing. We will update this article with any further developments, and will be announcing a free webinar on the proposed Regulations in the coming days.
If you have any questions about this issue in the meantime, please contact Andrew D. Bobrek, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.
Author’s Note: A special thanks to Richard White, who assisted in drafting this article.
