Category: Employment Law

January 4, 2017 Posted By Patricia Kakalec

Minimum wage increases in New York State

The new year brings a higher minimum wage rate for New York State workers, as the minimum wage increased for workers statewide on December 31, 2016.    One big change is that the generally-applicable minimum wage rate now varies depending upon an employer’s size and an employee’s work location.   In addition, the higher minimum wage rate for workers at fast food chains with 30 or more locations (which could include locations outside of New York State) increased again on December 31st.

The new rates are as follows:

Fast food:

  • Fast food workers in New York City: $12 per hour
  • Fast food workers in other parts of the state: $10.50

Other industries:

  • Employees of New York City large employers (11 or more employees): $11 per hour
  • Employees of New York City small employers (10 or fewer employees): $10.50 per hour
  • Employees in Westchester & on Long Island: $10 per hour
  • Employees in the rest of New York State (“upstate”): $9.70 per hour

A few things to note:

  • For determining the size of a New York City employer, employees both inside and outside of New York City (during the prior or current calendar year) are counted.  But the New York City wage rate only applies to employees working in New York City.
  • All of the wage rates above depend on where an employee works, not where an employer is located.
  • If an employee works in multiple regions (say, New York City and Rockland County), an employer will comply with the law by either paying the higher rate for all work (in this example, New York City), or by paying the applicable minimum wage rate for each region for all work done in that region (for example, New York City rate for all hours worked in New York City, and the upstate rate for work done upstate).

Have questions about the new minimum wage law?   Give us a call at (212) 500-6114, or email Tricia Kakalec at pkakalec@kakalec-schlanger.com.

December 19, 2016 Posted By Patricia Kakalec

DOL Overtime Rules Enjoined

On November 22, 2016, a district judge in the Eastern District of Texas in the case State of Nevada v. U.S. Department of Labor (16-CV-731) issued an injunction against the implementation of U.S. Department of Labor (“DOL”) regulations related to eligibility for overtime pay for those who might be subject to the executive, administrative, and professional exemptions under the Fair Labor Standards Act.   Then new regulations, which were to go into effect on December 1, 2016, would have increased the salary threshold for exemption from overtime from $23,665 to $47,476, and also provided for automatic future increases.

In issuing its injunction, the district court held that the DOL “exceed[ed] its delegated authority and ignor[ed] Congress’s intent” by creating a “de-factor salary only test” for overtime eligibility.   The injunction means that the rule did not go into effect, and the salaries of employees around the country were effected.

Workers’ rights groups and others argue that the decision was both wrongly decided and problematic as a matter of public policy.   Christine Owen, the Executive Director of the National Employment Labor Project says that “[s]upporters of the rule are considering a range of legal strategies, and it’s premature to speculate about the course they’ll pursue if an appeal is filed. We believe the judge’s analysis and decision are deeply flawed and should be reversed on appeal.”    The DOL, which says it “strongly disagrees with the decision,” has filed a notice of appeal, although it is not clear that the incoming administration will continue with the appeal.

Despite this decision, some employers have gone ahead and implemented planned changes and salary increases.   For example, Pennsylvania-based, Sheetz, Inc. – which operates gas stations and convenience stores/quick service restaurants – announced its plans to continue with planned wage increases, stating that its decision “represents our constant efforts toward attracting and retaining the best talent and being a great place to work.  It is a commitment that reaches beyond compensation, to the offering of excellent benefits and a great balance between work and family.”

UPDATE:   On January 3, 2017, the Texas court denied the USDOL’s motion to stay the decision pending appeal.

Stay tuned for further developments on the case.

July 18, 2016 Posted By Patricia Kakalec

Frequently Asked Questions Regarding Mandatory Reimbursement For Purchase And Maintenance Of Work Uniforms In New York State

FREQUENTLY ASKED QUESTIONS REGARDING MANDATORY REIMBURSEMENT FOR PURCHASE AND MAINTENANCE OF WORK UNIFORMS IN NEW YORK STATE

1. Does your employer require you to wear a uniform on the job?

If so, under New York law your employer may be required to pay the cost of your uniform and the cost of your uniform maintenance.

2. Do you work in a RESTAURANT OR HOTEL?

If so, your employer must pay for your uniform.   Your employer must also pay you a uniform maintenance allowance unless you are provided with enough “wash and wear” uniforms.   (See below).

3. Do you work in ANOTHER INDUSTRY?

If so, your employer must in most cases follow the uniform cost and uniform maintenance allowance rules if your uniform cost and maintenance would reduce your hourly wage to below the New York State minimum wage, which is currently $9.00 per hour.

4. What is a required uniform?

  • A required uniform is clothing worn by an employee, at the request of the employer, while performing job-related duties or to comply with State or local law.
  • Clothing that may be worn as part of your ordinary wardrobe is not a required uniform.
  • For example, if your employer requires that you wear black pants and a white shirt to work, that is probably not a required uniform.

5. If I work in a restaurant or hotel (i.e., the HOSPITALITY INDUSTRY), is my employer required to reimburse me for my uniform and uniform maintenance?

Generally, yes.

  • When you purchase a required uniform, you must be reimbursed by your employer for the cost of your uniform on your next pay date.
  • In addition, your employer is required to maintain that uniform, which generally means laundering or dry cleaning the uniform, depending on its materials. If your employer does not maintain your uniform directly, the employer must pay you a weekly uniform maintenance allowance to cover the cost of your maintaining the uniform yourself.
  • Currently, the uniform maintenance allowance in New York State is $11.20 per week for employees who work at least 30 hours per week.
  • The amount of the allowance is lower employees who work fewer hours.

Are there any situations in which an employer in the hospitality (restaurant or hotel) industry does not need to pay for uniform laundering?

Yes.  As applies to hotels and restaurants, there is a limited exception to the uniform maintenance requirement:

  • Your employer can avoid paying you the uniform maintenance allowance if it provides you enough uniforms for the average number of days you work in a week.
  • For example, if you work six days a week and are required to wear a shirt with a company logo each day, you should get six shirts for your use.
  • This exception only applies to “wash and wear” uniforms – that is, uniforms that can be regularly washed and dried with other personal garments, and which do not require ironing, dry cleaning, daily washing, or other special treatment.
  • If your employer does not give you sufficient uniforms to meet this exception, your employer must pay you a uniform maintenance allowance weekly, which is currently $11.20 per week.

6. OUTSIDE of the hospitality industry, what are the rules regarding purchasing and laundering of uniforms?

  • Your employer must pay your uniform cost and your uniform maintenance allowance if the cost of the uniform and its maintenance would reduce your hourly wage to below the state minimum wage of $9.00 per hour.
  • Uniform maintenance allowance is currently $11.20 per week.
  • Uniform maintenance allowances must be paid in addition to your hourly wage, and cannot be credited toward the minimum wage.

7. Are there any types of workers that are exempt from the rules described above?

These rules apply to all employees in New York State except:

  • Government employees;
  • Farm employees;
  • Those working in an executive, administrative, or professional capacity;
  • Taxi drivers;
  • Outside salespeople; and
  • Certain other categories

In addition to the rules under New York State law, federal law (the Fair Labor Standards Act) also imposes some limitations on uniform charges.

Do you have questions about your rights on the job with respect to uniforms?   Our attorneys have deep experience litigating uniform violations.   Call Kakalec & Schlanger at (212) 500-6114 x103 for a consultation. 

May 31, 2016 Posted By Patricia Kakalec

Are You an Employee or an Independent Contractor?

Getting paid with a 1099?

Sign an agreement that says you are an “independent contractor” in your workplace?

Even if you did both of these things, you may actually be an employee – and not an independent contractor – of the company that you work for. You may be one of many workers around the country who are “misclassified” as independent contractors when they are really employees.

Misclassification of workers is an on-going problem in the modern workplace. According to studies cited by the Economic Policy Institute, between 10 and 20 percent of employers misclassify at least one worker as an independent contractor.

Continue Reading