FAST FOOD EMPLOYERS IN THE EMPIRE STATE: 10 wage-and-hour issues on the horizon

Employers across New York State will be ringing in the new year with wage increases — particularly those in the hospitality industry, who face additional increases for qualifying "fast food" workers. This update summarizes the changes effective December 31, 2015, and provides an overview of important New York State and New York City wage-and-hour laws that warrant special attention. (Changes that affect tipped employees are not addressed in this bulletin.)

1. Minimum Wage and Overtime Increases. On December 31, 2015,

• New York State's basic minimum hourly wage rate will increase to $9.00/hour.

• The minimum wage for fast food workers will increase to $10.50/hour in New York City and $9.75/hour in New York State.

A "fast food establishment" is broadly defined to include any establishment that

» Has the primary purpose of serving food and drinks;
» Allows customers to order or select items and pay before eating (including delivery);
» Is part of a chain (that is, a set of establishments that share a common brand, or are characterized by standardized décor, marketing, packaging, products, and services); and
» Is one of 30 or more establishments nationwide owned or operated by a single integrated enterprise — or as a franchisor-franchisee operation.

This includes single-owned franchises, and encompasses a wide range of establishments from burger-and-fries restaurants to juice bars, coffee shops, and donut chains.

Minimum wage rates for fast food workers will continue to increase annually as follows:

Overtime rates for employees paid at the minimum wage will also increase based on these changes, as follows:

2. Increases for Exempt (Salaried) Employees. The minimum weekly salary for exempt executive and administrative employees will increase from $656.25 to $675.00 per week. (See 12 N.Y.C.R.R. § 146-3.2(c).) (Note that New York State's salary basis threshold is higher than the current federal requirement of $455 a week. The U.S. Department of Labor has proposed regulations that would increase this to $970 a week. The USDOL's final regulations are expected in or around July 2016.)

3. Wage Notices.

• The New York Wage Theft Prevention Act requires all private sector employers to provide each employee with a notice stating (1) the employee's rate of pay; (2) the overtime rate of pay, if applicable; (3) the basis for the employee's pay (for example, hourly, salary, commission, etc.); (4) all allowances claimed as part of the minimum wage (for example, tips, meals, or lodging allowances); (5) the employee's regular pay day; (6) the name of the employer, including whether the employer is "doing business as" under any other name; (7) the employer's address; and (8) the employer's telephone number. (See NYLL § 195(1).)

• The notice must be provided to all new employees upon hire, and, for employees in the hospitality industry, whenever their pay rate changes. (See NYLL §§ 195(1); 12 N.Y.C.R.R. § 146-2.2(a)-(b).)

• If the worker's primary language is English, Spanish, Chinese, Korean, Creole, Polish or Russian, the employer is required to provide notice in the worker's primary language, and may use the NYSDOL's templates available in each language. If the worker's primary language is any other language, notice may be given in English. (See NYLL § 195(1); 12 N.Y.C.R.R. § 146-2.2(a).)

• Employers are responsible for keeping signed copies of these wage notices on file for six (6) years. (See 12 N.Y.C.R.R. § 146-2.2(c), (d).)

• The NYSDOL has published updated wage notice forms reflecting the minimum wage increase.

4. Spread of Hours.

• In the restaurant industry, all hourly employees whose work is spread over more than 10 hours in a day must receive an additional premium payment of one hour's pay at the applicable minimum wage ("spread pay"). (See 12 N.Y.C.R.R. § 146-1.6.)

• "Spread of hours" is the amount of time between when the employee first begins work on a day, and when he or she ultimately ends work on that same day, regardless of any non-work time in between shifts. For example, an employee who works two shifts, from 7 a.m. to 10 a.m. and 7 p.m. to 10 p.m., has worked 6 hours but has a 15-hour spread. Therefore, spread pay must be paid to that employee. (See 12 N.Y.C.R.R. § 146-1.6.)

• The "spread of hours" premium does not count as an hour worked for overtime purposes and is not to be included in calculating an employee's regular rate of pay. In addition, the spread pay may not be offset by any credit for meals or lodging. (See 12 N.Y.C.R.R. § 146-1.6.)

5. Call-In Pay. Restaurant employees who report to work (either by request or permission of the employer) are entitled to a minimum amount of "call-in pay" — even if they do not perform (or are not assigned) any work.

• For a single shift, employees must be paid for at least 3 hours of work, or the number of hours in the regularly scheduled shift, whichever is less. Employees who report for multiple shifts have a right to a higher level of call-in pay, depending on the number of hours and shifts. (See 12 N.Y.C.R.R. § 146-1.5(a).)

• For the time of actual attendance, employees must be paid at their regular rate of hourly or overtime pay. The balance of the shift owed is calculated at the full minimum wage rate, and is not considered time worked for purposes of calculating overtime. (See 12 N.Y.C.R.R. § 146-1.5(b)(1), (c); see also Minimum Wage Rates, above.)

• All hourly restaurant employees are entitled to call-in pay. (See 12 N.Y.C.R.R. § 146-1.5(e).)

6. Uniform Purchase Pay. Restaurant employers must purchase employees' required uniforms, or reimburse the employees. (See 12 N.Y.C.R.R. §146-1.8.)

• A "required uniform" is clothing that an employer requests an employee to wear while working, or clothing required to comply with applicable law(s). Regular, basic street clothing that may be worn as a part of the employee's ordinary wardrobe falls outside this definition. (See 12 N.Y.C.R.R. § 146-3.10.)

• Any employees (regardless of their rate of pay) who are required to purchase a uniform must be reimbursed by the next pay day (or their first pay day, if they are required to purchase uniforms before starting work). (See 12 N.Y.C.R.R. § 146-1.8.)

7. Uniform Maintenance Pay. Employers who do not provide laundry or other maintenance services (such as washing, ironing, dry cleaning, alterations, repairs) must also provide weekly uniform pay based on the number of hours worked per week:

• "Wash and wear" exception: employers will not be required to provide uniform maintenance pay if such uniforms

» Are made of "wash and wear" fabric;
» May be routinely washed and dried with other personal garments;
» Do not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and
» Are furnished in sufficient number (or the employee is reimbursed for the purchase of a sufficient number of) uniforms consistent with the average number of days worked by that employee.

(See 12 N.Y.C.R.R. § 146-1.7.)

8. Meal Breaks. Non-factory workers must be allowed unpaid meal breaks as follows: (1) a 30-minute lunch break between 11 a.m. and 2 p.m. for shifts of six hours or longer that extend over that period, (2) a 45-minute meal break starting in the middle of the shift for shifts that start between 1 p.m. and 6 a.m., and (3) an additional 20-minute meal break between 5 p.m. and 7 p.m. for shifts that start before 11 a.m. and continuing later than 7 p.m. Employees must be completely relieved from duty during a meal break. Meal breaks of 20 minutes or longer are unpaid and not counted as hours worked for purposes of overtime. Meal breaks that are interrupted by work duties, or that are less than 20 minutes, must be treated as paid time. (See NYLL § 162.)

9. One Day of Rest in Seven.Employees must be given at least 24 consecutive hours of rest in each calendar week. No employee shall be permitted to work on his or her designated day of rest. (See NYLL § 161.)

10. New York City Paid Sick Leave.New York City's Earned Sick Time Act went into effect on April 1, 2014:

• Employers with 5 or more employees who are employed for hire more than 80 hours a calendar year in New York City must provide up to 40 hours of paid sick time to each employee.

• Employees must be paid at their regular hourly rate of pay.

• Tipped employees must be paid at the full hourly minimum wage rate (see above), but are not entitled to any tips they would have earned during their sick leave.

• Sick time may be used for the employee's own illness or to care for a sick family member.

• Employers are required to give a notice form to new employees upon hire. The notice form is available in English and 25 additional languages.

If you need assistance with any of these issues, please contact any member of Constangy's Wage-Hour Practice Group.

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