Overtime Rates: U.S. Department of Labor (DOL) Final Rule

What Pay Rates Include and Can Exclude Overtime rates received clarification when the DOL announced a Final Rule on December 12, 2019 that goes into effect January 15, 2020. This is the first DOL substantial update in over 50 years that affects regular rate requirements. It tells employers what payment employers should include and should exclude in the time and a half, overtime pay calculation. It also greatly enables employers to offer perks and benefits to employees. How Do Perks and Benefits Figure into Regular Pay and Overtime Rates? Nailing down the pay rate to use when paying time and a half has been unclear for many years. The DOL has now established a set standard. Employers can exclude the following from regular pay rates: Remuneration for certain parking benefits, wellness programs, gym access, fitness classes, onsite specialist treatment, employee discounts on retail good and services, certain tuition benefits and adoption assistance Payments for unused paid leave (includes sick leave or paid time off) Payments for certain penalties required under state and local scheduling laws Paid expenses, such as cell phone plans, credentialing exam fees, organization membership fees, travel fees (even if not solely for employer’s benefit and also that do not exceed maximum travel reimbursement under the Federal Travel Regulation System and that are reasonable payments based on IRS substantiation amounts) Certain sign-on bonuses and longevity bonuses Discretionary bonuses (whether labeled discretionary or not) Contributions to benefit plans for accident, unemployment, legal services or other events that are capable of causing future financial hardship or expense. The Final Rule provides factual examples that clarify whether a bonus is...

New York Unpaid Wages Lien Bill: NY Employment Defense Attorneys

Cuomo Vetoes Liens Against Employers The Unpaid Wages Lien Bill passed by the NY State Senate and Assembly would have permitted employees to obtain liens against their employer’s real and personal property. The bill allowed for liens when employees claimed their employers owed them unpaid wages. The intent of the Unpaid Wages Lien Bill 2844–B was to give employees more extensive rights to deal with wage theft. Specifically, the bill would have allowed them to hold shareholders of non-publicly traded corporations personally liable for wage theft. Wage theft victims would have been able to hold the ten members, who held the largest interests in a company, personally liable for wage theft. What Is a Wage Claim? Basically, a wage claim is a claim for wages that were unpaid to an employee in violation of a contract. Unpaid overtime, unpaid sales commissions, unpaid contractor’s fees and of course a failure to pay wages at all could be subject to a wage claim. What Types of Liens Were Part of the Unpaid Wages Lien Bill? The bill included a mechanic’s lien and employee’s lien on property. For example, a contractor, subcontractor, laborer, material man, landscape gardener, nurseryman or person or corporation seeking ornamental trees, roses, shrubbery, vines, fruit trees or small fruit trees can have a lien for the principal and interest of the value or price agreed upon for labor. This would be a mechanics lien. The mechanic’s lien could not be for a sum greater than the sum earned and unpaid. An employee’s lien was a lien against property or the employer’s interest in property for the value of...

New York Tip Credit Law Changes

2020 Ushers in Significant Tip Credit Changes for Certain Industries Queens New York Labor & Employment Lawyers Tip credit law changes are part of a new law that the Governor of New York recently announced. By the end of 2020, certain “miscellaneous” industries will no longer be able to take tip credits. Except for the agricultural, hospitality and building services industries, all New York employers in other industries will not be able to claim tip credits for their employees who receive tips. What “Miscellaneous” Industries Do the Tip Credit Law Changes Affect? Clearly the hospitality industry includes servers and hotel workers who customarily receive tips and employers can continue to claim tip credits in these industries. However, tip credit law changes in miscellaneous industries apply to valet services, nail and hair salon employees, car wash attendants, dog groomers, tow truck drivers, tour guides, aestheticians, door-persons and golf and tennis instructors. Workers in these occupations often receive tips. The Department of Labor estimates that eliminating tip credits will affect more than 70,000 employees throughout the State of New York. Timelines for Implementation The DOL is eliminating tip credits over the next year. Elimination will occur in two phases. As of June 30, 2020 it will cut tip credits by 50%. Until then, industries that currently take tip credits may continue if they meet the following conditions: The industry is one where employees’ tips customarily and usually constitute part of the employee’s remuneration. The employee received enough tips for the amount of the claimed tip allowance. The employer records the allowance on a weekly basis as a separate item in the...

Disability Discrimination by Association or Relationship

The Americans with Disabilities Act (ADA) Provision About Association Disability discrimination based on association is a type of discrimination that you may not be aware of as an employer. Yet, it is vital that you understand it and take legal measures to prohibit it in your workplace. If you do not, you could be held accountable in a discrimination dispute or lawsuit. What Is Disability Discrimination by Association? The Equal Employment Opportunity Commission EEOC advises employers against taking action based on assumptions or biases toward employees who associate with people who have disabilities. The following are examples of discrimination based on association: Refusing to hire an applicant who has a disabled child and assuming that the employee would miss work or would not be dependable Terminating the job of an employee because of a relationship with a person who is HiV-positive due to fear that the employee would contract the disease Health care coverage denial to an employee because of a disabled dependent What Does the ADA Consider as Association or Relationship? The association does not have to be with a family member, but could be a relationship with anyone else as well. The issue is whether the relationship influences the employment decision being made. What Types of Employment Related Decisions Does the ADA Prohibit? Association based on disability should not influence the employer in making decisions about: Hiring Promotion Termination Health care benefits Employee benefits Hours and Wages (part-time or full-time jobs) Job positions The ADA applies to employers with 15 or more employees. However, the NYC Commission on Human Rights also has a provision for disability association...

App-based Delivery Services: Grubhub Inc. Subject to NYC Council

Will New Laws Emerge for Delivery Services Practices? Today many people use app-based delivery services for ordering food. After all, the convenience of apps on cell phones and other devices makes ordering easier. However, restaurant owners have growing concerns. According to a recent Bloomberg article, New York City Council members warned Grubhub Inc., a popular app-based delivery system, that they might soon be subject to regulations. Profit Issues for Restaurants with App-based Delivery Services Companies with app-based delivery services are charging as high as 33% per order. This creates a problem because many New York restaurants have profit margins of 10% or less. Councilman Mark Gjonaj believes that online ordering may be a contributing reason for the fact that 80% of the city’s restaurants fail within five years. Online Delivery Service Is Growing Yet, app-based orders are growing. By 2020, they may comprise 40% of restaurant sales. In fact, over the next 10 years, predictions are that online food ordering will reach $365 billion. Restaurant owners complain that Grubhub sometimes has charged commissions when no food was even ordered. It has also created its own phone numbers so calls go directly to Grubhub. In an effort to appease the pressure from the NYC Council, the company provided restaurants with 120 days to appeal such erroneous orders. Council members said the company should put no time limit on refunds and should hire independent auditors to evaluate the orders in dispute. Control Over the Restaurant’s Market The Grubhub CEO says that the company puts money into marketing a restaurant’s menu and has a large database that lists customer’s phones, emails, credit...