January 2018 Legal Update
New York State Minimum Wage Increases
Effective December 31, 2017, New York State’s minimum wage has increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $10.40 per hour
- Employers in Nassau, Suffolk, and Westchester counties: $11.00 per hour
- Employers in New York City with 10 or fewer employees: $12.00 per hour
- Employers in New York City with 11 or more employees: $13.00 per hour
Effective December 31, 2017, New York fast food employees’ minimum wages have increased as follows:
- Fast food employees outside of New York City: $11.75 per hour
- Fast food employees in New York City: $13.50 per hour
New York State Increases Salary Threshold to Qualify for Exempt Employee Status
Effective December 31, 2017, the salary threshold to qualify for the administrative and executive exemptions from overtime pay have increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $780.00 per week
- Employers in Nassau, Suffolk, and Westchester counties: $825.00 per week
- Employers in New York City with 10 or fewer employees: $900.00 per week
- Employers in New York City with 11 or more employees: $975.00 per week
New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption. For each of the executive, administrative and professional exemptions, employees must also meet the applicable duties requirements in order to be considered exempt from overtime pay requirements.
Employers whose exempt executive and administrative employees are currently paid less than the new salary threshold must increase those salaries. Alternatively, employers can reclassify employees earning less than the new salary threshold to non-exempt.
New York City Expands and Renames Paid Sick Leave Law
Effective May 5, 2018, the New York City Earned Sick Time Act will expand the reasons for which paid sick leave can be used to include “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” The law’s name will change to the New York City Earned Safe and Sick Time Act.
The amended law will allow victims of domestic violence, stalking, human trafficking or sexual assault to take sick leave for a variety of reasons in order to get protection, seek help and redress, and to get medical or mental aid. Employees can take time to get protection, seek safety planning or relocate, seek help from legal and civil authorities, and to enroll their chidren in a new school.
Additional changes to the law include documentation, confidentiality and notice to employees. The law also expands the list of covered family members for whom paid sick and safe leave can be used.
New York City Fair Workweek Law-Fast Food and Retail Employers
In November 2017, the New York City Fair Workweek Law went into effect requiring that New York City fast food employers provide employees with two weeks of notice of schedule and pay premiums to employees for changes made to their schedules, offer open shifts to existing fast food employees, ban “clopenings” for fast food employees, ban on-call scheduling for retail employees, and require that retail employees receive 72 hours advance notice of schedules.
U.S Department of Labor Changes Intern Test
The United States Department of Labor (DOL) has adopted the “primary beneficiary” test for determining whether an intern is truly an intern or is actually an employee under the Fair Labor Standards Act (FLSA). This replaces the six-factor test the DOL has used for many years. The “primary beneficiary” test is already used by most United States Courts of Appeals and is designed to be more flexible and analyze internships on a case by case basis.
The DOL has issued a new fact sheet on internship programs that includes the seven factors looked at under the “primary beneficiary” test as follows:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.
WATCHLIST: New York City Employers May be Required to Grant Employees Temporary Schedule Changes for Medical and Family Care Purposes
The New York City Council voted in favor of a new law requiring certain employers to grant a temporary schedule change to employees. The new law will go into effect if it is signed by Mayor De Blasio. Under the proposed law, employers would be required to grant requests for a schedule change at a minimum of two times per calendar year for up to one business day per request, or once per calendar year for two business days for a single request.
A temporary schedule change is defined “as a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.”
An employee can make a request for a schedule change for the following reasons:
- To provide care to a minor child or to a family or household member with a disability who requires medical care or assistance with the needs of daily living;
- To attend proceedings to secure subsistence benefits for the employee or a family member, or
- For other reasons covered under the New York City Earned Sick and Safe Time Act.