Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law. This blog is not a substitute for consultation with an attorney licensed in your jurisdiction. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
On March 31, 2021, Governor Cuomo signed the Marijuana Regulation and Taxation Act [“MRTA”] into law. The MRTA legalizes the recreational use of marijuana in New York for individuals over the age of 21 and expands New York’s existing medical marijuana program. While the law takes effect immediately, the sale of recreational marijuana is not expected to become legal for at least a year from the enactment date while the state works to create a regulatory framework for the cannabis industry.
This blog post will discuss how the use of marijuana, whether for a medical or recreational purpose, may impact your workplace rights. As a warning to all, it is important to understand that the recently passed legislation does not give one free license to show up for work under the influence of marijuana. In fact, some workplaces can still impose discipline if an employee tests positive even if s/he was not under the influence while at work. It must be understood that if you are under the influence of marijuana at work you are subject to discipline, up to and including termination. If you test positive and your employer is subject to safety regulations, your employer may impose similar discipline, even if you were not under the influence while at work.
Medical Marijuana Use
New York’s Compassionate Care Act [“CCA”] allows for, and regulates, the cultivation, distribution, prescription, and use of marijuana for medical purposes. The CCA allows approved organizations, such as hospitals and community health centers, to dispense medical marijuana to patients who have been certified by their health care provider and who have registered with the state Department of Health. Although federal criminal law forbids the possession, distribution, sale, or use of marijuana, thanks to the CCA, in New York the United States Department of Justice does not currently enforce criminal law provisions against individuals and entities engaged in the cultivation, transportation, delivery, prescription, or use of medical marijuana in accordance with state law.1
The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). As a result, under New York State Human Rights Law, employers may not discriminate against an employee or job applicant based on lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a). While under New York’s CCA, people with serious medical conditions may legally use marijuana in the manner prescribed by a registered care provider who is licensed to dispense, it is important to understand that this does NOT mean that a certified medical marijuana patient can show up for work under the influence or use medical marijuana in a manner that violates workplace rules. In addition, the CCA specifically exempts employers from doing “any act that would put the [employer] in violation of federal law or cause it to lose a federal contract or funding.” This means your employer may be exempt from following the CCA if subject to federal regulation, such as Department of Transportation rules.
Here are a few examples of how New York’s Human Rights Law and the CCA may, or may not, protect your rights if you are a certified medical marijuana patient.
I’m a certified user of medical marijuana and, while I was not under the influence of marijuana at work, I tested positive after a random drug test. Can I get fired?
It depends. As a certified medical marijuana patient, you are “disabled” under New York law and, therefore, are a member of a protected class. As such, before imposing discipline, your employer must engage in a good faith interactive process to assess your needs and determine if there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer. If you work in a safety sensitive position, in a job subject to federal regulation, and/or your use of medical marijuana poses a direct threat to yourself, co-workers, or customers, your employer may have grounds to terminate even if you were not under the influence of marijuana while at work.
I am a certified medical marijuana patient and report to work under the influence of marijuana or use marijuana during my shift. Can I get fired?
Yes. In fact, a New York employer is free to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana—even if you need it to treat a medical condition. The understanding is that marijuana use to address your underlying health condition must occur when you are off the clock and at intervals that allows you to be at work when you are not under the influence.
I am a certified medical marijuana patient with a conditional offer of employment. I tested positive for marijuana and synthetic tetrahydrocannabinols (THC) during the pre-hire drug test. After explaining that I am a certified medical marijuana patient, my employer withdrew the offer on the spot. Is this legal?
It depends. Once your prospective employer is on notice that you are a certified medical marijuana patient, the law requires the employer to engage in a good faith interactive process to assess your needs and determine if there is a reasonable accommodation that will allow you to perform the essential functions of your job as a medical marijuana patient. An employer is obligated to participate in an interactive process even if the employer is subject to federal regulations that prohibit hiring or retaining employees that test positive for scheduled substances. If there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer, or create a direct threat to yourself, co-workers, or customers, you should not be denied the job. If you feel the sole reason you were not hired is due to your status as a medical marijuana patient, you may want to contact an attorney to discuss your rights.
If you are applying for a job in New York City on or after May 10, 2020, you will benefit from a local law amending the New York City Human Rights Law to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). This prohibition on marijuana testing in the hiring process, however, does not apply if you are seeking employment in a safety sensitive position, such as law enforcement, elder care, or medical services.
Recreational Marijuana Use
The MRTA amended the New York Labor Law provision that prohibits employers from refusing to “hire, employ or license, or to discharge from employment or otherwise discriminate against an individual” for engaging in legal recreational activities outside of work. N.Y. Lab. L. §201-d(2). As amended, the provision now provides that the recreational use or consumption of marijuana outside of work hours, off an employer’s premises, and without use of the employer’s equipment or other property, constitutes lawful recreational activity.
As a practical matter, the MRTA’s amendment of the Labor Law limits an employer’s ability to discipline employees for their recreational use of marijuana but, be forewarned, there are still employment related limits imposed on an employee’s right to partake and exceptions to the law that allow an employer to impose discipline. Consider the following:
- Nothing in the law “is intended to limit the authority of…employers to enact and enforce policies pertaining to cannabis in the workplace” or “exempt anyone from any requirement of federal law.” In other words, employees still must adhere to workplace drug policies. Also, under federal law, marijuana use is still illegal. The CCA’s protection from criminal prosecution for use of medical marijuana does not extend to recreational use.
- “Work hours” means all work time, “including paid and unpaid breaks and meal periods” and “all time the employee is actually engaged in work.” N.Y. Lab. L §201-d(c). As such, an employee is subject to discipline for marijuana use during break time or a rest period during the workday, even if not on the clock.
- Employers retain their ability to discipline an employee who is “impaired” by marijuana while on the job. The MRTA defines the term “impaired” as when an “employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” However, the MRTA does not define “specific articulable symptoms,” and until the state releases interpretive guidance, employers are likely to define the term broadly.
- An employer does not violate N.Y. Lab. L. §201-d if its response to an employee’s recreational use of marijuana: 1) is required by state or federal law; or 2) if failing to do so would leave the employer in violation of federal law or lead to the loss of a federal contract or funding.
If you have questions about your workplace rights surrounding the legal use of marijuana, you should consider consulting an attorney.
This is the second installment of a series of blog posts aimed at helping hospitality workers understand their rights under the Hospitality Industry Wage Order [“HIWO”], a complex group of multifaceted provisions that establish a wide variety of wage and hour rules for the hospitality industry. This blog post will explain when a hospitality worker is entitled to receive extra compensation for maintaining a uniform.
Under HIWO, employers are generally required to pay “uniform maintenance pay” to help compensate an employee for the cost of maintaining a required uniform. 12 NYCRR §146-1.7. The weekly payment for uniform maintenance varies depending on where your workplace is located in the state, the number of hours you work each week, and in some localities, the number of employees on the payroll. For example, if you work in a restaurant in Syracuse, NY, your weekly uniform maintenance pay in 2021 will range from $7.45/week to $15.55/week, depending on the number of hours you work during the week. If you work at a restaurant in Manhattan with 11 or more employees, your weekly uniform maintenance pay in 2021 ranges from $8.90/week to $18.65/week, depending on the number of hours you work during the week.
There are exceptions to the general rule described above. So, before you demand compensation for maintaining your uniform, make sure your employer’s practice does not fall under one of these exceptions.
First, if your employer regularly launders your uniform free of charge, has an adequate supply of clean, properly fitting uniforms at the ready, and individually informs you in writing of the above, BUT you choose not to take advantage of this, you forfeit your right to receive uniform maintenance pay.
Second, your employer is not required to pay uniform maintenance pay when the required uniform is made of “wash and wear” material that can be laundered along with your own garments, provided you are given (at no cost to you) a sufficient number of uniforms consistent with the average number of days you work each week.
So, how many uniforms does an employer have to provide to avoid its uniform maintenance obligation?
This very question was explored by the court in Gregory v. Stewart’s Shops Corp., 2016 U.S. Dist. LEXIS 89576 (NDNY 2016). In this case, a hospitality industry employer’s policy of providing two or three uniforms to full-time employees was challenged by employees who claimed the HIWO required an employer to provide a number of “wash and wear” uniforms equal to the number of days per week an employee regularly worked. The employer argued that a sufficient number of uniforms did not require them to provide one uniform for each day of the week the employee generally worked. The court ruled in favor of the employer, reasoning that the authors of the HIWO had a chance to draft a bright-line rule such as one uniform for each day of the week the employee generally works, and they did not. Therefore, the subjective standard of a “sufficient number” is the rule.
Here is the take-a-way. If you work as a server five days a week your employer is not required to provide you with five “wash and wear” uniforms. Instead, your employer must provide you with a sufficient number of “wash and wear” uniforms, perhaps two or three. If you are working five days a week and are provided with only one or two required “wash and wear” uniforms, you are likely entitled to uniform maintenance pay. If you are required to wear a uniform and you must pay for the uniform(s), you are also likely entitled to uniform maintenance pay because, technically, your employer has not furnished a sufficient number of uniforms. Finally, if your required uniform is not of the “wash and wear” variety, you are likely entitled to uniform maintenance pay, regardless of the number of uniforms provided and the number of days you work each week.
If your employer is subject to the HIWO and you suspect a compliance issue, you should contact an attorney or the New York State Department of Labor.
Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.
- Under New York State Law, Marital Status Discrimination Is Not…
The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.
The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.
- Marital Status Discrimination Might Be…
In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.
- Meanwhile, in New York City…
Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.
Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment. Karayiorgou v. Trustees of Columbia University, 2021 N.Y. Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.
- What About Other States?
Unfortunately, for the vast majority of employees, federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.
- Wait, am I protected or not?
Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.
 Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.
 Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.
 Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.
 Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.
On March 12 New York passed a law [link here] entitling New York workers to up to four hours of paid leave for COVID-19 vaccinations. That is four hours per injection, which means if you get the Moderna or Pfizer injection, you get a total of two four-hour chunks of leave to get the shots.
Employers have to provide this leave in addition to other leave, which means they can’t make you use sick leave or New York State Paid Leave to cover your vaccine leave.
The leave must be paid at your regular rate. Retaliation against employees who take vaccination leave is illegal.
The law amends New York Civil Service Law to add Section 159-c, which applies to public employees, and New York Labor Law to add 196-c, which applies to pretty much everyone else.
The law expires on December 31, 2022.
Get out there and get your “Fauci Ouchi!”
By Susan McNeil
Without a doubt, we are living in turbulent times. If the current social and political climate is inspiring you to participate in a protest or post your opinions on social media, be aware that your actions may get you in trouble with your employer. A timely example of this is the fallout from the protest at the U.S. Capitol on January 6, 2021. Some individuals who participated in the protest have been disciplined by their employers, even terminated. Others have faced discipline at work for posting passionate tweets about the protest or other controversial issues.
Query: Can these individuals be subjected to discipline by their employers for their actions or are their expressions protected by the First Amendment of the U.S. Constitution?
The First Amendment to the U.S. Constitution does not protect all speech.
Generally speaking, the First Amendment to the U.S. Constitution, which is the basis for free speech protection, only prevents state actors, such as the federal and state government, from interfering with freedom of speech. As a result, government, or public sector, employees have some First Amendment protections but the same is not true for private sector workers.
It is important to understand that, even if you work in the public sector, not all speech is protected by the First Amendment. A public sector employee can still be disciplined when speech has a negative impact on the function of the public employer or adversely affects morale. Before imposing discipline, the public employer must balance “the interests of the [public employee], as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). As a practical matter, if a public sector employee’s speech is discriminatory or obscene, a public employer can likely discipline the employee without running afoul of the First Amendment.
The First Amendment does not extend free speech rights to private settings, including private workplaces. So, a private sector employee’s social and political expressions are not shielded from employment consequences under the guise of freedom of speech and may very well result in workplace discipline. However, private employers cannot discipline employees for speech if the speech is protected by another law. For example, the National Labor Relations Act [“NLRA”] protects employees’ rights to communicate with one another about the terms and conditions of their employment. More specifically, employees have the right to engage in “protected activity” regarding their workplaces—talking about wages, sharing grievances, and organizing online are all protected activity under the NLRA. This is true in both union and non-union workplaces. Employees who are fired for posting online complaints about their wages, benefits, tip sharing arrangements, management, hours, or other work conditions could have a strong legal claim under the NLRA. Similarly, Title VII prohibits a private employer from imposing discipline on employees who express opinions in opposition of discrimination and harassment.
If you work in New York, you may have some protection from being terminated or otherwise disciplined for off-duty conduct. N.Y. Lab. L §201-d. More specifically, this provision makes it unlawful for an employer to discriminate against an employee because of their political activities or legal recreational activities outside of work hours provided the activities do not take place on the employer’s premises and do not use the employer’s property. Under this provision, protected political activities do not include protesting however, arguably, a peaceful protest may fall within the category of “legal recreational activities.”
Bottom line: Not all speech is shielded from adverse employment consequences so think twice before you post on social media or otherwise express your social and political opinions.
Of course you want to take your story to the press. You feel you owe it to other employees to expose what has happened to you. It could be the trial of the century. Whether you want to explain it to TikTok, get hugs from Facebook, or rant on Twitter, the world needs to know what these people are doing to you, right?
Getting your story out may feel very satisfying in the short-term, but you may end up regretting the legal consequences later.
First, if you are pursuing legal action, or considering pursuing legal action, every word you say to the press or on social media could end up as evidence admissible in court – evidence you don’t want admitted. Plus, if your complaint uses the word “bluegreen” and your Facebook post says “turquoise,” the other side’s attorney is going to have a heyday with the perceived inconsistency. Even totally innocent statements can be twisted to contradict a key element of your claim, and your lawyer may not be able to untangle the mess.
Second, if you’re making allegations you can’t prove, the other side may be able to turn around and sue you for defamation. While in some states, statements made “in the course of litigation” may be privileged, the other side is going to have a mighty strong argument that allegations made on Twitter or in an email to a reporter aren’t made “in the course of litigation.”
Third, any time you speak you risk divulging confidential information. So if the employer thinks there is a confidentiality breach, you might find yourself getting sued for that breach.
Fourth, the employer might be willing to make a settlement offer – in return for a nondisclosure agreement. But an employer who is already paying lots of money to a PR firm to clean up the bad press you’ve created might not see a reason to pay you, too.
Fifth, you’ve heard of internet trolls. Internet backlash is real, vicious, and devastating, No matter how angelically you have behaved, some stranger out there may take devilish glee in throwing mud—or worse—at you.
What if the press contacted me?
All of the above applies, times 100. If the press contacted you then the last thing you want is to feed the fire at the same time you destroy your own case.
But the other side is saying terrible things about me!
Two points here: First, if the other side is an employer, they can afford a lot more PR firm time than you can. Second, see above about all the ways a public statement can backfire. That said, if you have had a long talk with your attorney and your attorney has given you the go-ahead, preferably with a very careful set of rules about what you will and will not say, then it’s ok to respond to media attacks – but stick to the script. If you go off-message, you’re going to pay for a lot of legal hours while your lawyer cleans up the mess.
So mum’s the word?
Well, no. Your attorney may have some reasons for wanting to release measured statements. For example, if your matter involves a large group of people who may have experienced the same workplace violation, your lawyer may want to enlist the press in finding other victims. The same method can help locate witnesses. In some circumstances, the lawyer may even consider it useful to for you to give a statement.
Bottom line: Whatever you do, if you want to win your suit, never speak to the press without consulting legal counsel first.
By Diane Williamson
If you have been discriminated against or harassed at work, the law offers you options for seeking redress.
Many employees in New York are covered by both federal and State anti-discrimination law. While there is overlap between the legal protections offered by federal and State law, the two processes differ significantly.
Filing a Complaint Under Federal Anti-Discrimination Law
Federal anti-discrimination laws include Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). Title VII and the ADA cover employers with 15 or more employees. The ADEA covers employers with 20 or more employees.
The Civil Rights Act created the Equal Employment Opportunity Commission (EEOC) to investigate discrimination complaints. The EEOC was later tasked with also investigating age and disability discrimination complaints (as well as Equal Pay Act claims, which are treated differently).
Filing a complaint with the EEOC is an administrative prerequisite to suing under federal law. After the investigation, the EEOC may conclude that there is reasonable cause to believe that discrimination occurred and pursue a conciliation. Or, the EEOC may find that it cannot conclude that there is reasonable cause to believe that discrimination occurred, in which case it will issue a right to sue letter, which gives the complainant the right to sue the employer under federal law within 90 days. Age discrimination claims can be brought to court after 60 days from filing with the EEOC before the right to sue letter is issued.
For New Yorkers, there is a 300-day statute of limitations to file a discrimination complaint with the EEOC.
Filing a Complaint Under New York State Anti-Discrimination Law
New York State anti-discrimination law is found in the Executive Law, and it is referred to as the “Human Rights Law.” Originally passed in 1945, New York’s Human Rights Law was the first of its kind in the nation. In general, New York State anti-discrimination law is more protective than its federal counterpart, e.g., it covers independent contractors, prohibits discrimination for reasons other than those covered by federal law (including familial status and domestic violence victim status), and applies to all New York employers regardless of the number of employees on the books.
The New York State administrative process used to file an employment discrimination complaint is different from the EEOC. The New York State Division of Human Rights (“Division”), created in 1968 to help enforce the State law, offers an alternate route, not a prerequisite, to filing in State court. The Division determines if there is probable cause to believe that discrimination occurred, and, if so, it conducts a hearing wherein a hearing officer makes a final determination. For discrimination other than sexual harassment there is a one-year statute of limitations to file with the Division; for sexual harassment there is a three-year statute of limitations.
While our firm believes that you will have the best results if you are represented by a lawyer through either of these processes, both fora are able to accommodate a complainant who does not have a lawyer.
You can also file a discrimination claim based on State Human Rights Law in State court without first filing with the EEOC or the Division. There is a three-year statute of limitations to bring any discrimination claim to court.
Keep in mind that neither complaint process is anonymous. While it is illegal for your employer to retaliate against you for filing a complaint in either forum, it is wise to expect that filing a complaint may affect your current or future employment situation.
More questions? Consider consulting with a lawyer to discuss your situation.
*This blog post is not discussing New York City anti-discrimination law.
Know Your Rights Under the New York State Hospitality Industry Wage Order
By Susan T. McNeil, Esq.
On March 1, 2011, the New York Department of Labor implemented the Hospitality Industry Wage Order [“HIWO”]. The HIWO is a complex group of multifaceted provisions that establish a wide variety of wage and hour rules for the hospitality industry. This is the first installment of a series of blog posts aimed at helping hospitality workers understand their rights under the HIWO and how to figure out if their employer is playing by the rules. Up first is an explanation of which employers and employees are covered by the HIWO and an explanation of the interaction between the minimum wage and the “tip credit” used by many employers to offset wage costs.
Which employers must follow the Hospitality Industry Wage Order?
Every New York employer in the “hospitality industry” must abide by the HIWO. The hospitality industry is defined to include both “restaurants” and “hotels.” Restaurants include any eating or drinking establishment that prepares and offers food or beverage for human consumption either on its premises or by catering, banquet, box lunch, curb service or counter service. The term hotel is broadly defined to include commercial hotels and motels, resorts, camps, and dude ranches, among other facilities.
What Hospitality Industry Workers are covered by the Hospitality Industry Wage Order?
“Food service workers” and “service employees” who are paid hourly and work for a covered restaurant or hotel, as described above, benefit from the HIWO. Under the HIWO, a food service worker is someone that serves food and drinks to guests and regularly receive tips. This includes servers, bartenders, and bussers. A service employee, according to the HIWO, is someone that is not a food service worker but nonetheless customarily receives tips. This includes “to-go” expediters and host/hostess, but generally not delivery drivers. Other hourly restaurant employees, such as kitchen and maintenance staff, are considered “non-service employees,” and are not covered by the HIWO. Employees who work for the Federal, State or municipal government and those who work in an executive, administrative or professional capacity are not covered by the HIWO.
What is the “tip credit” and how does it affect my hourly rate of pay?
If you are a food service worker or a service employee working in the hospitality industry in the State of New York, you must be paid at least the minimum hourly wage for all time worked up to 40 hours per week. You become eligible for overtime pay at the rate of 1.5 times your regular hourly rate, be it the minimum hourly wage rate or otherwise, if your work week exceeds 40 hours. Effective December 31, 2020, the minimum wage in Long Island and Westchester County, New York is $14.00/hour, and $12.50/hour for the rest of the state except New York City [“NYC”] where the minimum wage is $15.00/hour.
The HIWO “tip credit” provision allows your employer to reduce its out-of-pocket wage expenditure by subsidizing your hourly wage rate with the tips you earn during your shift. It is important to understand that the tip credit does not relieve your employer from its obligation to pay you at least the minimum hourly wage for 40 hours of work in a week or from paying you 1.5 times your hourly rate for hours exceeding 40 during a work week.
Here is an example of how the tip credit works:
You currently work as a server at a restaurant on Long Island or in Westchester County earning the appropriate New York state minimum wage of $14.00/hour for each hour you work up to 40 hours in a week. Under the HIWO, your employer can pay you $9.35/hour and claim a tip credit of $4.65/hour to get you to the minimum hourly wage threshold of $14.00. However, if your tips do not average out to $4.65/hour during your shift, your employer must cover the shortfall so that you earn the minimum hourly wage of $14.00. If business is slow and, as a result, tips earned during your shift do not average at $4.65/hour, your employer must make up the shortfall by reducing the tip credit and increasing your hourly rate from $9.35 so you earn minimum wage.
The same principle applies in the rest of New York State, but the amount of the allowable tip credit varies. In the remainder of New York, except NYC, the allowable tip credit is $4.15/hour provided you earn tips of at least that amount on average during your shift, so tips combined with the employer’s share of the minimum wage ($8.35/hour) gets you to the minimum wage of $12.50/hour. In NYC, the allowable tip credit is $5.00/hour provided you earn tips of at least that amount, so tips combined with the employer’s share of the minimum wage ($10.00/hour) gets you to the minimum wage threshold of $15.00/hour.
Reviewing your weekly pay stub is the best way to determine if your employer is taking unfair advantage of the tip credit. If your gross wages ((hourly rate) x (hours worked) + tips for the week) divided by the number of hours worked is less than minimum wage, it is possible that your employer has violated the HIWO.
If your employer is subject to the HIWO and you suspect a compliance issue, you should contact an attorney or the New York State Department of Labor.
By Diane Williamson
The gender wage gap refers to the difference in earnings between women and men. Experts have calculated this gap in different ways, but the varying calculations point to a consensus: women on average earn less than men, and the gap is wider for women of color. It is illegal to pay an employee who is a member of a protected class (like gender or race) less than other workers who perform substantially similar work, but enforcing equal pay laws is difficult.
The statistic that women make only 81 cents for every dollar a man makes is slightly misleading. Yes, overall, the average pay for men and women differs to that extent—and the gap is even greater if you consider women of color compared to White men. Nevertheless, simply looking at averages does not tell us much about the causes. It might be that women choose to work fewer hours than men do or that our society does not value careers that are traditionally held by women as highly as careers traditionally held by men.
The more important statistic is the controlled gender pay gap, which was 98 cents for every dollar in 2020. In other words, on average a woman makes 98 cents for every dollar a man makes—doing the same job. Of course, some careers have a greater controlled pay gap than others. (Oddly, female anesthesiologists suffer the greatest pay disparity compared to their male counterparts.)
Do not dismiss the importance of two cents! Over the course of her career, the median woman will earn almost a million dollars less than the median man performing the very same work. You can see why legislators, past and present, attempt to address this stubborn disparity.
At the federal level, in 1963, the minimum wage provision of the Fair Labor Standards Act was amended to include the Equal Pay Act (EPA). Congress’s purpose in enacting the EPA was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry, namely the fact that the wage structure of “many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” S. Rep. No. 176, 88th Cong., 1st Sess. 1 (1963).
The solution adopted was quite simple in principle: to require that equal work be rewarded by equal wages. While there have been successful Equal Pay Act suits, especially because there is no need to show an intention to discriminate, in general it is difficult to show that the two jobs are “substantially equal.”
In evaluating whether one employee makes less money than others of the opposite sex for “substantially equal” work, a court will consider the required skills, effort, responsibility, and working conditions. The lesser paid employee often has trouble pointing to other employees whose jobs are similar enough. For example, one U.S. Court of Appeals decision found that professors in different departments at the same University did not perform “substantially equal” work.
At the end of January, the Paycheck Fairness Act was introduced into the House of Representatives. The bill includes many proposals to strengthen the EPA. One of the most important is the broadening of the requirement that the two jobs be at the same “establishment.” Under the current law, “establishment” by and large means the same physical space, which excuses many cases of obvious pay disparity simply because the workers work at different locations. The Paycheck Fairness Act would broaden the definition of “establishment” to include locations within the same county.
Another important change would be a protection against retaliation for employees who discuss wage and salary rates. Common sense tells us that most employees cannot even consider bringing an EPA claim because they have no idea what their coworkers are paid. Arguably, a law that would put the onus on employers to be transparent in their pay practices would go even farther to resolve this problem.
Passing the Paycheck Fairness Act would help, but it would not eliminate the inherent difficulty imbedded in the EPA of demonstrating that two workers perform substantially equal work.
In New York, a trio of amendments passed in 2019 strengthened the state’s equal pay protections. More specifically, the amendments 1) prohibit wage discrimination based on any protected class, not just gender, 2) extend the equal pay law to protect public employees, and 3) ban employers from making an applicant provide salary history as a condition of employment.
The controlled gender pay gap has not changed since 2016, but the uncontrolled pay gap—as wide as it is—seems to be shrinking every year. Hopefully, these legislative changes—as minor or technical as they may seem—will keep us moving in the right direction.
 Spencer v. Virginia State University, 919 F.3d 199, 204-5 (4th Cir. 2019)
 If passed, the Paycheck Fairness Act would also prohibit employers from inquiring about the wage history of an applicant. The logic is that if an applicant has experienced pay discrimination in the past, inquiries into wage history only repeat that discrepancy.
On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, GA that Title VII protects LGBTQ employees from workplace discrimination. Even in the midst of the pandemic shutdown and the murder of George Floyd, workers and workers’ rights activists took to the (virtual) streets in celebration. Social media was covered in rainbow flags and memes involving unicorns and RBG. Bostock was a desperately-needed ray of sunshine that week.
It still is.
If you’re feeling like the magic is gone, it may be because Title VII rights are tough to assert—for workers in any protected class. Here are some lessons from the trenches:
- Get a lawyer. A workers’ rights attorney can advise whether there’s something legally wrong in the workplace, what options you have for combatting it, and how much it will cost to combat. While it’s possible you have the case of the century, more often an attorney is going to be helping you decide when to fight, when to walk away, and when to run… (cue Kenny Rogers…)
- Document like mad. Is your employer needlessly complicating a name change process? Do your coworkers constantly misgender and dead-name? Is health insurance paying for cancer-related mastectomies but not those for TGNC patients? Are you being asked non-job related health questions? Is someone obsessed with which bathroom you use? Specific, real-time documentation is your talisman. Write down dates, times, locations, witnesses, what happened, what was said, and the effect the incident had on you (e.g., high blood pressure, PTSD, shaky hands all afternoon, felt humiliated, etc.) The more exactly you can remember the wording of any comments, the better. Send this information to yourself on your personal email account (NOT your work account, please). Your attorney will be grateful for this real-time documentation.
- Use the complaint process – with caution. This is where the advice of an attorney is indispensable. Making an internal complaint is sometimes like painting a target on your own back. But if you’re already wearing a target, making a complaint puts the employer on notice that it may be looking at some pretty gritty legal liability. For some employers, that fear will spur them to make some positive changes.
- Use the complaint process – with precision. Get an attorney to review your complaint. (Don’t rely on a verbal complaint. Just don’t.) The words “My boss is acting inappropriately” do not have the same effect as “On September 1, 2020 at 11:45 am, Henry Frick followed me to the restroom and asked whether I was leaving the seat up or not. Joe Hill and Hattie Canty witnessed this incident. I felt sick to my stomach the rest of the afternoon. I consider this to be gender-based harassment.” The words you use will have an enormous effect on the strength of your legal position.
- Don’t let other employees turn you into “Queer Google.” You are there to do a job. Your coworkers’ non-work related curiosity, even if it is well-intentioned, will interfere with your productivity and get you into trouble. It is not your job to educate your cis colleagues. If they are asking invasive or impertinent questions, it’s worth a conversation with your attorney to decide how to handle it in a way that ensures your Title VII rights are protected.
- Don’t quit – unless your attorney, doctor, spouse, or career coach says to. If you quit, you may cut off your ability to recover monetary losses. Courts don’t like speculative damages in the first place, and it’s hard to argue you had any expectation of continued earnings if you were the one who cut off your own earnings by quitting. But if the job is affecting your health, relationships, or career – or if your attorney says you can’t fix the problem—you may need to consider your big picture priorities.
- Don’t rely on lists you read on the internet. Speak with an attorney. You deserve the peace of mind that comes with understanding your new legal rights at work.