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New York Farmworker Fair Labor Practices Act

Información adicional en español aquí y aquí.

Historically, farm workers have few protections under federal labor statutes, making it difficult for them to unionize, earn fair wages, assert workers’ compensation claims, or enjoy adequate rest periods. At the beginning of 2020, the New York State Farm Laborers Fair Labor Practices Act implemented the following provisions to improve working conditions for farm laborers:

  • Farm workers have the right to unionize. Section 701 of the New York Labor Law has been amended to include farmworkers as “employees” and farm owners as “employers,” and other sections of the law have been amended to give farmworkers some of the same unionization rights as other private sector workers.  Note, however, that farmworkers cannot legally strike.
  • Maximum 60-hour workweeks and overtime: NYLL 163-a limits the workweek to 60 hours for farm workers, and requires employers to pay time and a half for overtime hours. Additionally, section 161 now states that farm laborers are allowed 24 consecutive hours of rest per calendar week.
  • Section 225 of the Public Health Law allows code officers to inspect premises inhabited by fewer than five persons, and to enforce sanitary code requirements for living quarters.
  • Workers’ Compensation: Workers’ Compensation coverage has been expanded to more employees, and notices must be posted in both Spanish and English. Supervisors are required to report injuries to the employer, and employers are prohibited from retaliating against workers who file for Workers’ Compensation benefits.
  • Farm Laborers’ Wage Board: A wage board is empowered to make recommendations regarding overtime rates for farm workers to the governor and legislature.
  • Employers must get a permit to operate housing for farm laborers, which improves the chances that living quarters will be safe and sanitary.

Notwithstanding early legal challenges and the pandemic, farmworkers are starting to unionize and assert their rights.  Recently, vineyard workers on Long Island became the first unionized farmworkers in the state, joining Local 338 RWDSU/UFSW.  This is an enormous stride in the long history of farmworker rights, and it is only the beginning.

In January 2022, the New York Farm Laborer’s Wage Board voted require overtime pay for farmworkers after 40 hours of work in a week–but the Wage Board has not adopted the official report, which would trigger the timeline for the New Yok Labor Commissioner to approve or overturn the vote.  Watch this space.

If you have questions about how your rights might be affected by the Farmworker Fair Labor Practices Act, contact a workers’ rights attorney today.

 

Four Things To Know About Your Hairstyle At Work

Is a workplace grooming policy cramping your style?  If you work in New York, you may have some protections: 

  • A grooming policy cannot directly target hairstyles traditionally associated with persons of color or have a disparate impact on certain races. For example, a grooming policy that limits hair length or height, thus limiting Afros, could violate the law.  
  • An employer cannot maintain a wholesale ban of particular hairstyles, such as dreadlocks, twists, braids, cornrows, Afros or fades.   
  • An employer cannot require only employees with hairstyles associated with their race to cut or conceal their hair or prevent these employees from serving in customer-facing roles.  
  • An employer cannot require employees to alter the natural state of their hair to conform to company appearance standards, for example, mandating hair straightening with chemicals or heat. 

On July 11, 2019, the definition of race under the New York State Human Rights Law [“NYSHRL”] was amended to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” such as braids and dreadlocks. NYSHRL §§292(37) and (38). The amendment broadens the definition of race so that an employer who makes an adverse employment decision, such as denying an individual a job or promotion, based on an individual’s hair texture or style that is associated with their racial identity, may have violated the NYSHRL.  [Note: If you work in New York City, this protection has been in place since February 2019. At that time, the New York City Commission on Human Rights [“NYCCHR”] issued guidance https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdfadvising that workplace grooming or appearance policies that ban, limit, or restrict natural hairstyles associated with race, ethnicity and culture violate the City’s anti-discrimination law. As detailed in the NYCCHR guidance, the New York City provision is broader and more detailed than the state-wide amendment.]   

While the amendment acknowledges the inextricable link between hair and race it does not prevent an employer from maintaining a neutral “grooming policy” seeking to establish a workforce with a “professional” appearance. Herein lies the challenge. While a grooming policy appears to be neutral, the impact can reinforce racial stereotypes and perpetuate race discrimination. The objective of the amendment is to protect people from race discrimination hiding behind a neutral grooming policy.  

If you think your employer’s grooming policy violates the amendments, or if you think you have suffered other race-based discrimination at work, consult with a workers’ rights attorney to discuss your situation.   

 

New York State Minimum Wage Increasing 12/31/21

Money changing hands

Hello, fellow Upstaters!  You probably know by now that New York State private sector minimum wages are going up on December 31, 2021. This is pursuant to amendments to New York State minimum wage orders, which since 2016 have set a goal that the rate, eventually, will reach $15.00/hour for private sector workers statewide. As of December 31, 2021, minimum wage for private sector, non-hospitality or building trade employees in Upstate New York will increase to $13.20/hour.

 

But be careful before you take this opportunity to go on a shopping spree.  First, you might not be in a sector governed by the minimum wage orders (sorry, public employees).  Second, if you’re in New York City, the rules are different for you.  Third, hello food service workers!  You have to deal with stuff like tip credits, tip pooling, and other complications (hint: your wages are still far below everyone else’s because, allegedly, tips are supposed to make up the rest.)

 

Luckily, the New York State Department of Labor has created a wage calculator that will help you figure out whether, and how much, you benefit from this new increase. (Go try it out, it’s fun!)  Additionally, there’s a handy flyer that can give you some background information on where the strive for $15 has taken us so far.

 

As always, if you have questions about your wages, contact a workers’ rights attorney today!

Most New York Employers Can No Longer Drug Test Employees For Cannabis

Most New York Employers Can No Longer Drug Test Employees For Cannabis

On July 1, 2021, I blogged about the intersection of legalization of recreational cannabis use and an employee’s workplace rights in New York. At that time, the New York State Department of Labor [“NYS DOL”] had not yet weighed in on whether employers may continue to test employees for cannabis now that recreational use is legal in New York or addressed other issues created by cannabis legalization.  On October 8, 2021, however, NYS DOL released guidance clarifying workplace rights in the post legalization era.  Adult Use Cannabis And The Workplace – New York Labor Law 201-D (October 8, 2021).

Review of NYS DOL guidance tells us the following:

  • Drug testing for cannabis is now permitted only when federal, or state, law requires drug testing or makes it a mandatory requirement of the position. For example, when federal or state law mandates drug testing for drivers of commercial vehicles or other safety sensitive positions, cannabis drug screening, be it pre-employment, randomized, or in response to an accident or injury, is permissible.
  • To impose discipline against an employee suspected of being under the influence of cannabis at work, an employer must show that the employee manifests “specific articulable symptoms of impairment” that decrease the performance of their duties or interfere with an employer’s obligation to provide a safe workplace as required by state and federal occupational safety and health laws.

So, what exactly are “articulable symptoms of impairment?” The guidance does not provide a list of specific symptoms but explains that the symptoms must be “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” This appears to mean that neither a positive drug test for cannabis nor the smell of cannabis on one’s clothing can serve as the sole basis for an employer’s conclusion that an employee was impaired by marijuana at work and therefore subject to discipline.

Keep in mind that cannabis legalization does not prevent an employer from prohibiting cannabis use during “work hours,” which includes unpaid breaks and mealtimes, even if the employee leaves the worksite. Employers can also prohibit the use of cannabis during periods when an employee is “on call.” In addition, employers can also prohibit cannabis possession while at work and prohibit cannabis use, and possession, in company vehicles or on company property, even after regular business hours or shifts.  When a remote employee works from the confines of a private residence, however, an employer cannot prohibit possession of cannabis at the remote location because the term “worksite” does not include a remote employee’s private residence. N.Y. Lab L. §201-D. As such, an employer can only impose discipline of a remote employee if s/he exhibited articulable symptoms of impairment during work hours, not for possession of cannabis.

If you believe you have been improperly disciplined by your employer for legal use of cannabis, contact a workers’ rights attorney.

Legal Use of Marijuana in New York – Know 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.   

Part 2: Working For Tips At A Bar Or Restaurant In New York? Know Your Rights Under the New York State Hospitality Industry Wage Order

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.

Do First Amendment Free Speech Rights Extend to the Workplace?

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.

Talking About Your Case?  Let’s Talk About That.

 

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?

 

Hold up!!!

 

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.

New Yorkers Experiencing Workplace Discrimination May Have Rights Under Both Federal and State Laws*

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.

 

 

 

 

Working For Tips At A Bar Or Restaurant In New York?

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.

 

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