As of March 1, 2011, mandated changes must be in place

The New York State Hospitality Wage Order (“the Order”) went into effect on January 1, 2011.

To allow employers time to adapt their payroll systems, the legislation allocated an “implementation period” that would last through February 28, 2011. Though employers would not be penalized during this period, employees must receive back pay for any wages that should have been paid at the new rates.

As of March 1, 2011, the mandated changes must be in place or employers risk violating the Order.

Due to the broadly-written definitions, employers should review the definitions, availablehere, to determine whether the Order impacts their businesses. Establishments that one may have once not included in the hospitality industry, such as cafeterias or dining areas in office or company buildings or hospitals, may now be subject to this Order.

More specifically, the Order requires:

A.MINIMUM WAGE FOR TIPPED EMPLOYEES is as follows:

Click here to view table

B.Hourly rates for ALL non-exempt employees, except commissioned salespersons

C.Overtime pay is due after 40 HOURS for all non-exempt, non-residential, and residential employees

D.All non-exempt employees at ANY pay rate must receive

  • Spread of hours pay: for each day that a non-exempt employee’s spread of hours is longer than 10 hours, the employee must be paid one additional hour at the minimum wage

 i.The hour cannot be offset by credits for meals or lodging and the additional hour of pay will not be used to calculate overtime

  • Call-in pay: when an employee reports to work by request or permission of the employer, whether or not he or she is assigned actual work, he or she will receive the applicable minimum wage rate

i.If working one shift, the employee will receive the applicable minimum wage for at least three hours of that shift, or the number of hours of the regularly scheduled shift, whichever is less

ii.If working two shifts totaling six hours or less, the employee will receive the applicable minimum wage for at least six hours of that shift, or the number of hours of the regularly scheduled shift, whichever is less

 iii.If working three shifts totaling eight hours or less, the employee will receive the applicable minimum wage for at least eight hours of that shift, or the number of hours of the regularly scheduled shift, whichever is less

  • Uniform maintenance pay:

i.Any clothing item given to the employee that bears the company logo may be considered a uniform

ii.When an employer does not maintain employee uniforms, the employer must pay, in addition to agreed pay rate, uniform maintenance pay of:

  1. $9.00 per week for weeks over 30 hours
  2. $7.10 per week for weeks of more than 20 hours but less than 30 hours
  3. $4.30 per week for weeks of 20 hours and less

 iii.“Wash and wear” uniforms are exempt from uniform maintenance pay

  1. To qualify for this exception, the uniform must be able to be cleaned along with the employee’s other personal clothing and the number of uniforms provided to the employee must be consistent with the average number of days worked by that employee
  • NOTE the distinction with this Order: spread of hours, call-in, and uniform maintenance pay apply to employees at ALL wage rates; these payments do not “phase out” as wage rates rise.

E.State regulations now govern GRATUITIES, including

  • Tip sharing and pooling among employees is permitted
  • Employers must give employees written notice of tip policies
  • If an employer requires tip sharing/pooling, records of tips must be maintained and the employees can view these records
  • Charges that are either tips and/or administrative-related service charges must be clearly marked on customers’ bills as either or both when applicable

 i.If it is a combined tip and administrative charge, the charge must be broken down into specific percentages, demonstrating the exact respective amounts for the tip and the administrative charge

ii.There is a presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, is a tip unless otherwise clearly labeled as otherwise

  • Employers must distribute in full to employees all charges on bills deemed to be tips

F.EMPLOYEE MEALS

  • If the shift is long enough to trigger the meal period law, employers must allow all employees to bring food or give them a meal at no more than the meal credit amount ($2.50 per meal)

Prior to the start of employment, employers must give each employee written notice of his or her regular hourly pay rate, overtime hourly pay rate, the amount of tip credit if applicable, and the regular payday. Employers must post the contents of the Order in a conspicuous location that employees frequently access. The New York Department of Labor has created a notice for employers to post that is available here.

Also, as of April 9, 2011, the Wage Theft Prevention Act takes effect and employers in the hospitality industry are required to comply with the Wage Theft Prevention Act.

To read the Hospitality Wage Order in its entirety, please go here.