With the increased minimum wage in New York, the Minimum Wage Poster will change, and a new poster should be hung as close to December 31st as possible (ideally on the first business day after). The New York Department of Labor makes all of its posters available free of charge and a link to the PDF of the new poster is here.
Category: New York Law
On December 31, 2013, New York’s Minimum Wage will increase to $8.00 per hour. As of the last day of the year, any employee must make at least that amount. Waiters and other food service tipped employees see no change in their base amount, as the tip credit will increase with each change in the minimum wage.
On January 1, 2014, Florida’s Minimum Wage will increase to $7.93 for non-tipped employees. This is part of Florida’s annual readjustment of the minimum wage based upon inflation. As the Florida tip credit remains the same, the direct wage that employers must pay tipped employees will increase to $4.91.
Election Day is this coming Tuesday (November 5). Employers are supposed to ensure that their employees have enough time to vote. Employees who gave notice by Sunday (Friday was the last working day) are entitled to up to two hours off with pay to vote. The two hours come either at the beginning or the end of their shift.
This only applies to employees who must be at work within 4 hours of polls either opening or closing. Polls open at 6AM and close at 9PM.
This past week, new rules from the Department of Labor went into effect. These rules make some changes to the way employee deductions can be made – now there are five broad categories of permitted deductions. The first three are unchanged.
- Required deductions – these are deductions for state and federal taxes, as well as any other deductions required by law, such as garnishments.
- Union dues
- Deductions for the employee’s benefit – this includes health insurance, day care, and other company-provided services where the employee receives a benefit. Services that are for the employee’s convenience (such as check-cashing) are not considered a benefit and fees cannot be charged/deducted. While this regulation is unchanged, the DOL has provided additional clarification and categories of employee benefit.
The two new ones are:
- Repayment of salary advances
- Repayment of overpayment of salary
Both categories require the employee to be told how the deduction will be made. In the case of the salary advance, the employee must be given the terms of the advance (how much will be advanced, how much each deduction from future wages will be, when the deductions will cease) ahead of time. In either case, employers must have a written grievance procedure and, if the deduction is grieved, the employer must halt deductions. For salary advances, it is also important to be aware that the employer cannot charge interest under this program.
The new regulations do not change many existing rules – for example, employers still cannot fine employees for tardiness or other workplace rule infractions and take those fines out of employee salaries directly. While you can discipline employees for these infractions with suspensions or firing, you cannot make them work while deducting salary.
New York’s Attorney General has started to get aggressive and go after businesses that put up fake reviews on sites such as Yelp. Calling it a consumer affairs matter, he has reached a settlement with a group of New York businesses that he was able to prove either put their own fake reviews online, or paid third party vendors for the false positive reviews. While he is the only government official taking a stand on this issue right now, he is not the only one fighting fake reviews. Yelp is suing a small law firm for allegedly posting fake reviews itself.
Fake reviews, known as “astroturfing,” are becoming more and more of a problem. The fake reviews hurt consumers who might choose a business based upon Yelp or another review site. However, beyond those victims, the reviews also hurt other businesses who might lose out on customers to the fake reviews. The reviews can also have the effect of hurting potential buyers of the business – looking at reviews of a potential purchase can tell you how popular the store/restaurant is with consumers and whether you can continue to market the brand, or if you would need to completely remarket the enterprise.
Even with these developments, “reputation management” companies will continue to solicit business, and for a small fee, will still flood review sites with positive reviews of your business. However, the New York AG’s office seems intent on continuing his policing efforts. It is also possible that this effort could spread to other states – the national response that this move gets will be telling. Beyond it being a potentially bad business practice, astroturfing may now have real legal consequences. As such, we recommend staying away from the practice.
On Wednesday, I posted about a recent Supreme Court decision discussing who is a supervisor. On the same day, the New York Court of Appeals (the highest court for the state), issued an opinion regarding that same question but in a different context.
Starbucks is currently involved in two lawsuits over its practice of pooling tips, and the tip jars that are on all of the counters. The money collected in those jars is distributed to the baristas and the shift supervisors, based upon the number of hours worked in a given week. Some of the baristas sued, claiming that the shift supervisors were ineligible. On the tails of that lawsuit, a second one was filed by assistant store managers, claiming that they should be part of the tip pool. The cases made their way to the Second Circuit Court of Appeals, which asked the New York Court of Appeals for an advisory opinion regarding the language in Labor Law section 196-d
The opinion first lays out the duties of the four levels of personnel at Starbucks. Baristas are the front-line staff who take orders and serve drinks. Shift supervisors, the next level up, are primarily front-line staff; however, they do have the ability to serve in a limited management role – if a higher-level manager is not present, they can open or close the store, or close out the registers in the evening. They also have the power to assign the baristas to stations during the shift and can provide some feedback to baristas. Assistant store managers have the ability to set shifts, hire and fire employees, approve payroll and handle employee discipline. While they also are in primarily customer-service roles, they have additional powers over all other employees. The store manager is in charge of the entire operation. The court also noted that, unlike baristas or shift supervisors, assistant store managers are full-time, salaried employees who qualify for benefits and bonuses.
The court then discusses whether shift supervisors or assistant store managers are considered “agents” of the company, who would be ineligible for sharing in the tips. Because of the duties assigned to them, shift supervisors are not considered to be agents, but assistant store managers are. Without referencing the Supreme Court’s decision issued shortly before this was released, the New York Court of Appeals came to a similar conclusion. A supervisor, who is ineligible for a tip pool, is an employee who has the authority to make major employment decisions.
This decision will be important when looked at in conjunction with the Supreme Court decision in Vance. It will also be important, however, for restaurants, as it limits the ability of owners and managers, who may also be waiting on tables, from accepting the tips that they are given. Restaurants will need to come up with policies for handling these issues. Stores with tip jars will also need to ensure that only employees, and not supervisors, are sharing in pooled tips.