Fair Labor Standards Act (FLSA)

Overtime:

  • All time worked over 40 hours in a single workweek must be compensated at a rate not less than one and one-half times the employee’s regular rate.

Each workweek stands alone. No averaging.

 

Overtime exemptions:

  • “White collar” (administrative, professional & executive) employees and others, based on duties.

Exemptions narrowly construed. Title, salary NOT determinative. Burden on the employer to prove.

 

FLSA: The New Rules

New Annualized Salary Level: $47,476

  • $913/Week;
  • Previous Level: $23,660;
  • Covers Approximately 35% of Full-Time Workers.

Up to 10 % can be met by: (i) non-discretionary bonuses; (ii) incentive pay; or (iii) commissions, if made on at least a quarterly basis.

Catch-Up Payment: If an employee does not earn enough in nondiscretionary bonuses and incentive payments (including commissions) in a given quarter to retain their exempt status the Department permits a "catch-up" payment at the end of the quarter. The employer has one pay period to make up for the shortfall (up to 10 percent of the standard salary level for the preceding 13 week period). Any such catch-up payment will count only toward the prior quarter's salary amount and not toward the salary amount in the quarter in which it was paid. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the quarter.

 

Highly Compensated Employees:

  • New Level is $134,004 (Previously $100,000);
  • Still must meet “salary basis” test: $913/Week;
  • Commissions, Non-discretionary Bonuses.

 

No Changes To:

  • The Primary Duties Tests;
  • Administrative, Executive, Professional, Outside Sales, Computer Exemptions;
  • The Salary Basis Test;
  • Lack of Exceptions for: (i) part-time employees; (ii) non-profits; (iii) colleges/universities; (iv) public entities.

 

Effective Date: December 1, 2016

  • Upward salary adjustments must be in place prior to then;
  • If paid bi-weekly, employers will need to adjust pay for the pay-period that includes December 1, 2016;
  • Beginning January 1, 2020, the salary level will be automatically updated every three years.

 

New York – Changes to Minimum Wage

  • On April 4, 2016, Governor Cuomo signed law significantly increasing minimum wage in New York State;
  • Minimum wage will increase for most NYC employers (10+ employees) from current rate of $9 to $15 by end of 2018;
  • Staggered increase over time - $11 at end of 2016, $13 at end of 2017;
  • Nassau, Suffolk, and Westchester will reach $15 by end of 2021;
  • Remainder of state will reach $12.50 by end of 2020.

 

The Wage Theft Prevention Act

Employers must provide new employees with written pay notices which include:

  • Employee’s rate(s) of pay and overtime rate;
  • Basis of wage payment (hourly, weekly, commission, piece rate, etc.);
  • Allowances claims (tip, meal, lodging);
  • Employee’s regular payday;
  • Employer’s name (incl. any d/b/a’s), physical address, and telephone number.
  • Notices must be provided to all new hires at the time of hire.
  • The notice must be provided in English and the employee’s primary language (if not English).
  • Employers do not need to use the NYSDOL’s form notice.
  • Forms must be retained for 6 years.
  • Template forms available: labor.ny.gov
  • Under the WTPA, pay stubs are required to contain the following for ALL employees: (i) Dates of work covered; (ii) Employee’s name, address, and telephone number; (iii) Pay rate(s) and basis, gross wages, deductions, allowances claimed, and net wages.
  • Pay stubs for non-exempt employees must also include: (i) Hourly rate(s) and overtime rate(s); (ii) Number of regular hours worked; (iii) Number of overtime hours worked.
  • Copies of pay stubs must be kept for 6 years.

 

New York City – Earned Sick Time Act

  • Employers with 5 or more employees must provide up to 40 hours of paid sick leave per year.
  • Employers with fewer than 5 employees are only required to provide unpaid leave.
  • Applies to full-time, part-time and temporary employees who work more than 80 hours per year.
  • Accrual: One hour of paid sick leave for every 30 hours worked. These hours can be used starting 120 calendar days after accrual begins.
  • Notice: Must provide each employee with written notice of the employee’s right to sick leave, including accrual and use of sick leave, the right to file a complaint, and the right to be free from retaliation.
  • You do not need to pay out any unused sick leave at the end of the year, or upon termination, whether voluntary or involuntary.
  • New York City Department of Consumer Affairs is actively enforcing this law.

 

New York - Paid Leave Law

On April 4, 2016, Governor Cuomo signed law providing employees (both men and women) with up to 12 weeks of paid family leave to:

  • Care for a new child (including adoptions and foster children)
  • Care for a family member with a serious health condition
  • Relieve family pressures when a family member is called to active military service


Goes into effect in 2018 and will be implemented gradually through 2021

Employees eventually eligible to receive 67% of weekly pay (capped at 67% of statewide average weekly pay)

Not paid by employers. Funded by weekly payroll tax deducted from employees’ paychecks (about $1).

Law overlaps but is more expansive than FMLA – applies to all employers regardless of size and employees eligible after only 6 months.

 

Meal Periods: Guidelines

Section 162 of the NY Labor Law provides that every person employed shall be allowed at least 30 min. of lunch, unpaid.

If a shift starts before 11:00 AM and ends after 7:00 PM, employees shall be allowed an additional meal period of at least 20 min. between 5:00-7:00 PM.

If a shift lasts for more than 6 hours between the hours of 1:00 PM and 6:00 AM, employees shall be allowed a meal period of 45 min. in the middle of their shift.


Additional breaks are NOT required!!

 

New York City Commuter Benefits Law

 

Took effect on January 1, 2016; compliance required by July 1

 

Covers almost all for-profit and nonprofit employers with 20 or more full-time, non-union employees within five boroughs of NYC

Requires employer to offer full-time employees the opportunity to use up to $255 per month in pre-tax income to purchase “qualified transportation fringe benefits”

Three ways employers can meet requirement:

  • Administer benefits program themselves
  • Retain third-party provider to administer benefits program
  • Provide employees with tax-free cash reimbursement for transportation costs up to $255 per month

 

Required “Benefits”


Short Term Disability Insurance

  • Compensates for lost wages due to an accident or illness that does not result from work.


Workers’ Compensation

  • Covers on-the-job injuries or illnesses.


Health Insurance

  • Only required in 2016 for employers with more than 50 full-time employees


Unemployment Insurance

Contact Us

Managing Attorney

Angel A. Castro, III, Esq.

60 Broad street

Suite 2426
New York, NY

10004 

 

 

Phone: (646) 234-3177
Fax: (212) 731-0217

 

Hablamos Espanol

Visita
CNYabogado.com

 

Serving the New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Westchester, and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.

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We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.

This website contains general info. about Castro CLAN PLLC and is not intended to serve as a source of legal advice.

 

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