New York DOL Amends Pay Rules for Unscheduled and Cancelled Shifts

Employers Must Pay Workers for Schedule Changes

Unscheduled and cancelled shifts will cost employers who will owe employees more wages based on predictive scheduling rules.

The New York Department of Labor (NYDOL) made amendments on predictive scheduling in the New York Codes, Rules and Regulations (NYCRR) that affect all New York State employers. (Note: the hospitality industry is subject to the Hospitality Wage Order previously in existence.)

Reporting to Work

If an employee reports to work for any day shift, the employer must pay the employee for at least four hours of work or for the number of hours in the regularly scheduled shift, whichever is less. This is referred to as call-in pay.

Unscheduled Shift

When an employee reports to a shift (based on employer’s request or permission) for work hours not scheduled 14 days in advance of the shift, the employee receives two hours of call-in pay.

Cancelled Shift

If the shift is cancelled within 14 days of being scheduled, the employer must pay the employee for at least two hours of call-in pay.

If the shift is cancelled within 72 hours in advance of the scheduled start of shift, the employer must pay the employee four hours of call-in pay.


An employee working on call (required availability for any work shift) must receive at least four hours of call-in pay.

Call for schedule

When an employee must be in contact with an employer within 72 hours of start of a shift to confirm whether to report to work, the employer must pay the employer for at least four hours of call-in pay.

How to Calculate Call-in Pay?

Employers must pay for actual attendance at the employee’s regular rate or the overtime rate if the work qualifies as overtime.

Employers should calculate other hours of call-in pay (not time worked or work performed) at the basic minimum hourly rate.

If you would like to ask our attorneys at Stephen Hans & Associates about NY wage and hour laws, we are glad to answer your questions. We provide employers with legal assistance for many different types of employment related issues.

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Will NYC Pass a Paid Vacation Bill?

Two Weeks of Employee Paid Vacation

A paid vacation bill is under consideration and Mayor De Blasio has made a pledge to support the bill. It appears the NYC Earned Safe and Sick Time Act will serve as a model for the new paid vacation bill.

The National Law Review stated that no other city or state in the nation has a law like this. New York City would be the first if the law passes.

The paid vacation bill would apply to private sector employers, who have at least five employees, and the requirement to receive the benefit is that the employees must work at least 80 hours a year.

sick child NY paid sick leave act 2019What Are the Requirements of the Earned Safe and Sick Leave Law?

New York City’s Paid Safe and Sick Leave Law has the following provisions:

  • Employers with five or more employees, who work more than 80 hours per calendar year in NYC, must provide paid safe and sick leave to employees.
  • Safe and sick leave accrues at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year.
  • Accrual begins on the employee’s first day of employment
  • Employees can begin using accrued leave 120 days after their first day of work
  • Employers with fewer than five employees must provide unpaid safe and sick leave.

Paid Family Leave, Another Paid Time-Off Benefit in NY

In addition to the above law, New York also has the new Paid Family Leave benefit, which was passed into law. This paid time off enables employees who are sick, have a sick family member or who have a newborn baby to take paid time off from work. As of 2019, paid family leave is now 10 weeks (previously it was eight weeks) and the average weekly wage for the leave has increased from 50 to 55 percent.

At Stephen Hans & Associates, we work with employers to help them understand and comply with employment laws and deal with employment issues.

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What Rules Does New York Labor Law Have For Meal Breaks?

Meal Break Guidelines Based on NY Labor Law

As an employer, you should know that certain rules exist under New York Labor Law regarding employee meal breaks.

Here are a few frequently asked questions about meal breaks:

How long must a meal break last?

The duration of the meal break varies depending on the line of work. Employers must provide factory workers with a 60-minute lunch break between 11:00 a.m. and 2:00 p.m. and a 60-minute meal break midway between the beginning and end of the shift for all shifts that last more than six hours and that start between 1:00 p.m. and 6:00 a.m.

Non-factory workers receive a 30-minute lunch break between 11:00 a.m. and 2:00 p.m. for a six-hour or longer shift. They must receive a 45-minute meal break at the time midway between the beginning and end of the shift for all shifts that are more than six hours between the hours of 1:00 p.m. and 6:00 a.m.

All workers must receive an additional 20-minute meal break between 5:00 p.m. and 7:00 p.m. for workdays with hours worked from 11:00 a.m. to 7:00 p.m.

Must an employer pay for meal break time?

Unless the employee is working during the meal break, employers do not have to pay for meal breaks.

How do “brown bag lunches” apply to meal breaks?

When an employee listens to a speaker or presentation during their lunch, they must also be allowed an uninterrupted meal period and should be free to leave their work area during the meal break for other pursuits. If the brown bag lunch is required, then the employer must pay the employee for the time and count it as time worked. The time spent at a brown bag lunch will not count as a meal break.

Do you have other questions about meal breaks?

You can find more information about meal break rules under New York Labor Law.

If you would like to ask our attorneys at Stephen Hans & Associates about NY meal break rules, we are glad to answer your questions. We provide employers with legal assistance for many different types of employment related issues.

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Are You Opening a New Restaurant?

Legal Concerns for New York Restaurant Owners

If you’re opening a new restaurant in New York City or the surrounding area, there are certain legal requirements you must put in place. You will need to choose a business entity and get your licenses and permits. You must address health and safety issues (ventilation, garbage removal, sanitation, etc.) before opening your restaurant. You will also need to purchase insurance.

When all the above is said and done, you still have the matter of employees. An employment attorney is a vital resource who can help ensure you are up to speed with New York employment laws.

New York Employment Laws

You will have to know which employees must be paid for overtime, the rules about paying tipped employees and the laws for employing minors. You will have to verify the legal work status of every employee at your restaurant and fill out an I-9 form for each employee.

Before you begin the hiring process, it is wise to know what questions you should avoid. Our blog on job interviews will give you a basic idea but to ensure you have all the information, it is wise to consult with an attorney.

Our lawyer can assist you by reviewing your job application to ensure it does not contain illegal questions. You also need to understand how to check references without making illegal inquiries.

It is wise to devise an employee handbook and ensure it is legally sound.

You must set up sexual harassment training for all of your employees based on recent New York State law.

If you feel overwhelmed about the laws involved with opening a restaurant, you are not alone. You can avoid some employment nightmares at the outset by consulting with an experienced New York employment attorney.

At Stephen Hans & Associates, we work with restaurant owners to help them comply with labor laws and to deal with employment issues.

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NYC Bans Polystyrene Takeout Containers and Coffee Cups

Judge Upholds the 2013 Law Banning Polystyrene for Takeout Containers and Coffee Cups

In 2019 restaurants must begin phasing polystyrene cups and containers out of use. This change is a result of a ruling that came down from an appeal that had challenged the new law in 2013. The appeal had suspended implementation of the law until the court rendered its decision. One of the main arguments alleged by parties challenging the law was that it was not difficult to dispose of Styrofoam products. Research that parties had presented and included in the appeal supported this argument.

NYC Bans Polystyrene Takeout Containers and Coffee Cups

Facts of the Case

In 2013, the Restaurant Action Alliance (RAA) argued that 40 to 60 percent of sales involved food or beverages served in polystyrene containers and that adopting other alternatives would raise costs by $11.2 million a year.

A pilot program run in Manhattan by restaurants, retailers and plastics manufacturers provided evidence to the Supreme Court in Manhattan that had resulted in halting the enactment of the law in 2015. However, the New York City government conducted its own research and released a report in 2017 that resulted in convincing Supreme Court Judge Margaret Chan to put the law into effect.

According to information published in a Restaurant Business article, restaurants will face a fine in July 2019 if they have not worked out an alternative to the polystyrene cups and containers.

Will Plastic Straws Be Next?

In May of 2018, a NYC council member proposed the idea of banning plastic straws to cut down on plastic pollution. A number of cities in various states such as Malibu, California and Miami, Florida have already banned plastic straws. Davis and San Luis Obispo in California require that restaurants do not provide customers with straws unless requested. Customers requesting straws must receive paper straws. At this time, the elimination of straw use in Europe is more widespread than in North America.

McDonald’s has pledged to continue its research for alternatives to plastic straws.

While it has yet to happen, New York City restaurant owners may have to contend with this change as well.

Our attorneys at Stephen Hans & Associates work with restaurant owners to help them comply with labor laws affecting their industry and to deal with employment issues.





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DOL Opinion Letter Reinstated and Changed 80/20 Tipped Work Rule

80/20 Rule Retracted and Clearer Guidelines Reinstated

The Department of Labor retracted the 80/20 Rule and established new guidelines. This change considerably reduced the existing confusion regarding tipped credits for tipped employees.

The 80/20 Rule, which began in 2009, prohibited employers from taking a tip credit from employees who spent more than 20 percent of their time doing non-tipped work. Keeping track of which employees were working on what tasks and monitoring and documenting the work was difficult and confusing. Some duties were related to tipped work even though not directly dealing with customers.

DOL Opinion Letter Reinstated and Changed 80/20 Tipped Work Rule

Based on the Fair Labor Standards Act (FLSA), restaurant employers can pay a tipped employee $2.13 per hour and take a tip credit equal to the difference between the tipped wage and federal minimum wage. The federal minimum wage is $7.25 per hour. Some work is related to the tipped employees relationship with the customer.

According to JD Supra, Opinion Letter FLSA2018027 reinstated an earlier opinion letter that clarified which duties would be related to tipped activities. For example, a list of related duties is not limited to but includes the following:

  • Taking orders from guests for beverages or food
  • Checking with customers to get feedback and correct problems
  • Checking IDs for minimum age for alcoholic beverages
  • Collecting customer’s payments
  • Writing orders on bills or entering them into computers
  • Preparing and totaling checks
  • Giving menus to customers and answering questions about menu items
  • Removing dishes or glasses from tables
  • Cleaning tables and counters
  • Preparing tables for meals
  • Escorting customers to tables
  • Stocking service areas with coffee, silverware, etc.
  • Bringing wine selections to tables and pouring wine
  • Filling salt, pepper, sugar, cream, condiments and napkin containers
  • Doing food preparations such as salads, cold dishes, desserts and brewing coffee
  • Garnishing and decorating dishes in preparation to serving

Employees, who actually work dual jobs, such as a server who also works for the restaurant as a maintenance person, would fall under the 80/20 Rule. However, it would be clear when the employee was doing the server job and when doing the maintenance work.

This change is a significant one for restaurant owners and should reduce litigation that arose out of the confusion created by the 80/20 Rule.

At Stephen Hans & Associates we provide employers with legal assistance for many different types of employment related issues.



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Age Discrimination: ADEA Becomes More Far Reaching

The Supreme Court Rules that ADEA Applies to All Government Levels

In October 2018, the Supreme Court reached a decision that made the Age Discrimination in Employment Act (ADEA) cover a broad scope of state and local employment. The ADEA prohibits age discrimination against employees who are 40 or older, making it illegal for certain size businesses.

Prior to the ruling, state and local governments that employed 20 or less employees could lay-off or terminate employees based on age without facing any repercussions.

The Case that Changed the Application of the ADEA

In the case Mount Lemmon Fire District v. Guido, U.S., No. 17-587 two firefighters brought a case against the Mount Lemmon, Arizona, Fire District based on age discrimination. Their ages were 46 and 54 and they alleged that the fire department laid them off based on age. The defense did not deny that age was the reason but instead argued that the anti-age discrimination law didn’t apply to them because they had too few employees.

The court decided that the intent of the law was not to clarify but to add the category of “a state or political subdivision of a state” as being subject to the ADEA. As a result, state and local governments irrespective of their size must follow the Age Discrimination in Employment Act.

ADEA Claims and Predictions

Currently, approximately 22 percent of claims filed with the Equal Employment Opportunity Commission (EEOC) are age discrimination claims. In addition, an increasing number of employees, who are older than 67 are continuing to work. This fact indicates that age discrimination claims are likely to remain a major focus for the EEOC.

Do You Have Questions about Employment Law?

Keeping up with changing laws is vitally important for operating a business in today’s world.

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns or represent you in employment related disputes.

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