Blog Post / August 20, 2019 / Restaurant Industry

New York Paid Family Leave: A Guide for Employers in the Hospitality Industry

by Sid Chary
Sid Chary

New York Paid family leave is a major issue in the workplace today for both employers and employees, and especially in the hospitality industry.

Employers in the hospitality industry need dependable employees to serve their customers. And given that many restaurants and bars are already operating on razor-thin margins, they would lose revenue if there were no one to cook and serve food, or pour drinks for patrons because there were too many employees out on leave at the same time. Therefore, for the employer, ensuring a certain amount of stability and predictability to the employer’s workforce is absolutely paramount.

Just like the employer has a need to have a predictable and stable workforce in order to ensure customers are served, many employees may have a corresponding need for leave, whether that is to care for an ill family member, take time off in order to bond with a newborn after birth or adoption, or a variety of similar circumstances. However, these employees may lack the means to be able to take this time off without paid leave that would enable them to pay rent or buy groceries.

New York is one of the few states in the country to require private employers to offer paid family leave. Its law differs substantially from federal law, which only provides for a period of unpaid leave, and even then only to full time employees of private employers who have been employed for a minimum of one year. New York’s law is much more generous, extending paid family leave even to some part time employees who have been employed for a certain period of time.

What Leave Is Available Under Federal Law to Private Employees?

Federal law regarding paid family leave is one area where the United States lags far behind other countries, and even some of its own states, in terms of providing paid family leave.

Pursuant to the federal Family and Medical Leave Act (FMLA), the United States requires employers with more than 50 employees to offer up to twelve weeks of unpaid leave to employees who have been employed with them for more than a year to care for a sick family member with a serious health condition. There is no federal law that requires an employer to provide paid family leave to employees, which is where state law comes in.

What Leave is Available to Private Employees under NY State Law?

Like some other states and municipalities, New York State requires private employers to give employees the right to paid leave for a variety of scenarios. Known as the New York State Paid Family Leave Act, this law took effect January 1, 2018 and provides not only a minimum amount of paid leave that private employers must offer to eligible employees but also certain protections if an employer violates the law relating to paid family leave.

FMLA vs. NYPFLSource: Burr Consulting

Eligibility Requirements for Paid Family Leave under New York Law

In order to be eligible for paid leave under New York law, an employee must have worked for a private employer for 26 consecutive weeks as a full-time employee or 175 days as a part-time employee

The law only applies to employees of private employers and does not apply to any branch of local, state, or federal government or any public authority.

If an employee meets the eligibility requirements, then he or she is entitled to take up to 10 weeks of paid leave. The leave can be taken one day at a time or all at once.

The leave is not paid at 100% of the employee’s normal average wages, but instead is paid out at a proportion of the employee’s average weekly wage. The rate for 2019 is 55%, rising to 60% in 2020 and 67% in 2021. This is funded through a payroll tax paid by employees out of their paychecks.

When Can Family Leave be Taken by an Employee in New York?

Data source: paidfamilyleave.ny.gov

Paid family leave is available to employees of New York businesses for a variety of scenarios. These include:

Mothers and fathers, including members of same-sex couples, are permitted to take time off in order to bond with a child within the first twelve months of their birth, adoption or foster placement. Family leave may also be taken to care for a close relative with a serious medical condition or to assist when a family member is deployed overseas on active military service

Job Protection

New York law protects an employee’s ability to return to the same or a similar position once the employee has returned from a period of paid family leave. This does not require that the employer hold the exact same job open, but merely one that is considered similar.

For example, if a waitress who otherwise meets the eligibility criteria by working the minimum number of hours is assigned to a different portion of a particular restaurant upon her return from paid leave, then her employer would be complying with the law. However, if the waitress were to be given work as a busser or dishwasher upon her return, that would likely not be considered a similar position given those jobs involve different duties but, more importantly, generally do not pay as well either.

Workers Bill of Rights

Source: NYC.gov

Protections against Discrimination or Retaliation

New York law also offers protections for retaliation and/or discrimination against an employee by his or her employer for exercising his or her rights to either request or take paid leave under New York’s paid family leave law.

If an employer does not reinstate an employee after a period of family leave, the employee can file a discrimination complaint with the New York State Workers’ Compensation Board. In addition, if an employee’s claim for paid family leave is denied or the employee has some other claim-related dispute with his or her employee, the employee can seek arbitration.

Conclusion: Takeaways for Employers in the Hospitality Industry

In the New York hospitality industry, paid family leave is an issue that can easily be a minefield if not handled correctly by the employer.

Although federal law lags behind New York law in terms of the remedies offered to employees, businesses in New York State are required to offer paid leave to employees who meet the law’s eligibility requirements. A failure to do so can result in serious consequences.

This can be particularly problematic for purposes of tracking whether a part-time employee is eligible. However, if an employer violates the law, they can be penalized monetarily. Employers in the hospitality industry need to handle paid family leave requests with kid gloves and to take any requests seriously, lest they risk financial penalties in an industry where margins and revenue are already top of mind.

About the Author

Sid Chary

Sid Chary, Esq. graduated from law school in 2011 and is admitted to practice in New York State. During law school, Sid clerked for the Honorable Judge Israel Reyes (Circuit Court Judge of the Eleventh Judicial Circuit of Florida). Following graduation, Sid worked for Robert Allen Law and Farrell, Patel, Jomarron and Lopez in Miami, Florida. After relocating to Manhattan, Sid worked for Sharma, Yaskhi and Associates. In 2016 he opened his own practice, The Chary Law Firm, P.C. Sid’s areas of practice and experience include a wide variety of commercial and corporate transactions, investment and employment based immigration, and regulatory matters.

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