The Forgotten State Law Issues That Apply To Hotel Employers
By Michael C. Schmidt Partner, Cozen O'Connor | December 11, 2011
When it comes to discussions and legal commentary about hotels and employment law, the focus generally is centered on employer obligations contained in federal law sources. For example, minimum wage and overtime obligations under the federal Fair Labor Standards Act; discrimination and harassment issues under such federal laws as Title VII, the Americans With Disabilities Act, and the Age Discrimination in Employment Act; medical leave issues under the Family and Medical Leave Act; union-related issues under the National Labor Relations Act; or pension and benefits issues under ERISA. Hotel employers must continue to consider and understand the nature of these federal-based obligations, and the potential for avoiding exposure to liability by being pro-active.
But each state (and local municipality) has something to say too. And it is imperative that hotel employers at least consider the myriad of state-based obligations that exist in each jurisdiction of operation. First, most states have their own wage and hour requirements. Take New York, for example, where such requirements are embodied primarily in Article 6 of the New York Labor Law and four wage orders issued by the New York State Department of Labor. These sections address details that are not included in the comparable federal law, such as the timing of wage payments, required written agreements for those who are paid (in whole or in part) by commission, deductions from wages, and required written notification at the time of hire (such as rate of pay and identification of specific pay day, exempt/non-exempt classification and leave policy, if any), and at the time of termination (such as effective day of cancellation of benefits). Most states in which a hotel is operated will have some form of wage and hour obligations, all of which should be consulted.
Second, most states also have their own set of laws and regulations prohibiting discrimination and harassment in the workplace. In New York, the New York State Human Rights Law imposes additional, and, in some cases, broader, obligations on employers operating a business in New York. Moreover, hotel employers located within the boroughs of New York City also have to consider the New York City Human Rights Law ("NYCHRL"), which courts have recently interpreted as protecting a broader group of aggrieved employees, and as not affording employers the same defense available under federal law in all cases. For example, the NYCHRL was amended in 2005 with the "Restoration Act," which unequivocally stated its purpose:
- The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed. (New York City Admin. Code, § 8-130.)
When the issue of employee "leave" periods is mentioned, most think about disability - and pregnancy-related leaves granted under federal law. The most well known of those are the federal Family and Medical Leave Act, and the federal Americans With Disabilities Act. Indeed, the Americans With Disabilities Act Amendments Act, effective on January 1, 2009, requires that the term disability "be construed broadly," thus potentially affording greater protection to a greater number of employees.
Hotel employers must continue to carefully consider their obligations under those federal statutes, although, many states such as New York have filled in gaps and afforded even greater (and additional) leave rights to employees. By way of example, section 206-c of the New York Labor Law contains a "Right of Nursing Mothers to Express Breast Milk". The primary provisions of this law include the requirement that employers provide reasonable, unpaid break time, or permit an employee to use paid break time or meal time, to allow an employee to express breast milk for up to 3 years following child birth. Section 206-c also requires an employer to make reasonable efforts to provide a private room in close proximity to the employee's work area, and expressly prohibits discrimination against any employee who chooses to express breast milk in the workplace.