Client Alert 
December 30, 2021

NEW YORK & NEW JERSEY
MINIMUM WAGE INCREASES FOR 2022
With 2022 upon us, many New York and New Jersey employers must prepare for scheduled minimum wage increases. Please note the following new minimum wage, tip credit and overtime rates.
 
NEW YORK
 
While the minimum wage and exempt salary threshold will remain the same in 2022 for employers in New York City, all other New York employers will see the minimum wage and exempt employee salary threshold rise based upon where the employer is located effective December 31, 2021. 
 
Please note the following new minimum wage and overtime rates and exempt salary thresholds and, as necessary, issue new 195.1 Notice of Pay Rate forms to your employees as soon as possible reflecting the effective date of the new rate of pay as December 31, 2021:
 
All Employers
 
Nassau / Suffolk / Westchester:
Rest of State (Outside NYC, Nassau, Suffolk & Westchester):

Tipped Food Service Workers – Restaurant/Hospitality Industry

The term “food service worker” applies to any tipped employee who is primarily engaged in the serving of food or beverages to customers. Examples of “food service workers” in the restaurant industry include wait staff, bartenders, captains, and bussing personnel. Provided that the food service worker’s weekly tips plus wages equals or exceeds the basic minimum hourly wage rate, tip credits towards the wages of tipped food service worker may be taken as follows:

Nassau / Suffolk / Westchester: 
Rest of the State (Outside NYC, Nassau, Suffolk & Westchester): 

Tipped Service Employees (Non-Food Service Workers)–
Restaurant /Hospitality Industry (Non-Resort Hotel)

The term “service employee” applies to any tipped employee other than a “food service worker.” Examples of “service employees” in the restaurant industry are delivery persons, coat check employees, and hosts. Provided that the tipped service employees’ weekly average of tips is at least the hourly Minimum Tip Threshold rate listed below, and the weekly tips received plus wages equals or exceeds the basic minimum hourly wage rate, tip credits towards the wages of tipped service employees may be taken as follows:

Nassau / Suffolk / Westchester:
Rest of the State (Outside NYC, Nassau, Suffolk & Westchester): 

Exempt Employees
 
In addition, in order to be eligible for the executive or administrative exemptions from overtime, effective December 31, 2021, employees must be paid the amounts set forth below. 

NEW JERSEY
 
The minimum wage will increase for all employers in New Jersey effective January 1, 2022. However, the new minimum wage will depend on employer size.
 
All Employers
 
Employers who employ six or more employees in New Jersey (“Large Employers”) will be subject to a different minimum wage than those that employ five or fewer employees (“Small Employers”). The new minimum wage for Large Employers and Small Employers in New Jersey is as follows:
Please note that regardless of the employer’s size, employees engaged in “seasonal employment” are subject to the “Small Employer” pay scale.

Tipped Employees – Hospitality Industry

Because Large Employers are subject to a different minimum wage scale than Small Employers, the amount of the tip credit Large Employers may take from tipped employees’ minimum wage will differ from the amount of the tip credit Small Employers may take:

Large Employers:
Small Employers: 
Though there is no affirmative requirement to provide employees in New Jersey with written notice of their pay rate, there is an obligation to provide employees with adequate notice that the employer is taking a tip credit.

To avoid potential claims that employees were not so advised, it is most prudent to issue a written notice of the new pay rate including the tip credit to tipped employees in the hospitality industry, with an explanation that if they do not earn enough in tips over the course of a week to cover the amount of the tip credit, the employer will make up the difference. 

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.