Understanding the New York State Spread of Hours Rule in the Hospitality Industry

Certain non-exempt workers in New York state may be entitled to an extra hour of pay when their work day spans more than ten hours. This is in addition to other protections under New York’s wage and hour laws and regulations.

In addition to other industries, spread of hours pay applies to non-exempt employees in New York state who work in the hospitality industry, such as restaurants and hotels. According to the New York state Hospitality Industry Wage Order, “[o]n each day on which the spread of hours exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hourly rate.”

Under the spread of hours rule, a non-exempt worker whose workday is longer than ten hours must receive an extra hour of pay at the basic minimum hourly rate (which ranges from $10.40 to $13.50, depending on location in the state) in addition to pay for the actual hours worked. The spread of hours for a workday includes time off-duty, including meals, rest periods, or time between shifts.

For example, if a restaurant waiter in New York City works a double shift (the first shift running from 11:00 a.m. to 2:00 p.m. and the second shift running from 5:00 p.m. to 10:00 p.m.), that waiter is entitled to:

• Eight hours of pay for the shifts worked, plus 
• One extra hour of pay at the basic minimum wage rate, because the start to finish time (the “spread of hours”) of the work day exceeded ten hours.

Regardless of a hospitality industry employee’s pay rate, if they are entitled to spread of hours pay, they would receive it at a rate equal to the basic minimum wage rate. Spread of hours pay is not included in regular rate calculations for purposes of determining overtime pay, since it is not considered payment for time worked.

How should employers proceed?

It can be challenging for employers to make sure they are properly paying their employees; minimum wage requirements, overtime rules, and having tipped employees can make this especially confusing for those in the hospitality industry. Other complexities such as spread of hours pay can make this task even more burdensome. Consider the benefit of using industry-leading time tracking technologies such as Paychex Flex Time, which can help businesses automate the tracking and reporting of when additional payments such as spread of hours pay may be due.