Last week, the New York Industrial Board of Appeals (an arm of the New York Department of Labor) heard oral argument on the National Restaurant Association’s petition to invalidate the Department of Labor’s recent Fast Food Wage Order. If implemented, the Wage Order, which is scheduled to take effect on December 31, 2015, would increase the minimum wage for “fast food employees” in covered “fast food establishments” on a phase-in schedule culminating in a minimum wage rate of $15/hour by December 31, 2018 in New York City and by July 1, 2021 in the balance of the state. Randy Mastro, former Deputy Mayor for Operations during the Giuliani administration, argued on behalf of the National Restaurant Association that the proposed Wage Order violates Constitutional principles because it (among other issues) arbitrarily identifies a subset of employers meeting the Department’s definition of a covered “fast food establishment,” creating an uneven playing field among restaurants. Notably, the proposed wage order contains a 30-location threshold for coverage. The Industrial Board of Appeals, an administrative body whose hearing officers are appointed by the Governor, has until December 10, 2015 to make a decision. Following the Board’s decision, the Association may continue its appeal, as necessary, in a New York court.
