Tools of the Trade: Hotel Expense Reimbursement Policies

By Christine Samsel Attorney, Brownstein Hyatt Farber Schreck | June 14, 2020

This article was co-authored by Jesse Sutz, Associate, Brownstein Hyatt Farber Schreck

Multi-jurisdictional hospitality companies (i.e., those operating in multiple states across the country) are subject to varying requirements as to whether and to what extent employees must be reimbursed for certain out-of-pocket expenses incurred in performing their job duties. The short answer is that the business expenses for which employers must reimburse employees, if any, depend on the jurisdiction in which the employee works.

Many states have no specific requirements regarding expense reimbursements, and require compliance only with federal law. However, as outlined below, several states have more stringent requirements.

Federal Law and the Minimum Wage

Federal law sets the minimum requirements for expense reimbursement, mandating that business expenses incurred by the employee cannot cause the employee's effective wage to drop below the federal minimum wage (currently $7.25) or overtime wage, if applicable, in any given workweek. The pertinent federal regulation provides:

[I]f it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.

29 C.F.R. § 531.35.

The key question under federal law is what are "tools of the trade"? Federal courts have interpreted this regulation to mean any items purchased by the employee for the primary benefit of the employer. In the hospitality context, this analysis generally will be specific to the employee's role. For instance, where an employee is required to wear and maintain a company-specific uniform, the uniform, and cleaning and maintenance costs for the uniform, could be business expenses constituting "tools of the trade." Actual tools and equipment required for employees like mechanics, groundskeepers and maintenance workers would (quite literally) be "tools of the trade." Likewise, employees required to drive in their roles can show that expenses related thereto are encompassed within the regulation.

From a federal perspective as it pertains to expense reimbursement, the first step is to assess what items employees are required to have that are not provided by the employer, and what expenses they are required to incur. Pursuant to interpretive case law, the second step is to determine whether those items and/or expenses are primarily for the benefit of the employer. And finally, the employer must assess whether these expenses, when subtracted from the employee's regular wages, bring the employee's hourly wage below the federal minimum wage (or overtime rate, if applicable).

Some States Have More Stringent Requirements

Crafting expense reimbursement policies that comply with federal law is straightforward, in that a "one-size-fits-all" policy can be implemented. However, states are increasingly enacting laws addressing required expense reimbursement as well. The circumstances requiring reimbursement vary from state to state based on that state's laws, regulations and interpretive case law.

Moreover, many states have different minimum wage and overtime requirements that exceed the federal standard. Below we outline some specific state laws to keep in mind, with the caveat that this is not an exhaustive nationwide list; in addition to the jurisdictions highlighted below, Iowa, Montana and Washington, D.C. (among others) have specific requirements pertaining to expense reimbursements.

California

California requires reimbursement of "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer." Cal. Lab. Code § 2802. Unlike the federal standard, there is no reference in California's state law to the reduction of compensation below the applicable minimum wage.

Rather, expense reimbursements are required if the expenses are necessarily incurred in the performance of the services. With reference to the examples outlined above, California employees required to wear a company-specific uniform (as opposed to general attire, such as black pants and a white shirt) or purchase their own tools or equipment must be reimbursed for those expenses, regardless of the amount.

In addition, California requires reimbursement of actual expenses or mileage (less normal commuting miles) for business usage of the employee's personal vehicle; the IRS mileage reimbursement rate is presumed to reimburse an employee for all vehicle-related expenses (other than tolls, parking and the like). California also requires that employees be reimbursed for business usage of cellphones and related devices, home internet service, meals and entertainment expenses in appropriate circumstances.

Illinois

Illinois this year enacted a law similar to California's requiring employers to reimburse employees "for all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer." 820 I.L.C.S. § 115/9.5. "Necessary expenditures" means "all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer." Id. As in California, necessary expenses must be reimbursed, regardless of any impact of such business expenses on the employee's wages.

New York

In contrast with California and Illinois, New York's requirements dovetail with federal law, with one twist. That is, under New York law, an employer need not reimburse an employee for tools of the trade unless doing so would cause the employee's wages to fall below the applicable minimum wage. This is a bit tricky in New York, because the minimum wage is higher than the federal minimum wage, and varies depending on the work location.

For example, the minimum wage is higher in New York City ($15 per hour) and the surrounding counties of Westchester, Nassau and Suffolk (currently $13 per hour) than elsewhere in New York. Employers must ensure they are analyzing expense reimbursement requirements in accordance with the applicable minimum wage.

Massachusetts

While there is no general expense reimbursement statute, there is one express requirement under Massachusetts law pertaining to reimbursement of travel expenses where employees are required to report to sites other than the regular work location, or travel between work locations. Specifically, the Massachusetts minimum wage regulations provide that "[i]f an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee shall be compensated for all travel time in excess of his or her ordinary travel time between home and work and shall be reimbursed for associated transportation expenses." 45 C.M.R. 27.04(4)(b).

Likewise, "[a]n employee required or directed to travel from one place to another after the beginning of or before the close of the work day shall be compensated for all travel time and shall be reimbursed for all transportation expenses." 45 C.M.R. 27.04(4)(d).

Remote Work Considerations

In light of the COVID-19 epidemic, which has hit the hospitality industry particularly hard, and related "shelter-in-place" orders, companies have permitted or required employees (particularly salaried employees) to work remotely where possible. Employers must pay particular attention to expense reimbursement requirements for remote workers.

Business expenses incurred in working remotely could include equipment (such as printers, computers, cellphones, etc.), supplies (e.g., printer ink and paper, envelopes and stamps), and service fees (for example, internet and cell service, FedEx and shipping service charges). The employer should assess whether any of these expenses are reimbursable, whether in whole or in part, under the laws of the applicable jurisdiction.

Risks for Employers

Failing to reimburse employees for business expenses can prove costly, resulting in liability not just for payment of the expenses themselves, but also penalties, interest and the claimants' attorneys' fees and costs. Numerous class actions have been filed by employees under federal and state law alleging that their employers failed to reimburse them for expenses incurred, dropping their compensation below minimum wage and/or in violation of applicable state law.

For example, several class actions were brought recently by pizza delivery drivers asserting that their employers failed to reimburse them for expenses attributable to their required use of personal vehicles, as well as cellphone and uniform expenses. These have resulted, in some cases, in multimillion-dollar outcomes.

Tips to Avoid Liability

Employers should examine their expense reimbursement policies, in conjunction with legal counsel, to ensure compliance with applicable law. We outline some tips for developing compliant expense reimbursement policies below:

  • Identify jurisdiction-specific expense reimbursement laws applicable to the company;
  • Consider what equipment and services employees are required to have to perform their duties, including employees who are expected to or who choose to work remotely, and identify which are provided by the employer and which are sought to be at the employee's expense;
  • With respect to those items sought to be at the employee's expense, analyze each item under applicable law, including determining whether they primarily benefit the employer;
  • With the assistance of counsel, develop clear policies that will be compliant in the jurisdictions in which the company operates, and ensure that employees are made aware of those policies (e.g., through the employee handbook or a freestanding policy, or via the company intranet); and
  • For equipment that may be required of employees (e.g., a cellphone or computer), consider including a question in the employment application as to whether the candidate already possesses such equipment, with the caveat that a "no" answer will not of itself disqualify the candidate from employment. (Note: If the individual already possesses the equipment, there is less likelihood that he or she can claim that such equipment is a reimbursable business expense).

With appropriate care and legal guidance, employers can navigate the tricky maze of federal and state expense reimbursement laws.

Mr. Sutz This article was co-authored by Jesse Sutz. Mr. Sutz is a member of Brownstein's Litigation Practice Group and brings experience from a range of legal sectors from administrative law to bankruptcy to environmental law. A former summer associate for the firm, Mr. Sutz worked as a paralegal in New York City before attending law school. While earning his law degree, he served as a judicial extern for Judge Michael Boggs on the Georgia Court of Appeals, extern for the Southern Environmental Law Center, and a legal intern for the U.S. Department of Justice's Office of the Trustee in Atlanta. He was also the executive editor of the Emory Law School Supreme Court Advocacy Program and an articles editor for the Emory Law Journal. Mr. Sutz graduated in the top 5% of his class, and was named to Emory's Order of the Coif.  

Ms. Samsel Christine Samsel is a highly respected labor and employment attorney with Brownstein Hyatt Farber Schreck who regularly works with hospitality industry clients. Ms. Samsel advises employers on virtually every aspect of employment law, from advice and counseling, training and contract negotiation to litigation. She conducts due diligence for companies and investors with respect to employment issues in corporate transactions. Ms. Samsel regularly negotiates and drafts high-level executive employment agreements and ancillary documents. She assists companies in establishing employment policies, conducting employee / management training, negotiating severance agreements, conducting internal investigations and audits, and implementing reductions in force. Christine Samsel can be contacted at +1 303-223-1133 or csamsel@bhfs.com Please visit http://www.bhfs.com for more information. Extended Biography

HotelExecutive retains the copyright to the articles published in the Hotel Business Review. Articles cannot be republished without prior written consent by HotelExecutive.

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You hereby authorize HotelExecutive's Internet Payment Service Provider to charge your credit card to pay for your membership to HotelExecutive. You further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card for any and all purchases of products, services in association with HotelExecutive. You agree to be personally liable for all charges incurred by you in association with your access or other use of any content provided by HotelExecutive or any third party in association with HotelExecutive. You acknowledge and agree that your liability for all such charges shall continue after termination of your access or any type of membership arrangement with HotelExecutive.

In the event that you have chosen to have your membership automatically rebilled, unless and until you notify HotelExecutive that you wish to cancel or terminate your membership to HotelExecutive, you hereby agree and authorize HotelExecutive's Internet Payment Service Provider to automatically renew your membership to HotelExecutive on a continuing basis and to charge your credit card (or other payment means you have selected) to pay for the ongoing cost of your membership. You hereby further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card (or other approved payment means you have selected) for any and all purchases of products, services and entertainment provided to in, at, through or in association with HotelExecutive.

13. PRIVACY POLICY

The following is the Privacy Policy for HotelExecutive

We can be reached via telephone, email, or online at our contact page. When you visit our site we do not log any information regarding your domain or email address. Information Sharing: We do not share user information with any third parties other than via press release distribution as described below.

Hotel Newswire is a newswire service that distributes press releases on behalf of our users. If you decide to submit a press release for distribution through our system we will transmit your entire press release including any personal information therein contained to our media contacts and online distribution points including search engines. This is the only redistribution of your information that we engage in. Your submission of press releases through our system indicates consent with this policy. The information we collect during your registration process is used to notify users about updates to our service and inform users of any special events hosted by Hotel Newswire. This information is not shared with other organizations for commercial or non-commercial purposes.

Cookies: Our system requires the use of cookies to enable the user to log back into our website to access information from the newswire, without having to log in each time using the required username and password.

If you do not want to receive email from us in the future, please let us know by following instructions included in our communication with you. Users who supply us with telephone numbers online may receive telephone contact from us regarding their account, or informing them of new products and services available on the HotelExecutive website. If you do not wish to receive such telephone calls, please edit your account and remove your phone number from your account profile. This can be done from your user account menu.

Ad Servers: We do not partner with or have any relationship with any ad server companies. From time to time, we may use customer information for new uses not previously disclosed in our privacy notice. If our information practices change at any time, we will post the policy changes to our website to notify you of these changes and provide you with the ability to opt out of these new uses. If you are concerned about how your information is used, you should check back at our website periodically.

Upon request we provide site visitors with access to all information (including proprietary information) that we maintain about them. Users can access this information by logging in to their account.

Security: We always use industry-standard encryption technologies while transferring and receiving user data exchanged with our site. We have appropriate security measures in place in our physical facilities to protect against the loss, misuse, or alteration of information that we have collected from you on our site. We do not store credit card information in our systems.

If you feel that this site is not following its stated information policy, you may contact us.

Hotel Newswire Headlines Feed  

Zoe Connolly

2020 will be known as the most devastating year in history for the travel and hospitality industries, with mass layoffs and cancellations changing the game overnight. All eyes are on the travel industry as it adapts to the shifting COVID-19 landscape, and its success will be crucial to the healing of our economy and world. The good news – new data shows there's pent-up demand for travel among Americans. Pulling from his decades of experience in the travel industry, MMGY Global CEO Clayton Reid shares his predictions and recommendations for hospitality executives getting back on their feet in a post-COVID-19 world. READ MORE

Kelly McGuire
Bob Dauner
Fernando Rivera
Jeff Hart
Sara Fedele
Soy Williams
Jerry Tarasofsky
Robert King
Mark Heymann
Elaine Fenard
Coming up in August 2020...

Food & Beverage: New Technological Innovations

In the past few years, hotel food and beverage departments have experienced significant growth. Managers are realizing just how much revenue potential this sector holds, both in terms of additional revenue and as a means to enhance the guest experience. As a result, substantial investments are being made in F&B operations as a way to satisfy hotel guests but also to keep pace with the competition. Though it has been a trend for many years, the Farm-to-Table movement shows no signs of abating. Hotel chains are abandoning corporate restaurants and are instead partnering with local chefs to create locally-influenced dining options. Local, farm-sourced ingredients paired with specialty beverages or local wine also satisfies the increasing demand from Millennial travelers who are eager to travel sustainably and contribute to a positive impact. A farm-to-table F&B program also helps to support the local economy, which builds community goodwill. Also popular are "Self-Serv" and "Grab & Go" options. These concepts stem from an awareness that a guest's time is limited and if a hotel can supply them with fast, fresh, food and beverage choices, then so much the better for them. Plus, by placing these specialty kiosks in areas that might be traditionally under-utilized (the lobby, for instance), they can become popular destination locations. Of course, there are new technological innovations as well. In-room, on-screen menus allow guests to order from any restaurant on the property, and some hotels are partnering with delivery companies that make it possible for guests to order food from any restaurant in the area. Also, many hotels are implementing in-room, voice-activated devices, so ordering food via an AI-powered assistant will soon become mainstream as well. The August issue of the Hotel Business Review will report on these developments and document what some leading hotels are doing to expand this area of their business.