NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1710A
SPONSOR: Gonzalez-Rojas TITLE OF BILL:
An act to amend the labor law, in relation to providing for minimum wage
requirements for miscellaneous industry workers
PURPOSE:
Provides for minimum wage requirements for miscellaneous industry work-
ers; appropriation
SUMMARY OF PROVISIONS:
Section 1 amends Section 196-d of Labor Law to allow tip sharing by
waiters with all employees.
Section 2 amends Section 651 of the Labor Law by adding new subdivision
10 to define "miscellaneous industry workers."
Section 3 amends subdivisions 2 and 4 of Section 652 the Labor Law to
set a schedule on which cash wages for food service workers, service
employees, and miscellaneous industry workers will increase until that
wage is equivalent to the minimum wage.
In New York City, the cash wage for food service employees receiving
tips will be as follows:
$12.77 per hour on or after January 1, 2024
$14.88 per hour on or after January 1, 2025
$17.00 per hour on or after January 1, 2026
Beginning on January 1, 2027, the cash wage cannot be less than the
minimum wage.
In Nassau, Suffolk, and Westchester Counties the cash wage for food
service employees receiving tips will be as follows:
$12.77 per hour on or after January 1, 2024
$14.88 per hour on or after January 1, 2025
$17.00 per hour on or after January 1, 2026
Beginning on January 1, 2027, the cash wage cannot be less than the
minimum wage.
In all other counties, the cash wage for food service employees receiv-
ing tips will be as follows:
$11.50 per hour on or after January 1, 2024
$13.00 per hour on or after January 1, 2025
$14.50 per hour on or after January 1, 2026
$16.00 per hour on or after January 1, 2027
Beginning on January 1, 2028, the cash wage cannot be less than the
minimum wage.
For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working in New York City must not be less than the cash wage
rate described pursuant to subdivision 1-a(a) of Section 652 of the
Labor Law.
For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working in the Nassau, Suffolk, and Westchester counties must
not be less than the cash wage rate described pursuant to subdivision
1-a(b) of Section 652 of the Labor Law.
For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working in all other counties must not be less than the cash
wage rate described pursuant to subdivision 1a(c) of Section 652 of the
Labor Law.
Section 4 amends subdivision 2 of Section 653 of the Labor Law, to
ensure that the wage order under this subdivision does not authorize a
wage lower than the previously and statutorily authorized minimum wage.
Section 5 sets forth a severability clause.
Section 6 sets forth the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSIONS:
The amended version of this bill changes the schedule of minimum wage
increases to track the new minimum wage law that was included in the
SFY2023-24 budget that is now in Section 652 1-a and 1-b of the Labor
Law. The amended bill also removes the restaurant and restaurant worker
recovery fund loan program and its respective appropriation.
JUSTIFICATION:
For many years, employers of food service employees have been provided
with a credit that reduces the hourly minimum wage paid to employees
receiving gratuities. These employers now pay $7.50 per hour to workers,
so long as workers receive on average the difference between their
reduced minimum wage and the statutory minimum wage in tips, which has
led to a subminimum wage. Allowing for the tip credit has created many
inequities in food service work.
Employees who are not made whole by gratuities face arduous legal proc-
esses to recover their owed wages, involving complicated record- keeping
and inadequate legal remedies. Reliance on tips has also created an
environment where workers are victimized, and in some cases, encouraged
to turn a blind eye, to rampant discrimination and sexual harassment by
clientele and managers. This results in annual restaurant employee sexu-
al harassment claims to the EEOC at five times the rate of other indus-
tries. Eight states (Alaska, California, Maine, Minnesota, Montana,
Nevada, Oregon, and Washington) have eliminated the tipped credit and
required employers to pay the full minimum wage to employees. Those
states have seen growth in the restaurant industry and a more equitable
and experienced workforce. Washington, DC and Portland, Maine have also
passed this via ballot initiative.
New York's two-tiered wage system presents challenges for employers as
well as workers. Unlike many other laws, wage and hour laws put the onus
on employers to keep accurate records and follow the law, which take up
large amounts of time and money in monitoring compliance. Maintaining
the necessary records and compliance of a two-tiered wage system exposes
employers to additional liability.
In short, it is time for New York to join other states and improve the
working conditions in the restaurant industry by eliminating the sub-mi-
nimum wage. Employers would not be prohibited from allowing for restau-
rant gratuities, but gratuities would no longer make up the difference
between wages received from the restaurant and the actual minimum wage.
Providing equity and fairness to restaurant workers would help reduce
the wage gap and bring New York in line with many of its sister states
in workers' rights and fairness on the job. This bill puts tipped work-
ers in food service on a path to receive the full minimum wage by 2028.
Additionally, the bill codifies wage increases ordered by former Gover-
nor Cuomo for miscellaneous workers, such as nail salon workers, hair-
dressers, car wash workers, etc. The bill will eliminate the subminimum
wage for those industries by December 31, 2025.
The bill also updates New York law considering recent changes in federal
Department of Labor regulations on tip sharing. These changes now allow
tip sharing between all employees, including those who work in "back of
house" roles, such as cooks and dishwashers, and those who do not
receive tips. However, this practice is currently barred under New York
State law. This bill will allow tip sharing among all employees to
ensure greater equity in wage earning between front and back of house
employees.
LEGISLATIVE HISTORY:
2021-2022: S.808-A - Amend and Recommit to Labor/A.10203 - Referred to
Labor
STATE AND LOCAL FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
1710--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 20, 2023
___________
Introduced by M. of A. GONZALEZ-ROJAS, EPSTEIN, KELLES, CLARK,
DE LOS SANTOS, CRUZ, GALLAGHER, ARDILA, BURGOS, BURDICK, SIMON, SEPTI-
MO, SHIMSKY, RAGA, BORES, SHRESTHA, CUNNINGHAM, ROZIC, BICHOTTE HERME-
LYN, SIMONE, TAYLOR, K. BROWN, DeSTEFANO, AUBRY, LEVENBERG, CARROLL,
RIVERA, ANDERSON, FORREST, MAMDANI, COLTON, RAMOS, JOYNER, L. ROSEN-
THAL, ALVAREZ, WALLACE -- read once and referred to the Committee on
Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the labor law, in relation to providing for minimum wage
requirements for miscellaneous industry workers
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 196-d of the labor law, as added by chapter 1007 of
2 the laws of 1968, is amended to read as follows:
3 § 196-d. Gratuities. No employer or [his] their agent or an officer or
4 agent of any corporation, or any other person shall demand or accept,
5 directly or indirectly, any part of the gratuities, received by an
6 employee, or retain any part of a gratuity or of any charge purported to
7 be a gratuity for an employee. This provision shall not apply to the
8 checking of hats, coats or other apparel. Nothing in this subdivision
9 shall be construed as affecting the allowances from the minimum wage for
10 gratuities in the amount determined in accordance with the provisions of
11 article nineteen of this chapter nor as affecting practices in
12 connection with banquets and other special functions where a fixed
13 percentage of the patron's bill is added for gratuities which are
14 distributed to employees, nor to the sharing of tips by a waiter, if the
15 employer takes a credit for gratuities as permitted by subdivision two
16 of section six hundred fifty-two of this chapter with a busboy or simi-
17 lar employee, or, if the employer does not take a credit for gratuities
18 as permitted by subdivision two of section six hundred fifty-two of this
19 chapter, with any other non-managerial and non-supervisory employees.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06920-06-3
A. 1710--A 2
1 § 2. Section 651 of the labor law is amended by adding a new subdivi-
2 sion 10 to read as follows:
3 10. "Miscellaneous industry worker" means any employee covered by the
4 minimum wage order for miscellaneous industries and occupations pursuant
5 to the provisions of 12 NYCRR part 142, including, but not limited to,
6 car wash attendants, nail salon workers, tow truck drivers, dog groom-
7 ers, wedding planners, tour guides, valet parking attendants, hairdres-
8 sers, aestheticians, golf and tennis instructors, and door-persons.
9 § 3. Subdivisions 2 and 4 of section 652 of the labor law, as amended
10 by section 3 of part S of chapter 56 of the laws of 2023, are amended to
11 read as follows:
12 2. Existing wage orders. The minimum wage orders in effect on the
13 effective date of this act shall remain in full force and effect, except
14 as modified in accordance with the provisions of this article; provided,
15 however, that the minimum wage order for farm workers codified at part
16 one hundred ninety of title twelve of the New York code of rules and
17 regulations in effect on January first, two thousand twenty shall be
18 deemed to be a wage order established and adopted under this article and
19 shall remain in full force and effect except as modified in accordance
20 with the provisions of this article or article nineteen-A of this chap-
21 ter.
22 Such minimum wage orders shall be modified by the commissioner to
23 increase all monetary amounts specified therein in the same proportion
24 as the increase in the hourly minimum wage as provided in subdivisions
25 one, one-a, and one-b of this section, including the amounts specified
26 in such minimum wage orders as allowances for gratuities, and when
27 furnished by the employer to its employees, for meals, lodging, apparel
28 and other such items, services and facilities, except that the hourly
29 cash wage for food service workers, service employees and miscellaneous
30 industry workers who receive tips shall not be less than the cash wage
31 as provided in subdivision four of this section, and the maximum credit
32 for tips in minimum wage orders shall be modified so that such credit,
33 when combined with such cash wage, is equal to the minimum wage, and the
34 hourly cash wage for miscellaneous industry workers shall not be less
35 than the cash wage as provided in subdivision four of this section. All
36 amounts so modified shall be rounded off to the nearest five cents. The
37 modified orders shall be promulgated by the commissioner without a
38 public hearing, and without reference to a wage board, and shall become
39 effective on the effective date of such increases in the minimum wage
40 except as otherwise provided in this subdivision, notwithstanding any
41 other provision of this article.
42 4. [Notwithstanding subdivisions one, one-a, one-b, and two of this
43 section, the wage for an employee who is a food service worker receiving
44 tips shall be a cash wage of at least two-thirds of the minimum wage
45 rates set forth in subdivision one of this section, rounded to the near-
46 est five cents or seven dollars and fifty cents, whichever is higher,
47 provided that the tips of such an employee, when added to such cash
48 wage, are equal to or exceed the minimum wage in effect pursuant to
49 subdivisions one, one-a, and one-b of this section and provided further
50 that no other cash wage is established pursuant to section six hundred
51 fifty-three of this article] (a) Notwithstanding subdivisions one and
52 two of this section and section six hundred fifty-three of this article,
53 the wage for an employee who is a food service worker service employee
54 receiving tips and paid pursuant to the provisions of 12 NYCRR part 146
55 shall be, for each hour worked in the city of New York, a cash wage of
56 not less than:
A. 1710--A 3
1 $12.77 per hour on and after January 1, 2024;
2 $14.88 per hour on and after January 1, 2025;
3 $17.00 per hour on and after January 1, 2026, and beginning on January
4 first, two thousand twenty-seven, a cash wage rate established by the
5 commissioner annually, indexed to inflation as described in subdivision
6 one-b of this section.
7 (b) Notwithstanding subdivisions one and two of this section and
8 section six hundred fifty-three of this article, the wage for an employ-
9 ee who is a food service worker or service employee receiving tips and
10 paid pursuant to the provisions of 12 NYCRR part 146 shall be, for each
11 hour worked in the counties of Nassau, Suffolk and Westchester, a cash
12 wage of not less than:
13 $12.77 per hour on and after January 1, 2024;
14 $14.88 per hour on and after January 1, 2025;
15 $17.00 per hour on and after January 1, 2026, and beginning on January
16 first, two thousand twenty-seven, a cash wage rate established by the
17 commissioner annually, indexed to inflation as described in subdivision
18 one-b of this section.
19 (c) Notwithstanding subdivisions one and two of this section and
20 section six hundred fifty-three of this article, the wage for an employ-
21 ee who is a food service worker or service employee receiving tips and
22 paid pursuant to the provisions of 12 NYCRR part 146 shall be, for each
23 hour worked outside the city of New York and the counties of Nassau,
24 Suffolk and Westchester, a cash wage of not less than:
25 $11.50 per hour on and after January 1, 2024;
26 $13.00 per hour on and after January 1, 2025;
27 $14.50 per hour on and after January 1, 2026;
28 $16.00 per hour on and after January 1, 2027, and beginning on January
29 first, two thousand twenty-eight, a cash wage rate established by the
30 commissioner annually, indexed to inflation as described in subdivision
31 one-b of this section.
32 (d) Notwithstanding subdivisions one and two of this section, the wage
33 for an employee who is a miscellaneous industry worker receiving tips
34 and paid pursuant to the provisions of 12 NYCRR part 142 shall be for
35 each hour worked in the city of New York, a cash wage of not less than
36 the cash wage rate as described in paragraph (a) of subdivision one-a of
37 this section.
38 (e) Notwithstanding subdivisions one and two of this section, the wage
39 for an employee who is a miscellaneous industry worker receiving tips
40 and paid pursuant to the provisions of 12 NYCRR part 142 shall be for
41 each hour worked in the counties of Nassau, Suffolk and Westchester, a
42 cash wage of not less than the cash wage rate as described in paragraph
43 (b) of subdivision one-a of this section.
44 (f) Notwithstanding subdivisions one and two of this section, the wage
45 for an employee who is a miscellaneous industry worker receiving tips
46 and paid pursuant to the provisions of 12 NYCRR part 142 shall be for
47 each hour worked outside the city of New York and the counties of
48 Nassau, Suffolk and Westchester, a cash wage of not less than the cash
49 wage rate as described in paragraph (c) of subdivision one-a of this
50 section.
51 § 4. Subdivision 2 of section 653 of the labor law, as added by chap-
52 ter 14 of the laws of 2000, is amended to read as follows:
53 (2) The commissioner shall, within six months after enactment of any
54 change in the statutory minimum wage set forth in subdivision one of
55 section six hundred fifty-two of this article, appoint a wage board to
56 inquire and report and recommend any changes to wage orders governing
A. 1710--A 4
1 wages payable to food service workers. Such wage board shall be estab-
2 lished consistent with the provisions of subdivision one of section six
3 hundred fifty-five of this article, except the representatives of the
4 employees shall be selected upon the nomination of the state American
5 Federation of Labor/Congress of Industrial Organizations; and provided,
6 further, that the representatives of the employers shall be selected
7 upon the nomination of the New York State Business Council. [Any wage
8 order authorizing a lesser wage than the previously and statutorily
9 mandated minimum wage for such employees shall be reviewed by the wage
10 board to ascertain at what level such wage order is sufficient to
11 provide adequate maintenance and to protect the health and livelihood of
12 employees subject to such a wage order after a statutory increase in the
13 mandated minimum wage] Notwithstanding section six hundred fifty-five of
14 this article, a wage order under this subdivision shall not authorize a
15 lesser wage than the previously and statutorily mandated minimum wage
16 for such employees.
17 § 5. Severability clause. If any clause, sentence, paragraph, subdivi-
18 sion, section or part of this act shall be adjudged by any court of
19 competent jurisdiction to be invalid, such judgment shall not affect,
20 impair, or invalidate the remainder of this act, but shall be confined
21 in its operation to the clause, sentence, paragraph, subdivision,
22 section or part of this act directly involved in the controversy in
23 which such judgment shall have been rendered. It is hereby declared to
24 be the intent of the legislature that this act would have been enacted
25 even if such invalid clause, sentence, paragraph, subdivision, section
26 or part of this act had not been included herein.
27 § 6. This act shall take effect immediately.
