NY State Senate Bill 2019-S8406A

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 14, 2020	print number 8406a
Sep 14, 2020	amend and recommit to labor
May 22, 2020	referred to labor

Bill Amendments

Original

A (Active)

co-Sponsors

2019-S8406 - Details

See Assembly Version of this Bill:: A11086
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§196-d, 651, 652 & 653, Lab L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S808, A2244
2023-2024: S5567

2019-S8406 - Summary

Provides for minimum wage requirements for miscellaneous industry workers; defines "miscellaneous industry worker" to mean any employee covered by the Minimum Wage Order for Miscellaneous industries and occupations in accordance with Part 142 of Title 12 of the NYCRR, including, but not limited to, car wash attendants, nail salon workers, tow truck drivers, dog groomers, wedding planners, tour guides, valet parking attendants, hairdressers, aestheticians, golf and tennis instructors, and door-persons; makes related provisions.

2019-S8406 - Sponsor Memo

                                
 
BILL NUMBER: S8406

SPONSOR: BIAGGI
 
TITLE OF BILL:

An act to amend the labor law, in relation to providing for minimum wage
requirements for miscellaneous industry workers

 
PURPOSE OR GENERAL IDEA OF BILL:

To eliminate the sub-minimum wage for food service workers, service
employees, and miscellaneous industry workers who receive tips.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 651 of the labor law by adding new subdivision
10 to define "miscellaneous industry workers."

Section 2 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 the City of New York, the cash wage for food service employees
receiving tips will be as follows:

$9.00 per hour on or after December 31, 2020;
$10.50 per hour on or after December 31, 2021;
$12.50 per hour on or after December 31, 2022;
$13.50 per hour on or after December 31, 2023;
$15.00 per hour on or after December 31, 2024;
Beginning on December 31, 2025 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:

$8.00 per hour on or after December 31, 2020;
$9.50 per hour on or after December 31, 2021;
$11.00 per hour on or after December 31, 2022;
$13.00 per hour on or after December 31, 2023;
$15.00 per hour on or after December 31, 2024;
Beginning on December 31, 2025 the cash wage cannot be less than the
minimum wage.

In all other counties the cash wage for food service employees receiving
tips will be as follows:

$8.00 per hour on or after December 31, 2020;
$9.25 per hour on or after December 31, 2021;
$10.50 per hour on or after December 31, 2022;
$11.50 per hour on or after December 31, 2023;
$12.50 per hour on or after December 31, 2024;
Beginning on December 31, 2025 the cash wage cannot be less than the
minimum wage.

For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working in the City of New York must not be less than:

$13.15 or $13.85 per hour for high tip and low tip employees,
respectively on or after June 30, 2020;
$15.00 per hour for both high tip and low tip employees, on or after
December 31, 2020.
Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

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:

$11.40 or $12.00 per hour for high tip and low tip employees,
respectively on or after June 30, 2020;
$14.00 per hour for both high tip and low tips employees, on or after
December 31, 2020.
Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working In all other counties must not be less than:
$10.35 or $10.90 per hour for high tip and low tip employees,
respectively on or after June 30, 2020;
$12.50 per hour for both high tip and low tips employees, on or after
December 31, 2020.
Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

Section 3 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 4 sets forth the effective date.

 
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.

Allowing for the tip credit has created many inequities in food service
work. Employees who are not made whole by gratuities face arduous legal
processes 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, encour-
aged to turn a blind eye, to rampant discrimination and sexual harass-
ment by clientele and managers. This results in annual restaurant
employee sexual harassment claims to the EEOC at five times the rate of
other industries.

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 experi-
enced workforce.


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 workers in food service on a path to receive the
full minimum wage by 2025. Additionally, the bill codifies wage
increases ordered by Governor Cuomo for miscellaneous workers, such as
nail salon workers, hairdressers, car wash workers, etc. The bill will
eliminate the subminimum wage for those industries by December 31, 2020.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

2019-S8406 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8406
 
                             I N  S E N A T E
 
                               May 22, 2020
                                ___________
 
 Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 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:

   Section  1.  Section  651  of the labor law is amended by adding a new
 subdivision 10 to read as follows:
   10. "MISCELLANEOUS INDUSTRY WORKER" MEANS ANY EMPLOYEE COVERED BY  THE
 MINIMUM WAGE ORDER FOR MISCELLANEOUS INDUSTRIES AND OCCUPATIONS PURSUANT
 TO  THE  PROVISIONS OF 12 NYCRR PART 142, INCLUDING, BUT NOT LIMITED TO,
 CAR WASH ATTENDANTS, NAIL SALON WORKERS, TOW TRUCK DRIVERS,  DOG  GROOM-
 ERS,  WEDDING PLANNERS, TOUR GUIDES, VALET PARKING ATTENDANTS, HAIRDRES-
 SERS, AESTHETICIANS, GOLF AND TENNIS INSTRUCTORS, AND DOOR-PERSONS.
   § 2. Subdivisions 2 and 4 of section 652 of the labor law, subdivision
 2 as amended by chapter 38 of the laws of 1990, subdivision 4 as amended
 by section 2 of part K of chapter 54 of the laws of 2016, are amended to
 read as follows:
   2. Existing wage orders. The minimum wage  orders  in  effect  on  the
 effective date of this act shall remain in full force and effect, except
 as modified in accordance with the provisions of this article.
   Such  minimum  wage  orders  shall  be modified by the commissioner to
 increase all monetary amounts specified therein in the  same  proportion
 as  the  increase  in the hourly minimum wage as provided in subdivision
 one of this section, including the amounts  specified  in  such  minimum
 wage  orders  as  allowances  for  gratuities, and when furnished by the
 employer to its employees, for meals, lodging, apparel  and  other  such
 items,  services  and  facilities,  EXCEPT THAT THE HOURLY CASH WAGE FOR
 FOOD SERVICE WORKERS, SERVICE EMPLOYEES AND MISCELLANEOUS INDUSTRY WORK-
 ERS WHO RECEIVE TIPS SHALL NOT BE LESS THAN THE CASH WAGE AS PROVIDED IN
 SUBDIVISION FOUR OF THIS SECTION, AND THE MAXIMUM  CREDIT  FOR  TIPS  IN
 MINIMUM WAGE ORDERS SHALL BE MODIFIED SO THAT SUCH CREDIT, WHEN COMBINED
 WITH  SUCH  CASH WAGE, IS EQUAL TO THE MINIMUM WAGE, AND THE HOURLY CASH
 WAGE FOR MISCELLANEOUS INDUSTRY WORKERS SHALL NOT BE LESS THAN THE  CASH
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD15949-01-0

 S. 8406                             2
 
 WAGE  AS  PROVIDED  IN  SUBDIVISION FOUR OF THIS SECTION. All amounts so
 modified shall be rounded off to the nearest five  cents.  The  modified
 orders  shall  be promulgated by the commissioner without a public hear-
 ing,  and  without reference to a wage board, and shall become effective
 on the effective date of such increases in the minimum  wage  except  as
 otherwise  provided  in  this  subdivision,  notwithstanding  any  other
 provision of this article.
   4. (A) Notwithstanding subdivisions one and two of this  section,  the
 wage  for  an employee who is a food service worker receiving tips shall
 be a cash wage of at least two-thirds of  the  minimum  wage  rates  set
 forth  in  subdivision  one of this section, rounded to the nearest five
 cents or seven dollars and fifty cents, whichever  is  higher,  provided
 that  the  [tips]  AVERAGE DAILY WAGE of such an employee, when TIPS FOR
 THE DAY ARE added to [such] THE cash wage PAID FOR HOURS WORKED ON  EACH
 SUCH  DAY, are equal to or exceed the minimum wage in effect pursuant to
 subdivision one of this section and provided further that no other  cash
 wage  is established pursuant to section six hundred fifty-three of this
 article. ANY CASH WAGE  ESTABLISHED  PURSUANT  TO  SECTION  SIX  HUNDRED
 FIFTY-THREE  OF THIS ARTICLE SHALL NOT BE LESS THAN THE CASH WAGE ESTAB-
 LISHED BY THIS SUBDIVISION.
   (B) NOTWITHSTANDING SUBDIVISIONS ONE  AND  TWO  OF  THIS  SECTION  AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE WHO IS A FOOD SERVICE WORKER SERVICE EMPLOYEE RECEIVING TIPS AND PAID
 PURSUANT  TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR EACH HOUR
 WORKED IN THE CITY OF NEW YORK, A CASH WAGE OF NOT LESS THAN:
   $9.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;
   $10.50 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $12.00 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $13.50 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $15.00 PER HOUR ON AND AFTER DECEMBER 31, 2024.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO  PARAGRAPH
 (A) OF SUBDIVISION ONE OF THIS SECTION.
   (C)  NOTWITHSTANDING  SUBDIVISIONS  ONE  AND  TWO  OF THIS SECTION AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE WHO IS A FOOD SERVICE WORKER OR SERVICE EMPLOYEE RECEIVING  TIPS  AND
 PAID  PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR EACH
 HOUR WORKED IN THE COUNTIES OF NASSAU, SUFFOLK AND WESTCHESTER,  A  CASH
 WAGE OF NOT LESS THAN:
   $8.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;
   $9.50 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $11.00 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $13.00 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $15.00 PER HOUR ON AND AFTER DECEMBER 31, 2024.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH  SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH
 (B) OF SUBDIVISION ONE OF THIS SECTION.
   (D) NOTWITHSTANDING SUBDIVISIONS ONE  AND  TWO  OF  THIS  SECTION  AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE  WHO  IS A FOOD SERVICE WORKER OR SERVICE EMPLOYEE RECEIVING TIPS AND
 PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR  EACH
 HOUR  WORKED  OUTSIDE  THE  CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
 SUFFOLK AND WESTCHESTER, A CASH WAGE OF NOT LESS THAN:
   $8.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;

 S. 8406                             3
 
   $9.25 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $10.50 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $11.50 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $12.50 PER HOUR ON AND AFTER DECEMBER 31, 2024.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH  SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH
 (C) OF SUBDIVISION ONE OF THIS SECTION.
   (E) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR AN EMPLOYEE WHO IS A MISCELLANEOUS INDUSTRY  WORKER  RECEIVING  TIPS
 AND  PAID  PURSUANT  TO THE PROVISIONS OF 12 NYCRR PART 142 SHALL BE FOR
 EACH HOUR WORKED IN THE CITY OF NEW YORK, A CASH WAGE OF NOT LESS THAN:
   $13.15 OR $13.85 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES,  RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $15.00  PER  HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON AND AFTER
 DECEMBER 31, 2020.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE  CASH
 WAGE  PAYABLE  TO  A  MISCELLANEOUS INDUSTRY WORKER UNDER THIS PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (A) OF
 SUBDIVISION ONE OF THIS SECTION.
   (F) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR AN EMPLOYEE WHO IS A MISCELLANEOUS INDUSTRY  WORKER  RECEIVING  TIPS
 AND  PAID  PURSUANT  TO  THE PROVISIONS OF 12 NYCRR PART 142 BE FOR EACH
 WORKED IN THE COUNTIES OF NASSAU, SUFFOLK AND WESTCHESTER, A  CASH  WAGE
 OF NOT LESS THAN:
   $11.40  OR $12.00 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES, RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $14.00 PER HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON  AND  AFTER
 DECEMBER 31, 2020.
   BEGINNING  ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE CASH
 WAGE PAYABLE TO A MISCELLANEOUS INDUSTRY  WORKER  UNDER  THIS  PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (B) OF
 SUBDIVISION ONE OF THIS SECTION.
   (G) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR  AN  EMPLOYEE  WHO IS A MISCELLANEOUS INDUSTRY WORKER RECEIVING TIPS
 AND PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART  142  BE  FOR  EACH
 HOUR  WORKED  OUTSIDE  THE  CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
 SUFFOLK AND WESTCHESTER, A CASH WAGE OF NOT LESS THAN:
   $10.35 OR $10.90 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES,  RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $12.50  PER  HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON AND AFTER
 DECEMBER 31, 2020.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE  CASH
 WAGE  PAYABLE  TO  A  MISCELLANEOUS INDUSTRY WORKER UNDER THIS PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (C) OF
 SUBDIVISION ONE OF THIS SECTION.
   § 3. Subdivision 2 of section 653 of the labor law, as added by  chap-
 ter 14 of the laws of 2000, is amended to read as follows:
   (2)  The  commissioner shall, within six months after enactment of any
 change in the statutory minimum wage set forth  in  subdivision  one  of
 section  six  hundred fifty-two of this article, appoint a wage board to
 inquire and report and recommend any changes to  wage  orders  governing
 wages  payable  to food service workers. Such wage board shall be estab-
 lished consistent with the provisions of subdivision one of section  six
 hundred  fifty-five  of  this article, except the representatives of the
 employees shall be selected upon the nomination of  the  state  American

 S. 8406                             4
 
 Federation  of Labor/Congress of Industrial Organizations; and provided,
 further, that the representatives of the  employers  shall  be  selected
 upon  the  nomination  of the New York State Business Council. [Any wage
 order  authorizing  a  lesser  wage  than the previously and statutorily
 mandated minimum wage for such employees shall be reviewed by  the  wage
 board  to  ascertain  at  what  level  such  wage order is sufficient to
 provide adequate maintenance and to protect the health and livelihood of
 employees subject to such a wage order after a statutory increase in the
 mandated minimum wage] NOTWITHSTANDING SECTION SIX HUNDRED FIFTY-FIVE OF
 THIS ARTICLE, A WAGE ORDER UNDER THIS SUBDIVISION SHALL NOT AUTHORIZE  A
 LESSER  WAGE  THAN  THE PREVIOUSLY AND STATUTORILY MANDATED MINIMUM WAGE
 FOR SUCH EMPLOYEES.
   § 4. This act shall take effect immediately.

co-Sponsors

2019-S8406A (ACTIVE) - Details

See Assembly Version of this Bill:: A11086
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§196-d, 651, 652 & 653, Lab L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S808, A2244
2023-2024: S5567

2019-S8406A (ACTIVE) - Summary

2019-S8406A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8406a

SPONSOR: BIAGGI
 
TITLE OF BILL:

An act to amend the labor law, in relation to providing for minimum wage
requirements for miscellaneous industry workers

 
PURPOSE OR GENERAL IDEA OF BILL:

To allow tip sharing and eliminate the sub-minimum wage for food service
workers, service employees, and miscellaneous industry workers who
receive tips.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 196-d to allow tip sharing by waiters with all
employees, not just busboys.

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 the City of New York, the cash wage for food service employees
receiving tips will be as follows:

   $9.00 per hour on or after December 31, 2020;
   $10.50 per hour on or after December31, 2021;
   $12.50 per hour on or after December31, 2022;
   $13.50 per hour on or after December31, 2023;
   $15.00 per hour on or after December 31, 2024;
   Beginning on December 31, 2025 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:

   $8.00 per hour on or after December 31, 2020;
   $9.50 per hour on or after December 31, 2021;
   $11.00 per hour on or after December 31, 2022;
   $13.00 per hour on or after December 31, 2023;
   $15.00 per hour on or after December 31, 2024;
   Beginning on December 31, 2025 the cash wage cannot be less than the
minimum wage.

In all other counties the cash wage for food service employees receiving
tips will be as follows:
   $8.00 per hour on or after December 31, 2020;
   $9.25 per hour on or after December 31, 2021;
   $10.50 per hour on or after December 31, 2022;
   $11.50 per hour on or after December 31, 2023;
   $12.50 per hour on or after December 31, 2024;
   Beginning on December 31, 2025 the cash wage cannot be less than the
minimum wage.

For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working in the City of New York must not be less than:
   $13.15 or $13.85 per hour for high tip and low tip employees, respec-
tively on or after June 30, 2020;
   $15.00 per hour for both high tip and low tip employees, on or after
December 31, 2020.
   Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

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:
   $11.40 or $12.00 per hour for high tip and low tip employees, respec-
tively on or after June 30, 2020;
   $14.00 per hour for both high tip and low tip employees, on or after
December 31, 2020.
   Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

For miscellaneous industry workers receiving tips pursuant to 12 NYCRR
part 142 working In all other counties must not be less than:
   $10.35 or $10.90 per hour for high tip and low tip employees, respec-
tively on or after June 30, 2020;
   $12.50 per hour for both high tip and low tip employees, on or after
December 31, 2020.
   Beginning on December 31, 2022 the cash wage cannot be less than the
minimum wage.

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 the effective date.

 
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.

Allowing for the tip credit has created many inequities in food service
work. Employees who are not made whole by gratuities face arduous legal
processes 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, encour-
aged to turn a blind eye, to rampant discrimination and sexual harass-
ment by clientele and managers. This results in annual restaurant
employee sexual harassment claims to the EEOC at five times the rate of
other industries.

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 experi-
enced workforce.

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 workers in food service on a path to receive the
full minimum wage by 2025. Additionally, the bill codifies wage
increases ordered by Governor Cuomo for miscellaneous workers, such as
nail salon workers, hairdressers, car wash workers, etc. The bill will
eliminate the subminimum wage for those industries by December 31, 2020.

The bill also updates New York law in light of 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.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

2019-S8406A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8406--A
 
                             I N  S E N A T E
 
                               May 22, 2020
                                ___________
 
 Introduced  by  Sens. BIAGGI, PERSAUD -- read twice and ordered printed,
   and when printed to be committed to the Committee on Labor --  commit-
   tee  discharged, bill amended, ordered reprinted as amended and recom-
   mitted 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:
 
   Section    1. Section 196-d of the labor law, as added by chapter 1007
 of the laws of 1968, is amended to read as follows:
   § 196-d. Gratuities. No employer or his OR HER agent or an officer  or
 agent  of  any  corporation, or any other person shall demand or accept,
 directly or indirectly, any part  of  the  gratuities,  received  by  an
 employee, or retain any part of a gratuity or of any charge purported to
 be  a  gratuity  for  an employee. This provision shall not apply to the
 checking of hats, coats or other apparel. Nothing  in  this  subdivision
 shall be construed as affecting the allowances from the minimum wage for
 gratuities in the amount determined in accordance with the provisions of
 article   nineteen  of  this  chapter  nor  as  affecting  practices  in
 connection with banquets and  other  special  functions  where  a  fixed
 percentage  of  the  patron's  bill  is  added  for gratuities which are
 distributed to employees, nor to the sharing of tips by a waiter [with a
 busboy or similar employee] WITH OTHER EMPLOYEES.
   § 2. Section 651 of the labor law is amended by adding a new  subdivi-
 sion 10 to read as follows:
   10.  "MISCELLANEOUS INDUSTRY WORKER" MEANS ANY EMPLOYEE COVERED BY THE
 MINIMUM WAGE ORDER FOR MISCELLANEOUS INDUSTRIES AND OCCUPATIONS PURSUANT
 TO THE PROVISIONS OF 12 NYCRR PART 142, INCLUDING, BUT NOT  LIMITED  TO,
 CAR  WASH  ATTENDANTS, NAIL SALON WORKERS, TOW TRUCK DRIVERS, DOG GROOM-
 ERS, WEDDING PLANNERS, TOUR GUIDES, VALET PARKING ATTENDANTS,  HAIRDRES-
 SERS, AESTHETICIANS, GOLF AND TENNIS INSTRUCTORS, AND DOOR-PERSONS.
   § 3. Subdivisions 2 and 4 of section 652 of the labor law, subdivision
 2 as amended by chapter 38 of the laws of 1990, the opening paragraph of
 subdivision  2  as  amended by section 6 of part II of chapter 58 of the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD15949-02-0

 S. 8406--A                          2
 
 laws of 2020, subdivision 4 as amended by section 2 of part K of chapter
 54 of the laws of 2016, are amended to read as follows:
   2.  Existing  wage  orders.  The  minimum wage orders in effect on the
 effective date of this act shall remain in full force and effect, except
 as modified in accordance with the provisions of this article; provided,
 however, that the minimum wage order for farm workers codified  at  part
 one  hundred  ninety  of  title twelve of the New York code of rules and
 regulations in effect on January first, two  thousand  twenty  shall  be
 deemed to be a wage order established and adopted under this article and
 shall  remain  in full force and effect except as modified in accordance
 with the provisions of this article or article nineteen-A of this  chap-
 ter.
   Such  minimum  wage  orders  shall  be modified by the commissioner to
 increase all monetary amounts specified therein in the  same  proportion
 as  the  increase  in the hourly minimum wage as provided in subdivision
 one of this section, including the amounts  specified  in  such  minimum
 wage  orders  as  allowances  for  gratuities, and when furnished by the
 employer to its employees, for meals, lodging, apparel  and  other  such
 items,  services  and  facilities,  EXCEPT THAT THE HOURLY CASH WAGE FOR
 FOOD SERVICE WORKERS, SERVICE EMPLOYEES AND MISCELLANEOUS INDUSTRY WORK-
 ERS WHO RECEIVE TIPS SHALL NOT BE LESS THAN THE CASH WAGE AS PROVIDED IN
 SUBDIVISION FOUR OF THIS SECTION, AND THE MAXIMUM  CREDIT  FOR  TIPS  IN
 MINIMUM WAGE ORDERS SHALL BE MODIFIED SO THAT SUCH CREDIT, WHEN COMBINED
 WITH  SUCH  CASH WAGE, IS EQUAL TO THE MINIMUM WAGE, AND THE HOURLY CASH
 WAGE FOR MISCELLANEOUS INDUSTRY WORKERS SHALL NOT BE LESS THAN THE  CASH
 WAGE  AS  PROVIDED  IN  SUBDIVISION FOUR OF THIS SECTION. All amounts so
 modified shall be rounded off to the nearest five  cents.  The  modified
 orders  shall  be promulgated by the commissioner without a public hear-
 ing, and without reference to a wage board, and shall  become  effective
 on  the  effective  date of such increases in the minimum wage except as
 otherwise  provided  in  this  subdivision,  notwithstanding  any  other
 provision of this article.
   4.  (A)  Notwithstanding subdivisions one and two of this section, the
 wage for an employee who is a food service worker receiving  tips  shall
 be  a  cash  wage  of  at least two-thirds of the minimum wage rates set
 forth in subdivision one of this section, rounded to  the  nearest  five
 cents  or  seven  dollars and fifty cents, whichever is higher, provided
 that the [tips] AVERAGE DAILY WAGE of such an employee,  when  TIPS  FOR
 THE  DAY ARE added to [such] THE cash wage PAID FOR HOURS WORKED ON EACH
 SUCH DAY, are equal to or exceed the minimum wage in effect pursuant  to
 subdivision  one of this section and provided further that no other cash
 wage is established pursuant to section six hundred fifty-three of  this
 article.  ANY  CASH  WAGE  ESTABLISHED  PURSUANT  TO SECTION SIX HUNDRED
 FIFTY-THREE OF THIS ARTICLE SHALL NOT BE LESS THAN THE CASH WAGE  ESTAB-
 LISHED BY THIS SUBDIVISION.
   (B)  NOTWITHSTANDING  SUBDIVISIONS  ONE  AND  TWO  OF THIS SECTION AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE WHO IS A FOOD SERVICE WORKER SERVICE EMPLOYEE RECEIVING TIPS AND PAID
 PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR EACH  HOUR
 WORKED IN THE CITY OF NEW YORK, A CASH WAGE OF NOT LESS THAN:
   $9.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;
   $10.50 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $12.00 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $13.50 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $15.00 PER HOUR ON AND AFTER DECEMBER 31, 2024.

 S. 8406--A                          3
 
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH  SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH
 (A) OF SUBDIVISION ONE OF THIS SECTION.
   (C)  NOTWITHSTANDING  SUBDIVISIONS  ONE  AND  TWO  OF THIS SECTION AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE WHO IS A FOOD SERVICE WORKER OR SERVICE EMPLOYEE RECEIVING  TIPS  AND
 PAID  PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR EACH
 HOUR WORKED IN THE COUNTIES OF NASSAU, SUFFOLK AND WESTCHESTER,  A  CASH
 WAGE OF NOT LESS THAN:
   $8.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;
   $9.50 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $11.00 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $13.00 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $15.00 PER HOUR ON AND AFTER DECEMBER 31, 2024.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH  SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH
 (B) OF SUBDIVISION ONE OF THIS SECTION.
   (D) NOTWITHSTANDING SUBDIVISIONS ONE  AND  TWO  OF  THIS  SECTION  AND
 SECTION SIX HUNDRED FIFTY-THREE OF THIS ARTICLE, THE WAGE FOR AN EMPLOY-
 EE  WHO  IS A FOOD SERVICE WORKER OR SERVICE EMPLOYEE RECEIVING TIPS AND
 PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 146 SHALL BE, FOR  EACH
 HOUR  WORKED  OUTSIDE  THE  CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
 SUFFOLK AND WESTCHESTER, A CASH WAGE OF NOT LESS THAN:
   $8.00 PER HOUR ON AND AFTER DECEMBER 31, 2020;
   $9.25 PER HOUR ON AND AFTER DECEMBER 31, 2021;
   $10.50 PER HOUR ON AND AFTER DECEMBER 31, 2022;
   $11.50 PER HOUR ON AND AFTER DECEMBER 31, 2023;
   $12.50 PER HOUR ON AND AFTER DECEMBER 31, 2024.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-FIVE, THE CASH
 WAGE PAYABLE TO A FOOD SERVICE WORKER OR SERVICE WORKER UNDER THIS PARA-
 GRAPH SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO  PARAGRAPH
 (C) OF SUBDIVISION ONE OF THIS SECTION.
   (E) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR  AN  EMPLOYEE  WHO IS A MISCELLANEOUS INDUSTRY WORKER RECEIVING TIPS
 AND PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART 142  SHALL  BE  FOR
 EACH HOUR WORKED IN THE CITY OF NEW YORK, A CASH WAGE OF NOT LESS THAN:
   $13.15  OR $13.85 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES, RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $15.00 PER HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON  AND  AFTER
 DECEMBER 31, 2020.
   BEGINNING  ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE CASH
 WAGE PAYABLE TO A MISCELLANEOUS INDUSTRY  WORKER  UNDER  THIS  PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (A) OF
 SUBDIVISION ONE OF THIS SECTION.
   (F) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR  AN  EMPLOYEE  WHO IS A MISCELLANEOUS INDUSTRY WORKER RECEIVING TIPS
 AND PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART  142  BE  FOR  EACH
 WORKED  IN  THE COUNTIES OF NASSAU, SUFFOLK AND WESTCHESTER, A CASH WAGE
 OF NOT LESS THAN:
   $11.40 OR $12.00 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES,  RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $14.00  PER  HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON AND AFTER
 DECEMBER 31, 2020.

 S. 8406--A                          4
 
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE  CASH
 WAGE  PAYABLE  TO  A  MISCELLANEOUS INDUSTRY WORKER UNDER THIS PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (B) OF
 SUBDIVISION ONE OF THIS SECTION.
   (G) NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, THE WAGE
 FOR  AN  EMPLOYEE  WHO IS A MISCELLANEOUS INDUSTRY WORKER RECEIVING TIPS
 AND PAID PURSUANT TO THE PROVISIONS OF 12 NYCRR PART  142  BE  FOR  EACH
 HOUR  WORKED  OUTSIDE  THE  CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
 SUFFOLK AND WESTCHESTER, A CASH WAGE OF NOT LESS THAN:
   $10.35 OR $10.90 PER HOUR FOR HIGH TIP AND LOW TIP EMPLOYEES,  RESPEC-
 TIVELY ON AND AFTER JUNE 30, 2020;
   $12.50  PER  HOUR FOR BOTH HIGH TIP AND LOW TIP EMPLOYEES ON AND AFTER
 DECEMBER 31, 2020.
   BEGINNING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE, THE  CASH
 WAGE  PAYABLE  TO  A  MISCELLANEOUS INDUSTRY WORKER UNDER THIS PARAGRAPH
 SHALL BE NOT LESS THAN THE WAGE ESTABLISHED PURSUANT TO PARAGRAPH (C) OF
 SUBDIVISION ONE OF THIS SECTION.
   § 4. Subdivision 2 of section 653 of the labor law, as added by  chap-
 ter 14 of the laws of 2000, is amended to read as follows:
   (2)  The  commissioner shall, within six months after enactment of any
 change in the statutory minimum wage set forth  in  subdivision  one  of
 section  six  hundred fifty-two of this article, appoint a wage board to
 inquire and report and recommend any changes to  wage  orders  governing
 wages  payable  to food service workers. Such wage board shall be estab-
 lished consistent with the provisions of subdivision one of section  six
 hundred  fifty-five  of  this article, except the representatives of the
 employees shall be selected upon the nomination of  the  state  American
 Federation  of Labor/Congress of Industrial Organizations; and provided,
 further, that the representatives of the  employers  shall  be  selected
 upon  the  nomination  of the New York State Business Council. [Any wage
 order authorizing a lesser wage  than  the  previously  and  statutorily
 mandated  minimum  wage for such employees shall be reviewed by the wage
 board to ascertain at what  level  such  wage  order  is  sufficient  to
 provide adequate maintenance and to protect the health and livelihood of
 employees subject to such a wage order after a statutory increase in the
 mandated minimum wage] NOTWITHSTANDING SECTION SIX HUNDRED FIFTY-FIVE OF
 THIS  ARTICLE, A WAGE ORDER UNDER THIS SUBDIVISION SHALL NOT AUTHORIZE A
 LESSER WAGE THAN THE PREVIOUSLY AND STATUTORILY  MANDATED  MINIMUM  WAGE
 FOR SUCH EMPLOYEES.
   § 5. This act shall take effect immediately.

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Senate Bill S8406A

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

2019-S8406 - Details

2019-S8406 - Summary

2019-S8406 - Sponsor Memo

2019-S8406 - Bill Text download pdf

co-Sponsors

2019-S8406A (ACTIVE) - Details

2019-S8406A (ACTIVE) - Summary

2019-S8406A (ACTIVE) - Sponsor Memo

2019-S8406A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8406A

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Sponsored By

Alessandra Biaggi

Archive: Last Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

Roxanne J. Persaud

2019-S8406 - Details

2019-S8406 - Summary

2019-S8406 - Sponsor Memo

2019-S8406 - Bill Text download pdf

co-Sponsors

Roxanne J. Persaud

Julia Salazar

2019-S8406A (ACTIVE) - Details

2019-S8406A (ACTIVE) - Summary

2019-S8406A (ACTIVE) - Sponsor Memo

2019-S8406A (ACTIVE) - Bill Text download pdf

Comments