senate Bill S5792A

2013-2014 Legislative Session

Relates to the number of hours employees may work in the hospitality industry

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Mar 19, 2014 referred to labor
delivered to assembly
passed senate
Mar 03, 2014 amended on third reading (t) 5792b
Feb 03, 2014 advanced to third reading
Jan 28, 2014 2nd report cal.
Jan 27, 2014 1st report cal.57
Jan 08, 2014 referred to labor
Jun 18, 2013 print number 5792a
amend (t) and recommit to labor
Jun 14, 2013 referred to labor

Votes

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Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S5792 - Bill Details

Current Committee:
Law Section:
Labor Law
Laws Affected:
Add §196-e, Lab L
Versions Introduced in 2013-2014 Legislative Session:
A8016

S5792 - Bill Texts

view summary

Relates to the number of hours employees may work in the hospitality industry.

view sponsor memo
BILL NUMBER:S5792 REVISED 6/17/13

TITLE OF BILL: An act to amend the labor law, in relation to the
number of hours employees may work in certain retail and service
establishments

SUMMARY OF SPECIFIC PROVISIONS: This would add a new section 196-e to
the Labor Law and codify federal labor law.

JUSTIFICATION: Under the Federal Labor Standards Act (ELSA),
employees covered by the Act must receive overtime pay for hours
worked in excess of 4D hours in a workweek at a rate of at least 1.5x
their regular rate of pay. Their "regular rate of pay" includes
commissions.

Under ELSA Section 7{i), there is an exemption for calculating
overtime for workers who receive a "commission" gratuity (an automatic
gratuity) when certain conditions apply. That exemption applies when
the employee is employed by a retail or service establishment; the
employee's regular rate of pay exceeds 1.5x the applicable minimum
wage for every hour worked in a workweek in which overtime was paid;
and more than half the employee's total earnings in a representative
period consist of commissions. If the exemption applies, the employees
are still compensated at the overtime rate for the hourly part of
their pay, but the calculation of the commission gratuity part of
their pay is exempted and remains the same.

In New York, this federal exemption was never written into law, but it
was adopted by some wage orders. However, the Hotel Industry wage
order is silent as to the ELSA Section 7(i) exemptions. This bill
would codify the federal exemption into New York State law. This will
only affect workers making approximately over 3x the minimum wage.

PRIOR LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This would take effect immediately, provided however,
that this act shall be deemed to have been in full force and effect
with respect to any employers who paid overtime pursuant to a
collective bargaining agreement in existence prior to the date on
which this act shall have become a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5792

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 14, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- 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  the  number  of  hours
  employees may work in certain retail and service establishments

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new section  196-e  to
read as follows:
  S  196-E.  WORKWEEK HOURS IN CERTAIN RETAIL OR SERVICE ESTABLISHMENTS.
NO EMPLOYER SHALL BE DEEMED TO HAVE VIOLATED ANY  STATUTE,  RULE,  REGU-
LATION  OR ORDER BY EMPLOYING ANY EMPLOYEE OF A RETAIL OR SERVICE ESTAB-
LISHMENT FOR A WORKWEEK IN EXCESS OF THE APPLICABLE  WORKWEEK  SPECIFIED
THEREIN IF:
  (A)  THE  REGULAR RATE OF PAY OF SUCH EMPLOYEE IS IN EXCESS OF ONE AND
ONE-HALF TIMES THE MINIMUM HOURLY RATE APPLICABLE TO SUCH EMPLOYEE; AND
  (B) MORE THAN HALF THE EMPLOYEE'S COMPENSATION  FOR  A  REPRESENTATIVE
PERIOD,  WHICH  SHALL NOT BE LESS THAN ONE MONTH, REPRESENTS COMMISSIONS
ON GOODS OR SERVICES. IN  DETERMINING  THE  PROPORTION  OF  COMPENSATION
REPRESENTING COMMISSIONS, ALL EARNINGS RESULTING FROM THE APPLICATION OF
A  BONA  FIDE  COMMISSION  RATE  SHALL BE DEEMED COMMISSIONS ON GOODS OR
SERVICES WITHOUT REGARD TO WHETHER THE COMPUTED COMMISSIONS  EXCEED  THE
DRAW OR GUARANTEE.
  S  2.  This act shall take effect immediately, provided, however, that
this act shall be deemed to have been in  full  force  and  effect  with
respect  to  any  employers  who  paid overtime pursuant to a collective
bargaining agreement in existence prior to the date on  which  this  act
shall have become a law.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11508-02-3

S5792A - Bill Details

Current Committee:
Law Section:
Labor Law
Laws Affected:
Add §196-e, Lab L
Versions Introduced in 2013-2014 Legislative Session:
A8016

S5792A - Bill Texts

view summary

Relates to the number of hours employees may work in the hospitality industry.

view sponsor memo
BILL NUMBER:S5792A

TITLE OF BILL: An act to amend the labor law, in relation to the
number of hours employees may work in certain hospitality
establishments

SUMMARY OF SPECIFIC PROVISIONS:

This would add a new section 196-e to the Labor Law and codify federal
labor law.

JUSTIFICATION:

Under the Federal Labor Standards Act (ELSA), employees covered by the
Act must receive overtime pay for hours worked in excess of 40 hours
in a workweek at a rate of at least 1.5x their regular rate of pay.
Their "regular rate of Pay" includes commissions.

Under FLSA Section 7(i), there is an exemption for calculating
overtime for workers who receive a "commission" gratuity (an automatic
gratuity) when certain conditions apply. That exemption applies when
the employee is employed by a retail or service establishment; the
employee's regular rate of pay exceeds 1.5x the applicable minimum
wage for every hour worked in a workweek in which overtime was paid;
and more than half the employee's total earnings in a representative
period consist of commissions. If the exemption applies, the employees
are still compensated at the overtime rate for the hourly part of
their pay, but the calculation of the commission gratuity part of
their pay is exempted and remains the same.

In New York, this federal exemption was never written into law, but it
was adopted by some wage orders. However, the Hotel Industry wage
order is silent as to the ELSA Section 7(1) exemptions. This bill
would codify the federal exemption into New York State law. This will
apply only to hospitality workers, and will affect only those making
approximately over three times the minimum wage.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This would take effect immediately, provided however, that this act
shall be deemed to have been in full force and effect with respect to
any employers who paid overtime pursuant to a collective bargaining
agreement in existence prior to the daze on which this act shall have
become a law.

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download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5792--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 14, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be  committed  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 the number of hours
  employees may work in certain hospitality establishments

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The labor law is amended by adding a new section 196-e to
read as follows:
  S 196-E. WORKWEEK HOURS  IN  CERTAIN  HOSPITALITY  ESTABLISHMENTS.  NO
EMPLOYER  SHALL BE DEEMED TO HAVE VIOLATED ANY STATUTE, RULE, REGULATION
OR ORDER BY EMPLOYING ANY EMPLOYEE OF A HOSPITALITY ESTABLISHMENT FOR  A
WORKWEEK IN EXCESS OF THE APPLICABLE WORKWEEK SPECIFIED THEREIN IF:
  (A)  THE  REGULAR RATE OF PAY OF SUCH EMPLOYEE IS IN EXCESS OF ONE AND
ONE-HALF TIMES THE MINIMUM HOURLY RATE APPLICABLE TO SUCH EMPLOYEE; AND
  (B) MORE THAN HALF THE EMPLOYEE'S COMPENSATION  FOR  A  REPRESENTATIVE
PERIOD,  WHICH  SHALL NOT BE LESS THAN ONE MONTH, REPRESENTS COMMISSIONS
ON GOODS OR SERVICES. IN  DETERMINING  THE  PROPORTION  OF  COMPENSATION
REPRESENTING COMMISSIONS, ALL EARNINGS RESULTING FROM THE APPLICATION OF
A  BONA  FIDE  COMMISSION  RATE  SHALL BE DEEMED COMMISSIONS ON GOODS OR
SERVICES WITHOUT REGARD TO WHETHER THE COMPUTED COMMISSIONS  EXCEED  THE
DRAW OR GUARANTEE.
  S  2.  This act shall take effect immediately, provided, however, that
this act shall be deemed to have been in  full  force  and  effect  with
respect to any employer who paid overtime prior to the effective date of
this act.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11508-05-3

Co-Sponsors

S5792B (ACTIVE) - Bill Details

Current Committee:
Law Section:
Labor Law
Laws Affected:
Add §196-e, Lab L
Versions Introduced in 2013-2014 Legislative Session:
A8016

S5792B (ACTIVE) - Bill Texts

view summary

Relates to the number of hours employees may work in the hospitality industry.

view sponsor memo
BILL NUMBER:S5792B

TITLE OF BILL: An act to amend the labor law, in relation to the
number of hours employees may work in the hospitality industry

PURPOSE OR GENERAL IDEA OF BILL: To provide clarification regarding
overtime exemptions for certain hospitality industry employees who
receive compensation based on service charges, mandatory gratuities or
similar charges.

SUMMARY OF SPECIFIC PROVISIONS: This would add a new section 196-e to
the Labor Law.

JUSTIFICATION: This legislation would incorporate into state law an
exemption to overtime compensation requirements for certain
hospitality industry (hotel and restaurant) workers.

Under the Federal Fair Labor Standards Act (FLSA), employees must
receive overtime pay for hours worked in excess of 40 hours in a work
week at a rate of at least 1.5 times their regular rate of pay, and
this provision is incorporated in New York State Labor regulations (12
NYCRR 146-1.4). However, the FLSA provides an exemption from the
obligation to pay overtime to workers if:

(i) they are employed by a retail or service establishment; and

(ii) their regular rate of pay exceeds 1.5 times the applicable
minimum hourly wage rate in the work week in which overtime hours are
worked; and

(iii) more than half the employee's total earnings in a representative
period consist of commissions.

New York State Labor regulations do not provide such an exemption.
This legislation would provide for an exemption comparable to the
federal exemption in New York State law for hospitality industry
workers. This exemption would have no effect on most employees in the
hospitality industry who will continue to receive overtime pay as they
currently do. Only employees whose regular rate of pay is at least 2
times the statutory minimum wage (i.e., $16.00 per hour in 2014) and
who receive at least 50% of their remuneration from service charges,
mandatory gratuities or similar charges would be exempt from statutory
overtime. These include employees employed in, or performing the work
of, the classifications of banquet servers, banquet, captains, banquet
bartenders, room service servers, room service captains, room service
order takers, and pages. Without application of the exemption,
compensation for these employees would be substantially increased,
making banquet operations unsustainable for many hotels and
restaurants. This would jeopardize the entire banquet industry,
adversely affecting not only servers and captains, but cooks, stewards
and housepersons, and the rewarding jobs that these team members rely
on.

Incorporating an exemption comparable to the federal exemption will
ensure equitable compensation for employees receiving compensation in
addition to their hourly rate of pay and allow hospitality industry
employers to continue banquet operations.


LEGISLATIVE HISTORY: 2013 - died in Labor Committee in both Houses.

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect immediately, provided,
however, that this act shall be deemed to have been in full force and
effect with respect to any employee in the hospitality industry who
received compensation consistent with section 1 of this Act prior to
the effective date of this act.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5792--B
    Cal. No. 57

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 14, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee,  ordered  to  first  and  second report, ordered to a third
  reading, amended and ordered reprinted, retaining  its  place  in  the
  order of third reading

AN  ACT  to  amend  the  labor  law,  in relation to the number of hours
  employees may work in the hospitality industry

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The labor law is amended by adding a new section 196-e to
read as follows:
  S 196-E. WORKWEEK HOURS IN THE HOSPITALITY INDUSTRY. NO EMPLOYER SHALL
BE DEEMED TO HAVE VIOLATED ANY STATUTE, RULE,  REGULATION  OR  ORDER  BY
EMPLOYING  ANY  EMPLOYEE  IN  THE HOSPITALITY INDUSTRY FOR A WORKWEEK IN
EXCESS OF THE APPLICABLE WORKWEEK SPECIFIED THEREIN IF:
  (A) THE REGULAR RATE OF PAY OF SUCH EMPLOYEE IS IN EXCESS OF TWICE THE
STATUTORY MINIMUM HOURLY RATE APPLICABLE TO SUCH EMPLOYEE; AND
  (B) MORE THAN HALF THE EMPLOYEE'S COMPENSATION  FOR  A  REPRESENTATIVE
PERIOD,  WHICH SHALL NOT BE LESS THAN ONE MONTH, REPRESENTS COMPENSATION
FROM SERVICE CHARGES, MANDATORY GRATUITY ON GOODS OR SERVICES.
  S 2. This act shall take effect immediately, provided,  however,  that
this  act  shall  be  deemed  to have been in full force and effect with
respect to any employee in the hospitality industry who received compen-
sation consistent with section 196-e of  the  labor  law,  as  added  by
section one of this act, prior to the effective date of this act.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11508-07-4

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