This bill has been amended

Bill S5792A-2013

Relates to the number hours employees may work in certain hospitality establishments

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



  • Jan 28, 2014: 2ND REPORT CAL.
  • Jan 27, 2014: 1ST REPORT CAL.57
  • Jan 8, 2014: REFERRED TO LABOR
  • Jun 18, 2013: PRINT NUMBER 5792A
  • Jun 14, 2013: REFERRED TO LABOR




VOTE: COMMITTEE VOTE: - Labor - Jan 27, 2014
Ayes (10): Savino, DeFrancisco, Gallivan, Grisanti, Marcellino, Marchione, Robach, Addabbo, Dilan, Rivera
Ayes W/R (5): Hannon, Martins, Peralta, Perkins, Sanders
Nays (1): Ball



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


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


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.


New bill.




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.


STATE OF NEW YORK ________________________________________________________________________ 5792--A 2013-2014 Regular Sessions IN SENATE 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.


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