Relates to the number of hours employees may work in the hospitality industry.
Ayes (58): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Montgomery, Nozzolio, O'Brien, O'Mara, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Absent (1): Parker
Excused (2): DeFrancisco, Maziarz
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.
STATE OF NEW YORK ________________________________________________________________________ 5792--B Cal. No. 57 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 -- 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