Bill Text: NY A01710 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Provides for minimum wage requirements for miscellaneous industry workers.

Spectrum: Partisan Bill (Democrat 55-2)

Status: (Introduced) 2024-01-03 - referred to labor [A01710 Detail]

Download: New_York-2023-A01710-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1710

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 20, 2023
                                       ___________

        Introduced   by   M.  of  A.  GONZALEZ-ROJAS,  EPSTEIN,  KELLES,  CLARK,
          DE LOS SANTOS, CRUZ, GALLAGHER  --  read  once  and  referred  to  the
          Committee on Labor

        AN ACT to amend the labor law, in relation to providing for minimum wage
          requirements  for  miscellaneous industry workers and establishing the
          restaurant and restaurant worker recovery loan program; to  amend  the
          state  finance  law,  in  relation  to establishing the restaurant and
          restaurant worker recovery fund; making an appropriation therefor; and
          to provide for the repeal of such provisions upon expiration thereof

          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 or her 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 [with a
    15  busboy or similar employee] with other employees.
    16    §  2. Section 651 of the labor law is amended by adding a new subdivi-
    17  sion 10 to read as follows:
    18    10. "Miscellaneous industry worker" means any employee covered by  the
    19  minimum wage order for miscellaneous industries and occupations pursuant
    20  to  the  provisions of 12 NYCRR part 142, including, but not limited to,

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06920-01-3
        A. 1710                             2

     1  car wash attendants, nail salon workers, tow truck drivers,  dog  groom-
     2  ers,  wedding planners, tour guides, valet parking attendants, hairdres-
     3  sers, aestheticians, golf and tennis instructors, and door-persons.
     4    § 3. Subdivisions 2 and 4 of section 652 of the labor law, subdivision
     5  2 as amended by chapter 38 of the laws of 1990, the opening paragraph of
     6  subdivision  2  as  amended by section 6 of part II of chapter 58 of the
     7  laws of 2020, subdivision 4 as amended by section 2 of part K of chapter
     8  54 of the laws of 2016, are amended to read as follows:
     9    2. Existing wage orders. The minimum wage  orders  in  effect  on  the
    10  effective date of this act shall remain in full force and effect, except
    11  as modified in accordance with the provisions of this article; provided,
    12  however,  that  the minimum wage order for farm workers codified at part
    13  one hundred ninety of title twelve of the New York  code  of  rules  and
    14  regulations  in  effect  on  January first, two thousand twenty shall be
    15  deemed to be a wage order established and adopted under this article and
    16  shall remain in full force and effect except as modified  in  accordance
    17  with  the provisions of this article or article nineteen-A of this chap-
    18  ter.
    19    Such minimum wage orders shall be  modified  by  the  commissioner  to
    20  increase  all  monetary amounts specified therein in the same proportion
    21  as the increase in the hourly minimum wage as  provided  in  subdivision
    22  one  of  this  section,  including the amounts specified in such minimum
    23  wage orders as allowances for gratuities,  and  when  furnished  by  the
    24  employer  to  its  employees, for meals, lodging, apparel and other such
    25  items, services and facilities, except that the  hourly  cash  wage  for
    26  food service workers, service employees and miscellaneous industry work-
    27  ers who receive tips shall not be less than the cash wage as provided in
    28  subdivision  four  of  this  section, and the maximum credit for tips in
    29  minimum wage orders shall be modified so that such credit, when combined
    30  with such cash wage, is equal to the minimum wage, and the  hourly  cash
    31  wage  for miscellaneous industry workers shall not be less than the cash
    32  wage as provided in subdivision four of this  section.  All  amounts  so
    33  modified  shall  be  rounded off to the nearest five cents. The modified
    34  orders shall be promulgated by the commissioner without a  public  hear-
    35  ing,  and  without reference to a wage board, and shall become effective
    36  on the effective date of such increases in the minimum  wage  except  as
    37  otherwise  provided  in  this  subdivision,  notwithstanding  any  other
    38  provision of this article.
    39    4. (a) Notwithstanding subdivisions one and two of this  section,  the
    40  wage  for  an employee who is a food service worker receiving tips shall
    41  be a cash wage of at least two-thirds of  the  minimum  wage  rates  set
    42  forth  in  subdivision  one of this section, rounded to the nearest five
    43  cents or seven dollars and fifty cents, whichever  is  higher,  provided
    44  that  the  [tips]  average daily wage of such an employee, when tips for
    45  the day are added to [such] the cash wage paid for hours worked on  each
    46  such  day, are equal to or exceed the minimum wage in effect pursuant to
    47  subdivision one of this section and provided further that no other  cash
    48  wage  is established pursuant to section six hundred fifty-three of this
    49  article. Any cash wage  established  pursuant  to  section  six  hundred
    50  fifty-three  of this article shall not be less than the cash wage estab-
    51  lished by this subdivision.
    52    (b) Notwithstanding subdivisions one  and  two  of  this  section  and
    53  section six hundred fifty-three of this article, the wage for an employ-
    54  ee who is a food service worker service employee receiving tips and paid
    55  pursuant  to the provisions of 12 NYCRR part 146 shall be, for each hour
    56  worked in the city of New York, a cash wage of not less than:
        A. 1710                             3

     1    $9.00 per hour on and after December 31, 2023;
     2    $10.50 per hour on and after December 31, 2024;
     3    $12.00 per hour on and after December 31, 2025;
     4    $13.50 per hour on and after December 31, 2026;
     5    $15.00  per  hour  on  and  after  December 31, 2027, and beginning on
     6  December thirty-first, two thousand twenty-eight, and on each  following
     7  December  thirty-first thereafter, a cash wage payable to a food service
     8  worker or service worker shall be published by the  commissioner  on  or
     9  before October first of such year that is equal to the then current cash
    10  wage  under  this  paragraph increased by $1.75, until such time as such
    11  cash wage would be equal to or greater than the cash  wage  under  para-
    12  graph  (a)  of  subdivision one of this section, at which point the cash
    13  wage under this paragraph shall be the same as the cash wage under para-
    14  graph (a) of subdivision one of this section and shall increase whenever
    15  the latter increases.
    16    (c) Notwithstanding subdivisions one  and  two  of  this  section  and
    17  section six hundred fifty-three of this article, the wage for an employ-
    18  ee  who  is a food service worker or service employee receiving tips and
    19  paid pursuant to the provisions of 12 NYCRR part 146 shall be, for  each
    20  hour  worked  in the counties of Nassau, Suffolk and Westchester, a cash
    21  wage of not less than:
    22    $8.00 per hour on and after December 31, 2023;
    23    $9.50 per hour on and after December 31, 2024;
    24    $11.00 per hour on and after December 31, 2025;
    25    $13.00 per hour on and after December 31, 2026;
    26    $15.00 per hour on and after  December  31,  2027,  and  beginning  on
    27  December  thirty-first, two thousand twenty-eight, and on each following
    28  December thirty-first thereafter, a cash wage payable to a food  service
    29  worker  or  service  worker shall be published by the commissioner on or
    30  before October first of such year, that is equal  to  the  then  current
    31  cash  wage  under  this paragraph increased by $1.75, until such time as
    32  such cash wage would be equal to or greater than  the  cash  wage  under
    33  paragraph  (b)  of  subdivision  one of this section, at which point the
    34  cash wage payable under this paragraph shall be the  same  as  the  cash
    35  wage  under  paragraph  (b) of subdivision one of this section and shall
    36  increase whenever the latter increases.
    37    (d) Notwithstanding subdivisions one  and  two  of  this  section  and
    38  section six hundred fifty-three of this article, the wage for an employ-
    39  ee  who  is a food service worker or service employee receiving tips and
    40  paid pursuant to the provisions of 12 NYCRR part 146 shall be, for  each
    41  hour  worked  outside  the  city of New York and the counties of Nassau,
    42  Suffolk and Westchester, a cash wage of not less than:
    43    $8.00 per hour on and after December 31, 2023;
    44    $9.25 per hour on and after December 31, 2024;
    45    $10.50 per hour on and after December 31, 2025;
    46    $11.50 per hour on and after December 31, 2026;
    47    $12.50 per hour on and after  December  31,  2027,  and  beginning  on
    48  December  thirty-first, two thousand twenty-eight, and on each following
    49  December thirty-first thereafter, a cash wage payable to a food  service
    50  worker  or  service  worker shall be published by the commissioner on or
    51  before October first of such year that is equal to the then current cash
    52  wage under this paragraph increased by $1.75, until such  time  as  such
    53  cash  wage  would  be equal to or greater than the cash wage under para-
    54  graph (c) of subdivision one of this section, at which  point  the  cash
    55  wage  under this paragraph shall be the same as the wage under paragraph
        A. 1710                             4

     1  (c) of subdivision one of this section and shall increase  whenever  the
     2  latter increases.
     3    (e) Notwithstanding subdivisions one and two of this section, the wage
     4  for  an  employee  who is a miscellaneous industry worker receiving tips
     5  and paid pursuant to the provisions of 12 NYCRR part 142  shall  be  for
     6  each hour worked in the city of New York, a cash wage of not less than:
     7    $13.15  or $13.85 per hour for high tip and low tip employees, respec-
     8  tively on and after June 30, 2023;
     9    $15.00 per hour for both high tip and low tip employees on  and  after
    10  December  31, 2023, and beginning on December thirty-first, two thousand
    11  twenty-four, the cash wage payable under this  paragraph  shall  be  the
    12  same  as  the  cash  wage under paragraph (a) of subdivision one of this
    13  section and shall increase whenever the latter increases.
    14    (f) Notwithstanding subdivisions one and two of this section, the wage
    15  for an employee who is a miscellaneous industry  worker  receiving  tips
    16  and  paid  pursuant  to  the provisions of 12 NYCRR part 142 be for each
    17  worked in the counties of Nassau, Suffolk and Westchester, a  cash  wage
    18  of not less than:
    19    $11.40  or $12.00 per hour for high tip and low tip employees, respec-
    20  tively on and after June 30, 2023;
    21    $14.00 per hour for both high tip and low tip employees on  and  after
    22  December  31, 2023, and beginning on December thirty-first, two thousand
    23  twenty-four, the cash wage payable under this  paragraph  shall  be  the
    24  same  as  the  cash  wage under paragraph (b) of subdivision one of this
    25  section and shall increase whenever the latter increases.
    26    (g) Notwithstanding subdivisions one and two of this section, the wage
    27  for an employee who is a miscellaneous industry  worker  receiving  tips
    28  and  paid  pursuant  to  the provisions of 12 NYCRR part 142 be for each
    29  hour worked outside the city of New York and  the  counties  of  Nassau,
    30  Suffolk and Westchester, a cash wage of not less than:
    31    $10.35  or $10.90 per hour for high tip and low tip employees, respec-
    32  tively on and after June 30, 2023;
    33    $12.50 per hour for both high tip and low tip employees on  and  after
    34  December  31, 2023, and beginning on December thirty-first, two thousand
    35  twenty-four, the cash wage payable under this  paragraph  shall  be  the
    36  same  as  the  cash  wage under paragraph (c) of subdivision one of this
    37  section and shall increase whenever the latter increases.
    38    § 4. Subdivision 2 of section 653 of the labor law, as added by  chap-
    39  ter 14 of the laws of 2000, is amended to read as follows:
    40    (2)  The  commissioner shall, within six months after enactment of any
    41  change in the statutory minimum wage set forth  in  subdivision  one  of
    42  section  six  hundred fifty-two of this article, appoint a wage board to
    43  inquire and report and recommend any changes to  wage  orders  governing
    44  wages  payable  to food service workers. Such wage board shall be estab-
    45  lished consistent with the provisions of subdivision one of section  six
    46  hundred  fifty-five  of  this article, except the representatives of the
    47  employees shall be selected upon the nomination of  the  state  American
    48  Federation  of Labor/Congress of Industrial Organizations; and provided,
    49  further, that the representatives of the  employers  shall  be  selected
    50  upon  the  nomination  of the New York State Business Council. [Any wage
    51  order authorizing a lesser wage  than  the  previously  and  statutorily
    52  mandated  minimum  wage for such employees shall be reviewed by the wage
    53  board to ascertain at what  level  such  wage  order  is  sufficient  to
    54  provide adequate maintenance and to protect the health and livelihood of
    55  employees subject to such a wage order after a statutory increase in the
    56  mandated minimum wage] Notwithstanding section six hundred fifty-five of
        A. 1710                             5

     1  this  article, a wage order under this subdivision shall not authorize a
     2  lesser wage than the previously and statutorily  mandated  minimum  wage
     3  for such employees.
     4    § 5. The labor law is amended by adding a new section 198-f to read as
     5  follows:
     6    §  198-f. Restaurant and restaurant worker recovery fund loan program.
     7  1. There is established in the department a  restaurant  and  restaurant
     8  worker recovery fund loan program for the purposes of supporting restau-
     9  rants  in the state and helping their employees to survive the financial
    10  hardships created by the COVID-19 pandemic by providing loans to  quali-
    11  fying  restaurants  to  assist  in  covering  unanticipated  labor costs
    12  incurred as a result of the state of  emergency  that  was  declared  by
    13  executive  order  number two hundred two of two thousand twenty, and any
    14  further amendments or modifications thereto, and to encourage  providing
    15  a livable wage for restaurant workers who receive gratuities.
    16    2. As used in this section:
    17    (a)  "Equity training" means training as described in subdivision five
    18  of this section.
    19    (b) "Restaurant and restaurant worker recovery fund" or  "fund"  means
    20  the  restaurant and restaurant worker recovery fund established pursuant
    21  to section ninety-seven-ii of the state finance law.
    22    (c) "Qualifying restaurant" means a restaurant that meets the criteria
    23  established in subdivision three of this section.
    24    (d) "Small New York-based restaurant" means a restaurant located with-
    25  in the state that is a small business as defined by section one  hundred
    26  thirty-one of the economic development law.
    27    3.  (a) The department may make loans to qualifying restaurants in the
    28  amount of up to fifteen thousand dollars based on a formula and  process
    29  determined by the commissioner.
    30    (b)  To  be  eligible for a loan from the fund, a small New York-based
    31  restaurant shall pay all tipped employees not less than the full minimum
    32  hourly wage rate as defined by section six  hundred  fifty-two  of  this
    33  chapter as evidenced by:
    34    (i)  Proof that such a policy and practice is in existence at the time
    35  of the application for a loan from the fund; or
    36    (ii) Execution of a sworn affidavit attesting that such a  policy  and
    37  practice  shall  be  instituted  in  the restaurant within six months of
    38  receipt of a loan from the fund.
    39    4. (a) A loan made pursuant to the provisions of this section shall be
    40  forgiven in its entirety by the commissioner if the  following  criteria
    41  are met:
    42    (i)  The  restaurant  provides  proof  to the commissioner that it has
    43  participated in equity training within six  months  of  receipt  of  the
    44  interest-free loan from the fund; and
    45    (ii)  The  restaurant provides proof of implementation of a policy and
    46  practice of paying its tipped employees not less than the  full  minimum
    47  hourly  wage  rate  as  defined by section six hundred fifty-two of this
    48  chapter and that such policy and practice has been  in  effect  for  not
    49  less  than  two years from the date of receipt of the loan from the fund
    50  or, alternatively, the actual date of the implementation of such  policy
    51  and  practice  is not greater than six months after receipt of the loan,
    52  whichever is later.
    53    (b) If a restaurant that receives a loan under this section  fails  to
    54  meet and continue the requirements for accepting such loan, as set forth
    55  pursuant  to  this  section  and  as  the commissioner may require, such
    56  restaurant shall be required to pay back the total amount  of  the  loan
        A. 1710                             6

     1  accepted  plus  a  penalty  of  three percent of the total amount of the
     2  loan.
     3    5.  (a)  The  department  shall develop an equity training program for
     4  owners and  managers  of  qualifying  restaurants.  In  developing  such
     5  program,  the  department  may utilize existing department resources and
     6  programs and may consult with  organizations  that  have  a  history  of
     7  training  employers  on  best  practices  to increase wages and teaching
     8  gender and racial equity.
     9    (b) The equity training program shall include information and  materi-
    10  als pertaining to the best practices with respect to:
    11    (i)  Raising  wages to profitably pay a full minimum wage to all work-
    12  ers;
    13    (ii) Equitable sharing of tips;
    14    (iii) Increasing race and gender equity among employees, including:
    15    (A) Assessing and overhauling hiring, training, promotion  and  evalu-
    16  ation practices to ensure equity for women and people of color;
    17    (B) Implicit bias testing and training for management.
    18    (c) Materials provided to persons participating in the equity training
    19  shall include:
    20    (i) A calculation that allows employers to input the number of employ-
    21  ees  and  the menu process at the qualifying restaurant and provides the
    22  employer with the best pricing options to increase wages profitably;
    23    (ii) Three models and case studies of equitable  wage/gratuity  struc-
    24  tures,  including  one  that  addresses  service  charges  and  one that
    25  addresses gratuity-free models;
    26    (iii) case studies of the bottom-line benefits  of  increasing  equity
    27  among employees; and
    28    (iv) a model policy to address sexual harassment.
    29    (d)  The  department  shall  provide qualifying restaurant owners with
    30  technical assistance to help such  owners  to  develop  their  own  wage
    31  increase structure.
    32    (e)  The  department is authorized to expend up to seven hundred fifty
    33  thousand dollars  for  purposes  of  implementing  the  equity  training
    34  described in this subdivision.
    35    6.  Nothing in this section shall be construed to modify in any way an
    36  employee's right to receive gratuities pursuant to section  one  hundred
    37  ninety-six-d of this article.
    38    7.  The  commissioner is authorized to promulgate, amend and/or repeal
    39  such rules  and  regulations  as  may  be  necessary  to  implement  the
    40  provisions of this section.
    41    § 6. The state finance law is amended by adding a new section 97-ii to
    42  read as follows:
    43    §  97-ii.  Restaurant  and  restaurant  worker recovery fund. There is
    44  hereby established in the joint custody of the commissioner of  taxation
    45  and  finance  and  the  comptroller,  a  special fund to be known as the
    46  restaurant and restaurant worker recovery fund. Monies in the fund shall
    47  be kept separate from and not commingled with other funds  held  in  the
    48  custody of the commissioner of taxation and finance.
    49    2.  The fund shall consist of all monies appropriated for its purpose,
    50  all monies required by this section or any other provisions of law to be
    51  paid into or credited to such fund, and all  other  money  appropriated,
    52  credited,  or transferred thereto from any other fund or source pursuant
    53  to law. Nothing in this section shall prevent the state  from  receiving
    54  grants,  gifts  or  bequests  for the purposes of the fund as defined in
    55  this section and depositing them into the fund according to law.
        A. 1710                             7

     1    3. Monies of the fund shall, after appropriation by  the  legislature,
     2  be  made available to the department of labor and shall be expended only
     3  for the purposes of loans and equity training through and administrative
     4  expenses of the restaurant and  restaurant  worker  recovery  fund  loan
     5  program  established  by section one hundred ninety-eight-f of the labor
     6  law. Monies shall be payable from the fund by the commissioner of  taxa-
     7  tion and finance on vouchers approved by the commissioner of labor.
     8    4.  On or before the first day of February each year, the commissioner
     9  of labor shall provide a written report to the governor,  the  temporary
    10  president  of  the senate, the speaker of the assembly, the chair of the
    11  senate finance committee and the chair of the assembly  ways  and  means
    12  committee.  Such  report  shall  include how the monies of the fund were
    13  utilized during the preceding calendar year and shall include:  (a)  the
    14  amount  of  money  disbursed  from the fund; (b) the recipients of loans
    15  from the fund; (c)  the  amount  awarded  to  each  recipient;  (d)  the
    16  purposes for which such loans were granted; (e) the amount of loans that
    17  were  repaid  under  the  restaurant and restaurant worker recovery fund
    18  loan program; (f) the amount of  loans  that  were  forgiven  under  the
    19  restaurant  and  restaurant worker recovery fund loan program; and (g) a
    20  summary financial plan for such monies which shall include estimates  of
    21  all receipts and all disbursements for the current and succeeding fiscal
    22  years, along with the actual results from the prior fiscal year.
    23    § 7. The sum of fifty million dollars ($50,000,000), or so much there-
    24  of  as  may  be  available,  is hereby appropriated to the department of
    25  labor from any moneys in the state treasury in the general fund  to  the
    26  credit  of  the  state purposes account, not otherwise appropriated, and
    27  made  immediately  available,  for  the  purpose  of  carrying  out  the
    28  provisions  of  this  act. Such moneys shall be payable on the audit and
    29  warrant of the state comptroller on vouchers certified  or  approved  by
    30  the commissioner of labor in the manner prescribed by law.
    31    §  8. Upon the expiration and repeal of this act, any monies remaining
    32  in the restaurant and restaurant worker recovery fund established pursu-
    33  ant to section 97-ii of the state finance law shall be refunded  to  the
    34  state  treasury  in the general fund to the credit of the state purposes
    35  account.
    36    § 9. Severability clause. If any clause, sentence, paragraph, subdivi-
    37  sion, section or part of this act shall be  adjudged  by  any  court  of
    38  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    39  impair, or invalidate the remainder of this act, but shall  be  confined
    40  in  its  operation  to  the  clause,  sentence,  paragraph, subdivision,
    41  section or part of this act directly  involved  in  the  controversy  in
    42  which  such  judgment shall have been rendered. It is hereby declared to
    43  be the intent of the legislature that this act would have  been  enacted
    44  even  if  such invalid clause, sentence, paragraph, subdivision, section
    45  or part of this act had not been included herein.
    46    § 10. This act shall take effect immediately and shall expire  and  be
    47  deemed repealed July 1, 2025.