PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 190 of Title 12 NYCRR.
Statutory authority:
Labor Law, sections 21, 652, 673 and 674
Subject:
Farm Worker Minimum Wage.
Purpose:
To comply with chapter 54 of the Laws of 2016 that increased the minimum wage.
Public hearing(s) will be held at:
10:00 a.m., December 5, 2016 at Building 12, State Campus, Albany, NY
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Text of proposed rule:
Part 190 of Title 12 of the New York Codes, Rules, and Regulations is amended as follows:
Subdivision (d) of section 190-1.3 is amended to read as follows:
(d) Basic minimum hourly wage means, in:
[(1) $7.15 per hour on and after January 1, 2007;
(2) $7.25 per hour on and after July 24, 2009;
(3) $8.00 per hour on and after December 31, 2013;
(4) $8.75 per hour on and after December 31, 2014;
(5) $9.00 per hour on and after December 31, 2015 or, if greater, such other wage as may be established by Federal law pursuant to 29 U.S.C. section 206 or any successor provisions.]
(1) New York City for
(i) Large employers of eleven or more employees
$11.00 per hour on and after December 31, 2016;
$13.00 per hour on and after December 31, 2017;
$15.00 per hour on and after December 31, 2018;
(ii) Small employers of ten or fewer employees
$10.50 per hour on and after December 31, 2016;
$12.00 per hour on and after December 31, 2017;
$13.50 per hour on and after December 31, 2018;
$15.00 per hour on and after December 31, 2019;
(2) Remainder of downstate (Nassau, Suffolk and Westchester counties)
$10.00 per hour on and after December 31, 2016;
$11.00 per hour on and after December 31, 2017;
$12.00 per hour on and after December 31, 2018;
$13.00 per hour on and after December 31, 2019;
$14.00 per hour on and after December 31, 2020;
$15.00 per hour on and after December 31, 2021,
(3) Remainder of state (outside of New York City and Nassau, Suffolk and Westchester counties)
$9.70 per hour on and after December 31, 2016;
$10.40 per hour on and after December 31, 2017;
$11.10 per hour on and after December 31, 2018;
$11.80 per hour on and after December 31, 2019;
$12.50 per hour on and after December 31, 2020.
(4) If a higher wage is established by Federal law pursuant to 29 U.S.C. section 206 or its successors, such wage shall apply.
Section 190-2.1 is amended to read as follows:
§ 190-2.1 Basic minimum wage rate.
The basic minimum wage rate shall be, for each hour worked in [shall be $7.15 per hour on and after January 1, 2007; $7.25 per hour on and after July 24, 2009; $8.00 per hour on and after December 31, 2013; $8.75 per hour on and after December 31, 2014; $9.00 per hour on and after December 31, 2015; or, if greater, such other wage as may be established by Federal law pursuant to 29 U.S.C. section 206 or any successor provisions.]
(a) New York City for
(1) Large employers of eleven or more employees
$11.00 per hour on and after December 31, 2016;
$13.00 per hour on and after December 31, 2017;
$15.00 per hour on and after December 31, 2018;
(2) Small employers of ten or fewer employees
$10.50 per hour on and after December 31, 2016;
$12.00 per hour on and after December 31, 2017;
$13.50 per hour on and after December 31, 2018;
$15.00 per hour on and after December 31, 2019;
(b) Remainder of downstate (Nassau, Suffolk and Westchester counties)
$10.00 per hour on and after December 31, 2016;
$11.00 per hour on and after December 31, 2017;
$12.00 per hour on and after December 31, 2018;
$13.00 per hour on and after December 31, 2019;
$14.00 per hour on and after December 31, 2020;
$15.00 per hour on and after December 31, 2021,
(c) Remainder of state (outside of New York City and Nassau, Suffolk and Westchester counties)
$9.70 per hour on and after December 31, 2016;
$10.40 per hour on and after December 31, 2017;
$11.10 per hour on and after December 31, 2018;
$11.80 per hour on and after December 31, 2019;
$12.50 per hour on and after December 31, 2020.
(d) If a higher wage is established by Federal law pursuant to 29 U.S.C. section206 or its successors, such wage shall apply.
Text of proposed rule and any required statements and analyses may be obtained from:
Michael Paglialonga, New York State Department of Labor, Building 12, Room 509, State Campus, Albany, NY 12240, (518) 457-4380, email: regulations@labor.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
Statutory Authority: Labor Law § 21 at subdivision (11), which provides that the Commissioner of Labor (“Commissioner”) may promulgate regulations related to the Labor Law;, 652, as amended by chapter 54 of the laws of 2016, at subdivision (2), which provides that the Commissioner must increase all monetary amounts set forth in Wage Orders in the same proportion as the increase in the minimum wage, Labor Law § 673which provides that the minimum wage for farm workers shall be not less than the rate established in Labor Law § 652, and Labor Law § 674 which provides that the Commissioner may promulgate regulations to carry out the provisions of Article 19-a of the Labor Law.
Legislative Objectives: Chapter 54 of the laws of 2016 provided that the minimum wage will be raised up to $15.00 per hour through phased annual increases ranging from $2.00 per year in New York City, to $0.70 per year upstate, on the following schedules: (1) $11.00, $13.00 and $15.00 on December 31 of each year from 2016-18, respectively, for work performed in New York City for large employers of 11 or more employees; (2) $10.50, $12.00, $13.50 and $15.00 on December 31 of 2016-19, respectively, for work performed in New York City for small employers of 10 or less employees; (3) $10.00, $11.00, $12.00, $13,00, $14.00 and $15.00 on December 31 of 2016-21, respectively, for work performed in the counties of Nassau, Suffolk and Westchester; and (4) $9.70, $10.40, $11.10, $11.80 and $12.50 on December 31 of 2016-20 for work performed in the rest of the state, with additional increases for the rest of the state to determined annually starting in 2021 and continuing until the rate reaches $15.00. The above rates are subject to annual administrative reviews, starting on or after January 1, 2019, to determine whether there should be a temporary suspension or delay in any scheduled increases, pursuant to a new subdivision 6 of Labor Law § 652. Labor Law § 652 provides for this rulemaking to amend existing wage orders to: (1) increase all monetary amounts in proportion to the increases in the minimum wage rates set forth in subdivision 1 and summarized above (subdivision 3); (2) set cash wage rates for tipped food service workers at two-thirds of the minimum wage rates, or $7.50, whichever is higher (subdivision 4); and (3) limit increases in meal and lodging allowances to two-thirds of the increase required by subdivision 2 (subdivision 5).
Needs and Benefits: The regulations implement the recent increases in the minimum wage rates enacted by chapter 54 of the laws of 2016 according to the statutory formulas set forth in Labor Law § 652 at subdivisions 2, 4 & (5), as amended. Specifically, the legislation increased the basic hourly minimum wage from its current rate of $9.00 up to $15.00 on the phased-in schedules set forth at subdivision 1 of Labor Law § 652 and summarized above. The regulations will benefit farmers and farm workers who are subject to the regulation by specifying the exact dollar amounts that result from those statutory formulas to facilitate compliance with statutory increases. Farm Workers will benefit from increases in those rates that specify additional pay required under certain circumstances, while employers will benefit from increases in those rates that specify allowances that employers can use as credits towards partial satisfaction of the minimum wage. The regulations do not establish or eliminate any requirements for additional pay or opportunities for allowances that employers may claim, but simply establish the new dollar amounts that result from the legislation enacted this year.
Costs: The cost of these rules to the regulated community is related to the cost of the increase in the minimum wage enacted by the legislature. There will be costs associated with providing the increase in the minimum wage.
Local Government Mandates: None. Federal, state and municipal governments and political subdivisions thereof are excluded from coverage under Part 190 and by Articles 19 and 19-a of the Labor Law.
Paperwork: None.
Duplication: This rule exceeds the federal minimum wage requirements, but follows the requirements set by the New York State Legislature.
Alternatives: These amendments made are required by law and thus there are no alternatives to amending these regulations.
Federal Standards: This rule implements the minimum wage and requirements set forth in New York law that exceeds the federal minimum wage. There are no other federal standards relating to this rule.
Compliance Schedule: The regulated community will be required to comply with this regulation on and after December 31, 2016.
Regulatory Flexibility Analysis
Effect of Rule: Some farms, but no local governments, are potentially affected by the changes in the regulations.
Compliance Requirements: There are no changes in the reporting or record-keeping requirements regarding the minimum wage. Farms that employ workers at rates that are near, or below, the new statutory minimum wage rates will have to review their payrolls in light of the new statutory minimum wage rates and the farm worker wage order, as amended by this rulemaking, to determine whether they must increase rates that they pay to their workers. During the phase-in period, when different minimum wage rates apply in different regions, employers who choose to pay different hourly rates for hours worked in different regions for a given employee during a single payroll period will have to track the hours worked at each rate. The requirement to track hours worked at different rates is not a new requirement imposed by this rulemaking and is based on the employer’s decision to pay different rates for different hours. That requirement can be avoided by paying the same hourly rate for work performed in two regions, as long as that hourly rate does not fall below the minimum rate for either region. Small businesses that employ 10 or fewer employees will have a slower phase-in schedule for hours worked in New York City than larger employers: their hourly minimum wage rates will be $0.50 lower during the first year, $1.00 lower during the second year, and $1.50 lower during the third year before equaling the same $15.00 rate in the fourth year.
Professional Services: No professional services would be required to effectuate the purposes of this rule.
Compliance Costs: These rules do not impose any additional costs separate and apart from the costs imposed by the legislature in increasing minimum wage rates and in establishing statutory formulas for adjusting amounts set forth in these rules. Such compliance costs, however characterized, do not exceed the cost of reviewing and increasing pay rates consistent with the statutory increases implemented by this rulemaking.
Economic and Technological Feasibility: Compliance with these regulations will be economically and technologically feasible because these regulations simply adjust existing rates, without imposing new, or altering existing, requirements or procedures for complying with minimum wage requirements.
Minimizing Adverse Impact: The increases to the minimum wage rates are required by law, which minimizes the adverse impact on small businesses by providing a slower phase-in schedule and lower minimum wage rates during that phase-in schedule, as set forth above. In addition, small businesses may choose to take steps to minimize their costs by claiming available allowances for items such as meals and lodging and by avoiding practices that trigger additional pay requirements for certain work shifts and uniform (clothing) practices.
Small Business and Local Government Participation: The increases in minimum wage rates were enacted by the legislature following public hearings held by an administrative wage board across the state in 2015 that resulted in establishment of a $15.00 minimum wage with different phase-in periods for New York City and the rest of the state for fast food chains. At those hearings, some small businesses joined workers, elected officials, public interest groups and academics in calling for a $15.00 minimum wage, and some small businesses joined others in calling for any future increases in the minimum wage to be applied across the board to employers in all industries, and to take into account differences between large and small employers. After administratively adopting a $15.00 minimum wage with different phase-in schedules for New York City and the rest of the state, the administration proposed statutory increases for all industries, with different phase-in schedules for three regions, and different phase-in schedules for work performed in New York City for large and small employers and those proposals were the subject of extensive public dialogue and input leading up to the enactment in 2016. Additional participation will be afforded through the public comment period for these regulations.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: These rules apply to farm workers in all areas of the state.
2. Reporting, recordkeeping and other compliance requirements; and professional services: There are no changes in the reporting or record-keeping requirements regarding the minimum wage and no professional services will be required to comply with this rule. Farms that employ workers at rates that are near, or below, the new statutory minimum wage rates will have to review their payrolls in light of the new statutory minimum wage rates and the farm worker wage order, as amended by this rulemaking, to determine whether they must increase the rates that they pay to their workers. During the phase-in period, when different minimum wage rates apply in different regions, employers who choose to pay different hourly rates for hours worked in different regions for a given employee during a single payroll period will have to track the hours worked at each rate. The requirement to track hours worked at different rates is not a new requirement imposed by this rulemaking and is based on the employer’s decision to pay different rates for different hours. That requirement can be avoided by paying the same hourly rate for work performed in two regions, as long as that hourly rate does not fall below the minimum rate for either region.
3. Costs: These rules do not impose any additional costs separate and apart from the costs imposed by the legislature in increasing minimum wage rates and in establishing statutory formulas for adjusting amounts set forth in these rules. Such compliance costs, however characterized, do not exceed the cost of reviewing and increasing pay rates consistent with the statutory increases implemented by this rulemaking.
4. Minimizing adverse impact: The increases to the minimum wage rates are required by law, but rural businesses may choose to take steps to minimize their costs by claiming available allowances for items such as meals and lodging and by avoiding practices that trigger additional pay requirements for certain work shifts and uniform (clothing) practices.
5. Rural area participation: The increases in minimum wage rates were enacted by the legislature following public hearings held by an administrative wage board across the state in 2015 that resulted in establishment of a $15.00 minimum wage with different phase-in periods for New York City and the rest of the state for fast food chains. At those hearings, some businesses joined workers, elected officials, public interest groups and academics in calling for a $15.00 minimum wage, and many businesses called for any future increases in the minimum wage to be applied across the board to employers in all industries. After administratively adopting a $15.00 minimum wage with different phase-in schedules for New York City and the rest of the state, the administration proposed statutory increases for all industries, with different phase-in schedules for three regions, and different phase-in schedules for work performed in New York City for large and small employers and those proposals were the subject of extensive public dialogue and input leading up to the enactment in 2016. Additional participation will be afforded through the public comment period for these regulations.
Job Impact Statement
1. Nature of impact: These regulations conform the Wage Orders to the statutory increases in the New York State minimum hourly wage rate that is required by Labor Law § 652 and the amendments thereto made by chapter 54 of the laws of 2016.
2. Categories and numbers affected: These regulations are required by statute or will have no impact on employment within the state.
3. Regions of adverse impact: These regulations will track the regions defined by the statutory increases and will provide the same statutory phase-in schedules that provide additional time for employment in upstate regions, and in downstate regions outside of New York City on the following schedules: (1) $11.00, $13.00 and $15.00 on December 31 of each year from 2016-18, respectively, for work performed in New York City for large employers of 11 or more employees; (2) $10.50, $12.00, $13.50 and $15.00 on December 31 of 2016-19, respectively, for work performed in New York City for small employers of 10 or less employees; (3) $10.00, $11.00, $12.00, $13,00, $14.00 and $15.00 on December 31 of 2016-21, respectively, for work performed in the counties of Nassau, Suffolk and Westchester; and (4) $9.70, $10.40, $11.10, $11.80 and $12.60 on December 31 of 2016-20 for work performed in the rest of the state, with additional increases for the rest of the state to determined annually starting in 2021 and continuing until the rate reaches $15.00.
4. Minimizing adverse impact: The increases to the minimum wage rates are required by law, but employers may minimize their costs and impact on jobs, by claiming available allowances for items such as meals and lodging and by avoiding practices that trigger additional pay requirements for certain work shifts and uniform (clothing) practices.
