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(11), 652, 673 and 674
Subject:
Farmworker Minimum Wage.
Purpose:
To comply with chapter 57 of the laws of 2013 that increased the minimum wage.
Public hearing(s) will be held at:
2:00 p.m., Nov. 26, 2013 at Department of Labor, 333 E. Washington St., Syracuse, 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:
(1) [$5.15 per hour on and after March 31, 2000;
(2) $6.00 per hour on and after January 1, 2005;
(3) $6.75 per hour on and after January 1, 2006;
(4) ]$7.15 per hour on and after January 1, 2007;
([5]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.
Section 190-2.1 is amended to read as follows:
§ 190-2.1 Basic minimum wage rate.
The basic minimum wage rate for each hour worked shall be [$5.15 per hour on and after March 31, 2000; [$6.00 per hour on and after January 1, 2005; $6.75 per hour on and after January 1, 2006;] $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.
Section 190-2.3 is amended to read as follows:
§ 190-2.3 Youth rates.
Youths under 18 years of age shall be paid the basic minimum wage rates set forth in section 190-2.1 of this Subpart on and after December 31, 2013. Prior to December 31, 2013, t[T]he following rates shall apply to youths under 18 years of age, provided the employer has been issued a youth rate certificate by the commissioner:
(a) Harvest workers. Sixteen- and seventeen-year-old youths working in or in connection with the harvesting of fruits and vegetables in their first harvest season for an employer may be paid $2.85 per hour until January 1, 1991; $3.25 per hour on and after January 1, 1991; and $3.60 per hour on and after January 1, 1992. During their second harvest season with the same employer they may be paid $3 per hour until January 1, 1991; $3.40 per hour on and after January 1, 1991; and $3.80 per hour on and after January 1, 1992. During their third season for the same employer they shall be paid the basic minimum wage rate.
(b) Nonharvest workers. Sixteen- and seventeen-year-old youths working in nonharvest work may be paid $2.85 per hour during their first 300 hours of employment, until January 1, 1991; $3.25 per hour on and after January 1, 1991; and $3.60 per hour on and after January 1, 1992, $3 per hour during their second 300 hours of employment for the same employer until January 1, 1991; $3.40 per hour on and after January 1, 1991; and $3.80 per hour on and after January 1, 1992 and the basic minimum wage rate thereafter when working for the same employer.
(c) Youths under 16 years of age. Youths under 16 years of age may be employed only if each such youth has been issued a farm work permit by the appropriate authorities and may be paid $2.50 per hour until January 1, 1991; $2.85 per hour on and after January 1, 1991; and $3.20 per hour on and after January 1, 1992.
Text of proposed rule and any required statements and analyses may be obtained from:
Amy C. Karp, Department of Labor, Building 12, State Campus, Albany, NY, (518) 457-7350, 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.
Additional matter required by statute:
Pursuant to Section 674(3) of the Labor Law, Notice of Promulgation of is hereby given that this rulemaking will be adopted, effective December 31, 2013.
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(11), which provides that the Commissioner may promulgate regulations related to the Labor Law; Labor Law § 673 (1), which provides that the wage order for farmworkers must be increased so that farmworkers receive the minimum wage established under Labor Law § 652; and Labor Law § 674, which provides that the Commissioner may promulgate regulations to carry out the purposes of Article 19A of the Labor Law after a public hearing.
Legislative Objectives: The legislature provided that the Commissioner of Labor may regulate the minimum wage for farm workers to assure that they are paid the minimum wage. Chapter 57 of the laws of 2013 required increases in the minimum wage established at Labor Law § 652(1), which increases apply, by operation of law, to farm workers pursuant to Labor Law § 673(1).
Needs and Benefits: The regulations implement the recent increases in the minimum wage rates enacted by the legislature as part of chapter 57 of the laws of 2013. Specifically, the legislation increased the basic hourly minimum wage from its current rate of $7.25 to $8.00 on December 31, 2013, $8.75 on December 31, 2014, and $9.00 on December 31, 2015, and the regulations add those new rates to the current listings of minimum wage rates to ensure that those regulatory provisions accurately reflect the minimum wage rates going forward. The regulations will benefit farmers and farm workers who are subject to the regulation by ensuring that it accurately reflects the minimum wage rates. In addition, the regulation will benefit farm workers by ensuring that farm workers will receive the same minimum wage rates without regard to age by setting the new rates for youth under age 18 at the new statutory rates set forth above.
Costs: There will be costs associated with providing the increases in the minimum wage rates that were established by the legislature and with ending the period during which farm workers under the age of 18 may be paid at rates that are lower than such minimum wage rates.
Local Government Mandate: None. Federal, state and municipal governments and political subdivisions thereof are excluded from coverage under Part 190 by Labor Law § § 651(5) (last paragraph § 671(2).
Paperwork: None.
Duplication: This rule exceeds the federal minimum wage requirements, but follows the requirements set by the New York State Legislature.
Alternatives: The increases in minimum wage rates are required by law. The provision ending the period during which farm workers under the age of 18 may be paid less than the minimum wage rates was determined to be the best alternative to paying these workers subminimum wage.
Federal Standards: This rule implements minimum wage increases that exceed 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, 2013.
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 the rates that they pay to their workers.
Professional Services: No professional services would be required to effectuate the purposes of this rule.
Compliance Costs: The cost of this rule to farms is related to the cost of the increase in the minimum wage as set by the legislature by chapter 57 of the laws of 2013 that amended Labor Law § 652 and to the proposed amendment to the farm worker wage order to end the period for paying less than the minimum wage for workers under 18.
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, but farmers may choose to take steps to minimize their costs by claiming available allowances for items such as meals and lodging.
Small Business and Local Government Participation: The increases in minimum wage rates were enacted by the legislature following public hearings across the state in 2012 and were the subject of extensive public dialogue and input leading up to the enactment in 2013. Additional participation will be afforded through the public comment period, including a public hearing, for this rule.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: The amendments to the Farm Worker Wage Order (12 NYCRR 190) will apply to farm workers rural areas throughout the State.
2. Reporting, recordkeeping and other 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 the rates that they pay to their workers.
3. Professional services: No professional services will be required to comply with this rule.
4. Costs: The cost of this rule to farms is related to the cost of the increase in the minimum wage as set by the legislature by chapter 57 of the laws of 2013 that amended Labor Law § 652 and to the proposed amendment to the farm worker wage order to end the period for paying less than the minimum wage for workers under 18.
5. Minimizing adverse impact: The increases to the minimum wage rates are required by law, but farmers may choose to take steps to minimize their costs by claiming available allowances for items such as meals and lodging.
6. Rural area participation: The increases to the minimum wage rates are required by law, but rural areas will have an opportunity to participate during the rulemaking process, which includes a public hearing.
Job Impact Statement
1. Nature of impact: The amendment to these regulations, the Wage Order for Farm Workers (12 NYCRR 190) would provide the recently enacted minimum wage increases to be extended to farm workers of all ages.
2. Categories and numbers affected: This amendment will increase the wages for farm workers of all ages.
3. Regions of adverse impact: This amendment will affect those areas with farms that employ farm workers.
4. Minimizing adverse impact: This amendment implements the recently enacted increases in minimum wages and minimizes the adverse impact on adult workers by ensuring that those same rates are paid to workers regardless of age.
