PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Parts 141, 142, 143 and 146 of Title 12 NYCRR.
Statutory authority:
Labor Law, sections 21(11), 652(2) and (6)
Subject:
Minimum Wage.
Purpose:
To comply with chapter 57 of the laws of 2013 that increased the minimum wage.
Substance of proposed rule (Full text is posted at the following State website:labor.ny.gov):
In compliance with Labor Law section 652, as amended by Part P of Chapter 57 of the laws of 2013, which, in part, will increase the minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015, the following modifications are made to existing Wage Orders:
12 NYCRR Part 141 (Minimum Wage Order for the Building Service Industry)- increase the basic hourly minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015 to reflect the increases in the minimum wage enacted in Part P of Chapter 57 of the laws of 2013 (141-1.3) with proportional increases to unit rate for janitors in residential buildings (141-1.2), allowances for utilities (141-1.6), uniform allowance (141-1.8), unit rate limitations (141-2.8), classification of executive work (141-3.2(c)(1)(i)), classification of administrative work (141-3.2(c)(1)(ii)).
12 NYCRR Part 142-2 (Minimum Wage Order for Miscellaneous Industries except Nonprofitmaking Institutions)- increase the basic hourly minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015 to reflect the increases in the minimum wage enacted in Part P of Chapter 57 of the laws of 2013 (142-2.1) with proportional increases to meal and lodging allowances (142-2.5)(a)), tip allowances (142-2.5(b), uniform allowance (142-2.5(c)), classification of executive work (142-2.14(c)(4)(i)), classification of administrative work (142-2.14(c)(4)(ii)).
12 NYCRR Part 142-3 (Minimum Wage Order for Nonprofit Making Institutions that have not Elected to be Exempt from Coverage under a Minimum Wage Order)- increase the basic hourly minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015 to reflect the increases in the minimum wage enacted in Part P of Chapter 57 of the laws of 2013 (142-3.1) with proportional increases to meal and lodging allowances (142-3.5)(a)), meal and lodging allowances for employees in children’s camps (143-3.5(b)), uniform allowance (142-3.5(c)), classification of executive work (142-3.12(c)(2)(i)), classification of administrative work (142-3.12(c)(2)(ii)).
12 NYCRR Part 143 (Minimum Wage Order for not-for-profit institutions that certifies that it will pay the stautory minimum wage in lieu of being covered under a minimum wage order)- increase the basic hourly minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015 to reflect the increases in the minimum wage enacted in Part P of Chapter 57 of the laws of 2013 (143.0(b)) with proportional increases to classification of executive work (143.1(b)(1)), with proportional increases to classification of administrative work (143.1(b)(2)).
12 NYCRR Part 146 (Minimum Wage Order for the Hospitality Industry)- increase basic hourly minimum wage to $8.00 per hour on and after December 31, 2013; $8.75 on and after December 31, 2014; and $9.00 on and after December 31, 2015 to reflect the increases in the minimum wage enacted in Part P of Chapter 57 of the laws of 2013 (146-1.2) and makes corresponding changes to reflect that wages and tips shall equal or exceed the minimum wage (146-1.3), makes changes to examples to indicate the time period for which the figures in the example apply (146-1.4), increases the cost of maintaining uniforms proportionately to the increase in the minimum wage (146-1.8), make corresponding changes to meal and lodging credits for all workers covered by this wage order other than food service workers and services employees (146-1.9); makes corresponding changes to the classification of executive work (146-3.2 (c)(1)(i)), makes corresponding changes to the classification of administrative work (146- 3.2(c)(1)(ii)) and changes the definition of service employee by increasing the amount of tips an employee must receive to be defined as a service employee covered by Part 146 (146-3.3(a)).
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:
45 days after publication of this notice.
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; and Labor Law § 652, as amended by chapter 57 of the laws of 2013, 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 and at subdivision 6, which provides that the cash wage and tip credit paid to food service workers and service employees covered by the Hospitality Wage Order (12 NYCRR 146) shall equal the minimum wage.
Legislative Objectives: Chapter 57 of the laws of 2013 provided that the minimum wage will be raised to $8.00 per hour on and after December 31, 2013; $8.75 per hour on and after December 31, 2014; and $9.00 on and after December 31, 2015. The Labor Law establishes a minimum hourly rate and requires the Commissioner to increase wage orders in a proportionate amount to reflect the increase the legislature deems necessary to provide. New subdivision 6 of Labor Law § 652 provides that the hourly cash wage and meal and lodging allowances for restaurant workers and service employees subject to 12 NYCRR 146 (Minimum Wage Order for the Hospitality Industry) shall not be raised in proportion to the minimum wage and that the tip credits set forth in 12 NYCRR 146 must be raised so that the cash wage combined with the tip credit equals the minimum wage. Labor Law § 652(2) also provides that these wage orders are to be promulgated by the Commissioner without a public hearing, and without reference to a wage board and will be effective on the effective date of an increase in the hourly minimum wage.
Needs and Benefits: The regulations implement the recent increases in the minimum wage rates enacted by chapter 57 of the laws of 2013 according to the statutory formulas set forth in Labor Law § 652(2) & (6), as amended. 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 Labor Law § 652(2) & (6) specify statutory formulas for increasing various other rates set forth in the regulations by reference to the above-referenced minimum wage increases. The regulations will benefit employers and employees by specifying the exact dollar amounts that result from those statutory formulas to facilitate compliance with statutory increases. Employees 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, including proportional increases in additional pay required in certain circumstances involving uniforms, and proportional savings associated with increases in certain allowances that can be used by employers to partially satisfy their minimum wage requirements and minimal initial additional cost associated with recordkeeping.
Local Government Mandate: None. Federal, state and municipal governments and political subdivisions thereof are excluded from coverage under Parts 141, 142, 143 and 146 by Labor Law Section 651(5)(n) and 651(5) (last paragraph). They are not covered under Part 143 because it covers only certain non-profit organizations, in accordance with Labor Law § 652(3).
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, 2013.
Regulatory Flexibility Analysis
Effect of Rule: All small businesses, 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. Small businesses in the hospitality industry, and small businesses in other industries 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 proposed wage orders to determine whether they will need to increase the amount that they pay to their workers.
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, but 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 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 for these regulations.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: These rules apply to all private employers in all areas of the state.
2. Reporting, recordkeeping and other compliance requirements: There are no changes in the reporting or record-keeping requirements regarding the minimum wage. Employers in the hospitality industry, and employers in other industries 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 proposed wage orders to determine whether they will need to increase the amount that they pay to their workers.
3. Professional services: No professional services will be required to comply with this rule.
4. 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.
5. Minimizing adverse impact: The increases to the minimum wage rates are required by law, but 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.
6. Rural area 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 for these regulations.
Job Impact Statement
1. Nature of Impact: These regulations conform the Wage Orders to the statutory increase in the New York State minimum hourly wage rate that is required by Labor Law § 652 and the amendments thereto made by chapter 57 of the laws of 2013.
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 not have a disproportionate impact upon any area of the State.
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.
