PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Addition of section 160.10(e) to Title 19 NYCRR.
Statutory authority:
Executive Law, section 91; and General Business Law, sections 402(5) and 404
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The Department of State (“Department”) is charged, inter alia, with the enforcement of New York General Business Law (“NY GBL”) Article 27, which relates to the appearance enhancement industry. A principal purpose behind the enactment of Article 27 was to provide a system of licensure of appearance enhancement businesses and operators that would both allow for the greatest possible flexibility in the establishment of regulated services and implement measures to protect those inextricably entwined in the industry. Consistent with this legislative intent of Article 27, the Department is empowered to issue regulations which protect the general welfare of the public, including licensed nail specialists. Notwithstanding existing laws and regulations, a number of businesses have taken unfair advantage of a significant number of licensed nail specialists who contribute to the community and economy. The ease with which some establishments have been able to deprive workers of fair wages and other rights is due in part to the inadequacy of effective efforts to educate workers and consumers on such rights. On July 15, 2015 Governor Cuomo signed into law new legislation (S.5966) which among other things obligates appearance enhancement business to provide a wage bond guaranteeing the wages legally due workers. The new law further supports continuation of this emergency regulation by educating business owners, workers and patrons about the right to fair wages.
To help ensure that consumers and workers, who are often vulnerable to abuses, are aware of certain workers’ rights, the Department finds that it is necessary to continue to require public posting of a Bill of Rights sign at every establishment that offers such services. The enhancement of public safety, health and general welfare necessitates the re-adoption of this regulation on an emergency basis. The Department finds that greater public and worker awareness of fair wages and other rights should reduce such unlawful activity and potential abuses by unscrupulous business owners. This rule was originally filed on an emergency basis on May 18, 2015 and first appeared in the State Register on June 3, 2015.
Subject:
Posting requirements.
Purpose:
To require posting of a Bill of Rights sign at all businesses where nail specialist services are offered.
Text of emergency/proposed rule:
New subdivision (e) is added to section 160.10 of Title 19 of the NYCRR.
Section 160.10. Posting requirements
(e) An owner who permits the practice of nail specialty to be conducted in an appearance enhancement business shall conspicuously post a nail practitioner bill of rights in a place where it will be readily visible by practitioners and the public. The Department of State shall furnish such sign to every place of business that permits the practice of nail specialty.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire October 12, 2015.
Text of rule and any required statements and analyses may be obtained from:
David A. Mossberg, Esq., NYS Department of State, 123 William Street, 20th Fl., New York, NY 10038, (212) 417-2063, email: david.mossberg@dos.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.
Regulatory Impact Statement
1. Statutory Authority:
New York Executive Law § 91 and New York General Business Law (“GBL”) § § 402(5); 404 and 405(2). Section 91 of the Executive Law authorizes the Secretary of State to: “adopt and promulgate such rules which shall regulate and control the exercise of the powers of the department of state.” In addition, Sections 401(5) and 404 of the GBL authorize the Secretary of State to promulgate rules specifically relating to the appearance enhancement industry.
2. Legislative Objectives:
Article 27 of the GBL was enacted, inter alia, to provide a system of licensure of appearance enhancement businesses and operators that would allow for the greatest possible flexibility in the establishment of regulated services, while establishing measures to protect members of the public, including those who work in the industry. Consistent with this legislative intent, the Department is empowered to issue regulations that accomplish these purposes.
3. Needs and Benefits:
Notwithstanding existing laws and regulations, a number of businesses have taken unfair advantage of a significant number of licensed nail care specialists who contribute to the community and economy. The ease with which such businesses have been able to deprive their workers with fair wages and other rights, is attributed in part, to failing to educate the workers and the public. To help ensure that nail care specialists are better protected, the Department is requiring that business owners post a bill of rights sign in an area easily seen by consumers and nail care specialists. The Department finds that greater public awareness regarding such unlawful activity should reduce potential abuses by unscrupulous business owners.
4. Costs:
a. Costs to Regulated Parties:
The Department does not anticipate any additional costs to business owners. The Department will provide the required signs and posting of the same should not increase costs to businesses.
b. Costs to the Department of State, the State, and Local Governments:
The Department does not anticipate additional costs to the state or local governments. The Department’s current budget will cover the costs associated with providing the required signage to businesses.
5. Local Government Mandates:
The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.
6. Paperwork:
This rule requires owners to publically post signs that will be provided by the Department.
7. Duplication:
This rule does not duplicate, overlap or conflict with any other state or federal requirement.
8. Alternatives:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is needed to protect the general welfare of approximately 162,000 practitioners who offer nail specialty services.
9. Federal Standards:
There are no minimum standards established by the federal government for the same or similar subject areas.
10. Compliance Schedule:
As stated in the emergency rule, this rule will be effective immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule requires public posting of a practitioner’s bill of rights sign in any business which offers nail care services. The Department finds that public posting of a bill of rights sign will help ensure that the nail care providers, who are often vulnerable to abuses, are aware of their rights, as well as the public they serve. The Department finds that greater public awareness regarding unfair wage practices will help reduce potential abuses by unscrupulous business owners. There are 26,753 appearance enhancement businesses and 7,764 area renters in New York State which may be subject to this rule.
2. Compliance requirements:
Owners subject to this rule will be required to post a sign provided by the Department in an area viewable by nail care specialists and the public.
3. Professional services:
The Department does not anticipate the need for professional services.
4. Compliance costs:
The Department does not anticipate that there will be any costs associated with complying with this rule.
5. Economic and technological feasibility:
This proposal is economically and technically feasible.
6. Minimizing adverse impact:
The Department did not identify any feasible alternatives which would achieve the results of the proposed rule and at the same time be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, and several advocacy and business groups and finds this rule is necessary for the wellbeing of all practitioners who offer nail specialty services.
7. Small business and local government participation:
The Department, in conjunction with other state agencies, has consulted with small business interests which may be affected by this rule. In addition, the Department has conducted significant outreach to inform the public regarding this rule, including posting this rule on the Department’s website and participating in a public forum detailing, inter alia, the purpose of this rule. Publication of the rule in the State Register will provide further notice of the proposed rulemaking to all interested parties. Additional comments will be received and entertained during the public comment period associated with this rulemaking.
8. Compliance:
As stated in the emergency rule, this rule is effective immediately.
9. Cure period:
The Department is not providing for a cure period prior to enforcement of these regulations. The Department finds that posting information regarding workers’ rights is a matter of publicity which those subject to this rule can easily comply with. As the Department is providing the required signs to those impacted by this rule, the Department finds that a cure period is not appropriate.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to appearance enhancement businesses that are licensed pursuant to Article 27 of the General Business Law. There are 26,753 appearance enhancement businesses and 7,764 area renters across New York State that may be subject to this rule. Licensed owners throughout the state, including those in rural areas, are responsible for complying with this rule.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule requires owners who offer nail care services to post a sign regarding a practitioner’s bill of rights. The rule does not impose other reporting or recordkeeping on owners. Further, there are no additional professional services required as a result of this regulation. No different or additional requirements are applicable exclusively to rural areas of the state.
3. Costs:
The Department does not anticipate that there will be any costs associated with complying with this rule.
4. Minimizing adverse impact:
The proposed rulemaking will improve the safety and wellbeing of nail care providers throughout the state, including rural areas. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups, but did not identify any feasible alternatives that would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
5. Rural area participation:
No significant comments have been received regarding this rulemaking. Publication of the Notice in the State Register will provide notice to all interested parties, including those in rural areas. Additional comments received on this rulemaking will be considered and assessed during imminent Proposed Rule Making process on this matter.
Job Impact Statement
1. Nature of impact:
This rulemaking applies to all appearance enhancement owners who offer nail care services. Pursuant to this rule, owners are required to post a bill of rights in an area viewable by nail care specialists and the public. The Department finds that posting of such rights will help reduce wage abuse by unscrupulous business owners. Insomuch as this rule is intended to protect the wellbeing of those working in the nail care industry, the Department believes this rule will have a positive impact on jobs and employment opportunities. Specifically, by providing better protections to these types of workers, the Department finds that more people may seek employment in this field.
2. Categories and numbers affected:
There are approximately 30,000 owners who would potentially be subject to this rulemaking. Further, there are approximately 162,000 licensees who offer services specified by this rule and who would benefit from the information provided by this public posting.
3. Regions of adverse impact:
The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or lawful employment opportunities.
4. Minimizing adverse impact:
The Department considered not proposing the instant rulemaking. It was determined, however, this rule is immediately needed to protect the general welfare of nail care practitioners, who may not know their rights. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups but did not identify any alternatives that would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
