N.Y. Comp. Codes R. & Regs. tit. 12 § 146-3.2

Current through Register Vol. 46, No. 16, April 17, 2024

Section 146-3.2 - Employee

(a)Employee means any individual suffered or permitted to work in the hospitality industry by the operator of the establishment or by any other employer, except as provided below.

(b)Employee does not include any individual employed by a Federal, State or municipal government or political subdivision thereof.

(c)Employee also does not include any individual permitted to work in, or as:

(1) an executive, administrative or professional capacity:

(i) executive. Work in a bona fide executive capacity means work by an individual:

(a) whose primary duty consists of the management of the enterprise in which such individual is employed or of a customarily recognized department or subdivision thereof;

(b) who customarily and regularly directs the work of two or more other employees therein;

(c) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight;

(d) who customarily and regularly exercises discretionary powers; and

(e) who is paid for his services a salary, inclusive of board, lodging or other allowances and facilities, of at least the amounts listed below when working in:

(1) New York City for:

(i) Large employers of 11 or more employees:

$825.00 per week on and after December 31, 2016;

$975.00 per week on and after December 31, 2017;

$1,125.00 per week on and after December 31, 2018;

(ii) Small employers of 10 or fewer employees:

$787.50 per week on and after December 31, 2016;

$900.00 per week on and after December 31, 2017;

$1,012.50 per week on and after December 31, 2018;

$1,125.00 per week on and after December 31, 2019;

(2) Remainder of downstate (Nassau, Suffolk and Westchester counties):

$750.00 per week on and after December 31, 2016;

$825.00 per week on and after December 31, 2017;

$900.00 per week on and after December 31, 2018;

$975.00 per week on and after December 31, 2019;

$1,050.00 per week on and after December 31, 2020;

$1,125.00 per week on and after December 31, 2021;

(3) Remainder of state (outside of New York City, Nassau, Suffolk and Westchester counties)

$727.50 per week on and after December 31, 2016;

$780.00 per week on and after December 31, 2017;

$832.00 per week on and after December 31, 2018;

$885.00 per week on and after December 31, 2019;

$937.50 per week on and after December 31, 2020;

$990.00 per week on and after December 31, 2021;

$1,064.25 per week on and after December 31, 2022.

(ii) administrative. Work in a bona fide administrative capacity means work by an individual:

(a) whose primary duty consists of the performance of office or non-manual field work directly related to management policies or general operations of such individual's employer;

(b) who customarily and regularly exercises discretion and independent judgment;

(c) who regularly and directly assists an employer, or an employee employed in a bona fide executive or administrative capacity (e.g., employment as an administrative assistant); or who performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge; and

(d) who is paid for his services a salary, inclusive of board, lodging or other allowances and facilities, of at least the amounts listed below when working in:

(1) New York City for:

(i) Large employers of 11 or more employees:

$825.00 per week on and after December 31, 2016;

$975.00 per week on and after December 31, 2017;

$1,125.00 per week on and after December 31, 2018;

(ii) Small employers of 10 or fewer employees:

$787.50 per week on and after December 31, 2016;

$900.00 per week on and after December 31, 2017;

$1,012.50 per week on and after December 31, 2018;

$1,125.00 per week on and after December 31, 2019;

(2) Remainder of downstate (Nassau, Suffolk and Westchester counties):

$750.00 per week on and after December 31, 2016;

$825.00 per week on and after December 31, 2017;

$900.00 per week on and after December 31, 2018;

$975.00 per week on and after December 31, 2019;

$1,050.00 per week on and after December 31, 2020;

$1,125.00 per week on and after December 31, 2021;

(3) Remainder of state (outside of New York City, Nassau, Suffolk and Westchester counties)

$727.50 per week on and after December 31, 2016;

$780.00 per week on and after December 31, 2017;

$832.00 per week on and after December 31, 2018;

$885.00 per week on and after December 31, 2019;

$937.50 per week on and after December 31, 2020;

$990.00 per week on and after December 31, 2021;

$1,064.25 per week on and after December 31, 2022.

(iii) professional. Work in a bona fide professional capacity means work by an individual:

(a) whose primary duty consists of the performance of work:

(1) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes; or

(2) original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination or talent of the employee; and

(b) whose work requires the consistent exercise of discretion and judgment in its performance; or

(c) whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work), and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(2) an outside salesperson. The term outside salesperson means an individual who is customarily and predominantly engaged away from the premises of the employer and not at any fixed site and location for the purpose of:

(i) making sales; or

(ii) selling and delivering articles or goods; or

(iii) obtaining orders or contracts for service or for the use of facilities;

(3) a golf caddy. This exclusion shall not be deemed to exclude caddies from another minimum wage order which covers such employees;

(4) a camper worker. A camper who works no more than four hours a day for a children's camp and at all other times enjoys the same privileges, facilities and accommodations as a regular camper in such camp shall be known as a camper worker and shall not be an employee within the meaning of this Part;

(5) spa and bath workers employed by concessionaires in hotels or by spas and baths operated independently of hotels, who shall be covered under another minimum wage order. Spa and bath workers employed by hotels are employees under this Part;

(6) staff counselors in children's camps:

(i) a staff counselor is a person whose duties primarily relate to the guidance, instruction, supervision and care of campers in children's camps, whether such work involves direct charge of, or responsibility for, such activities, or merely assistance to persons in charge. The term staff counselor includes, but is not limited to: head counselor, assistant head counselor, specialist counselor or instructor (such as swimming counselor, arts and crafts counselor, etc.), group or division leader, camp mother or father, supervising counselor, senior counselor, counselor, general counselor, bunk counselor, assistant counselor, co-counselor, junior counselor, and counselor aide;

(ii)children's camp means any establishment which, as a whole or part of its business activities, is engaged in offering for children, on a resident or nonresident basis, recreational programs of supervised play or organized activity in such fields as sports, nature lore, and arts and crafts, whether known as camps, play groups, play schools, or by any other name. The term children's camp does not include an establishment which is open for a period of more than 17 consecutive weeks during the year.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 146-3.2

Amended New York State Register December 28, 2016/Volume XXXVIII, Issue 52, eff.12/31/2016

Amended New York State Register December 28, 2022/Volume XLIV, Issue 52, eff. 12/31/2022