Bill Text: NY A09439 | 2011-2012 | General Assembly | Amended

New York Assembly Bill 9439 (Prior Session Legislation)

Bill Title: Requires notice from employers to customers of service charges and administrative fees that are not distributed to employees as gratuities.

Spectrum: Moderate Partisan Bill (Democrat 25-8)

Status: (Introduced - Dead) 2012-06-18 - print number 9439c [A09439 Detail]

Download: New_York-2011-A09439-Amended.html

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        9439--C
                                 I N  A S S E M B L Y
                                     March 1, 2012
                                      ___________
       Introduced  by  M.  of A. GOLDFEDER, MONTESANO, MURRAY, LAVINE, SCHIMEL,
         DenDEKKER, WEPRIN, MOYA,  BRAUNSTEIN,  WEISENBERG,  SIMANOWITZ,  COOK,
         RYAN,  CUSICK,  BROOK-KRASNY,  BRINDISI, ESPINAL, TITUS, CLARK, AUBRY,
         SCARBOROUGH, M. MILLER, MAISEL, HEVESI, SIMOTAS, CYMBROWITZ --  Multi-
         Sponsored by -- M. of A. FITZPATRICK, LOSQUADRO, McDONOUGH, NOLAN, RA,
         RAIA,  SALADINO -- read once and referred to the Committee on Labor --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted  to  said  committee -- again reported from said committee
         with amendments, ordered reprinted as amended and recommitted to  said
         committee  --  again  reported  from  said  committee with amendments,
         ordered reprinted as amended and recommitted to said committee
       AN ACT to amend the labor law, in  relation  to  requiring  notice  from
         employers to customers of service charges and administration fees that
         are not distributed to employees as gratuities
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 196-d of the labor law, as added by chapter 1007 of
    2  the laws of 1968, is amended to read as follows:
    3    S 196-d. Gratuities. 1. AN  EMPLOYER  SHALL  NOT  BE  PROHIBITED  FROM
    4  ADDING  A MANDATORY GRATUITY AS LONG AS: (I) THE CHARGE IS CONSPICUOUSLY
    5  DISCLOSED TO THE CUSTOMER BEFORE FOOD OR BEVERAGE IS ORDERED;  AND  (II)
    6  NO  EMPLOYER  OR  HIS  AGENT  OR AN OFFICER OR AGENT OF ANY CORPORATION,
    7  SHALL RETAIN ANY PORTION OF SUCH  GRATUITY.  THE  DISCLOSURE  SHALL  USE
    8  ORDINARY  LANGUAGE  READILY  UNDERSTOOD  AND SHALL APPEAR IN A TYPE SIZE
    9  SIMILAR TO SURROUNDING TEXT.
   10    2. No employer or his agent or an officer or agent of any corporation,
   11  or any other person shall demand or accept, directly or indirectly,  any
   12  part of the gratuities, received by an employee, or retain any part of a
   13  gratuity  or  of  any charge purported to be a gratuity for an employee.
   14  This provision shall not apply to the checking of hats, coats  or  other
   15  apparel. Nothing in this subdivision shall be construed as affecting the
   16  allowances from the minimum wage for gratuities in the amount determined
   17  in  accordance  with  the provisions of article nineteen of this chapter
   18  nor as affecting practices in connection with banquets and other special
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14113-19-2
       A. 9439--C                          2
    1  functions where a fixed percentage of the patron's  bill  is  added  for
    2  gratuities  which  are  distributed  to employees, nor to the sharing of
    3  tips by a waiter with a busboy or similar employee.   AN  EMPLOYER  THAT
    4  IMPOSES  A  MANDATORY  SERVICE  CHARGE, ADMINISTRATIVE FEE, OR ANY OTHER
    5  SIMILAR CHARGE WHICH IS NOT DISTRIBUTED TO EMPLOYEES AS GRATUITIES  MUST
    6  PROVIDE  WRITTEN  NOTICE  TO  CUSTOMERS IN THE CONTRACT OR AGREEMENT FOR
    7  SERVICES AND ON THE CHECK OR INVOICE THAT THE CHARGE IS NOT  A  GRATUITY
    8  AND WILL NOT BE DISTRIBUTED TO EMPLOYEES WHO PROVIDED SERVICE TO GUESTS,
    9  OR  IF  ONLY  A  PORTION OF THE CHARGE IS DISTRIBUTED AS GRATUITIES, THE
   10  PORTION DISTRIBUTED AS GRATUITIES MUST BE IDENTIFIED. THE WRITTEN NOTICE
   11  TO CUSTOMERS IN THE CONTRACT OR AGREEMENT FOR SERVICES SHALL APPEAR IN A
   12  TYPE SIZE NO SMALLER THAN TWELVE POINT TYPE. THE STATEMENTS IN THE CHECK
   13  OR INVOICE SHALL USE ORDINARY  LANGUAGE  READILY  UNDERSTOOD  AND  SHALL
   14  APPEAR IN A TYPE SIZE SIMILAR TO SURROUNDING TEXT.
   15    3.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO ANY CAUSE OF ACTION BASED ON
   16  A CLAIM ARISING PRIOR TO JANUARY FIRST, TWO THOUSAND ELEVEN AND ALLEGING
   17  THAT A CHARGE FOR THE ADMINISTRATION OF A BANQUET, SPECIAL  FUNCTION  OR
   18  PACKAGE  DEAL  WAS  A  GRATUITY  THAT  (A) IT WAS NOT REPRESENTED TO THE
   19  CUSTOMER THAT THE CHARGE WAS A GRATUITY; (B) THE EMPLOYER CHARGED  SALES
   20  TAX  IN  ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE TAX LAW ON THE
   21  CHARGE; (C) THE EMPLOYER INCLUDED  THE  CHARGE  AS  PART  OF  ITS  GROSS
   22  RECEIPTS,  UPON  WHICH  INCOME  TAX WAS CALCULATED; AND (D) THE EMPLOYER
   23  COMPLIED WITH SECTION SIX HUNDRED FIFTY-TWO OF THIS CHAPTER.
   24    S 2. This act shall take effect on the thirtieth day  after  it  shall
   25  have become a law.