Bill Text: NY A09439 | 2011-2012 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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--B 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 -- Multi-Sponsored by -- M. of A. FITZPATRICK, LOSQUADRO, McDONOUGH, NOLAN, RA, RAIA -- read once and referred to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- 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 19 functions where a fixed percentage of the patron's bill is added for 20 gratuities which are distributed to employees, nor to the sharing of EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14113-08-2 A. 9439--B 2 1 tips by a waiter with a busboy or similar employee. AN EMPLOYER THAT 2 IMPOSES A MANDATORY SERVICE CHARGE, ADMINISTRATIVE FEE, OR ANY OTHER 3 SIMILAR CHARGE WHICH IS NOT DISTRIBUTED TO EMPLOYEES AS GRATUITIES MUST 4 PROVIDE WRITTEN NOTICE TO CUSTOMERS IN THE CONTRACT OR AGREEMENT FOR 5 SERVICES AND ON THE CHECK OR INVOICE THAT THE CHARGE IS NOT A GRATUITY 6 AND WILL NOT BE DISTRIBUTED TO EMPLOYEES WHO PROVIDED SERVICE TO GUESTS, 7 OR IF ONLY A PORTION OF THE CHARGE IS DISTRIBUTED AS GRATUITIES, THE 8 PORTION DISTRIBUTED AS GRATUITIES MUST BE IDENTIFIED. THE WRITTEN 9 NOTICE TO CUSTOMERS IN THE CONTRACT OR AGREEMENT FOR SERVICES SHALL 10 APPEAR IN A TYPE SIZE NO SMALLER THAN TWELVE POINT TYPE. THE STATEMENTS 11 IN THE CHECK OR INVOICE SHALL USE ORDINARY LANGUAGE READILY UNDERSTOOD 12 AND SHALL APPEAR IN A TYPE SIZE SIMILAR TO SURROUNDING TEXT. NOTWITH- 13 STANDING THE FOREGOING, PRIOR TO THE EFFECTIVE DATE OF A CHAPTER OF THE 14 LAWS OF TWO THOUSAND TWELVE THAT AMENDED THIS SECTION, ANY MANDATORY 15 SERVICE OR ADMINISTRATIVE CHARGE, OR ANY MANDATORY FEE, IMPOSED BY AN 16 EMPLOYER AS PART OF A BANQUET SERVING TWENTY OR MORE GUESTS SHALL NOT BE 17 DEEMED A GRATUITY OR CHARGE PURPORTED TO BE A GRATUITY, AND SHALL NOT 18 FORM THE BASIS OF ANY LIABILITY UNDER THIS SECTION, ANY OTHER PROVISION 19 OF THIS CHAPTER OR ANY REGULATIONS IMPLEMENTED PURSUANT TO THIS CHAPTER 20 DESPITE THE ABSENCE OF SUCH DISCLOSURE OR AS A RESULT OF ANY REPRESEN- 21 TATION MADE BY ANY EMPLOYER OR HIS AGENT PROVIDED SUCH MANDATORY SERVICE 22 OR ADMINISTRATIVE CHARGE, OR ANY MANDATORY FEE, WAS NOT SPECIFICALLY 23 REPRESENTED TO A CUSTOMER OR EMPLOYEE IN WRITING TO BE A GRATUITY PAID 24 TO A FOOD SERVICE WORKER, AS DEFINED IN 12 N.Y.C.R.R. 146-3.4, BY THE 25 EMPLOYER OR HIS AGENT, THE EMPLOYER CHARGED SALES TAX IN ACCORDANCE WITH 26 THE APPLICABLE PROVISIONS OF THE NEW YORK TAX LAW ON THE MANDATORY 27 SERVICE OR ADMINISTRATIVE CHARGE, OR MANDATORY FEE, THE EMPLOYER 28 INCLUDED THE SERVICE OR ADMINISTRATIVE CHARGE OR MANDATORY FEE AS PART 29 OF ITS GROSS RECEIPTS, UPON WHICH INCOME TAX WAS CALCULATED, AND FOOD 30 SERVICE WORKERS EMPLOYED BY THE EMPLOYER AT THE BANQUET RECEIVED A REGU- 31 LAR RATE OF PAY EQUAL TO OR EXCEEDING THE MINIMUM WAGE SET FORTH IN THE 32 LABOR LAW. 33 S 2. This act shall take effect on the thirtieth day after it shall 34 have become a law.