N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 141-3.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 141-3.2 - Employee

(a)Employee means any individual permitted to work by an employer in the building service industry, except as provided below.

(b) Employee does not include:

(1) an employee of an owner or lessee of a building occupying the entire building for his own use if such employee works exclusively in that building; or

(2) an individual working in or in connection with a bungalow colony. These exclusions shall not be deemed to be exclusions from coverage under another minimum wage order; or

(3) 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) 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; and

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

(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; and

(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 not less than 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 nonmanual field work directly related to management policies or general operations of his or her employer; and

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

(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 not less than the amounts listed below when working in:

(1) New York City by:

(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: 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 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) 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 the use of facilities.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 141-3.2

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