New York Codes, Rules and Regulations › Title 12 - DEPARTMENT OF LABOR › Chapter II - DIVISION OF LABOR STANDARDS › Subchapter B - Minimum Wage Orders › Part 142 - MISCELLANEOUS INDUSTRIES AND OCCUPATIONS › Subpart 142-3 - PROVISIONS APPLICABLE TO EMPLOYEES IN NONPROFITMAKING INSTITUTIONS WHICH HAVE NOT ELECTED TO BE EXEMPT FROM COVERAGE UNDER A MINIMUM WAGE ORDER › Definitions › Section 142-3.12 - Employee

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Employee
means any individual permitted to work by an
						employer, except as provided below.
(b)
Employee
also 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) Labor on a farm. Farm
						employees are covered under the provisions of the minimum wage order for farm
						workers, Part 190 of this Title promulgated by the Commissioner of Labor
						pursuant to article 19-A of the New York State Labor Law.
(2) 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 institution 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 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;
(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 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.
(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.
(3)
						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;
(ii) selling and delivering articles or
						goods; or
(iii) obtaining orders or
						contracts for service or for the use of facilities.
(4) Taxicab driver. The term
driver
						engaged in operating a taxicab
means an individual employed to drive
						an automobile equipped to carry no more than seven passengers, which is used in
						the business of carrying or transporting passengers for hire on a zone or meter
						fare basis, and the use of which is generally limited to a community's local
						transportation needs and which is not operated over fixed routes, or between
						fixed terminals or under contract.
(5) Volunteer. The term
volunteer
means a person who works for a nonprofitmaking
						institution under no contract of hire, express or implied, and with no promise
						of compensation, other than reimbursement for expenses as part of the
						conditions of work.
(6) Learner.
(i) The term
learner
means a
						person in a nonprofitmaking institution who is participating in a bona fide
						training program for an occupation in which such person is employed, the
						required training period for which is recognized to be at least two
						weeks.
(ii) A bona fide training
						program is one which must involve either formal instruction or on-the-job
						training, during a period when the learner is entrusted with limited
						responsibility and is under supervision or guidance.
(iii) No person shall be deemed a learner at
						an institution in an occupation for which he or she has completed the required
						training; and in no case may a person be deemed a learner in such an occupation
						at an institution after 10 weeks of such training, except that a person may be
						deemed a learner for a longer period if the commissioner finds after
						investigation that for the particular occupation a minimum of proficiency
						cannot be acquired in 10 weeks.
(7) Apprentice.
(i) The term
apprentice
means a person in a nonprofitmaking institution whose work at an institution
						(
a
) is in an apprenticeable trade or occupation, and
						(
b
) is part of a bona fide training program leading to
						qualification as a journeyman in the trade or occupation.
(ii) No such apprentice training program
						shall be deemed bona fide unless it meets all of the following:
(a) it is for an occupation which is on
						either the Federal or New York State list of apprenticeable trades and
						occupations or is commonly recognized as such, but shall not include any of the
						following:
(1) occupations in the
						distributive field;
(2) managerial
						occupations;
(3) clerical
						occupations;
(4) professional or
						semiprofessional occupations (occupations for which entrance requirements
						customarily include education of college level);
(b) it requires at least two years (4,000
						hours) of work experience;
(c) it
						provides for a schedule of work processes or operations in which experience is
						to be given the apprentice on the job;
(d) it involves the development of skill
						sufficiently broad to be applicable in like occupations rather than to be
						limited to the requirements of one institution; and
(e) the employer keeps and makes available
						written evidence of the apprenticeship agreement or a detailed schedule of work
						processes and wages.
(8) Member of a religious order. The term
religious order
means a group of persons who are joined
						together under the authority of a religious leader, and are dedicated to the
						performance of religious works.
(9)
						Sexton. The term
sexton
means an individual who works as a
						caretaker at a place where religious services are held, or whose duties at such
						place are solely of a religious nature, or whose duties are partly religious
						and partly as a caretaker.
(10)
						Person who works in return for charitable aid. The term
work . . .
						incidental to or in return for charitable aid conferred
means any work
						or duties performed by a person who is not under any express contract of hire,
						in or for a nonprofitmaking religious or charitable institution, as a means of
						discharging an obligation to such an institution for charitable aid given to
						the worker.
(11) Student in or for
						a nonprofitmaking institution. The term
student
means an
						individual who is enrolled in and regularly attends during the daytime a course
						of instruction leading to a degree, certificate or diploma, offered at an
						institution of learning, or who is completing residence requirements for a
						degree. A person is deemed to be a student during the time that school is not
						in session if such person was a student during the preceding
						semester.
(12) Person whose earning
						capacity is impaired. The phrase
earning capacity . . . is impaired
						by
. . .
age, or by physical or mental deficiency or
						injury,
applies to a person in a nonprofitmaking institution whose
						earning capacity for the work to which he or she is assigned to perform is
						impaired by age, or by physical or mental deficiency or injury; but a person's
						earning capacity may not be deemed impaired by age until such person's 65th
						birthday.
(13) Staff counselor in a
						children's camp.
(i) A
staff
						counselor
is a person whose duties primarily relate to the guidance,
						instruction, supervision and care of campers in a children's camp, 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,
						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
						activities, is engaged in offering for children, on a resident or nonresident
						basis, recreational programs or supervised play or organized activity in such
						fields as sports, nature lore, and arts and crafts, whether known as camps,
						play groups, play school, or by any other name. The term
children's
						camp
does not include an establishment which is open for a period
						exceeding 17 consecutive weeks during the year.
(14) In or for a summer camp or conference
						for not more than three months annually.
(i)
						A person who works in not more than 13 calendar weeks in a calendar year in or
						for a summer camp or conference is deemed to have worked for
not more
						than three months annually.
A person who works in more than 13
						calendar weeks in a calendar year is deemed to be an employee for the entire
						period of employment.
(ii) A
summer camp or conference
means a camp or conference which is
						open any part of the period from June 21st to September 21st, and which is
						operated by a nonprofitmaking institution.