Opinion
279 A.D. 948 110 N.Y.S.2d 751 EDWARD CORSI, as Industrial Commissioner, Appellant.
Supreme Court of New York, Third Department. March 12, 1952
Appeal by Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board. Provision is made by section 517 of the Unemployment Insurance Law (Labor Law, art. 18) for gratuities received in the course of employment. The 'value of such gratuities shall be determined by the commissioner and be deemed and included as part of his remuneration'. Section 597 provides that the 'amount of benefits payable' shall be determined in accordance with 'the regulations and procedure established' by the commissioner. The commissioner has established a regulation by which the value of gratuities or tips received by hotel chambermaids is determined from the amount given in a statement from the employee to the employer, and if no statement is given, it is determined to be 'nil'. Claimant was a chambermaid in a Catskill summer hotel during 1948, and it appears that it was the custom of guests to tip hotel maids in that area and she testified that during that summer her tips were about $400. She did not, however, file a statement with the employer of the amount of her tips and such amount was not included by the employer in the tax return, and the referee held that since no such statement was given as required by the regulations of the commissioner such amount could not be treated as additional remuneration. The Appeal Board reversed this determination on the ground that the commissioner had the duty of 'determining the value of gratuities', which could not be delegated to employees. The commissioner could not, of course, 'determine' the value of gratuities by personal or officially delegated observation, and the very nature of gratuities requires that the determination of the amount depends upon the calculation and report of the recipient. We think the requirement of the commissioner's regulation that reports of gratuities be made to employers and if not so reported be regarded as nil is an entirely reasonable one, and it seems to represent the general view of representatives of chambermaids in hearings before the commissioner. The requirement adequately meets the situation in areas where gratuities are substantial enough to be important in computing unemployment insurance benefits, a situation that is met by the filing of a statement. Determination of the Appeal Board reversed on the law, and that of the referee reinstated, without costs.
Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.