N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 142-3.12

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

Section 142-3.12 - Employee

(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.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 142-3.12

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