N.Y. Comp. Codes R. & Regs. tit. 12 § 470.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 470.3 - Value of gratuities

(a) The value of gratuities under section 517 of the Unemployment Insurance Law may be determined and established by rules promulgated by the Industrial Commissioner in the following manner:

(1) Public hearings with respect to which notice as to time, place and purpose has been given at least 20 days prior to the date of each such hearing shall be held in regard to such rules.

(2) Such rules shall be filed in the offices of the Industrial Commissioner and the Secretary of State and published within 30 days of the date of filing in the office of the Secretary of State. The public announcement shall indicate the date of filing in the office of the Secretary of State and such rules shall become effective 30 days after such filing unless otherwise specified therein.

(3) Notices pursuant to paragraph (1) above and announcements pursuant to paragraph (2) above shall be made in such manner as the Industrial Commissioner deems expedient for the purpose of giving due notice to all reasonably interested parties.

(b) Gratuities, the value of which is not established by any rule promulgated under this section, shall be reported at the actual amount if ascertainable or, if this be impossible, shall be evaluated by the employer upon a reasonable basis and reported by him accordingly. Employers shall submit upon request a statement of the basis used in, and sustaining the reasonableness of, such evaluation.

(c) Whenever the value of gratuities has been determined and established by a rule promulgated in accordance with this section, such determination shall be binding for the purpose of the Unemployment Insurance Law on all parties concerned with respect to the basis on which contributions and benefits are payable pursuant to sections 570 and 590 of such law, respectively.

(d) If the employer makes a definite service charge which is added to each customer's bill, or if in those places of the employer's establishment where the usual services to customers are rendered, announcements are conspicuously displayed forbidding the acceptance of gratuities (tips) by employees, or if such practice is actually brought to each customer's attention in writing at or before the time the customer is advised of the amount due the employer as a charge for the commodities sold or services rendered and the employer submits a sworn statement to the Department of Labor setting forth that his employees are not allowed to accept gratuities pursuant to an agreement or understanding with them, and that he adopts reasonable means to obtain compliance with such agreement or understanding, it shall be deemed that no gratuities are received by the employees of that employer unless the employer, directly or indirectly, encourages contravention of such practice.

(e) Any rule promulgated pursuant to subdivision (a) of this section may be modified in the Industrial Commissioner's discretion, after investigation and upon notice and hearing.

(f) If, after a rule promulgated pursuant to subdivision (a) of this section has been in effect two years or more, an application for a modification is made by representative organizations of employers or employees affected by such rule, new hearings shall be held within six months of such application. After proper hearings, a new rule shall be promulgated which may affirm or modify the rule in force and effect at the time such application was made. The provisions of subdivision (a) of this section shall apply to notices of hearings, promulgations of rules, and publications thereof under this subdivision.

(g) When, under any rule promulgated pursuant to subdivision (a) of this section, the value of gratuities received may be established by a statement submitted by an employee certifying the value of gratuities received by such employee, such statements shall be valid only if submitted not less frequently than once each calendar quarter, except that the statement for a period of employment shall not be valid unless submitted prior to the date of mailing or personal delivery of notice to the employer that the employee has filed an original claim for the first time subsequent to such period of employment.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 470.3