Bill Text: NY A02179 | 2013-2014 | General Assembly | Amended

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Bill Title: Requires notice from employers to customers of service charges and administrative fees that are not distributed to employees as gratuities.

Spectrum: Moderate Partisan Bill (Democrat 27-4)

Status: (Introduced - Dead) 2014-05-20 - print number 2179e [A02179 Detail]

Download: New_York-2013-A02179-Amended.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        2179--E
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by M. of A. GOLDFEDER, MONTESANO, WEPRIN, COOK, CLARK, RYAN,
         TITUS, AUBRY, SCARBOROUGH, LAVINE, BRAUNSTEIN, CUSICK,  MILLER,  SCHI-
         MEL,  WEISENBERG, BROOK-KRASNY, DenDEKKER, SIMANOWITZ, BRINDISI, SIMO-
         TAS, CYMBROWITZ, THIELE, BENEDETTO, KIM, MORELLE,  SALADINO,  RAIA  --
         Multi-Sponsored by -- M. of A. McDONALD, RA, SANTABARBARA -- read once
         and  referred  to the Committee on Labor -- committee discharged, bill
         amended, ordered reprinted as amended and recommitted to said  commit-
         tee  --  again  reported  from said committee with amendments, ordered
         reprinted as amended  and  recommitted  to  said  committee  --  again
         reported  from  said  committee  with amendments, ordered reprinted as
         amended and recommitted to said committee -- again reported from  said
         committee  with amendments, ordered reprinted as amended and recommit-
         ted to said committee -- recommitted to  the  Committee  on  Labor  in
         accordance  with Assembly Rule 3, sec. 2 -- committee discharged, bill
         amended, ordered reprinted as amended and recommitted to said  commit-
         tee
       AN  ACT  to  amend  the  labor law, in relation to requiring notice from
         employers to customers of service charges and administration fees that
         are not distributed to employees as gratuities
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 196-d of the labor law, as added by chapter 1007 of
    2  the laws of 1968, is amended to read as follows:
    3    S  196-d.  Gratuities.  1.  AN  EMPLOYER  SHALL NOT BE PROHIBITED FROM
    4  ADDING A MANDATORY GRATUITY AS LONG AS: (A) THE CHARGE IS  CONSPICUOUSLY
    5  DISCLOSED TO THE CUSTOMER BEFORE FOOD OR BEVERAGE IS ORDERED; AND (B) NO
    6  EMPLOYER  OR  HIS AGENT OR AN OFFICER OR AGENT OF ANY CORPORATION, SHALL
    7  RETAIN ANY PORTION OF SUCH GRATUITY. THE DISCLOSURE SHALL  USE  ORDINARY
    8  LANGUAGE  READILY  UNDERSTOOD AND SHALL APPEAR IN A TYPE SIZE SIMILAR TO
    9  SURROUNDING TEXT.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00028-13-4
       A. 2179--E                          2
    1    2. No employer or his agent or an officer or agent of any corporation,
    2  or any other person shall demand or accept, directly or indirectly,  any
    3  part of the gratuities, received by an employee, or retain any part of a
    4  gratuity  or  of  any charge purported to be a gratuity for an employee.
    5  This  provision  shall not apply to the checking of hats, coats or other
    6  apparel. Nothing in this subdivision shall be construed as affecting the
    7  allowances from the minimum wage for gratuities in the amount determined
    8  in accordance with the provisions of article nineteen  of  this  chapter
    9  nor as affecting practices in connection with banquets and other special
   10  functions  where  a  fixed  percentage of the patron's bill is added for
   11  gratuities which are distributed to employees, nor  to  the  sharing  of
   12  tips  by  a  waiter with a busboy or similar employee.  AN EMPLOYER THAT
   13  IMPOSES A MANDATORY SERVICE CHARGE, ADMINISTRATIVE  FEE,  OR  ANY  OTHER
   14  SIMILAR  CHARGE WHICH IS NOT DISTRIBUTED TO EMPLOYEES AS GRATUITIES MUST
   15  PROVIDE WRITTEN NOTICE TO CUSTOMERS IN THE  CONTRACT  OR  AGREEMENT  FOR
   16  SERVICES  AND  ON THE CHECK OR INVOICE THAT THE CHARGE IS NOT A GRATUITY
   17  AND WILL NOT BE DISTRIBUTED TO EMPLOYEES WHO PROVIDED SERVICE TO GUESTS,
   18  OR IF ONLY A PORTION OF THE CHARGE IS  DISTRIBUTED  AS  GRATUITIES,  THE
   19  PORTION  DISTRIBUTED  AS  GRATUITIES  MUST  BE IDENTIFIED.   THE WRITTEN
   20  NOTICE TO CUSTOMERS IN THE CONTRACT  OR  AGREEMENT  FOR  SERVICES  SHALL
   21  APPEAR  IN A TYPE SIZE NO SMALLER THAN TWELVE POINT TYPE. THE STATEMENTS
   22  IN THE CHECK OR INVOICE SHALL USE ORDINARY LANGUAGE  READILY  UNDERSTOOD
   23  AND SHALL APPEAR IN A TYPE SIZE SIMILAR TO SURROUNDING TEXT.
   24    3.  NOTWITHSTANDING  THE FOREGOING, THERE SHALL BE NO LIABILITY TO ANY
   25  ACTION ALLEGING THAT ANY SERVICE  CHARGE,  ADMINISTRATIVE  FEE,  OR  ANY
   26  OTHER  SIMILAR CHARGE IMPOSED AS PART OF A BANQUET HELD PRIOR TO JANUARY
   27  FIRST, TWO THOUSAND ELEVEN WAS A GRATUITY, IF THE EMPLOYER PROVES AS  AN
   28  AFFIRMATIVE  DEFENSE  THAT ALL OF THE FOLLOWING CONDITIONS WERE MET: (A)
   29  THE EMPLOYER OR EMPLOYER'S AGENT DID  NOT  EXPRESSLY  REPRESENT  TO  THE
   30  CUSTOMER  THAT THE CHARGE WAS A GRATUITY; (B) THE EMPLOYER CHARGED SALES
   31  TAX IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE TAX LAW  ON  THE
   32  CHARGE;  (C)  THE  EMPLOYER  INCLUDED  THE  CHARGE  AS PART OF ITS GROSS
   33  RECEIPTS, UPON WHICH INCOME TAX WAS CALCULATED;  AND  (D)  THE  EMPLOYER
   34  PAID  FOOD SERVICE WORKERS WAGES SET FORTH IN SECTION SIX HUNDRED FIFTY-
   35  TWO OF THIS CHAPTER.
   36    S 2. This act shall take effect immediately.