Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Labor on a farm.
(1) The term farm includes
stock, dairy, poultry, furbearing animal, fruit and truck farms, plantations,
orchards, nurseries, greenhouses or other similar structures, used primarily
for the raising of agricultural or horticultural commodities.
(2) The term
labor on a farm
includes the service of any person permitted to work on a farm by an employer
in connection with:
(i) cultivating the
soil;
(ii) raising or harvesting
any agricultural or horticultural commodity, including the raising or hatching
of poultry, the raising, shearing, feeding, caring for, training and management
of livestock, bees, furbearing animals and wildlife;
(iii) the production or harvesting of maple
syrup or maple sugar;
(iv) the
operation, management, conservation, improvement or maintenance of a farm and
its tools and equipment;
(v) the
operation or maintenance of ditches, canals, reservoirs or waterways used
exclusively for removing, supplying and storing water for farming
purposes;
(vi) the handling,
planting, drying, packing, packaging, processing, freezing, grading, storing or
delivering to storage or to market, or to a carrier for transportation to
market, any agricultural or horticultural commodity.
(b)
Executive,
administrative or professional capacity.
(1) Executive. Work in a
bona fide
executive . . .
capacity means work by an individual:
(i) whose primary duty consists of the
management of the institution in which he or she is employed or of a
customarily recognized department or subdivision thereof;
(ii) who customarily and regularly directs
the work of two or more other employees therein;
(iii) 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;
(iv) who customarily and regularly exercises
discretionary powers; and
(v) 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:
(a) New York City for:
(1) 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;
(2) 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;
(b) 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;
(c) 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.
(2) Administrative. Work in a
bona
fide . . .
administrative . . .
capacity means work by an individual:
(i) 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; and
(ii) who customarily and regularly exercises
discretion and independent judgment; and
(iii) 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
(iv) 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:
(a) New York City for:
(1) 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;
(2) 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;
(b) 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;
(c) 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.
(3) Professional. Work in a
bona . . .
fide professional capacity means
work by an individual:
(i) 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
(ii) whose work requires the consistent
exercise of discretion and judgment in its performance; or
(iii) 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.
(c)
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:
(1) making sales; or
(2) selling and delivering articles or goods;
or
(3) obtaining orders or
contracts for service or for the use of facilities.
(d)
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.
(e)
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.
(f)
Learner.
(1) The term learner means a
person 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.
(2) 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.
(3) 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.
(g)
Apprentice.
(1) The term
apprentice
means a person whose work at an institution:
(i) is in an apprenticeable trade or
occupation; and
(ii) is part of a
bona fide training program leading to qualification as a journeyman in the
trade or occupation.
(2)
No such apprentice training program shall be deemed bona fide unless it meets
all of the following:
(i) 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:
(a)
occupations in the distributive field;
(b) managerial occupations;
(c) clerical occupations;
(d) professional or semi-professional
occupations (occupations for which entrance requirements customarily include
education of college level);
(ii) it requires at least two years (4,000
hours) of work experience;
(iii) it
provides for a schedule of work processes or operations in which experience is
to be given the apprentice on the job;
(iv) 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;
(v) the employer keeps and makes available
written evidence of the apprenticeship agreement or a detailed schedule of work
processes and wages.
(h)
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.
(i)
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.
(j)
Work 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.
(k)
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 of 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.
(l)
Impairment of earning
capacity.
The phrase, earning capacity . . .
is impaired by . . . age, or by physical or mental
deficiency or injury, applies to a person 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.
(m)
Staff counselor in a
children's camp.
(1) 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.
(2)
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
schools, 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.
(n)
Summer camp or conference for not
more than three months annually.
(1) 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.
(2) 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.