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Proposed Rules: Open to Comments

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Agency:
Comment By: 
Monday, November 12, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The Department of Consumer Affairs (“DCA”) licenses and regulates 55 different categories of businesses and individuals pursuant to Section 2203(c) of the New York City Charter and Title 20 of the New York City Administrative Code.  In 2017, DCA received over 20,000 applications across those license categories.  DCA is required to perform individual review and processing of each application.  This proposed rule would prohibit any person whose application is denied or whose license is revoked from applying for the same license again for a period of one year.  The prohibition would only apply if the application was denied or the license was revoked because the applicant concealed information, made a false statement, or falsified or allowed to be falsified any certificate, form, signed statement, application or report required to be filed with DCA.  This proposed rule is necessary to conserve DCA’s limited resources.  A repeat application within one year is wasteful.  Additionally, allowing a repeat application after an applicant has lied undermines the benefit of requiring applicants to provide truthful information.

DCA’s authority for these rules is found in Sections 1043 and 2203(f) of the New York City Charter and Section 20-104(b) of the New York City Administrative Code.  

Keywords:
Subject: 

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Location: 
NYC Department of Consumer Affairs
42 Broadway 5th Floor
New York, NY 10004
Contact: 

Casey Adams, 212-436-0095, cadams@dca.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rules

These rules were proposed on June 29, 2018. The required public hearing was held on July 30, 2018. The Department of Consumer Affairs received public comments on the proposed rules. As a result of those comments, the rules were amended as follows:

  • § 7-106 was amended to read “full hourly minimum wage
  • § 7-108 was amended to read

Taking an adverse action includes, but is not limited to threatening, intimidating, disciplining, discharging, demoting, suspending, or harassing an employee, reducing the hours of pay of an employee, informing another employer than an employee has engaged in activities protected by the OLPS laws and rules, discriminating against the employee, including actions related to perceived immigration status or work authorization, and maintenance or application of an absence control policy that counts protected leave as an absence that may lead to or result in an adverse action.

  • § 7-201(b) was amended to add “Such person may be considered an employee under the Earned Safe and Sick Time Act and this subchapter.”

In March 2016, the Mayor signed into law local law 104 of 2015, which enacted section 20-a of the New York City Charter, establishing the Office of Labor Standards (herein referred to as “Office of Labor Policy and Standards” or “OLPS”). The Mayor designated the Department of Consumer Affairs as the agency in which OLPS would be established. Pursuant to Section 20-a of the New York City Charter, OLPS is tasked with, among many things, enforcing municipal labor laws, such as the Earned Sick Time Act, Chapter 8 of Title 20 of the Administrative Code of the City of New York, the Mass Transit Benefits Law, Chapter 9 of Title 20 of the Administrative Code of the City of New York, the Grocery Workers Retention Law, section 22-507of the Administrative Code of the City of New York, the Fair Workweek Law, Chapter 12 of Title 20 of the Administrative Code of the City of New York, and the Deductions Law, Chapter 13 of Title 20 of the Administrative Code of the City of New York.

These rules amend Chapter 7 of Title 6 of the Rules of the City of New York to establish uniform practices and procedures for the enforcement of the laws enforced by OLPS, where possible. Specifically, these rules:

  • Contain a definitions section applicable to certain rules and laws enforced by OLPS.
  • Mandate that the rules shall be liberally construed to accomplish the OLPS mandate in Section 20-a of the Charter, with the understanding that they do not supersede any other provision of the OLPS laws and rules, the Freelancers Law and rules, or the Transportation Benefits Law and rules.
  • Contain a severability clause that, in the event any provision is deemed invalid or inapplicable in a particular circumstance, maintains the validity and applicability of the remaining rules.
  • Clarify that OLPS resources and the rights protected by OLPS extend to persons regardless of immigration status.
  • Clarify that OLPS will maintain confidential the identity of complainants and witnesses to the extent possible.
  • Clarify that joint employers are individually and jointly liable for violations of laws enforced by OLPS and satisfaction of fines and restitution.
  • Clarify how employers in a joint employer relationship should determine the number of employees they have.
  • Clarify how to calculate lost earnings for the calculation of damages when an employee is paid a flat rate or performs more than one job for the same employer.
  • Clarify how employers must satisfy any obligation to post a notice or other writing required by the laws enforced by OLPS.
  • Define what may constitute retaliation, including adverse actions taken by employers against employees.
  • Clarify that both direct and indirect evidence are acceptable to establish a causal connection between an adverse action and the exercise, attempted exercise, or anticipated exercise of rights.
  • Clarify that the burden of proof for retaliation is whether protected activity was a “motivating factor” for an adverse action.
  • Clarify the procedures for investigations of alleged violations of laws enforced by OLPS.
  • Clarify that OLPS may issue a notice of violation for failure to comply with a request for information.
  • Clarify what constitutes proper service of process.
  • Clarify that a failure to maintain records creates an inference in favor of OLPS.
  • Clarify that a policy or practice that denies a right established or protected by the laws enforced by OLPS constitutes a violation of the applicable provision of the OLPS law or rule for each employee subjected to the policy or practice.
  • Harmonize the Displaced Grocery Worker Rules with new Rules for the Office of Labor Policy and Standards.
  • Delete the definition of “appropriate notice,” contained in the Displaced Grocery Worker rules, which is revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete provisions regarding the posting of notice of change in control by incumbent grocery employers in the Displaced Grocery Worker rules, which is revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete provisions regarding enforcement procedures contained in the Displaced Grocery Worker rules, which are included in the rules for the Office of Labor Policy and Standards.
  • Place the Transportation Benefits rules in Subchapter C of Chapter 7 and renumber the rules accordingly.
  • Place the Freelance Worker rules in Subchapter E of Chapter 7 and renumber the rules accordingly.
  • Correct a typo in the Deductions rules, contained in Subchapter G of Chapter 7.

Additionally, these rules clarify parts of the Earned Safe and Sick Time Act, Specifically, these rules:

  • Include references to safe time, including adding “safe” to the definitions section.
  • Clarify that the definition of domestic worker as contained in the Earned Safe and Sick Time Act is limited to employees who are solely and directly employed by individuals or private families for domestic work and does not include workers who are employed, solely or jointly, by agencies.
    • When enacting the Earned Sick Time Act, the City Council relied on a definition of domestic worker from section 2 of the state Labor Law, which, at the time, only included employees of individual households. The state Labor Law’s definition exempts workers employed by agencies or other third-party employers who provide companionship services, as defined by federal regulations issued pursuant to the Fair Labor Standards Act (FLSA). Subsequent to the enactment of the Earned Sick Time Act, the definition of “companionship services” contained in the FLSA regulation was changed to extend the minimum wage and overtime protections of the FLSA to more workers, including home health aides employed by agencies. This change created ambiguity in the definition of “domestic worker” under the city’s Earned Sick Time Act.
    • The legislative history of the Earned Sick Time Act makes clear that the City Council intended only employees of individual households to be covered by the definition of “domestic worker.” The clarification made by this rule will preserve that legislative intent.
    • A narrow definition of domestic worker is consistent with enhancing and expanding rights—safe and sick leave as well as other labor rights—to workers historically excluded from protections because a narrow definition of “domestic worker” means that more workers are included in the group of workers that receives a full forty hours of paid safe and sick time per year.
  •  Delete the definition of “temporary help firm,” which is in substance included in the rules for the Office of Labor Policy and Standards.
  • Delete the rule about joint employers, which is revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete the rule that protections of the Earned Sick Time Act extend to all workers, regardless of immigration status, which is revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete provisions about how to calculate payment for sick time when an employee is paid on a piecework basis.
  • Add a provision about how to calculate payment for sick time when an employee is paid a flat rate.
  • State that an employer’s written sick time policies must be contained in one writing and they must be distributed, rather than posted or distributed, to employees.
  • Clarify that an employer that provides paid time off (PTO) for use as sick time must state so in its written policy.
  • Clarify that a Department writing does not constitute an employer’s written sick time policy.
  • Delete the procedures by which the Department may file a notice of hearing for an employer’s failure to respond to a notice of investigation and request for information, which is revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete the enforcement procedures, which are revised and included in the rules for the Office of Labor Policy and Standards.
  • Delete the retaliation provisions, which are revised and included in the rules for the Office of Labor Policy and Standards.

Sections1043, 2203(f), 20-a oftheNewYorkCityCharter and chapters 8, 9, 12, and 13 of Title 20 and section 22-507 of the New York City Administrative Code authorize the Department of Consumer Affairs OLPS to make these rules.

Effective Date: 
Thu, 09/20/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Environmental Control Board

Notice of Promulgation of Rule

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED in the Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) in accordance with Sections 1049-a and 1043 of the New York City Charter. OATH ECB repeals its General Vendor Penalty Schedule rule in Section 3-109 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. The proposed rule repeal was published in The City Record on July 6, 2018, and a public hearing was held on August 6, 2018. 

No one attended or testified at the public hearing concerning this rule repeal and OATH did not receive any written comments. 

Statement of Basis and Purpose of Rule

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) repeals its General Vendor Penalty Schedule rule.  This schedule is found in § 3-109 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY), and it contains penalties for violations of provisions in Subchapter 27 of Chapter 2 of Title 20 of the Administrative Code of the City of New York and Subchapter AA of Chapter 2 of Title 6 of the RCNY. At the same time, the Department of Consumer Affairs adopts a rule, adding a similar penalty schedule to Section 6-68 of Subchapter B of Chapter 6 of Title 6 of the RCNY.

The context for this repeal is that OATH ECB is in the process of repealing all penalty schedules in its rules codified at Subchapter G of Chapter 3 of Title 48 of the RCNY so that they can be incorporated into the rules of the agencies having rulemaking and policymaking jurisdiction over the laws underlying the violations.

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the regulatory and enforcement agencies have the necessary expertise to determine appropriate penalties for violation of the rules and of the laws within their jurisdiction based on the severity of each violation and its effect on City residents. Moving the penalty schedule will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already been established by the legislature and/or that have already undergone the City Administrative Procedure Act (CAPA) process by the enforcement agency.  The public will still have the opportunity to comment on proposed penalties during that process.

Working with the City’s rulemaking agencies, the Law Department, the Mayor’s Office of Management and Budget, and the Mayor’s Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that could be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This rule repeal was identified as meeting the criteria for this initiative.

Section 1. Section 3-109 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, setting forth the General Vendor Penalty Schedule, is REPEALED.

Effective Date: 
Fri, 10/12/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

New York City Department of Consumer Affairs

Notice of Adoption

Notice of Adoption to amend 6 RCNY § 3-95 to require that all fuel oil vehicle printer tickets contain at least the last six digits of the Vehicle Identification Number (VIN) for the vehicle making each delivery and to add a new rule 6 RCNY § 3-103, which would require fuel oil businesses to maintain copies of printer tickets for two years and to produce a ticket to DCA during annual inspection.

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED IN the Commissioner of the Department of Consumer Affairs by Section 180(3) of the Agriculture and Markets Law, Section 2203(f) of the City Charter and Section 20-574 of Chapter 3 of Title 20 of the New York City Administrative Code, and in accordance with the requirements of Section 1043 of the New York City Charter, that the Department amends Section 3-95 of Title 6 of the Rules of the City of New York and adds Section 3-103 to Title 6 of the Rules of the City of New York.

This rule was proposed and published on April 19, 2018. A public hearing was held on May 21, 2018.

Statement of Basis and Purpose of Rule

Section 3-95 of Title 6 of the Rules of the City of New York requires a company selling fuel oil to provide a purchaser a printer ticket with each delivery of fuel oil from vehicles tanks equipped with meters.  Printer tickets must be consecutively numbered and contain the date of delivery, the name of the customer and delivery address, truck number, sales number, grade, price per gallon, quantity of the oil delivered, and the driver’s signature.         

The Manhattan District Attorney’s Office, together with other New York City agencies, including the Department of Consumer Affairs (DCA), recently uncovered various schemes by fuel oil companies and related individuals to defraud customers by shorting deliveries to residential, commercial, and municipal properties throughout New York City.  To protect consumers from such fraudulent business practices, and to promote accountability of the fuel oil industry, this rule requires fuel oil companies to include on each printer ticket provided to a purchaser at least the last 6 digits of the Vehicle Identification Number (VIN) for the vehicle that made the delivery.  This information will facilitate the lodging of complaints by consumers with the company selling the fuel oil and with DCA (and the agency’s response to such complaints because DCA maintains records of fuel oil delivery vehicles by VIN). 

Section 3-95 also provides that the price per gallon may be omitted from a printer ticket left at the delivery if a second copy with the price per gallon is mailed to the purchaser within 24 hours.  In response to a comment received during the public comment period, DCA is extending the time during which a second copy must be mailed to 48 hours from 24 hours.

DCA is also adding Section 3-103 of the Rules, which requires fuel oil providers to maintain a copy of all issued printer tickets for two years, and to produce issued tickets at the time of DCA’s annual inspection.  Fuel oil providers must produce issued tickets upon request of the Department during an inspection.  This rule is necessary to allow DCA to ensure that fuel oil providers are complying with the printer ticket requirements.

 

Effective Date: 
Fri, 09/07/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose of Rule

 DCA implements this amendment of Subchapter N, Chapter 5, Title 6 to reflect Local Law 63 for the Year 2017 (“Local Law 63”), which amended subchapter 14-a of chapter 5 of the Code.  Among other things, Local Law 63 adds required statements and information to the required written agreement, lengthens the period of time provider must maintain a surety bond, contract of indemnity or irrevocable letter of credit, requires signage explaining a new mechanism for consumers to file complaints, renumbers the sections in Chapter 14-a (previously Chapter 14), and increases penalties.

 

Specifically, these rules:

Replace “type” with “font.”

Replace “consultant” with “provider.”

Update Code references.

Remove a section about size of letters on signage.

Delete a requirement that providers post a sign regarding how to file a DCA complaint.

Amend the surety sign requirement.

Update the penalty schedule.

 

Effective Date: 
Thu, 09/06/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

The Law Department, the Office of Management and Budget, and the Office of Operations conducted a retrospective review of the City’s existing rules, identifying those that should be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help public understanding and compliance.  The review identified the amendments contained herein. 

Specifically, the Department is making the following amendments:

  • Section 1-06 of chapter 1 of title 6 of the Rules of the City of New York, which relates to the bond requirements for licenses, to fix a typographical error. This amendment does not make any substantive changes to the rule.
  • Sections 2-61, 2-63, 2-64, and 2-65 of part 1 of subchapter G of chapter 2 of title 6 of the Rules of the City of New York, which relate to newsstands, to replace outdated references to the Art Commission of the City of New York with updated references to the New York City Public Design Commission. The Art Commission of the City of New York no longer exists.
  • Section 2-253 of subchapter X of chapter 2 of title 6 of the Rules of the City of New York to eliminate certain information required to be displayed by electronic or home appliance service dealers, such as the name of one owner or partner of the business. In the experience of DCA, this information is not helpful to a consumer who wants to file a complaint and is unnecessarily burdensome on the business to provide. A consumer can file a complaint about a business using the business’s DCA license number and/or location. Additionally, this amendment eliminates the requirement that a business provide to consumers on request a copy of DCA’s regulations governing electronic or home appliance service dealers. In DCA’s experience, such information is not helpful to consumers and the regulations are readily available from the Department.
  • Sections 2-321 and 2-322 of subchapter BB of chapter 2 of title 6 of the Rules of the City of New York to increase the maximum amount that may be charged by a storage warehouse for a written estimate based upon a physical inspection. This increase of the maximum amount charged accounts for the passage of time since the rule was originally promulgated. This amendment also fixes a typographical error.

The amendments also include minor plain language edits throughout.

Effective Date: 
Fri, 08/31/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

Local Law 145 of 2017 raises the minimum price of cigarettes and little cigars to $13 a pack from $10.50 and sets a first-ever price floor and tax for other tobacco products, such as cigars, smokeless tobacco, snus, loose tobacco and tobacco-containing shisha.

Local Law 146 of 2017 reduces the number of stores that can sell tobacco products by capping the tobacco retail dealer licenses in each community district at 50 percent of the number of active licenses as of February 24, 2018. No new tobacco retail dealer licenses will be issued in a community district until its total decreases through attrition below the cap. New York City has high tobacco retail density, with about 8,300 licensed cigarette retailers’ citywide, averaging almost 30 dealers per square mile. Easy access to tobacco retailers makes it harder for smokers to quit. Moreover, youth who frequent retail stores that sell tobacco every week have double the odds of trying smoking. This law also updates the New York City retail license for selling cigarettes to encompass all types of tobacco.

To implement Local Laws 145 and 146, DCA amends Section 6-12 of Subchapter B, Chapter 6, of Title 6 of the Rules of the City of New York, to update the fixed penalties for the violations of the laws and rules related to cigarette retail dealers, which are now called tobacco retail dealers.

Effective Date: 
Sun, 08/05/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

Local Law 144 of 2017 requires that retailers of electronic cigarettes (“e-cigarettes”) be issued a license, like tobacco retailers, and caps the number of these licenses. E-cigarette use has increased dramatically since e-cigarettes were introduced in U.S. markets less than 10 years ago. In 2015, 15.9 percent of New York City high school students were e-cigarette users.  Local Law 144 capped the number of e-cigarette retailers at half the current number by community district, with the reduction in number coming through attrition. Existing sellers will be able to continue to renew their license so long as they meet all applicable licensure requirements. The law also prohibits pharmacies from selling e-cigarettes.

To implement Local Law 144, DCA adds a new rule, Section 6-12.1, to Subchapter B, Chapter 6, of Title 6 of the Rules of the City of New York, to establish fixed penalties for the violations of the laws related to electronic cigarette retail dealers. 

Effective Date: 
Sun, 08/05/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

Local Law 197 of 2017 amended the New York City Administrative Code to require that second-hand automobile dealers provide certain financing disclosures and to create an automobile contract cancellation option that may be used by consumers of second-hand automobiles. 

Local Law 198 of 2017 amended the New York City Administrative Code to require second-hand automobile dealers post and distribute a bill of rights to consumers. 

To implement Local Laws 197 and 198, the Department amends Section 6-19 of Subchapter B of Title 6 of the Rules of the City of New York, which establishes fixed penalties for the violations of the laws and rules related to secondhand automobile dealers. 

Effective Date: 
Mon, 07/30/2018

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Monday, July 30, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Rules

In March 2016, the Mayor signed into law local law 104 of 2015, which enacted section 20-a of the New York City Charter, establishing the Office of Labor Standards (herein referred to as “Office of Labor Policy and Standards” or “OLPS”). The Mayor designated the Department of Consumer Affairs as the agency in which OLPS would be established. Pursuant to Section 20-a of the New York City Charter, OLPS is tasked with, among many things, enforcing municipal labor laws, such as the Earned Sick Time Act, Chapter 8 of Title 20 of the Administrative Code of the City of New York, the Mass Transit Benefits Law, Chapter 9 of Title 20 of the Administrative Code of the City of New York, the Grocery Workers Retention Law, section 22-507of the Administrative Code of the City of New York, the Fair Workweek Law, Chapter 12 of Title 20 of the Administrative Code of the City of New York, and the Deductions Law, Chapter 13 of Title 20 of the Administrative Code of the City of New York.

These rules amend Chapter 7 of Title 6 of the Rules of the City of New York to establish uniform practices and procedures for the enforcement of the laws enforced by OLPS, where possible. Specifically, these rules:

Contain a definitions section applicable to certain rules and laws enforced by OLPS.

Mandate that the rules shall be liberally construed to accomplish the OLPS mandate in Section 20-a of the Charter, with the understanding that they do not supersede any other provision of the OLPS laws and rules, the Freelancers Law and rules, or the Transportation Benefits Law and rules.

Contain a severability clause that, in the event any provision is deemed invalid or inapplicable in a particular circumstance, maintains the validity and applicability of the remaining rules.

Clarify that OLPS resources and the rights protected by OLPS extend to persons regardless of immigration status.

Clarify that OLPS will maintain confidential the identity of complainants and witnesses to the extent possible.

Clarify that joint employers are individually and jointly liable for violations of laws enforced by OLPS and satisfaction of fines and restitution.

Clarify how employers in a joint employer relationship should determine the number of employees they have.

Clarify how to calculate lost earnings for the calculation of damages when an employee is paid a flat rate or performs more than one job for the same employer.

Clarify how employers must satisfy any obligation to post a notice or other writing required by the laws enforced by OLPS.

Define what may constitute retaliation, including adverse actions taken by employers against employees.

Clarify that both direct and indirect evidence are acceptable to establish a causal connection between an adverse action and the exercise, attempted exercise, or anticipated exercise of rights.

Clarify that the burden of proof for retaliation is whether protected activity was a “motivating factor” for an adverse action.

Clarify the procedures for investigations of alleged violations of laws enforced by OLPS.

Clarify that OLPS may issue a notice of violation for failure to comply with a request for information.

Clarify what constitutes proper service of process.

 Clarify that a failure to maintain records creates an inference in favor of OLPS.

Clarify that a policy or practice that denies a right established or protected by the laws enforced by OLPS constitutes a violation of the applicable provision of the OLPS law or rule for each employee subjected to the policy or practice.

Harmonize the Displaced Grocery Worker Rules with newly proposed Rules for the Office of Labor Policy and Standards.

Delete the definition of “appropriate notice,” contained in the Displaced Grocery Worker rules, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions regarding the posting of notice of change in control by incumbent grocery employers in the Displaced Grocery Worker rules, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions regarding enforcement procedures contained in the Displaced Grocery Worker rules, which are included in the proposed rules for the Office of Labor Policy and Standards.

Place the Transportation Benefits rules in Subchapter C of Chapter 7 and renumber the rules accordingly.

Place the Freelance Worker rules in Subchapter E of Chapter 7 and renumber the rules accordingly.

Correct a typo in the Deductions rules, contained in Subchapter G of Chapter 7.

Additionally, these rules clarify parts of the Earned Safe and Sick Time Act, Specifically, these rules:

Include references to safe time, including adding “safe” to the definitions section.

Clarify that the definition of domestic worker as contained in the Earned Safe and Sick Time Act is limited to employees who are solely and directly employed by individuals or private families for domestic work and does not include workers who are employed, solely or jointly, by agencies.

When enacting the Earned Sick Time Act, the City Council relied on a definition of domestic worker from section 2 of the state Labor Law, which, at the time, only included employees of individual households. The state Labor Law’s definition exempts workers employed by agencies or other third-party employers who provide companionship services, as defined by federal regulations issued pursuant to the Fair Labor Standards Act (FLSA). Subsequent to the enactment of the Earned Sick Time Act, the definition of “companionship services” contained in the FLSA regulation was changed to extend the minimum wage and overtime protections of the FLSA to more workers, including home health aides employed by agencies. This change created ambiguity in the definition of “domestic worker” under the city’s Earned Sick Time Act.

The legislative history of the Earned Sick Time Act makes clear that the City Council intended only employees of individual households to be covered by the definition of “domestic worker.” The clarification made by this rule will preserve that legislative intent.

A narrow definition of domestic worker is consistent with enhancing and expanding rights—safe and sick leave as well as other labor rights—to workers historically excluded from protections because a narrow definition of “domestic worker” means that more workers are included in the group of workers that receives a full forty hours of paid safe and sick time per year.

Delete the definition of “temporary help firm,” which is in substance included in the proposed rules for the Office of Labor Policy and Standards.

Delete the rule about joint employers, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the rule that protections of the Earned Sick Time Act extend to all workers, regardless of immigration status, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions about how to calculate payment for sick time when an employee is paid on a piecework basis.

Add a provision about how to calculate payment for sick time when an employee is paid a flat rate.

 State that an employer’s written sick time policies must be contained in one writing and they must be distributed, rather than posted or distributed, to employees.

Clarify that an employer that provides paid time off (PTO) for use as sick time must state so in its written policy.

Clarify that a Department writing does not constitute an employer’s written sick time policy.

Delete the procedures by which the Department may file a notice of hearing for an employer’s failure to respond to a notice of investigation and request for information, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the enforcement procedures, which are revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the retaliation provisions, which are revised and included in the proposed rules for the Office of Labor Policy and Standards.

Keywords:
Subject: 

Proposed Rules Related to Procedures of the Office of Labor Policy and Standards

Location: 
NYC Department of Consumer Affairs
42 Broadway 5th Floor
New York, NY 10004
Contact: 

Casey Adams, 212-436-0095, cadams@dca.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Pages