(c) Employee also does not
include any individual permitted to work in, or as:
(1) Baby-sitter; companion.
(i) The term baby-sitter
means an individual in service as a part-time baby-sitter in the home of the
employer.
(ii) The term
companion means someone who lives in the home of an employer
for the purpose of serving as a companion to a sick, convalescing or elderly
person, and whose principal duties do not include housekeeping.
(2) Booth renter. The term
booth renter means someone who leases or rents space in a
beauty establishment or shop and who operates as an owner or an independent
contractor.
(3) 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.
(4) 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 enterprise 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 exercise
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 such individual's 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.
(5)
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.
(6) 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.
(7) Student in or for a college or university
fraternity, sorority, student association or faculty association. A student is
not deemed to be an employee if he or she is permitted to work in or for a
college or university fraternity, sorority, student association or faculty
association, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, and which is recognized by such college or
university.
(8) 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 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 of 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.
