Office of Labor Policy and Standards

RCNY tit. 6, ch. 7, subch. A

in effect

6 RCNY § 7-101 Definitions.

7-101 Definitions. (a) As used in this subchapter, the following terms have the following meanings: "Employee" means any person who meets the definition of "employee," as defined by § 20-912 of the Code, "eligible grocery employee," as defined by § 22-507 of the Code, "fast food employee," as defined by § 20-1201 or 20-1301 of the Code, or "retail employee," as defined by § 20-1201 of the Code. "Employer" means any person who meets the definition of "employer," as defined by Section 20-912 of the Code, "successor grocery employer" or "incumbent grocery employer," as defined by § 22-507 of the Code, "fast food employer," as defined by § 20-1201 or 20-1301 of the Code, or "retail employer," as defined by § 20-1201 of the Code. "Freelancers Law and rules" means Chapter 10 of Title 20 of the Code and Subchapter E of this chapter. "OLPS laws and rules" means Chapters 8, 12, and 13 of Title 20 and § 22-507 of the Code and Subchapters A, B, D, F, and G of this chapter. "Transportation Benefits Law and rules" means Chapter 9 of Title 20 of the Code and Subchapter C of this chapter. (b) As used in the OLPS laws and rules, the following terms have the following meanings: "Code" means the Administrative Code of the City of New York. "Department" means the New York City Department of Consumer Affairs. "Director" means the director of the office of labor standards established, pursuant to Section 20-a of the Charter. "Joint employer" means each of two or more employers who has some control over the work or working conditions of an employee or employees. Joint employers may be separate and distinct individuals or entities with separate owners, managers and facilities. A determination of whether or not a joint employment relationship exists will not often be decided by the application of any single criterion; rather the entire relationship shall be viewed in its totality. "Office" means the office of labor standards established, pursuant to Section 20-a of the Charter and referred to as the Office of Labor Policy and Standards. "Supplements" means all remuneration for employment paid in any medium other than cash, or reimbursement for expenses, or any payments which are not ‘wages' within the meaning of the New York State Labor Law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay, life insurance, and apprenticeship training. "Temporary help firm" means an employer that recruits and hires its own employees and assigns those employees to perform work or services for another organization to: (i) support or supplement the other organization's workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or (iii) perform special assignments or projects. "Work week" means a fixed and regularly recurring period of 168 hours or seven consecutive 24 hour periods; it may begin on any day of the week and any hour of the day, and need not coincide with a calendar week. "Written" or "writing" means a hand-written or machine-printed or printable communication in physical or electronic format, including a communication that is maintained or transmitted electronically, such as a text message. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-102 Construction.

§ 7-102 Construction. This chapter shall be liberally construed to permit the Office to accomplish the purposes contained in Section 20-a of the Charter. The provisions of this subchapter shall not be construed to supersede any other provision of the OLPS laws and rules, the Freelancers Law and rules, or the Transportation Benefits Law and rules. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-103 Severability.

§ 7-103 Severability. The rules contained in this chapter shall be separate and severable. If any word, clause, sentence, paragraph, subdivision, section, or portion of these rules or the application thereof to any person, employer, employee, or circumstance is contrary to a Local, State or Federal law or held to be invalid, it shall not affect the validity of the remainder of the rules or the validity of the application of the rules to other persons or circumstances. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-104 Complainants and Witnesses.

§ 7-104 Complainants and Witnesses. (a) All people, regardless of immigration status, may access resources provided by the Office. (b) Any person who meets the definition of employee in 6 RCNY § 7-101 is entitled to the rights and protections provided by this subchapter to employees and any applicable provision of the OLPS laws and rules, regardless of immigration status. (c) The Office shall conduct its work without inquiring into the immigration status of complainants and witnesses. (d) The Office shall maintain confidential the identity of a complainant or natural person providing information relevant to enforcement of the OLPS laws and rules and the Transportation Benefits Law and rules, unless disclosure is necessary for resolution of the investigation or matter, or otherwise required by law, and the Office, to the extent practicable, notifies such complainant or natural person that the Office will be disclosing such person's identity before such disclosure. (e) For purposes of effectuating subdivision (d) of this section, the Office shall keep confidential any information that may be used to identify, contact, or locate a single person, or to identify an individual in context. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-105 Joint Employers.

§ 7-105 Joint Employers. (a) Joint employers are individually and jointly liable for violations of all applicable OLPS laws and rules and satisfaction of any penalties or restitution imposed on a joint employer for any violation thereof, regardless of any agreement among joint employers to the contrary. (b) A joint employer must count every employee it employs for hire or permits to work, whether joint or not, in determining the number of employees employed for hire or permitted to work for the employer. For example, a joint employer who employs three workers from a temporary help firm and also has three permanent employees under its sole control has six employees for purposes of the OLPS laws and rules. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-106 Determining Damages Based on Lost Earnings.

§ 7-106 Determining Damages Based on Lost Earnings. (a) The following provisions apply to the extent necessary in circumstances described in paragraphs (1) and (2) below for the calculation of damages based on lost earnings in an administrative enforcement action: (1) When an employer pays a flat rate of pay for work performed, regardless of the number of hours actually worked, an employee's hourly rate of pay shall be based on the most recent hourly rate paid to the employee for the applicable pay period, calculated by adding together the employee's total earnings, including tips, commissions, and supplements, for the most recent work week in which no sick time or other leave was taken and dividing that sum by the number of hours spent performing work during such work week or forty hours, whichever amount of hours is less. (2) If an employee performs more than one job for the same employer or the employee's rate of pay fluctuates for a single job, the hourly rate of pay shall be the rate of pay that the employee would have been paid during the time that employee would have been performing work but for the employee's absence. (b) If the methods for calculating the hourly rate described in subdivision (a) produce an hourly rate that is below the full hourly minimum wage, then the employee's lost earnings shall be based on the full hourly minimum wage. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-107 Required Notices and Postings.

§ 7-107 Required Notices and Postings. (a) For any notice created by the Office that is made available on the City's website and that is then required by a provision of the OLPS laws and rules to be provided to an employee or posted in the workplace, an employer must provide and/or post such notice in English and in any language spoken as a primary language by at least five percent of employees at the employer's location, provided that the Director has made the notice available in such language. Employers covered by the Earned Safe and Sick Time Act, Chapter 8 of Title 20 of the Code, are required to comply with this subdivision in addition to the requirement, pursuant to § 20-919 of the Code that an employer provide the notice of rights in an employee's primary language. (b) (1) For any notice that is not created by the Office and made available on the City's website, that is required to be provided to an employee and/or posted in the workplace by a provision of the OLPS laws and rules, an employer must provide and/or post such notice in English and in any language that the employer customarily uses to communicate with the employee. (2) For any notice that is not created by the Office and made available on the City's website, that is required to be posted in the workplace by a provision of the OLPS laws and rules, an employer must post such notice in English and in any language that the employer customarily uses to communicate with any of the employees at that location. (c) Any notice, policy, or other writing that is required by a provision of the OLPS laws and rules to be personally provided to an employee must be provided by a method that reasonably ensures personal receipt by the employee and that is consistent with any other applicable law or rule that specifically addresses a method of delivery. (d) Any notice, policy or, other writing that is required to be posted, pursuant to a provision of the OLPS laws and rules must be posted in a printed format in a conspicuous place accessible to employees where notices to employees are customarily posted, pursuant to State and Federal laws and, except for notices created by the Office, in a form customarily used by the employer to communicate with employees. (e) An employer that places employees to perform work off-site or at dispersed job-sites, such as in private homes, building security posts, or on delivery routes, must comply with any applicable requirement to post a notice, policy or other writing contained in the OLPS laws and rules by providing employees with the required notice personally upon commencement of employment, within fourteen (14) days of the effective date of any changes to the required posting, and upon request by the employee, in addition to the requirements in subdivision (c) of this section. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-108 Retaliation.

§ 7-108 Retaliation. (a) No person shall take any adverse action against an employee that penalizes an employee for, or is reasonably likely to deter an employee from, exercising or attempting to exercise rights under the OLPS laws and rules or interfere with an employee's exercise of rights under the OLPS laws and rules. (b) 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. (c) An employee need not explicitly refer to a provision of the OLPS laws and rules to be protected from an adverse action. (d) The Office may establish a causal connection between the exercise, attempted exercise, or anticipated exercise of rights protected by the OLPS laws and rules and an employer's adverse action against an employee or a group of employees by indirect or direct evidence. (e) For purposes of this section, retaliation is established when the Office shows that a protected activity was a motivating factor for an adverse action, whether or not other factors motivated the adverse action. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-109 Enforcement and Penalties.

§ 7-109 Enforcement and Penalties. (a) The Office may open an investigation to determine compliance with laws enforced by the Office on its own initiative or based on a complaint, except as otherwise provided by § 20-1309 of Chapter 13 of Title 20 of the Code. (b) Whether it was issued in person, via mail, or, on written consent of the employer, email, an employer must respond to a written request for information or records by providing the Office with true, accurate, and contemporaneously-made records or information within the following timeframes, except as provided in subdivision (c) of this section, subdivision c. of § 20-924 of the Code, 6 RCNY § 7-213 or other applicable law: (1) For an initial request for information or records, the employer shall i. Within ten (10) days of the date that the request for information was received by the employer provide the following information, if applicable: A. the employer's correct legal name and business form; B. the employer's trade name or DBA; C. the names and addresses of other businesses associated with the employer; D. the employer's Federal Employer Identification Number; E. the employer's addresses where business is conducted; F. the employer's headquarters and principal place of business addresses; G. the name, phone number, email address, and mailing address of the owners, officers, directors, principals, members, partners and/or stockholders of more than 10 percent of the outstanding stock of the employer business and their titles; H. the name, phone number, email address, and mailing address of the individuals who have operational control over the business; I. the name, phone number, email address, and mailing address of the individuals who supervise employees; J. the name and contact information of the individual who the office should contact regarding an investigation of the business and an affirmation granting authority to act; and ii. Within fourteen (14) days of the date of that the initial request for information or records was received, provide the remaining information or records requested in that initial request. (2) For all requests for information or records after the initial request, an employer must respond within the timeframe prescribed by the Office in the request, which shall not exceed fourteen (14) days from the date that the request was received by the employer, unless a longer timeframe has been agreed to by the Office. (3) Upon good cause shown, the Director may extend response timeframes required, pursuant to this subdivision. (c) An employer shall respond to a written request for information or records by providing the Office with true, accurate, and contemporaneously-made records or information in a lesser amount of time than provided in paragraphs 2 and 3 of subdivision b of this section if agreed to by the parties or the Office has reason to believe that: (1) The employer will destroy or falsify records; (2) The employer is closing, selling, or transferring its business, disposing of assets or is about to declare bankruptcy; (3) The employer is the subject of a government investigation or enforcement action or proceeding related to wages and hours, unemployment insurance, workers' compensation, discrimination, OLPS laws and rules, the Freelancers Law and rules, or the Transportation Benefits Law and rules; or (4) More immediate access to records is necessary to prevent or remedy retaliation against employees. (d) In accordance with applicable law, the Office may resolve or attempt to resolve an investigation at any point through settlement upon terms that are satisfactory to the Office. (e) The Office may issue a notice of violation to an employer who fails to provide true and accurate information or records requested by the Office in connection with an investigation. (f) An employer who fails to timely and fully respond to the request for information or records that is the subject of a notice of violation issued under subdivision (e) of this section on or before the first scheduled appearance date is subject to a penalty of five hundred dollars, in addition to any penalties or remedies imposed as a result of the Office's investigation. (g) The employer may cure a notice of violation issued in accordance with subdivision (e) of this section without the penalty imposed in connection with subdivision (f) by: (1) producing the requested information or records on or before the first scheduled appearance date; or (2) resolving, to the satisfaction of the Office on or before the first scheduled appearance date, the investigation that is the basis for the request for information or records. (h) A finding that an employer has an official or unofficial policy or practice that denies a right established or protected by the OLPS laws and rules shall constitute a violation of the applicable provision of the OLPS laws and rules for each and every employee subject to such policy or practice. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-110 Service.

§ 7-110 Service. Service of documents issued by the Office to employers, including written requests for information or records and notices of violation, shall be made in a manner reasonably calculated to achieve actual notice to the employer. The following are presumed to be reasonably calculated to achieve actual notice: (i) personal service on the employer; (ii) personal service on the employer by regular first-class mail, certified mail, return receipt requested, or private mail delivery services, such as UPS, to an employer's last known business address; or (iii) if an employer has so consented, facsimile, email, including an attachment to an email. (Added City Record 8/21/2018, eff. 9/20/2018)

6 RCNY § 7-111 Recordkeeping.

§ 7-111 Recordkeeping. (a) An employer's failure to maintain, retain, or produce a record that is required to be maintained under the OLPS laws and rules that is relevant to a material fact alleged by the Office in a notice of violation issued, pursuant to a provision of the OLPS laws and rules creates a reasonable inference that such fact is true, unless a rebuttable presumption or other adverse inference is provided by applicable law. (b) An employer that produces records to the department or Office in response to a request for information affirms that the records produced are true and accurate. (Added City Record 8/21/2018, eff. 9/20/2018)

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-20524Fetched: 10/24/2026