The New York Department of Labor”™s building service industry minimum wage order sets forth the regulations that control the payment of wages to persons employed in the building service industry.
The wage order applies to employees working in both residential and commercial buildings, and defines the building service industry to include “any person, corporation or establishment engaged in whole or in part in renting, servicing, cleaning, maintaining, selling or managing buildings or building space and all occupations, operations and services in connection therewith or incidental thereto.”
Residential buildings
The wage order contains very specific provisions that apply to employees who work in cooperative, condominium and apartment buildings. Although they have been in effect for many years, we have found that residential building owners are generally unfamiliar with their intricacies.
The order defines building employees in two categories ”“ “janitor” and “all other employees.” A janitor is a person employed to render any physical service in connection with the maintenance, care or operation of a residential building. No building may have more than one janitor. Where there is just one employee, such employee shall be deemed the janitor. Where there is more than one building employee and at least one of them lives in the building, the employer shall designate an employee who lives in the building as the janitor. For the most part, janitors as defined in the wage order are the building employee commonly referred to in the industry as a “superintendent” or “super.”
The order does not require the payment of a minimum hourly wage to janitors. Instead, the minimum wage is based upon the number of residential and commercial units in the building and the per-unit rate, which varies depending upon the county in which the building is located.
For Westchester buildings, rates per unit are $6.65 this year, $7.35 in 2018, $8 in 2109, $8.65 in 2020, $9.35 in 2021, and $10 in 2022.
For example, a janitor currently working in a Westchester building with 60 units must be paid a minimum wage of $399 per week (i.e., 60 x $6.65). Janitors are not entitled to overtime pay.
The wage order also provides a per-week salary safe harbor that Westchester employers can pay to residential janitors in place of the minimum per-unit rate. The safe harbor weekly salaries are $425.35 this year; $467.85 in 2018, $510.40 in 2019, $552.95 in 2020, $595.45 in 2021, and $638 in 2022.
For example, if the residential building contains 70 units, utilizing the current per unit rate, the janitor must be paid $465.50 per week. In that circumstance, the employer would save $40.15 per week by choosing to pay the weekly safe harbor amount of $425.35.
Allowances for resident janitors
Employers of resident superintendents frequently ask if they are entitled to an allowance for the free apartments superintendents receive. The answer is yes, but it is very limited.
The allowance amount depends upon rental rates in effect in the building as of June 1, 1975, the floor in which the apartment is located and the number of units in the building. The maximum allowance that can be obtained in any circumstance is the average rental on June 1, 1975 for apartments with the same number of rooms and in the same line of the building, or the legal rental in effect as of that date. All other potential allowances are only a percentage of the June 1, 1975 rental rate. Further, an employer can only obtain the allowance if it has maintained records showing the apartment rental for every apartment in the building as of June 1, 1975.
Employers are also entitled to a utility allowance.
If a janitor”™s apartment has its own exclusive gas or electric meter, an employer may take an allowance for the full charge amount shown on the bill for a specific period. If a janitor”™s gas or electric consumption is registered on the building line meter, an employer may take a monthly allowance that ranges from $28 this year to $42 in 2022 for an apartment with a refrigerator and from $20.15 this year to $30.25 in 2022 for ones without a refrigerator.
Finally, a telephone allowance may be taken when telephone use is required by an employer in an amount in excess of the minimum billing rate.
All other Westchester building industry employees
All employees not designated as a janitor in a residential building and all commercial building employees must be paid a minimum hourly wage and overtime wages.
The required minimum hourly wage rates are $10 this year and rising $1 yearly to reach a $15 hourly wage in 2022. The overtime rate is 1½ times the regular wage rate for hours worked in excess of 40 hours in a work week.
The wage order has very specific requirements that building service industry employers must follow. In addition, there are circumstances through which a court could apply the federal wage laws to a claim made by a New York building service industry employee. Employers should consult counsel regarding these issues to reduce the risk of liability.
Jack Malley is a partner at Smith, Buss & Jacobs LLP in Yonkers. He can be reached at 914-476-0600, ext. 4124, or at jmalley@sbjlaw.com
