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PART490

ARTICLE 3

REGULATIONS OF THE INDUSTRIAL COMMISSIONER

PART 490 - ADMINISTRATIVE INTERPRETATIONS

Section 490.1
Payments to persons in military services
Section 490.2
Status of pickets
Section 490.3
Agricultural labor
Section 490.4
Day of work
Section 490.5
Total unemployment
Section 490.6
Personal or domestic service
Section 490.7
Tips of service employees serving catered or banquet meals

§ 490.1 Payments to persons in military services. (Unemployment Insurance Law, §517, 518).

Any payments made by an employer voluntarily and without contractual obligation, to or in behalf of a person for periods during which such person performs military services in the armed forces of the United States or any State, do not constitute wages on which contributions are payable under the New York State Unemployment Insurance Law.

§ 490.2 Status of pickets (Unemployment Insurance Law, § 511, 512, 517, 592).

All persons engaged by a labor union for the purpose of picketing are employees of the union provided remuneration is paid for such services. The fact that a person so engaged for the purpose of picketing is a member of the union, is on strike, or is or was an employee of the employer whose business is picketed does not affect his status as an employee of the union.

Payments made by labor unions to persons performing picket services are not "remuneration" within the meaning of the Unemployment Insurance Law:

if they represent reimbursement for expenses which are either separately accounted for to the union by the person performing picket services or fixed in a reasonable amount by agreement between the parties before the services as a picket are rendered, or

if they represent strike benefits. Strike benefits are payments made by a labor union, pursuant to union rules and regulations, because of a strike, to its members participating in the strike, to assist them financially during the strike, provided such benefits are not conditioned in fact or in amount upon the rendering of services during the strike.

An employee who lost his employment because of a strike continues to have lost his employment on account thereof even after intervening performance of picket services for remuneration. The period of suspension of benefit rights is not lifted by such intervening services.

§ 490.3 Agricultural labor (Unemployment Insurance Law, §511)

Services as an incident to farming operations.

The provision that services in "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, are excluded from the definition of "employment" if performed as an incident to farming operations, pertains to any such commodity, including fruits and vegetables.

Such services can be an "incident to farming operations" only if performed by employees of the producer of the commodity but irrespective of the location of the point at which such performance takes place.

In order than any such performance be considered "an incident to farming operations" it must be definitely established that production of agricultural or horticultural commodities is the primary purpose in the over-all operations of the employer.

Services as an incident to preparation of fruits or vegetables for market.

The application of the provision that in the case of fruits and vegetables, such services are excluded from the definition of "employment", if performed "as an incident to the preparation of such fruits or vegetables for market", requires that the producer have title in or control over the commodity, or both, at the time of such performance but does not require that the services be performed by the employees of the producer.

"Preparation of such fruits or vegetables for market" does not include:

storing or handling during storage after the commodity has reached the condition in which the producer intends to dispose of it, or

operations in connection with the conversion of the primary product into a secondary derivative, such as the manufacture of cider from apples or grape juice from grapes.

Terminal market.

Services in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption constitutes "employment" within the meaning of the law even if performed by employees of the producer.

A commodity has been delivered to "a terminal market for distribution for consumption" when it has reached the condition in which the producer intends to dispose of it by transferring title and control and has reached the point at which such disposal is ultimately made.

§ 490.4 Day of work (Unemployment Insurance Law, § 522, 523).

A day, for purposes of determining employment or unemployment, is the calendar day running from midnight to midnight. If an employee begins a shift of work before midnight of one calendar day and the shift continues through midnight into the next calendar day, the day on which the shift began is the day of employment.

If an employee works on a shift beginning before midnight and continues working beyond the end of the shift but does not complete the succeeding shift and midnight occurs during the first or succeeding shifts, only the day on which the first shift began is a day of employment.

If an employee works for two successive shifts and midnight occurs during the second of these shifts, only the day on which the first shift began is a day of employment.

If an employee works for two or more complete shifts and midnight occurs during the first one of these shifts, both the calendar day ending with that midnight and the succeeding calendar day are days of employment.

§ 490.5 Total unemployment (Unemployment Insurance Law, § 522).

Days of rest and absence with pay. A claimant who is capable of and available for work is totally unemployed on Sundays, holidays and other days of rest scheduled by his employer, even if an employer-employee relationship exists on such days, provided he does not work on such days and they are not days of paid vacation or other paid leave.

Termination of employment if dismissal payment is made. An employee's "employment" by an employer who has discharged him permanently or has laid him off for an indefinite period (no date for his return to work having been established) is terminated after the last day on which he was required to report for work even if he receives payments from the employer in addition to remuneration for the specific hours, days, weeks, or other periods during which he performed actual services. This principle applies likewise if such payments are made in lieu of paid vacation to which the employee is entitled or in lieu of notice.

§ 490.6 Personal or domestic service (Unemployment Insurance Law, §560)

The term persons employed in personal or domestic service in private homes shall include all persons employed by an employer in his capacity as a house holder, as distinguished from persons employed by the employer in the pursuit of a trade, occupation, profession, enterprise, or avocation.

§ 490.7 Tips of service employees serving catered or banquet meals (Unemployment Insurance Law, § 517, 530)

Whenever an employer and patron agree, under any of the conditions outlined in paragraphs (1) through (3) of this subdivision, that a service employee serving catered or banquet meals shall receive a specified amount or percentage called a gratuity, tip or other similar designation, the aggregate of the wages and the gratuities actually disbursed to the service employee by the employer shall constitute remuneration as that term is defined by section 517 of the Unemployment Insurance Law. No other gratuities shall be deemed to have been received:

If there is an agreement between the employer and the union having jurisdiction over the banquet waiters providing that the service employees shall receive from the employer for each function a fixed sum designated as "wages and tips" and the agreement prohibits any soliciting of gratuities by waiters from patrons.

If there is an agreement between the employer and the union providing:

  • that the service employees shall receive from the employer an aggregate amount which includes the payment at an agreed rate per hour and a sum designated as "tips";
  • that the amount of such tips by agreement shall represent a proportionate share or a stipulated percentage of the patron's bill or a fixed amount per person;
  • that the agreement specifically prohibits the solicitation of gratuities.
If there is an agreement providing that the service employee shall receive a specified amount for services performed and a proportionate share of a total gratuity given by the patron to the employer and there is no prohibition in the agreement against solicitation for gratuities, but where in actual practice there is no solicitation because of arrangements between the employer and the patron.

Provisions of section 480.4 insofar as it applies to catered or banquet meals shall not be applicable to fact situations covered in paragraphs (a)(1), (2) and (3) of this section but shall apply whenever the service employee receives from an employer an agreed amount as cash wages for services performed and in addition receives gratuities from the individual to whom the catered or banquet meals are served and when gratuities are not the subject of prior negotiation by and between the employer and the patron.

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