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In New York City, it is common for the owner of a residential
building to furnish the building's superintendent and the superintendent's
family with an apartment to live in, rent free. This practice raises
the question: In New York State, does an employer receive credit toward the minimum
wage for the rental value of an apartment provided, rent free, to a worker in a
residential building? The short answer is "yes," to an extent.
In New York, the extent to which a rent-free apartment
furnished by an employer to an employee in a residential building, and occupied
by the employee, is creditable against the minimum wage depends upon, among
other factors, (i) the rental rates historically charged by the building for
similar apartments, (ii) whether the employee's apartment is above ground or,
instead, in the building's basement, and (iii) the number of dwelling units in
The New York State Department of Labor's Minimum Wage
Order for the Building Service Industry, 12 N.Y.C.R.R. Part 141, requires, for
residential buildings with any number of units, that janitors be paid a minimum
wage of at least $4.85 per unit per week. 12 N.Y.C.R.R. §§ 141-1.1,
141-1.2. This unit rate does not apply to janitors who are paid at least
$308.35 per week.
The same Minimum Wage Order requires that all employees
in the building service industry except janitors in residential buildings be
paid at least the New York minimum wage of $7.25 per hour for all hours
worked. 12 N.Y.C.R.R. §§ 141-1.1, 141-1.3; see 12 N.Y.C.R.R.
§ 141-3.1 (defining the term "building service industry"); 12 N.Y.C.R.R. §
141-3.4 (defining the term "janitor").
For residential buildings in New York with nine or more
dwelling units, the rental value of an apartment furnished, rent free, by an
employer to a worker in the building, and occupied by the worker, may be
considered part of the minimum wage, but the allowance for that apartment may
12 N.Y.C.R.R. §§ 141-1.5, 141-1.5(a); see 12
N.Y.C.R.R. § 141-3.8 (defining the term "apartment for permanent occupancy
below curb level"); 12 N.Y.C.R.R. § 141-3.8 (defining the term "apartment for
temporary occupancy below curb level")
No credit toward the minimum wage is allowed for an
apartment furnished by an employer to a worker unless the employer makes
available, upon request of the New York State Department of Labor (the
"Department of Labor") the rental records required by 12 N.Y.C.R.R. Part
141. 12 N.Y.C.R.R. § 141-2.4; see 12 N.Y.C.R.R. § 141-2.1
Further, every employer in the building service industry
in New York must furnish to each employee a statement with every payment of wages,
listing, among other information, any allowances claimed as part of the minimum
wage. See 12 N.Y.C.R.R. § 141-2.2.
If your company needs assistance or guidance on a labor or employment law issue and your company is located
in the New York City area, call Attorney David S. Rich at (212) 209-3972.
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