| Matter of New York State Rest. Assn., Inc. v Commissioner ofLabor |
| 2007 NY Slip Op 09157 [45 AD3d 1133] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of New York State Restaurant Association, Inc.,Petitioner, v Commissioner of Labor et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Seth Kupferberg of counsel), forrespondents.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toLabor Law § 657 [2]) to review a determination of respondent Industrial Board of Appealswhich confirmed a minimum wage order issued by respondent Commissioner of Laborincreasing the cash wage paid to certain food service workers.
In 2000, the Legislature amended Labor Law § 652 to provide that food serviceworkers, who receive tips and are therefore paid a cash wage that is less than the state's minimumhourly wage, would receive "a cash wage of at least [$3.30] per hour . . . providedthat the tips of such an employee, when added to such cash wage, are equal to or exceed theminimum wage" then in effect (L 2000, ch 14, § 4). Labor Law § 653 (2) was alsoamended to require that respondent Commissioner of Labor, within six months of enactment ofany change in the general minimum hourly wage provision, Labor Law § 652 (1), appoint awage board to report and recommend any necessary changes to "wage orders governing wagespayable to food service workers" (L 2000, ch 14, § 5). That requirement was triggered in2004 when the Legislature enacted the Empire State Wage Act of 2004 providing for incrementalincreases over the following three years in both the general minimum hourly wage and the cashwage to be paid to food service workers (see [*2]LaborLaw § 652 [1], [4]; L 2004, ch 747, § 2).[FN*]
In June 2005, the Commissioner issued a modified minimum wage order reflecting, amongother things, the statutory increases in the cash wage for food service workers specified by theLegislature (see 12 NYCRR 137-1.5, 138-2.1 [c]). In addition, the Commissionerappointed a wage board to make recommendations regarding that wage order. The wage boardheld public hearings and, thereafter, submitted a report to the Commissioner recommending thatno change be made to the wage order. Following annulment on procedural grounds of theCommissioner's initial acceptance of the wage board's report, the Commissioner approved thewage order with no change to the cash wage amounts for food service workers set forth by theLegislature in Labor Law § 652 (4). Petitioner, an employer association representingapproximately 8,000 members comprised of restaurants and eating establishments, appealed torespondent Industrial Board of Appeals (hereinafter IBA). After a hearing, the IBA confirmed thewage order and this CPLR article 78 proceeding challenging the IBA's determination ensued.
Initially, we note that a CPLR article 78 proceeding commenced in this Court is not theappropriate procedural vehicle for petitioner's challenges; rather, the proper method of obtainingreview of a decision of the IBA is by appeal taken directly to this Court, within 60 days after thedecision is issued (see Labor Law § 657 [2]; Matter of Wells Plaza Corp.[Industrial Commr. of State of N.Y.—New York Hotel Trades Council, AFL-CIO], 10AD2d 209, 211-212 [1960], affd 8 NY2d 975 [1960]). Nonetheless, the record isadequate to permit appellate review and respondents claim no prejudice. Moreover, the notice ofpetition was timely served within 60 days, specified the decision of which petitioner seeksreview, and referenced Labor Law § 657 (2) as authority for this Court's jurisdiction. We,therefore, exercise our authority to convert this CPLR article 78 proceeding into a direct appeal(see CPLR 103 [c]; 5515 [1]; Matter of Katherine B. v Cataldo, 5 NY3d 196, 201 n 1 [2005];see generally County of Sullivan v Edward L. Nezelek, Inc., 42 NY2d 123, 126 [1977]).
Turning to the merits, petitioner asserts that the IBA erred in confirming the Commissioner'swage order because that order was contrary to law in two respects. First, it asserts that theCommissioner misconstrued her statutory authority in determining that she could not set a cashwage for food service workers lower than the cash wage set by the Legislature in amendingLabor Law § 652 (4) in 2004, over the Governor's veto. Second, it claims that theCommissioner erred in determining that, assuming she could set a lower cash wage, she wasconstrained to consider only what wage level would be "sufficient to provide adequatemaintenance and to protect the health and livelihood" of food service workers (Labor Law§ 653 [2]).
Petitioner's argument that the Commissioner is authorized to set a cash wage lower than thatspecified by the Legislature in Labor Law § 652 (4) is contradicted by the language of thestatute itself, which expressly mandates that the cash wage shall be "at least" $3.85, $4.35and[*3]$4.60, effective January 2005, 2006 and 2007,respectively. Further, Labor Law § 655 (5), which governs the powers of the wage board,provides that "[i]n no event . . . shall any minimum wage recommended by theboard be less than the wage specified in section [652] of this chapter." Inasmuch as the cashwage set forth above is a "wage specified in section [652]," we conclude that the wage board andthe Commissioner may not decrease the minimum amounts of the cash wage set forth by theLegislature in that section.
Contrary to petitioner's argument, reversal is not compelled by the proviso in Labor Law§ 652 (4) stating that a different cash wage may be established pursuant to Labor Law§ 653. Section 653 (2) states that after a change is made to the minimum wage set forth insection 652 (1)—that is, after a change to the general minimum wage, rather than the cashwage to be paid to food service workers under section 652 (4)—the wage board mustreview "[a]ny wage order authorizing a lesser wage than the previously and statutorily mandatedminimum wage for such employees." As the Commissioner noted, the proviso in section 652 (4)was enacted prior to the 2004 amendment of that subsection to mandate the specific increases inthe cash wage at issue and would have permitted the Commissioner to specify a cash wage lessthan the general minimum wage set forth in section 652 (1) had the Legislature not done so itself.Petitioner's interpretation of the proviso as permitting the Commissioner to set a lower minimumcash wage for food service workers than the wage specified by the Legislature for such workersis in direct conflict with Labor Law § 655 (5), which prohibits the board fromrecommending "any minimum wage . . . less than the wage specified in section[652]," as explained above. Given that exceptions to Labor Law article 19 "are to be narrowlyconstrued so as not to frustrate the legislative purpose underlying its enactment" (Matter ofSettlement Home Care v Industrial Bd. of Appeals of Dept. of Labor of State of N.Y., 151AD2d 580, 581 [1989]) and that " 'all parts of an enactment shall be harmonized with each otheras well as with the general intent of the whole enactment' " (Matter of Carrols Dev. Corp. vRoss, 85 AD2d 104, 108 [1982], quoting McKinney's Cons Laws of NY, Book 1, Statutes§ 98), petitioner's interpretation simply cannot stand.
In sum, we conclude that the IBA properly determined that the Commissioner did not actcontrary to law in finding that Labor Law § 655 (5) prohibits establishment of a cash wageless than any such wage specified by the Legislature in Labor Law § 652 (4) (seegenerally Labor Law § 657 [2]; Matter of Kiamesha Concord v Catherwood,28 AD2d 275, 278-279 [1967]) and, thus, its determination must be affirmed. Petitioner'sassertion that the Commissioner could consider additional factors beyond whether a wage wassufficient to provide food service workers with adequate maintenance and to protect their healthand livelihood in setting a lower wage than that set forth in section 652 (4) is academic.Its remaining argument has been considered and found to be lacking in merit.
Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Specifically, the generalminimum wage was to be increased to $6.00, $6.75 and $7.15, and the cash wage for foodservice workers was to be increased to $3.85, $4.35 and $4.60 in January 2005, 2006 and 2007,respectively (see Labor Law § 652 [1], [4]; L 2004, ch 747, § 2).