NYC’s Commuter Benefits Law took effect on January 1, 2016. Under the law, for-profit and nonprofit employers with 20 or more full-time non-union employees in New York City must offer their full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits. The law is based on the Internal Revenue Code that authorizes pre-tax commuter programs, which benefit employers and employees.
The Department of Consumer and Worker Protection (DCWP)—formerly the Department of Consumer Affairs (DCA)—enforces the law.
What are the advantages of a commuter benefits program?A commuter benefits program can provide savings for both employers and employees.
- Employers can save by reducing their payroll taxes. The more employees who sign up for transportation benefits, the more the employer can save. Employers can also attract and retain employees by offering transportation benefits.
- Employees can lower their monthly expenses by using pre-tax income to pay for their commute.
Which employers must offer commuter benefits?Generally, non-government employers with 20 or more full-time non-union employees working in New York City must offer their full-time employees the opportunity to use pre-tax income to pay for their transportation by public or privately owned mass transit or in a commuter highway vehicle.
When do employers have to begin complying with the law?Employers must offer full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits, other than qualified parking, by January 1, 2016 or four weeks after an employee begins full-time work, whichever is later.
Are employers required to give their full-time employees a written offer of commuter benefits?Yes. Employers must give their full-time employees a written offer of the opportunity to use pre-tax income to purchase qualified transportation fringe benefits and maintain a record of the offer and employees’ responses.
See
VII. EMPLOYER RECORDKEEPING.
II. EMPLOYERS COVERED/NOT COVERED BY THE LAW
Which employers are exempt under the law?The law does not apply to:
- Employers whose employees are covered by a collective bargaining agreement (CBA). Exception: If the employer has 20 or more full-time employees who are not covered by the CBA, the employer must offer these employees commuter benefits.
- United States, New York State, and New York City governments, including any office, department, independent agency, authority, institution, association, society, or other body of the state, including the legislature and the judiciary.
- Employers not required to pay federal, state, and City payroll taxes.
Does the law apply to chain businesses?Yes.
A chain business is a group of establishments that share a common owner or principal who owns a majority of each location and are engaged in the same business or operate under a franchise agreement with the same franchisor as defined in New York State General Business Law Section 681. The owner must count full-time employees at all of the chain business’ locations in New York City to determine the total number of full-time employees.
Does the law apply to temporary help firms?Yes.
A temporary help firm is a firm that recruits, hires, and supplies employees to perform work or services for another organization. A temporary help firm that supplies a full-time employee to another organization is the employer of the full-time employee for purposes of the law.
Temporary help firms that employ 20 or more full-time employees who are placed in New York City are required to offer those employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits, other than parking.
Does an employer have to offer commuter benefits if its workforce is reduced to fewer than 20 full-time employees?An employer must allow the full-time employees who had been eligible to purchase commuter benefits before the workforce was reduced with the continued opportunity to use pre-tax income to purchase qualified transportation fringe benefits for the duration of their employment.
III. DETERMINING NUMBER OF FULL-TIME EMPLOYEES
If an employer has full-time employees who work in a borough other than Manhattan, do the employees in the outer boroughs count toward the number of employees?Yes. The law applies to employers with 20 or more full-time employees working in New York City, which includes The Bronx, Brooklyn, Manhattan, Queens, and Staten Island.
If an employer has multiple locations, do all full-time employees count toward the number of employees?Yes. If an employer has more than one location in New York City, the employer must count all full-time employees at all locations in New York City to determine the total number of full-time employees.
Scenarios:
An employer has two locations in New York City. The first location employs eight full-time employees. The second location employs 14 full-time employees. Would this employer be required to offer commuter benefits? Yes. The employer employs a total of 22 full-time employees at the two locations. The employer must provide commuter benefits to all of its full-time employees.
An employer owns seven retail stores in New York City. Each location employs seven full-time employees. Would this employer be required to offer commuter benefits? Yes. The business employs a total of 49 full-time employees at the retail stores. The business must provide commuter benefits to all of its full-time employees. |
Can employers with fewer than 20 full-time employees working in New York City offer commuter benefits to their employees?Yes.
DCWP encourages all employers to offer commuter benefits to their employees because of the potential savings to businesses and employees.
Does an employer with fewer than 20 full-time employees working in New York City but more than 20 full-time employees working outside of New York City have to offer commuter benefits?No. The law applies to employers with 20 or more full-time employees working in New York City only.
DCWP encourages all employers to offer commuter benefits to their employees because of the potential savings to businesses and employees, however.
Scenario:
Ann’s Business employs 10 full-time employees and 10 part-time employees in New York City. Does Ann’s Business have to offer commuter benefits? No. Although Ann’s Business employs 20 employees, only 10 of those employees are full time. The law applies to employers with 20 or more full-time employees working in New York City only. |
If an employer is part of a chain business, do all full-time employees count toward the number of employees?Yes. If an employer owns a majority of more than one establishment in the chain business in New York City, the employer must count all full-time employees at all locations in New York City to determine the total number of full-time employees.
IV. EMPLOYEES COVERED/NOT COVERED BY THE LAW
Which employees are covered under the law?Full-time employees of for-profit and nonprofit organizations that employ more than 20 full-time non-union employees in New York City are covered.
Who is considered a full-time employee?A full-time employee is any employee who has worked an average of 30 hours or more per week in the most recent four weeks as of any date of counting, any portion of which was in New York City, for a single employer. An employee who meets this threshold remains entitled to the benefit even if the employee’s working hours are reduced.
Does the law apply to employees working for a temporary help firm?Yes. If the employee works an average of 30 hours or more per week for a minimum of four weeks, any portion of which was in New York City, the temporary help firm must offer the opportunity to use pre-tax income to purchase qualified transportation fringe benefits if the temporary help firm has 20 or more full-time employees. To determine the number of hours worked each week, employers must add the number of hours worked by the employee in the most recent four weeks at all placements.
Does the law apply to part-time employees?No.
However, DCWP encourages employers to provide commuter benefits to part-time, temporary, and seasonal employees.
Are commuter benefits programs beneficial for all employees?Not necessarily. Using pre-tax income to pay for commuting will reduce monthly expenses for most employees. However, for some employees with lower incomes, in particular part-time and seasonal employees, the pre-tax transit benefit could reduce the amount of a tax refund, if employees are eligible for refundable tax credits like the Earned Income Tax Credit (EITC). DCWP advises employees who may qualify for the EITC to consult a tax advisor or financial professional. To schedule a free one-on-one financial counseling appointment at an NYC Financial Empowerment Center, call 311 or visit
nyc.gov/talkmoney. During tax time, the City offers free tax preparation services to eligible New Yorkers. To learn more, call 311 or visit
nyc.gov/taxprep.
Does the law apply to full-time employees whose employer is located outside of New York City but whose job responsibilities require them to work occasionally in New York City?Yes. Full-time employees whose job responsibilities require them to work occasionally in New York City are covered by the law if they worked an average of 30 hours or more per week in the most recent four weeks, any portion of which was in New York City, and if their employer has 20 or more full-time employees.
Scenario:
Dan’s Business is located in New Jersey, but it employs 25 full-time employees who work in New York City occasionally. Does Dan’s Business have to offer commuter benefits? Yes. Dan’s Business employs 25 full-time employees who work occasionally in New York City and, therefore, the business must offer these employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits. |
Does the law apply to employees who live outside New York City but commute to New York City to work full time?Yes. The law covers full-time employees who work in New York City. It does not matter where employees live.
Scenario:
Jackie lives in New Jersey and uses New Jersey Transit to commute to her job at ABC Foundation, a New York City nonprofit that employs more than 20 full-time employees. Jackie works 35 hours a week, and has worked full time at the foundation for two years. Is Jackie covered by NYC’s Commuter Benefits Law? Yes. ABC Foundation must offer Jackie commuter benefits. |
Are independent contractors covered by the law?
No. The law applies to full-time employees only.
Whether someone is an employee or independent contractor depends on several factors. These include how much supervision, direction, and control the employer has over the services being provided. Workers may meet the legal standard for classification as employees but may be misclassified as independent contractors by their employers. For example, just because an employer issues a 1099 tax form to a worker, has a worker sign a contract stating he or she is an independent contractor, or rents a workspace to a worker (such as a chair in a salon) does not mean the worker is actually an independent contractor. More information is available from the New York State Department of Labor at
labor.ny.gov. Search “Independent Contractors.”
Does the law apply to former employees?
No. The law applies to current full-time employees only.
V. TRANSIT COVERED/NOT COVERED BY THE LAW
What types of transportation costs are covered under the law?Employees may use pre-tax income to pay for transit passes that can be used on public or privately owned mass transit or commuter vans with a seating capacity of six or more passengers.
See
Appendix A for a list of mass transit providers.
Can employees use their commuter benefits to pay the cost of more than one mode of transit during their commute?Yes. Employees may use their commuter benefits to pay for different eligible transit services during their commute.
Scenario:
George commutes to his full-time job at a bank in New York City using Long Island Rail Road (LIRR) and the subway. Can George use commuter benefits to pay for his train and subway costs? Yes. George can use his commuter benefits to pay for his LIRR ticket and his MetroCard. |
Does the law cover vanpooling?Yes. The Commuter Benefits Law covers eligible commuter highway vehicles that seat at least six adults (not including the driver), use at least 80 percent of the mileage to transport employees between their residences and their place of employment, and transport at least half of the adult seating capacity during the trips. For more information, employers and employees may visit
511NYRideshare.org. For information about eligible vanpool services for commuters from New Jersey, contact the New Jersey Department of Transportation’s Vanpool Matching Service at 1-800-245-POOL (7665). The law also covers transportation in a for-hire vehicle with a seating capacity of at least six adults (not including the driver) that accepts transit passes under the Internal Revenue Code.
Does the law cover “dollar vans” or other commercial commuter van services?It depends. The Commuter Benefits Law covers eligible commercial commuter van services that meet the requirements of a “commuter highway vehicle” or for-hire vehicles with a seating capacity of at least six adults (not including the driver) that accept transit passes under the Internal Revenue Code. For more information, employers and employees may visit
511NYRideshare.org. For information about eligible vanpool services for commuters from New Jersey, contact the New Jersey Department of Transportation’s Vanpool Matching Service at 1-800-245-POOL (7665).
Does the law cover carpooling when employees who commute together use a privately owned vehicle?No. The Commuter Benefits Law does not cover a group of employees who commute together using one of the employee’s cars.
Does the law cover ridesharing transportation platforms, such as Via, Lyft, and UberPOOL, that offer transportation in a shared vehicle with a seating capacity of at least six adults (not including the driver)? Yes. The Commuter Benefits Law does include ridesharing transportation platforms as long as the shared vehicle has a seating capacity of at least six adults (not including the driver) and accepts a payment method that qualifies as a “transit pass,” usually a commuter benefits debit card offered by the employee’s third-party benefits provider.
Does the law cover ferry services into and within New York City?Yes. The law covers eligible ferry services into and within New York City. Employees should consult their human resource professional for more information on eligible ferry services.
May employees use commuter benefits to pay for Access-A-Ride?Yes. Employees who qualify for paratransit services may use pre-tax income to pay for their commute using Access-A-Ride, AccessLink or CCT Connect.
May employees use commuter benefits to pay for discounted MetroCards under the Fair Fares NYC program?Yes. Employees who receive notification from the Fair Fares NYC program to enroll for discounted MetroCards may use pre-tax income to pay for their commute. Learn more about the program at
nyc.gov/fairfares.
May employees use commuter benefits to pay for a reduced-fare MetroCard?Yes. Employees who qualify for a reduced-fare MetroCard may use pre-tax income to pay for their commute. To learn more about eligibility requirements, visit
http://web.mta.info/nyct/fare/rfindex.htm.
Are employers required to offer commuter benefits for transportation on every eligible mode of transit?Yes. The law requires that employers offer their full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits on all eligible public or privately owned mass transit or in a commuter highway vehicle with a seating capacity of six or more passengers.
See
Appendix A for a list of mass transit providers.
Are employers required to include qualified parking expenses in their commuter benefits program?No. Qualified parking expenses are not covered by NYC’s Commuter Benefits Law. However, employees may use pre-tax income to pay for qualified parking expenses under federal tax law.
Are qualified bicycle commuting reimbursements covered by the law?No. Under federal tax law, employees cannot use pre-tax income for the qualified bicycle commuting reimbursement benefit. However, qualified bicycle commuting reimbursement benefits may be provided tax-free as an employer-paid fringe benefit.
Are CitiBikes covered by the law?No. Under federal tax law, bicycle rental fees are not qualified transportation fringe benefits.
If an employer provides its employees with a cash reimbursement for the qualified bicycle commuting reimbursement benefit, must the employer also offer employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits?Yes. The employer must offer full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits, even if employees are currently receiving a reimbursement for qualified bicycle commuting expenses. Although an employee cannot use pre-tax income to purchase qualified transportation fringe benefits during the same month(s) that the employee is receiving a bicycle commuting reimbursement, an employee must be given the opportunity to elect to use pre-tax income to purchase qualified transportation fringe benefits instead of receiving the bicycle commuting reimbursement.
VI. SETTING UP A COMMUTER BENEFITS PROGRAM
What is a commuter benefits program?A commuter benefits program is a program that certain employers can offer under the provisions of Internal Revenue Code Section 132(f) to their full-time employees to use pre-tax income to cover certain transportation costs.
Do full-time employees in New York City get commuter benefits through DCWP?No. DCWP enforces the law. For more information about a commuter benefits program, employees should speak with their employers.
How do employees sign up for a commuter benefits program?Employers must provide their eligible employees with the appropriate enrollment materials to participate in the employer-administered commuter benefits program or a third-party provider’s commuter benefits program.
How long does a commuter benefits program take to set up?It may be possible to activate a commuter benefits program with a provider within several weeks or less. However, the registration period depends on the provider and the commuter benefits package selected.
What happens to an employee’s commuter benefits when the employee leaves a job?An employee’s eligibility for commuter benefits ends when the employee leaves the job. In addition, many third-party providers set a deadline for employees to use pre-tax commuter benefits after an employee’s participation in the program ends. If an employee does not use pre-tax commuter benefits by the deadline, the employee may lose unused funds. Employees who plan to leave their job should consult with their employer and their third-party benefits provider to determine all restrictions and rules.
Can employees stop participating in a commuter benefits program?Yes. Employees may suspend or end their participation in a commuter benefits program, but they must follow their employer’s program guidelines. Employees who plan to suspend or end their commuter benefits should consult with their employer and their third-party benefits provider to determine the deadline by when they must use their pre-tax commuter benefits or risk losing unused funds.
Which providers can help an employer offer a commuter benefits program to its full-time employees?Below is a list of third-party providers that manage commuter benefits programs.
Providers are listed in alphabetical order.
An employer should choose any provider that offers the commuter benefits plan that works best for its business. DCWP does not endorse any provider and is not responsible for the services rendered by a provider.
How does a commuter benefits program debit card work?Certain providers offer a commuter benefits debit card. This card is similar to a credit or debit card and can be used to purchase transit passes only. Money is deducted from the employee’s pre-tax income and generally added to the card each pay cycle.
Do employees need to keep receipts for purchases made using a commuter benefits program debit card?The law does not require employees to keep their receipts, but DCWP encourages employees to keep them for their records.
Are there administrative fees associated with using a provider?Yes. Third-party vendors may charge fees for administering commuter benefits programs. For some services, these fees range from 3 percent to 5 percent of the benefit received per employee. Other programs charge administrative fees on a per participant, per month basis. These fees generally range from $4 to $6 per participant, per month. However, administrative fees vary depending on the third-party vendor, the level of service sought, and the number of participating employees. Each third-party vendor should be able to provide employers with a free quote, and employers should seek multiple quotes before selecting the best provider for their company.
May an employer deduct the provider’s administrative fee from its full-time employees’ wages to set up a commuter benefits program?No. Under New York State Labor Law, as of November 6, 2015, employers may not deduct the administrative fees associated with setting up a commuter benefits program from employees’ wages.
May an employer administer a commuter benefits program without a third-party provider?Yes. The law does not require employers to use a third-party provider. Employers who decide to manage a commuter benefits program without a third-party provider should consult their tax advisors and accountants to understand the administrative burden and costs and to understand and comply with applicable laws, including the federal tax code and NYC’s Commuter Benefits Law. For guidance on the federal tax code, please see the
IRS Employer’s Tax Guide to Fringe Benefits.
What if an employer already provides employees with a transit pass at its own expense?An employer does not need to offer commuter benefits under NYC's Commuter Benefits Law if it already provides to employees, at its expense, a transit pass for transportation on every mode of eligible public or privately owned mass transit. However, if the value of the employer-provided transit pass is less than the maximum dollar amount allowed under federal law for pre-tax purchases of qualified transportation fringe benefits, then the employer must offer employees the opportunity to make up the difference with additional pre-tax payroll income.
Employers who provide employees with a transit pass at their own expense must comply with the Commuter Benefits Law recordkeeping requirements.
See
VII. EMPLOYER RECORDKEEPING.
What if an employer already provides its employees with the opportunity to use pre-tax income to purchase qualified transportation fringe benefits?An employer is not required to do anything further if it already offers its employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits as long as the employer offers the maximum monthly amount permitted by federal law on all eligible modes of transit. The employer must continue to offer commuter benefits to new employees and must retain records that document compliance for all employees.
May an employer provide cash reimbursements to employees participating in a commuter benefits program?Generally, no. The Internal Revenue Service (IRS) announced new restrictions, effective January 1, 2016, on employers providing qualified transportation fringe benefits in the form of cash reimbursement in geographic areas where terminal-restricted debit cards or transit passes are “readily available.” For more information, employers should consult with their accountant or tax professional to ensure compliance with all applicable requirements and restrictions. For guidance on the federal tax code, please see the
IRS Employer’s Tax Guide to Fringe Benefits or contact the IRS.
What if an employee elects not to enroll in an employer’s commuter benefits program but wants to participate at a later date?An employee may decide to use pre-tax income to purchase qualified transportation fringe benefits after initially declining an employer’s offer. Employers must provide their eligible employees with the same opportunity to enroll in a commuter benefits program if the employee decides to accept the offer at a later date.
How does an employer qualify for a financial hardship exemption?To qualify for a financial hardship exemption, an employer must present compelling evidence that complying with NYC’s Commuter Benefits Law would significantly harm the business’s finances.
Does participating in a commuter benefits program help the environment?Yes. Commuter benefits provide a financial incentive for employees to use mass transit, which may result in less congestion and better air quality in New York City.
VII. EMPLOYER RECORDKEEPING
What records does an employer have to keep?Employers must keep records that demonstrate that each eligible full-time employee was offered the opportunity to use pre-tax income toward the purchase of covered transit within the first four weeks of employment. Employers may maintain these records electronically.
Employers may use the form available on the DCWP website
nyc.gov/commuterbenefits to document compliance. The Commuter Benefits Law requires employers to keep records for two years. Consult your tax professional to determine any other recordkeeping requirements under local, state or federal law.
VIII. NONCOMPLIANCE AND ENFORCEMENT
Can employees report noncompliance to DCWP?Yes. Employees can report noncompliance to DCWP. Use DCWP Online Services to
file a complaint online or call 311.
When can DCWP issue violations against an employer for not complying with the Commuter Benefits Law?Employers had a six-month grace period after NYC’s Commuter Benefits Law took effect on January 1, 2016 to begin offering commuter benefits to their employees. As of July 1, 2016, DCWP is authorized to seek penalties for failure to comply with the law. Employers have an opportunity to cure (correct) noncompliance within 90 days before any penalty may be imposed.
What are the maximum penalties under the law? Employers can be fined $100 to $250 for the first violation of the law if they do not cure the violation within 90 days. If the violation is not cured after the first fine is imposed, an additional fine of $250 may be issued after every additional 30-day period of noncompliance.
Are there rules or regulations implementing the law?Yes. Rules relating to the Commuter Benefits Law are available at
Rules of the City of New York > Title 6: Department of Consumer and Worker Protection > Chapter 7: Office of Labor Policy and Standards > Subchapter C: Transportation Benefits.
IX. TAX QUESTIONS – EMPLOYERS, EMPLOYEES
What are the tax implications of NYC’s Commuter Benefits Law?Employers and employees should consult their tax advisors to review any tax implications for businesses and their employees.
What is the maximum monthly amount of pre-tax income that an employee can use to pay for qualifying transportation expenses?The IRS sets the monthly limitation for the qualified transportation fringe benefit.
See the current monthly pre-tax limit.