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S01743 Actions:

BILL NOS01743A
 
01/09/2013REFERRED TO LABOR
03/11/2013NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
04/22/2013NOTICE OF COMMITTEE CONSIDERATION - WITHDRAWN
06/03/2013AMEND AND RECOMMIT TO LABOR
06/03/2013PRINT NUMBER 1743A
06/18/2013AMEND (T) AND RECOMMIT TO LABOR
06/18/2013PRINT NUMBER 1743B
06/19/2013AMENDED BY RESTORING TO PREVIOUS PRINT 1743A
01/08/2014REFERRED TO LABOR
03/11/2014NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
04/28/2014REPORTED AND COMMITTED TO FINANCE
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S01743 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1743--A
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced  by  Sens.  ESPAILLAT, ADAMS, ADDABBO, AVELLA, BRESLIN, DIAZ,
          DILAN, GIANARIS, HASSELL-THOMPSON, HOYLMAN, KENNEDY,  KLEIN,  KRUEGER,
          LATIMER,   MONTGOMERY,  PARKER,  PERALTA,  PERKINS,  RIVERA,  SAMPSON,
          SANDERS, SAVINO, SERRANO, SMITH, SQUADRON,  STAVISKY,  STEWART-COUSINS

          -- read twice and ordered printed, and when printed to be committed to
          the  Committee on Labor -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the  labor  law,  in  relation  to  granting  collective
          bargaining  rights  to farm laborers and allowing farm workers one day
          of rest each week and including farm laborers  within  the  provisions
          pertaining  to  overtime  compensation  and unemployment insurance; to
          amend the public health law, in relation to  the  application  of  the
          sanitary  code to all farm and food processing labor camps for migrant
          workers; to amend the workers' compensation law, in  relation  to  the
          eligibility  of  farm  laborers for workers' compensation benefits and
          the provision of claim forms to farm laborers injured in the course of

          employment and in relation to service as farm laborers; and  to  amend
          the  labor  law,  in  relation  to  labor on a farm and regulating the
          employment of certain employees whose earning capacity is affected  or
          impaired by youth or age
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as "the  farmwork-
     2  ers fair labor practices act".
     3    §  2.  Paragraph (a) of subdivision 3 of section 701 of the labor law,
     4  as amended by chapter 43 of the laws of 1989,  is  amended  to  read  as
     5  follows:
     6    (a)  The  term "employees" includes but is not restricted to any indi-
     7  vidual employed by a labor organization; any individual whose employment
     8  has ceased as a consequence of, or in connection with, any current labor
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00123-03-3

        S. 1743--A                          2
 
     1  dispute or because of  any  unfair  labor  practice,  and  who  has  not
     2  obtained  any other regular and substantially equivalent employment; and
     3  shall not be limited to the employees of a particular  employer,  unless
     4  the article explicitly states otherwise, but shall not include any indi-
     5  vidual  employed  by  his parent or spouse or in the domestic service of
     6  and directly employed, controlled and paid by any person  in  his  home,
     7  any individual whose primary responsibility is the care of a minor child
     8  or  children  and/or  someone  who lives in the home of a person for the

     9  purpose of serving as a companion to a  sick,  convalescing  or  elderly
    10  person  or  any  individuals  employed  only for the duration of a labor
    11  dispute, [or any individuals employed as farm laborers] or[,] any  indi-
    12  vidual  who  participates  in and receives rehabilitative or therapeutic
    13  services in a charitable non-profit rehabilitation facility or sheltered
    14  workshop or any individual employed in a charitable non-profit rehabili-
    15  tation facility or sheltered workshop who has received rehabilitative or
    16  therapeutic services and whose capacity to perform the work for which he
    17  is engaged is substantially impaired by physical or mental deficiency or
    18  injury.
    19    § 3. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
    20  adding a new undesignated paragraph to read as follows:

    21    Every  person  employed  as  a  farm laborer shall be allowed at least
    22  twenty-four consecutive hours of rest in each and every  calendar  week.
    23  This  requirement  shall not apply to the parent, child, spouse or other
    24  member of the employer's immediate family. Twenty-four consecutive hours
    25  spent at rest because of circumstances, such as weather or  crop  condi-
    26  tions,  shall  be  deemed  to constitute the rest required by this para-
    27  graph. No provision of this paragraph shall prohibit a farm laborer from
    28  voluntarily refusing the rest required by  this  paragraph.    The  term
    29  "farm  labor"  shall  include  all  services  performed  in agricultural
    30  employment in connection with cultivating the  soil,  or  in  connection

    31  with  raising  or  harvesting of agricultural commodities, including the
    32  raising, shearing, caring for and management of  livestock,  poultry  or
    33  dairy.   The day of rest authorized under this subdivision should, when-
    34  ever possible, coincide with the traditional day reserved  by  the  farm
    35  laborer for religious worship.
    36    §  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
    37  law, as amended by chapter 281 of the laws of 1941, are amended to  read
    38  as follows:
    39    b.  Employees in [dairies, creameries,] milk condenseries, milk powder
    40  factories, milk sugar factories,  milk  shipping  stations,  butter  and
    41  cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
    42  plants, where not more than seven persons are employed;

    43    d. Employees whose duties include not more than three hours'  work  on
    44  Sunday  in setting sponges in bakeries, [caring for live animals,] main-
    45  taining fires, or making necessary repairs to boilers or machinery.
    46    § 5. The opening paragraph of subdivision 3  of  section  160  of  the
    47  labor  law, as amended by chapter 481 of the laws of 2010, is amended to
    48  read as follows:
    49    For all other employees, except [those engaged in farm work and] those
    50  affected by subdivision four of section two hundred twenty of this chap-
    51  ter, eight hours.
    52    § 6. Subdivision 1 of section 220 of the labor law is amended to  read
    53  as follows:
    54    1.  Eight hours shall constitute a legal day's work for all classes of
    55  employees in this state except those  engaged  in  [farm  and]  domestic
    56  service unless otherwise provided by law.

        S. 1743--A                          3
 
     1    § 7. The labor law is amended by adding a new section 163-a to read as
     2  follows:
     3    §  163-a.  Farm  laborers.  No  person or corporation operating a farm
     4  shall require any employee to work more than eight hours in any  day  or
     5  forty  hours in any calendar week; provided, however, that overtime work
     6  performed by a farm laborer shall be at a rate which is at least one and
     7  one-half times the worker's normal wage rate.
     8    § 8. The opening paragraph  of  paragraph  (a)  of  subdivision  6  of
     9  section  511  of the labor law, as amended by chapter 675 of the laws of
    10  1977, is amended to read as follows:
    11    The term "employment" [does not include] includes  agricultural  labor

    12  [unless  it is covered pursuant to section five hundred sixty-four]. The
    13  term "agricultural labor" includes all service performed:
    14    § 9. Section 564 of the labor law, as added by chapter 675 of the laws
    15  of 1977, is amended to read as follows:
    16    § 564. Agricultural labor crew leaders.   [1. Coverage.  (a)  Notwith-
    17  standing  the  provisions of section five hundred sixty of this article,
    18  an employer of persons engaged in agricultural labor shall become liable
    19  for contributions under this article if the employer:
    20    (1) has paid cash remuneration of twenty thousand dollars or  more  in
    21  any calendar quarter to persons employed in agricultural labor, and such
    22  liability shall commence on the first day of such quarter, or

    23    (2)  has employed in agricultural labor ten or more persons on each of
    24  twenty days during a calendar year or the preceding calendar year,  each
    25  day  being in a different calendar week, and the liability shall in such
    26  event commence on the first day of the calendar year, or
    27    (3) is liable for the tax imposed under the federal  unemployment  tax
    28  act as an employer of agricultural labor and the liability shall in such
    29  event commence on the first day of the calendar quarter in such calendar
    30  year  when  he  first  paid  remuneration for agricultural labor in this
    31  state.
    32    (b) An employer who becomes liable for contributions  under  paragraph
    33  (a)  of this subdivision shall cease to be liable as of the first day of

    34  a calendar quarter next following the filing of  a  written  application
    35  provided the commissioner finds that the employer:
    36    (1) has not paid to persons employed in agricultural labor cash remun-
    37  eration  of twenty thousand dollars or more in any of the eight calendar
    38  quarters preceding such day, and
    39    (2) has not employed in agricultural labor ten or more persons on each
    40  of twenty days during the current or the preceding calendar  year,  each
    41  day being in a different week, and
    42    (3)  is  not liable for the tax imposed under the federal unemployment
    43  tax act as an employer of agricultural labor.
    44    2. Crew leader.] Whenever a person renders services as a member  of  a
    45  crew  which is paid and furnished by the crew leader to perform services

    46  in agricultural labor for another employer, such other  employer  shall,
    47  for  the  purpose  of this article, be deemed to be the employer of such
    48  person, unless:
    49    [(a)] 1. the crew leader holds a  valid  certificate  of  registration
    50  under  the  federal  farm  labor contractor registration act of nineteen
    51  hundred sixty-three or substantially all the members of the crew operate
    52  or maintain tractors, mechanized harvesting or cropdusting machinery  or
    53  any other mechanized equipment which is provided by the crew leader, and
    54    [(b)] 2. the crew leader is not an employee of such other employer and
    55  has  not entered into a written agreement with such employer under which
    56  he is designated as an employee.

        S. 1743--A                          4
 

     1    § 10. Paragraph (m) of subdivision 5 of  section  225  of  the  public
     2  health law, as amended by section 51 of part A of chapter 58 of the laws
     3  of 2010, is amended to read as follows:
     4    (m) require that application be made for a permit to operate a farm or
     5  food  processing  labor  camp as defined in the sanitary code; authorize
     6  appropriate officers or agencies to issue such a permit when the  appli-
     7  cant is in compliance with the established regulations; prescribe stand-
     8  ards  for  living  quarters  at  farm  and  food processing labor camps,
     9  including provisions for sanitary conditions; light,  air,  and  safety;
    10  protection from fire hazards; maintenance; and such other matters as may
    11  be  appropriate  for  security of life or health, provided however, that
    12  the  provisions  of  the  sanitary  code  established  pursuant  to  the

    13  provisions  hereof  shall  apply  to  all farm and food processing labor
    14  camps intended to house migrant workers and which are occupied [by  five
    15  or  more  persons].  In  the preparation of such regulations, the public
    16  health and health planning council may request and shall receive techni-
    17  cal assistance from the board of standards  and  appeals  of  the  state
    18  department  of  labor and the state building code commission. Such regu-
    19  lation shall be enforced in the same manner as are other  provisions  of
    20  the sanitary code;
    21    §  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
    22  ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
    23  of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
    24  amended to read as follows:
    25    Group 14-a. On and after January first,  nineteen  hundred  sixty-two,

    26  any  other  employment in a trade, business, or occupation carried on by
    27  the employer for pecuniary gain in which one or  more  employees  [other
    28  than farm laborers] are employed.
    29    Group 14-b. Employment as a farm laborer as provided herein.  A farmer
    30  shall  provide  coverage  under  this  chapter  for  all  farm  laborers
    31  [employed during any part of the  twelve  consecutive  months  beginning
    32  April  first  of  any calendar year preceded by a calendar year in which
    33  the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
    34  hundred dollars or more].
    35    §  12.    Section  51  of the workers' compensation law, as amended by
    36  chapter 561 of the laws of 2003, is amended to read as follows:
    37    § 51. Posting of notice regarding compensation. Every employer who has

    38  complied with section fifty of this article shall post and maintain in a
    39  conspicuous place or places in and about his place or places of business
    40  typewritten or printed in English and Spanish notices in form prescribed
    41  by the chairman, stating the fact that he  has  complied  with  all  the
    42  rules  and  regulations  of  the  chairman and the board and that he has
    43  secured the payment of compensation to his employees  and  their  depen-
    44  dents  in accordance with the provisions of this chapter, but failure to
    45  post such notice as herein provided shall not  in  any  way  affect  the
    46  exclusiveness of the remedy provided for by section eleven of this chap-
    47  ter. Every employer who owns or operates automotive or horse-drawn vehi-
    48  cles  and  has  no minimum staff of regular employees required to report
    49  for work at an established place of business maintained by such employer

    50  and every employer who is engaged in the business  of  moving  household
    51  goods  or  furniture  shall  post such notices in each and every vehicle
    52  owned or operated by him. Failure to post or maintain such notice in any
    53  of said vehicles shall constitute presumptive evidence that such employ-
    54  er has failed to secure the payment of compensation.  The  chairman  may
    55  require  any employer to furnish a written statement at any time showing
    56  the stock corporation, mutual corporation or reciprocal insurer in which

        S. 1743--A                          5
 
     1  such employer is insured or  the  manner  in  which  such  employer  has
     2  complied with any provision of this chapter. Failure for a period of ten
     3  days  to  furnish  such  written  statement shall constitute presumptive
     4  evidence that such employer has neglected or failed in respect of any of

     5  the  matters  so  required.  Any  employer  who fails to comply with the
     6  provisions of this section shall be required to pay to the board a  fine
     7  of [up to two hundred fifty] five hundred dollars for each violation, in
     8  addition  to any other penalties imposed by law to be deposited into the
     9  uninsured employers' fund.
    10    § 13. The workers' compensation law is amended by adding a new section
    11  110-b to read as follows:
    12    § 110-b. Reporting of injuries to employer. Every farm labor  contrac-
    13  tor, foreman or supervisor of farm laborers who has notice of any injury
    14  to  a  farm  laborer  incurred  during the course of employment shall be
    15  required to inform the employer, owner or operator of a farm of any such
    16  injury.

    17    § 14. The first undesignated paragraph of section 120 of the  workers'
    18  compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
    19  amended to read as follows:
    20    It shall be unlawful for any employer or his or  her  duly  authorized
    21  agent  to  discharge  or  in  any  other  manner discriminate against an
    22  employee as to his or her employment because such employee  has  claimed
    23  or attempted to claim compensation from such employer, requested a claim
    24  form for injuries received in the course of employment, or because he or
    25  she  has  testified  or  is  about to testify in a proceeding under this
    26  chapter and no other valid reason is shown to exist for such  action  by
    27  the employer.
    28    § 15. The opening paragraph of paragraph A of subdivision 6 of section
    29  201  of  the workers' compensation law, as amended by chapter 481 of the

    30  laws of 2010, is amended to read as follows:
    31    "Employment" means employment in any  trade,  business  or  occupation
    32  carried on by an employer, except that the following shall not be deemed
    33  employment  under  this  article:  services  performed  for the state, a
    34  municipal corporation, local governmental agency, other political subdi-
    35  vision or public authority; employment subject to the  federal  railroad
    36  unemployment  insurance  act;  service  performed on or as an officer or
    37  member of the crew of a vessel on the  navigable  water  of  the  United
    38  States  or outside the United States; [service as farm laborers;] casual
    39  employment and the first forty-five days of extra employment of  employ-
    40  ees  not regularly in employment as otherwise defined herein; service as
    41  golf caddies; and service during all or any part of the school  year  or

    42  regular vacation periods as a part-time worker of any person actually in
    43  regular  attendance during the day time as a student in an elementary or
    44  secondary school.  The  term  "employment"  shall  include  domestic  or
    45  personal work in a private home. The term "employment" shall not include
    46  the  services  of a licensed real estate broker or sales associate if it
    47  be proven that (a) substantially all of the remuneration (whether or not
    48  paid in cash) for the services performed by such broker or sales associ-
    49  ate is directly related to sales or other output (including the perform-
    50  ance of services) rather than to the number of  hours  worked;  (b)  the
    51  services performed by the broker or sales associate are performed pursu-
    52  ant  to a written contract executed between such broker or sales associ-
    53  ate and the person for whom the services are performed within  the  past

    54  twelve  to  fifteen months; and (c) the written contract provided for in
    55  subparagraph (b) of this paragraph was not  executed  under  duress  and
    56  contains the following provisions:

        S. 1743--A                          6
 
     1    §  16.  The  opening  paragraph of subdivision 5 of section 651 of the
     2  labor law, as amended by chapter 481 of the laws of 2010, is amended  to
     3  read as follows:
     4    "Employee" includes any individual employed or permitted to work by an
     5  employer  in any occupation, but shall not include any individual who is
     6  employed or permitted to work: (a) on a casual basis  in  service  as  a
     7  part  time  baby  sitter in the home of the employer; (b) [in labor on a
     8  farm; (c)] in a bona fide  executive,  administrative,  or  professional

     9  capacity;  [(d)]  (c)  as  an  outside  salesman;  [(e)] (d) as a driver
    10  engaged in operating a taxicab; [(f)] (e) as  a  volunteer,  learner  or
    11  apprentice  by  a  corporation,  unincorporated  association,  community
    12  chest, fund or foundation organized and operated exclusively  for  reli-
    13  gious,  charitable  or educational purposes, no part of the net earnings
    14  of which inures to the benefit of any private shareholder or individual;
    15  [(g)] (f) as a member of a religious  order,  or  as  a  duly  ordained,
    16  commissioned  or  licensed minister, priest or rabbi, or as a sexton, or
    17  as a christian science reader; [(h)] (g) in or for such a  religious  or
    18  charitable  institution,  which  work  is incidental to or in return for

    19  charitable aid conferred upon such individual and not under any  express
    20  contract  of  hire; [(i)] (h) in or for such a religious, educational or
    21  charitable institution if such individual is a student; [(j)] (i) in  or
    22  for such a religious, educational or charitable institution if the earn-
    23  ing  capacity  of  such  individual is impaired by age or by physical or
    24  mental deficiency or injury; [(k)] (j)  in  or  for  a  summer  camp  or
    25  conference  of  such  a religious, educational or charitable institution
    26  for not more than three months annually; [(l)] (k) as a staff  counselor
    27  in  a  children's  camp;  [(m)]  (l)  in  or for a college or university
    28  fraternity, sorority, student association  or  faculty  association,  no

    29  part  of  the net earnings of which inures to the benefit of any private
    30  shareholder or individual, and which is recognized by  such  college  or
    31  university,  if  such  individual  is a student; [(n)] (m) by a federal,
    32  state or municipal government or political  subdivision  thereof.    The
    33  exclusions  from the term "employee" contained in this subdivision shall
    34  be as defined by regulations of the commissioner;  or  [(o)]  (n)  as  a
    35  volunteer  at  a  recreational or amusement event run by a business that
    36  operates such events, provided that no single such  event  lasts  longer
    37  than  eight  consecutive days and no more than one such event concerning
    38  substantially the same subject matter occurs in any calendar  year.  Any
    39  such volunteer shall be at least eighteen years of age. A business seek-

    40  ing  coverage under this paragraph shall notify every volunteer in writ-
    41  ing, in language acceptable to the commissioner,  that  by  volunteering
    42  his  or  her  services,  such  volunteer  is waiving his or her right to
    43  receive the minimum wage pursuant to this article. Such notice shall  be
    44  signed  and  dated by a representative of the business and the volunteer
    45  and kept on file by the business for thirty-six months.
    46    § 17. Subdivision 1 of section 674 of the labor law, as added by chap-
    47  ter 552 of the laws of 1969, is amended to read as follows:
    48    1. The commissioner may promulgate such regulations as he deems appro-
    49  priate to carry out the purposes of this article and to safeguard  mini-
    50  mum  wage  standards.  Such regulations may include, but are not limited
    51  to, the defining of the circumstances or conditions for  the  acceptance

    52  of  non-hourly rates and piece rates as equivalent to the minimum hourly
    53  rates established by this article. Such regulations  also  may  include,
    54  but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
    55  provisions governing guaranteed earnings  during  specified  periods  of
    56  work;  allowances  for  meals,  lodging,  and  other items, services and

        S. 1743--A                          7
 
     1  facilities when furnished by the employer; [and the employment of  indi-
     2  viduals whose earning capacity is affected or impaired by youth or age,]
     3  or  by  physical  or  mental deficiency or injury, under special certif-
     4  icates  issued by the commissioner, at such wages lower than the minimum
     5  wage established by this  article  and  for  such  period  as  shall  be
     6  prescribed in such regulations.

     7    §  18.  This  act shall take effect immediately, provided that section
     8  ten of this act shall take effect on the thirtieth day  after  it  shall
     9  have become a law.
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