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A01792 Summary:

BILL NO    A01792A

SAME AS    SAME AS S01743-A

SPONSOR    Nolan (MS)

COSPNSR    Silver, Millman, Gottfried, O'Donnell, Ortiz, Perry, Cook,
           Scarborough, Jacobs, Colton, Camara, Cahill, Jaffee, Weprin, Hooper,
           Abinanti, Dinowitz, Crespo, Titus, Pretlow, Glick, Roberts,
           Rosenthal, Moya, Sepulveda, Mosley, Bronson, Heastie, Steck, Rivera,
           Aubry, Robinson, Lifton, Fahy, Markey, Peoples-Stokes, Gantt,
           Kavanagh, Braunstein

MLTSPNSR   Abbate, Arroyo, Benedetto, Brennan, Brook-Krasny, Clark, Cusick,
           Englebright, Farrell, Hevesi, Kim, Lentol, Mayer, McDonald, Miller,
           Otis, Paulin, Quart, Ramos, Rodriguez, Schimel, Simotas, Solages,
           Sweeney, Weinstein, Weisenberg, Wright

Amd SS160, 161, 220, 511, 564, 651, 674 & 701, add S163-a, Lab L; amd S225, Pub
Health L; amd SS3, 51, 120, 201, add S110-b, Work Comp L

Enacts the farmworkers fair labor practices act: grants collective bargaining
rights to farm laborers; requires employers of farm laborers to allow at least
24 consecutive hours of rest each week; provides for an 8 hour work day for
farm laborers; requires overtime rate at one and one-half times normal rate;
makes provisions of unemployment insurance law applicable to farm laborers;
provides sanitary code shall apply to all farm and food processing labor camps
intended to house migrant workers, regardless of the number of occupants;
provides for eligibility of farm laborers for workers' compensation benefits;
requires employers of farm laborers to provide such farm laborers with claim
forms for workers' compensation claims under certain conditions; requires
reporting of injuries to employers of farmworkers.
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A01792 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        1792--A

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced  by  M.  of  A. NOLAN, MILLMAN, GOTTFRIED, O'DONNELL, MAISEL,
         ORTIZ, PERRY, COOK, SCARBOROUGH, STEVENSON,  JACOBS,  COLTON,  CAMARA,
         CAHILL,  JAFFEE,  WEPRIN,  HOOPER, ABINANTI, CASTRO, DINOWITZ, CRESPO,
         TITUS, PRETLOW, GLICK, ROBERTS, ROSENTHAL,  MOYA,  SEPULVEDA,  MOSLEY,
         BRONSON,  HEASTIE,  ESPINAL, STECK, RIVERA -- Multi-Sponsored by -- M.
         of A. ARROYO, BRENNAN, CLARK, MARKEY, SWEENEY, WEISENBERG -- read once
         and referred to the Committee on Labor -- committee  discharged,  bill
         amended,  ordered reprinted as amended and recommitted to said commit-
         tee

       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    S  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:

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00123-02-3
       A. 1792--A                          2

    1    (a)  The  term "employees" includes but is not restricted to any indi-
    2  vidual employed by a labor organization; any individual whose employment
    3  has ceased as a consequence of, or in connection with, any current labor
    4  dispute or because of  any  unfair  labor  practice,  and  who  has  not
    5  obtained  any other regular and substantially equivalent employment; and
    6  shall not be limited to the employees of a particular  employer,  unless
    7  the article explicitly states otherwise, but shall not include any indi-
    8  vidual  employed  by  his parent or spouse or in the domestic service of
    9  and directly employed, controlled and paid by any person  in  his  home,
   10  any individual whose primary responsibility is the care of a minor child
   11  or  children  and/or  someone  who lives in the home of a person for the
   12  purpose of serving as a companion to a  sick,  convalescing  or  elderly
   13  person  or  any  individuals  employed  only for the duration of a labor
   14  dispute, [or any individuals employed as farm laborers] or[,] any  indi-
   15  vidual  who  participates  in and receives rehabilitative or therapeutic
   16  services in a charitable non-profit rehabilitation facility or sheltered
   17  workshop or any individual employed in a charitable non-profit rehabili-
   18  tation facility or sheltered workshop who has received rehabilitative or
   19  therapeutic services and whose capacity to perform the work for which he
   20  is engaged is substantially impaired by physical or mental deficiency or
   21  injury.
   22    S 3. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
   23  adding a new undesignated paragraph to read as follows:
   24    EVERY  PERSON  EMPLOYED  AS  A  FARM LABORER SHALL BE ALLOWED AT LEAST
   25  TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY  CALENDAR  WEEK.
   26  THIS  REQUIREMENT  SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER
   27  MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
   28  SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR  CROP  CONDI-
   29  TIONS,  SHALL  BE  DEEMED  TO CONSTITUTE THE REST REQUIRED BY THIS PARA-
   30  GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
   31  VOLUNTARILY REFUSING THE REST REQUIRED BY  THIS  PARAGRAPH.    THE  TERM
   32  "FARM  LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN AGRICULTURAL
   33  EMPLOYMENT IN CONNECTION WITH CULTIVATING THE  SOIL,  OR  IN  CONNECTION
   34  WITH  RAISING  OR  HARVESTING OF AGRICULTURAL COMMODITIES, INCLUDING THE
   35  RAISING, SHEARING, CARING FOR AND MANAGEMENT OF  LIVESTOCK,  POULTRY  OR
   36  DAIRY.   THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD, WHEN-
   37  EVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY RESERVED  BY  THE  FARM
   38  LABORER FOR RELIGIOUS WORSHIP.
   39    S  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
   40  law, as amended by chapter 281 of the laws of 1941, are amended to  read
   41  as follows:
   42    b.  Employees in [dairies, creameries,] milk condenseries, milk powder
   43  factories, milk sugar factories,  milk  shipping  stations,  butter  and
   44  cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
   45  plants, where not more than seven persons are employed;
   46    d. Employees whose duties include not more than three hours'  work  on
   47  Sunday  in setting sponges in bakeries, [caring for live animals,] main-
   48  taining fires, or making necessary repairs to boilers or machinery.
   49    S 5. The opening paragraph of subdivision 3  of  section  160  of  the
   50  labor  law, as amended by chapter 481 of the laws of 2010, is amended to
   51  read as follows:
   52    For all other employees, except [those engaged in farm work and] those
   53  affected by subdivision four of section two hundred twenty of this chap-
   54  ter, eight hours.
   55    S 6. Subdivision 1 of section 220 of the labor law is amended to  read
   56  as follows:
       A. 1792--A                          3

    1    1.  Eight hours shall constitute a legal day's work for all classes of
    2  employees in this state except those  engaged  in  [farm  and]  domestic
    3  service unless otherwise provided by law.
    4    S 7. The labor law is amended by adding a new section 163-a to read as
    5  follows:
    6    S  163-A.  FARM  LABORERS.  NO  PERSON OR CORPORATION OPERATING A FARM
    7  SHALL REQUIRE ANY EMPLOYEE TO WORK MORE THAN EIGHT HOURS IN ANY  DAY  OR
    8  FORTY  HOURS IN ANY CALENDAR WEEK; PROVIDED, HOWEVER, THAT OVERTIME WORK
    9  PERFORMED BY A FARM LABORER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND
   10  ONE-HALF TIMES THE WORKER'S NORMAL WAGE RATE.
   11    S 8. The opening paragraph  of  paragraph  (a)  of  subdivision  6  of
   12  section  511  of the labor law, as amended by chapter 675 of the laws of
   13  1977, is amended to read as follows:
   14    The term "employment" [does not include] INCLUDES  agricultural  labor
   15  [unless  it is covered pursuant to section five hundred sixty-four]. The
   16  term "agricultural labor" includes all service performed:
   17    S 9. Section 564 of the labor law, as added by chapter 675 of the laws
   18  of 1977, is amended to read as follows:
   19    S 564. Agricultural labor CREW LEADERS.   [1. Coverage.  (a)  Notwith-
   20  standing  the  provisions of section five hundred sixty of this article,
   21  an employer of persons engaged in agricultural labor shall become liable
   22  for contributions under this article if the employer:
   23    (1) has paid cash remuneration of twenty thousand dollars or  more  in
   24  any calendar quarter to persons employed in agricultural labor, and such
   25  liability shall commence on the first day of such quarter, or
   26    (2)  has employed in agricultural labor ten or more persons on each of
   27  twenty days during a calendar year or the preceding calendar year,  each
   28  day  being in a different calendar week, and the liability shall in such
   29  event commence on the first day of the calendar year, or
   30    (3) is liable for the tax imposed under the federal  unemployment  tax
   31  act as an employer of agricultural labor and the liability shall in such
   32  event commence on the first day of the calendar quarter in such calendar
   33  year  when  he  first  paid  remuneration for agricultural labor in this
   34  state.
   35    (b) An employer who becomes liable for contributions  under  paragraph
   36  (a)  of this subdivision shall cease to be liable as of the first day of
   37  a calendar quarter next following the filing of  a  written  application
   38  provided the commissioner finds that the employer:
   39    (1) has not paid to persons employed in agricultural labor cash remun-
   40  eration  of twenty thousand dollars or more in any of the eight calendar
   41  quarters preceding such day, and
   42    (2) has not employed in agricultural labor ten or more persons on each
   43  of twenty days during the current or the preceding calendar  year,  each
   44  day being in a different week, and
   45    (3)  is  not liable for the tax imposed under the federal unemployment
   46  tax act as an employer of agricultural labor.
   47    2. Crew leader.] Whenever a person renders services as a member  of  a
   48  crew  which is paid and furnished by the crew leader to perform services
   49  in agricultural labor for another employer, such other  employer  shall,
   50  for  the  purpose  of this article, be deemed to be the employer of such
   51  person, unless:
   52    [(a)] 1. the crew leader holds a  valid  certificate  of  registration
   53  under  the  federal  farm  labor contractor registration act of nineteen
   54  hundred sixty-three or substantially all the members of the crew operate
   55  or maintain tractors, mechanized harvesting or cropdusting machinery  or
   56  any other mechanized equipment which is provided by the crew leader, and
       A. 1792--A                          4

    1    [(b)] 2. the crew leader is not an employee of such other employer and
    2  has  not entered into a written agreement with such employer under which
    3  he is designated as an employee.
    4    S  10.  Paragraph  (m)  of  subdivision 5 of section 225 of the public
    5  health law, as amended by section 51 of part A of chapter 58 of the laws
    6  of 2010, is amended to read as follows:
    7    (m) require that application be made for a permit to operate a farm or
    8  food processing labor camp as defined in the  sanitary  code;  authorize
    9  appropriate  officers or agencies to issue such a permit when the appli-
   10  cant is in compliance with the established regulations; prescribe stand-
   11  ards for living quarters  at  farm  and  food  processing  labor  camps,
   12  including  provisions  for  sanitary conditions; light, air, and safety;
   13  protection from fire hazards; maintenance; and such other matters as may
   14  be appropriate for security of life or health,  provided  however,  that
   15  the  provisions  of  the  sanitary  code  established  pursuant  to  the
   16  provisions hereof shall apply to all  farm  and  food  processing  labor
   17  camps  intended to house migrant workers and which are occupied [by five
   18  or more persons]. In the preparation of  such  regulations,  the  public
   19  health and health planning council may request and shall receive techni-
   20  cal  assistance  from  the  board  of standards and appeals of the state
   21  department of labor and the state building code commission.  Such  regu-
   22  lation  shall  be enforced in the same manner as are other provisions of
   23  the sanitary code;
   24    S 11. Groups 14-a and 14-b of subdivision 1 of section 3 of the  work-
   25  ers'  compensation law, Group 14-a as amended by chapter 233 of the laws
   26  of 1961 and Group 14-b as added by chapter 646 of the laws of 1966,  are
   27  amended to read as follows:
   28    Group  14-a.  On  and after January first, nineteen hundred sixty-two,
   29  any other employment in a trade, business, or occupation carried  on  by
   30  the  employer  for  pecuniary gain in which one or more employees [other
   31  than farm laborers] are employed.
   32    Group 14-b. Employment as a farm laborer as provided herein.  A farmer
   33  shall  provide  coverage  under  this  chapter  for  all  farm  laborers
   34  [employed  during  any  part  of the twelve consecutive months beginning
   35  April first of any calendar year preceded by a calendar  year  in  which
   36  the  cash  remuneration  paid  to  all  farm  laborers aggregated twelve
   37  hundred dollars or more].
   38    S 12.  Section 51 of the workers'  compensation  law,  as  amended  by
   39  chapter 561 of the laws of 2003, is amended to read as follows:
   40    S 51. Posting of notice regarding compensation. Every employer who has
   41  complied with section fifty of this article shall post and maintain in a
   42  conspicuous place or places in and about his place or places of business
   43  typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
   44  by  the  chairman,  stating  the  fact that he has complied with all the
   45  rules and regulations of the chairman and the  board  and  that  he  has
   46  secured  the  payment  of compensation to his employees and their depen-
   47  dents in accordance with the provisions of this chapter, but failure  to
   48  post  such  notice  as  herein  provided shall not in any way affect the
   49  exclusiveness of the remedy provided for by section eleven of this chap-
   50  ter. Every employer who owns or operates automotive or horse-drawn vehi-
   51  cles and has no minimum staff of regular employees  required  to  report
   52  for work at an established place of business maintained by such employer
   53  and  every  employer  who is engaged in the business of moving household
   54  goods or furniture shall post such notices in  each  and  every  vehicle
   55  owned or operated by him. Failure to post or maintain such notice in any
   56  of said vehicles shall constitute presumptive evidence that such employ-
       A. 1792--A                          5

    1  er  has  failed  to secure the payment of compensation. The chairman may
    2  require any employer to furnish a written statement at any time  showing
    3  the stock corporation, mutual corporation or reciprocal insurer in which
    4  such  employer  is  insured  or  the  manner  in which such employer has
    5  complied with any provision of this chapter. Failure for a period of ten
    6  days to furnish such  written  statement  shall  constitute  presumptive
    7  evidence that such employer has neglected or failed in respect of any of
    8  the  matters  so  required.  Any  employer  who fails to comply with the
    9  provisions of this section shall be required to pay to the board a  fine
   10  of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
   11  addition  to any other penalties imposed by law to be deposited into the
   12  uninsured employers' fund.
   13    S 13. The workers' compensation law is amended by adding a new section
   14  110-b to read as follows:
   15    S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
   16  TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
   17  TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
   18  REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
   19  INJURY.
   20    S 14. The first undesignated paragraph of section 120 of the  workers'
   21  compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
   22  amended to read as follows:
   23    It shall be unlawful for any employer or his or  her  duly  authorized
   24  agent  to  discharge  or  in  any  other  manner discriminate against an
   25  employee as to his or her employment because such employee  has  claimed
   26  or attempted to claim compensation from such employer, REQUESTED A CLAIM
   27  FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
   28  she  has  testified  or  is  about to testify in a proceeding under this
   29  chapter and no other valid reason is shown to exist for such  action  by
   30  the employer.
   31    S 15. The opening paragraph of paragraph A of subdivision 6 of section
   32  201  of  the workers' compensation law, as amended by chapter 481 of the
   33  laws of 2010, is amended to read as follows:
   34    "Employment" means employment in any  trade,  business  or  occupation
   35  carried on by an employer, except that the following shall not be deemed
   36  employment  under  this  article:  services  performed  for the state, a
   37  municipal corporation, local governmental agency, other political subdi-
   38  vision or public authority; employment subject to the  federal  railroad
   39  unemployment  insurance  act;  service  performed on or as an officer or
   40  member of the crew of a vessel on the  navigable  water  of  the  United
   41  States  or outside the United States; [service as farm laborers;] casual
   42  employment and the first forty-five days of extra employment of  employ-
   43  ees  not regularly in employment as otherwise defined herein; service as
   44  golf caddies; and service during all or any part of the school  year  or
   45  regular vacation periods as a part-time worker of any person actually in
   46  regular  attendance during the day time as a student in an elementary or
   47  secondary school.  The  term  "employment"  shall  include  domestic  or
   48  personal work in a private home. The term "employment" shall not include
   49  the  services  of a licensed real estate broker or sales associate if it
   50  be proven that (a) substantially all of the remuneration (whether or not
   51  paid in cash) for the services performed by such broker or sales associ-
   52  ate is directly related to sales or other output (including the perform-
   53  ance of services) rather than to the number of  hours  worked;  (b)  the
   54  services performed by the broker or sales associate are performed pursu-
   55  ant  to a written contract executed between such broker or sales associ-
   56  ate and the person for whom the services are performed within  the  past
       A. 1792--A                          6

    1  twelve  to  fifteen months; and (c) the written contract provided for in
    2  subparagraph (b) of this paragraph was not  executed  under  duress  and
    3  contains the following provisions:
    4    S  16.  The  opening  paragraph of subdivision 5 of section 651 of the
    5  labor law, as amended by chapter 481 of the laws of 2010, is amended  to
    6  read as follows:
    7    "Employee" includes any individual employed or permitted to work by an
    8  employer  in any occupation, but shall not include any individual who is
    9  employed or permitted to work: (a) on a casual basis  in  service  as  a
   10  part  time  baby  sitter in the home of the employer; (b) [in labor on a
   11  farm; (c)] in a bona fide  executive,  administrative,  or  professional
   12  capacity;  [(d)]  (C)  as  an  outside  salesman;  [(e)] (D) as a driver
   13  engaged in operating a taxicab; [(f)] (E) as  a  volunteer,  learner  or
   14  apprentice  by  a  corporation,  unincorporated  association,  community
   15  chest, fund or foundation organized and operated exclusively  for  reli-
   16  gious,  charitable  or educational purposes, no part of the net earnings
   17  of which inures to the benefit of any private shareholder or individual;
   18  [(g)] (F) as a member of a religious  order,  or  as  a  duly  ordained,
   19  commissioned  or  licensed minister, priest or rabbi, or as a sexton, or
   20  as a christian science reader; [(h)] (G) in or for such a  religious  or
   21  charitable  institution,  which  work  is incidental to or in return for
   22  charitable aid conferred upon such individual and not under any  express
   23  contract  of  hire; [(i)] (H) in or for such a religious, educational or
   24  charitable institution if such individual is a student; [(j)] (I) in  or
   25  for such a religious, educational or charitable institution if the earn-
   26  ing  capacity  of  such  individual is impaired by age or by physical or
   27  mental deficiency or injury; [(k)] (J)  in  or  for  a  summer  camp  or
   28  conference  of  such  a religious, educational or charitable institution
   29  for not more than three months annually; [(l)] (K) as a staff  counselor
   30  in  a  children's  camp;  [(m)]  (L)  in  or for a college or university
   31  fraternity, sorority, student association  or  faculty  association,  no
   32  part  of  the net earnings of which inures to the benefit of any private
   33  shareholder or individual, and which is recognized by  such  college  or
   34  university,  if  such  individual  is a student; [(n)] (M) by a federal,
   35  state or municipal government or political  subdivision  thereof.    The
   36  exclusions  from the term "employee" contained in this subdivision shall
   37  be as defined by regulations of the commissioner;  or  [(o)]  (N)  as  a
   38  volunteer  at  a  recreational or amusement event run by a business that
   39  operates such events, provided that no single such  event  lasts  longer
   40  than  eight  consecutive days and no more than one such event concerning
   41  substantially the same subject matter occurs in any calendar  year.  Any
   42  such volunteer shall be at least eighteen years of age. A business seek-
   43  ing  coverage under this paragraph shall notify every volunteer in writ-
   44  ing, in language acceptable to the commissioner,  that  by  volunteering
   45  his  or  her  services,  such  volunteer  is waiving his or her right to
   46  receive the minimum wage pursuant to this article. Such notice shall  be
   47  signed  and  dated by a representative of the business and the volunteer
   48  and kept on file by the business for thirty-six months.
   49    S 17. Subdivision 1 of section 674 of the labor law, as added by chap-
   50  ter 552 of the laws of 1969, is amended to read as follows:
   51    1. The commissioner may promulgate such regulations as he deems appro-
   52  priate to carry out the purposes of this article and to safeguard  mini-
   53  mum  wage  standards.  Such regulations may include, but are not limited
   54  to, the defining of the circumstances or conditions for  the  acceptance
   55  of  non-hourly rates and piece rates as equivalent to the minimum hourly
   56  rates established by this article. Such regulations  also  may  include,
       A. 1792--A                          7

    1  but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
    2  provisions governing guaranteed earnings  during  specified  periods  of
    3  work;  allowances  for  meals,  lodging,  and  other items, services and
    4  facilities  when furnished by the employer; [and the employment of indi-
    5  viduals whose earning capacity is affected or impaired by youth or age,]
    6  or by physical or mental deficiency or  injury,  under  special  certif-
    7  icates  issued by the commissioner, at such wages lower than the minimum
    8  wage established by this  article  and  for  such  period  as  shall  be
    9  prescribed in such regulations.
   10    S  18.  This  act shall take effect immediately, provided that section
   11  ten of this act shall take effect on the thirtieth day  after  it  shall
   12  have become a law.
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