Relates to provisions regarding domestic workers and such workers' employment regulations concerning hours of labor and wages, employment restrictions and employment contracts.
STATE OF NEW YORK
________________________________________________________________________
2311--E
Cal. No. 196
2009-2010 Regular Sessions
IN SENATE
February 17, 2009
___________
Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
PADAVAN, PARKER, PERALTA, PERKINS, SAMPSON, SCHNEIDERMAN, SERRANO,
SQUADRON, STACHOWSKI, STAVISKY, STEWART-COUSINS, THOMPSON -- read
twice and ordered printed, and when printed to be committed to the
Committee on Labor -- reported favorably from said committee and
committed to the Committee on Codes -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Labor in accord-
ance with Senate Rule 6, sec. 8 -- reported favorably from said
committee and committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee and
committed to the Committee on Finance -- reported favorably from said
committee, ordered to first and second report, ordered to a third
reading, amended and ordered reprinted, retaining its place in the
order of third reading -- again amended and ordered reprinted, retain-
ing its place in the order of third reading -- passed by Senate and
delivered to the Assembly, recalled, vote reconsidered, restored to
third reading, amended and ordered reprinted, retaining its place in
the order of third reading
AN ACT to amend the labor law, the executive law and the workers'
compensation law, in relation to establishing regulations regarding
employment of domestic workers including hours of labor, wages and
employment contracts
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. Many thousands of domestic
2 workers are employed in New York state as housekeepers, nannies, and
3 companions to the elderly. The labor of domestic workers is central to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00150-19-0
S. 2311--E 2
1 the ongoing prosperity that the state enjoys, and yet, despite the value
2 of their work, domestic workers do not receive the same protection of
3 many state laws as do workers in other industries. Domestic workers
4 often labor under harsh conditions, work long hours for low wages with-
5 out benefits or job security, are isolated in their workplaces, and are
6 endangered by sexual harassment and assault, as well as verbal,
7 emotional and psychological abuse. Moreover, many domestic workers in
8 the state of New York are women of color who, because of race and sex
9 discrimination, are particularly vulnerable to unfair labor practices.
10 Additionally, domestic workers are not afforded by law the right to
11 organize labor unions for the purpose of collective bargaining.
12 The legislature finds that because domestic workers care for the most
13 important elements of their employers' lives, their families and homes,
14 it is in the interest of employees, employers, and the people of the
15 state of New York to ensure that the rights of domestic workers are
16 respected, protected, and enforced.
17 § 2. Section 2 of the labor law is amended by adding a new subdivision
18 16 to read as follows:
19 16. "Domestic worker" shall mean a person employed in a home or resi-
20 dence for the purpose of caring for a child, serving as a companion for
21 a sick, convalescing or elderly person, housekeeping, or for any other
22 domestic service purpose. "Domestic worker" does not include any indi-
23 vidual (a) working on a casual basis, (b) who is engaged in providing
24 companionship services, as defined in paragraph fifteen of subdivision
25 (a) of section 213 of the fair labor standards act of 1938, and who is
26 employed by an employer or agency other than the family or household
27 using his or her services, or (c) who is a relative through blood,
28 marriage or adoption of: (1) the employer; or (2) the person for whom
29 the worker is delivering services under a program funded or administered
30 by federal, state or local government.
31 § 3. The executive law is amended by adding a new section 296-b to
32 read as follows:
33 § 296-b. Unlawful discriminatory practices relating to domestic work-
34 ers. 1. For the purposes of this section: "Domestic workers" shall have
35 the meaning set forth in section two of the labor law.
36 2. It shall be an unlawful discriminatory practice for an employer to:
37 (a) Engage in unwelcome sexual advances, requests for sexual favors,
38 or other verbal or physical conduct of a sexual nature to a domestic
39 worker when: (i) submission to such conduct is made either explicitly or
40 implicitly a term or condition of an individual's employment; (ii)
41 submission to or rejection of such conduct by an individual is used as
42 the basis for employment decisions affecting such individual; or (iii)
43 such conduct has the purpose or effect of unreasonably interfering with
44 an individual's work performance by creating an intimidating, hostile,
45 or offensive working environment.
46 (b) Subject a domestic worker to unwelcome harassment based on gender,
47 race, religion or national origin, where such harassment has the purpose
48 or effect of unreasonably interfering with an individual's work perform-
49 ance by creating an intimidating, hostile, or offensive working environ-
50 ment.
51 § 4. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
52 vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
53 as amended by chapter 166 of the laws of 2000, are amended to read as
54 follows:
S. 2311--E 3
1 5. The term "employer" does not include any employer with fewer than
2 four persons in his or her employ except as set forth in section two
3 hundred ninety-six-b of this title.
4 6. The term "employee" in this article does not include any individual
5 employed by his or her parents, spouse or child, or in the domestic
6 service of any person except as set forth in section two hundred nine-
7 ty-six-b of this title.
8 § 5. Subdivision 3 of section 160 of the labor law is amended to read
9 as follows:
10 3. For all other employees, except those engaged in farm [or domestic
11 service] work and those affected by subdivision four of section two
12 hundred [and] twenty of this chapter, eight hours.
13 § 6. The labor law is amended by adding a new section 170 to read as
14 follows:
15 § 170. Hours of labor for domestic workers. No person or corporation
16 employing a domestic worker as defined in subdivision sixteen of section
17 two of this chapter, shall require any domestic worker to work more than
18 forty hours in a week, or forty-four hours in a week for domestic work-
19 ers who reside in the home of their employer; unless they receive
20 compensation for overtime work at a rate which is at least one and one-
21 half times the worker's normal wage rate.
22 § 7. 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 domestic worker as defined in subdivision
25 sixteen of section two of this chapter, shall be allowed at least twen-
26 ty-four consecutive hours of rest in each and every calendar week. No
27 provision of this paragraph shall prohibit a domestic worker from volun-
28 tarily agreeing to work on such day of rest required by this paragraph,
29 provided that the worker is compensated at the overtime rate for all
30 hours worked on such day of rest. The day of rest authorized under this
31 subdivision should, whenever possible, coincide with the traditional day
32 reserved by the domestic worker for religious worship. In addition,
33 after one year of work with the same employer a domestic worker shall be
34 entitled to at least three days of rest in each calendar year at the
35 regular rate of compensation.
36 § 8. Subdivision 5 of section 651 of the labor law, as amended by
37 chapter 640 of the laws of 2005, is amended to read as follows:
38 5. "Employee" includes any individual employed or permitted to work by
39 an employer in any occupation, but shall not include any individual who
40 is employed or permitted to work: (a) on a casual basis in service as a
41 part time baby sitter in the home of the employer[; or someone who lives
42 in the home of an employer for the purpose of serving as a companion to
43 a sick, convalescing or elderly person, and whose principal duties do
44 not include housekeeping]; (b) in labor on a farm; (c) in a bona fide
45 executive, administrative, or professional capacity; (d) as an outside
46 salesman; (e) as a driver engaged in operating a taxicab; (f) as a
47 volunteer, learner or apprentice by a corporation, unincorporated asso-
48 ciation, community chest, fund or foundation organized and operated
49 exclusively for religious, charitable or educational purposes, no part
50 of the net earnings of which inures to the benefit of any private share-
51 holder or individual; (g) as a member of a religious order, or as a duly
52 ordained, commissioned or licensed minister, priest or rabbi, or as a
53 sexton, or as a christian science reader; (h) in or for such a religious
54 or charitable institution, which work is incidental to or in return for
55 charitable aid conferred upon such individual and not under any express
56 contract of hire; (i) in or for such a religious, educational or chari-
S. 2311--E 4
1 table institution if such individual is a student; (j) in or for such a
2 religious, educational or charitable institution if the earning capacity
3 of such individual is impaired by age or by physical or mental deficien-
4 cy or injury; (k) in or for a summer camp or conference of such a reli-
5 gious, educational or charitable institution for not more than three
6 months annually; (l) as a staff counselor in a children's camp; (m) in
7 or for a college or university fraternity, sorority, student association
8 or faculty association, no part of the net earnings of which inures to
9 the benefit of any private shareholder or individual, and which is
10 recognized by such college or university, if such individual is a
11 student; (n) by a federal, state or municipal government or political
12 subdivision thereof. The exclusions from the term "employee" contained
13 in this subdivision shall be as defined by regulations of the commis-
14 sioner; or (o) as a volunteer at a recreational or amusement event run
15 by a business that operates such events, provided that no single such
16 event lasts longer than eight consecutive days and no more than one such
17 event concerning substantially the same subject matter occurs in any
18 calendar year. Any such volunteer shall be at least eighteen years of
19 age. A business seeking coverage under this paragraph shall notify every
20 volunteer in writing, in language acceptable to the commissioner, that
21 by volunteering his or her services, such volunteer is waiving his or
22 her right to receive the minimum wage pursuant to this article. Such
23 notice shall be signed and dated by a representative of the business and
24 the volunteer and kept on file by the business for thirty-six months.
25 "Employee" also includes any individual employed or permitted to work
26 in any non-teaching capacity by a school district or board of cooper-
27 ative educational services except that the provisions of sections six
28 hundred fifty-three through six hundred fifty-nine of this article shall
29 not be applicable in any such case.
30 § 9. The opening paragraph of subdivision 5 and the opening paragraph
31 of paragraph A of subdivision 6 of section 201 of the workers' compen-
32 sation law, the opening paragraph of subdivision 5 as amended by chapter
33 205 of the laws of 1993 and the opening paragraph of paragraph A of
34 subdivision 6 as amended by chapter 903 of the laws of 1986, are amended
35 to read as follows:
36 "Employee" means a person engaged in the service of an employer in any
37 employment defined in subdivision six of this section, except a minor
38 child of the employer, [except a domestic or personal worker in a
39 private home who is employed for less than forty hours per week by any
40 one employer, and] except a duly ordained, commissioned, or licensed
41 minister, priest or rabbi, a sexton, a christian science reader, or
42 member of a religious order, or an executive officer of a corporation
43 who at all times during the period involved owns all of the issued and
44 outstanding stock of the corporation and holds all of the offices pursu-
45 ant to paragraph (e) of section seven hundred fifteen of the business
46 corporation law or two executive officers of a corporation who at all
47 times during the period involved between them own all of the issued and
48 outstanding stock of such corporation and hold all such offices
49 provided, however, that each officer must own at least one share of
50 stock, except as provided in section two hundred twelve of this article,
51 or an executive officer of an incorporated religious, charitable or
52 educational institution, or persons engaged in a professional or teach-
53 ing capacity in or for a religious, charitable or educational institu-
54 tion, or volunteers in or for a religious, charitable or educational
55 institution, or persons participating in and receiving rehabilitative
56 services in a sheltered workshop operated by a religious, charitable or
S. 2311--E 5
1 educational institution under a certificate issued by the United States
2 department of labor, or recipients of charitable aid from a religious or
3 charitable institution who perform work in or for the institution which
4 is incidental to or in return for the aid conferred, and not under an
5 express contract of hire. The terms "religious, charitable or educa-
6 tional institution" mean a corporation, unincorporated association,
7 community chest, fund or foundation organized and operated exclusively
8 for religious, charitable or educational purposes, no part of the net
9 earnings of which inure to the benefit of any private shareholder or
10 individual.
11 "Employment" means employment in any trade, business or occupation
12 carried on by an employer, except that the following shall not be deemed
13 employment under this article: services performed for the state, a
14 municipal corporation, local governmental agency, other political subdi-
15 vision or public authority; employment subject to the federal railroad
16 unemployment insurance act; service performed on or as an officer or
17 member of the crew of a vessel on the navigable water of the United
18 States or outside the United States; service as farm laborers; casual
19 employment and the first forty-five days of extra employment of employ-
20 ees not regularly in employment as otherwise defined herein; service as
21 golf caddies; and service during all or any part of the school year or
22 regular vacation periods as a part-time worker of any person actually in
23 regular attendance during the day time as a student in an elementary or
24 secondary school. The term "employment" shall include domestic or
25 personal work in a private home. The term "employment" shall not include
26 the services of a licensed real estate broker or sales associate if it
27 be proven that (a) substantially all of the remuneration (whether or not
28 paid in cash) for the services performed by such broker or sales associ-
29 ate is directly related to sales or other output (including the perform-
30 ance of services) rather than to the number of hours worked; (b) the
31 services performed by the broker or sales associate are performed pursu-
32 ant to a written contract executed between such broker or sales associ-
33 ate and the person for whom the services are performed within the past
34 twelve to fifteen months; and (c) the written contract provided for in
35 [paragraph] subparagraph (b) [herein] of this paragraph was not executed
36 under duress and contains the following provisions:
37 § 10. The commissioner of labor shall report to the governor, the
38 speaker of the assembly and the temporary president of the senate before
39 November 1, 2010 on the feasibility and practicality of allowing domes-
40 tic workers to organize for purposes of collective bargaining. In
41 preparing such report, the commissioner of labor will consult with
42 representatives of domestic workers and individuals and agencies that
43 employ domestic workers, and relevant state agencies including the
44 public employment relations board. The report shall address the feasi-
45 bility of an employee organization formed in accordance with the State
46 Labor Relations Act, how bargaining units for such organizations could
47 be formed, whether there are any unique issues which arise in this
48 context and whether there are other possible frameworks for collective
49 organization or for ensuring the benefits that accompany organization
50 for domestic workers. The commissioner of labor shall also report, with
51 the assistance of an interagency working group which shall include but
52 not be limited to the chair of the workers' compensation board, the
53 superintendent of insurance, the commissioner of health and the commis-
54 sioner of economic development, on how best to provide easily accessible
55 educational and informational material for domestic employers and work-
S. 2311--E 6
1 ers. Such material shall cover employment benefits, tax and insurance
2 laws.
3 § 11. This act shall take effect on the ninetieth day after it shall
4 have become a law.
