Amd Lab L, generally; amd §225, Pub Health L; amd §§3, 51, 120 & 201, add §110-b, Work Comp L
Enacts the farm laborers 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 farm laborers.
STATE OF NEW YORK
________________________________________________________________________
6578
2019-2020 Regular Sessions
IN SENATE
June 16, 2019
___________
Introduced by Sen. RAMOS -- (at request of the Governor) -- read twice
and ordered printed, and when printed to be committed to the Committee
on Rules
AN ACT to amend the labor law, in relation to granting collective
bargaining rights to farm laborers and allowing farm laborers 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; to amend the
labor law, in relation to labor on a farm and regulating the employ-
ment of certain employees whose earning capacity is affected or
impaired by youth or age; and to amend the labor law, in relation to
unfair labor practices, impasse resolution procedures and the conven-
ing of a farm laborers wage board
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 "farm
2 laborers fair labor practices act".
3 § 2. Legislative findings and intent. 1. The legislature finds that
4 agriculture is one of New York's leading and most important industries,
5 resulting in over $5 billion annually and making New York a global lead-
6 er in many crops and agricultural products. Agriculture plays an essen-
7 tial role in the continued economic growth and vitality of New York
8 state. According to the United States Department of Agriculture's 2017
9 Agricultural Census, 98% of New York's farms are family owned and these
10 farms contributed $2.4 billion to the state's GDP in 2017.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12035-01-9
S. 6578 2
1 2. The legislature further finds that the success of New York's robust
2 agriculture industry is due to the collaborative work between farmers
3 and farm laborers. However, farm laborers are one of the few classes of
4 employees that are not covered by the Federal Fair Labor Standards Act
5 or the National Labor Relations Act (NLRA), denying these valuable
6 employees the same basic labor protections and the right to collective
7 bargaining that almost all other private sector workers enjoy. Despite
8 regularly working 50, 60, 70 or even more hours a week doing arduous and
9 difficult work, often with heavy equipment, pesticides, fertilizers and
10 other dangerous materials and in sometimes hazardous situations, farm
11 laborers remain excluded from collective bargaining statutes and the
12 right to a day of rest, overtime and other labor protections that are in
13 place at the state and/or federal level for other workers.
14 3. The legislature further finds that this industry is subject to
15 unique and unpredictable factors including climate and weather, pricing
16 and market requirements, seasonal harvests, immigration, and various
17 federal and state laws, rules and regulations that directly impact farm-
18 ers and require a unique balance and application of traditional labor
19 protections to ensure farm laborers have a voice in their own terms and
20 conditions of employment and access to basic labor protections while
21 also creating adaptability and responsiveness to the unique circum-
22 stances of farm operations.
23 4. The legislature further finds that the labor standards included in
24 this bill are intended solely for the purposes of transitioning into a
25 modern structure of rights and benefits for farm laborers that achieve
26 harmonious labor relations and stability of operations in the agricul-
27 tural industry and are not intended for any other industry or sector of
28 the economy.
29 § 3. Paragraph (a) of subdivision 3 of section 701 of the labor law,
30 as amended by chapter 43 of the laws of 1989, is amended and a new para-
31 graph (c) is added to read as follows:
32 (a) The term "employees" includes but is not restricted to any indi-
33 vidual employed by a labor organization; any individual whose employment
34 has ceased as a consequence of, or in connection with, any current labor
35 dispute or because of any unfair labor practice, and who has not
36 obtained any other regular and substantially equivalent employment; and
37 shall not be limited to the employees of a particular employer, unless
38 the article explicitly states otherwise, but shall not include any indi-
39 vidual employed by his parent or spouse or in the domestic service of
40 and directly employed, controlled and paid by any person in his home,
41 any individual whose primary responsibility is the care of a minor child
42 or children and/or someone who lives in the home of a person for the
43 purpose of serving as a companion to a sick, convalescing or elderly
44 person or any individuals employed only for the duration of a labor
45 dispute, [or any individuals employed as farm laborers] or[,] any indi-
46 vidual who participates in and receives rehabilitative or therapeutic
47 services in a charitable non-profit rehabilitation facility or sheltered
48 workshop or any individual employed in a charitable non-profit rehabili-
49 tation facility or sheltered workshop who has received rehabilitative or
50 therapeutic services and whose capacity to perform the work for which he
51 is engaged is substantially impaired by physical or mental deficiency or
52 injury.
53 (c) The term "employee" shall also include farm laborers. "Farm labor-
54 ers" shall mean any individual engaged or permitted by an employer to
55 work on a farm, except the parent, spouse, child, or other member of the
56 employer's immediate family.
S. 6578 3
1 § 4. Subdivision 1 of section 161 of the labor law is amended by
2 adding a new undesignated paragraph to read as follows:
3 Every person employed as a farm laborer shall be allowed at least
4 twenty-four consecutive hours of rest in each and every calendar week.
5 This requirement shall not apply to the parent, child, spouse or other
6 member of the employer's immediate family. Twenty-four consecutive
7 hours spent at rest because of circumstances, such as weather or crop
8 conditions, shall be deemed to constitute the rest required by this
9 paragraph. No provision of this paragraph shall prohibit a farm laborer
10 from voluntarily agreeing to work on such day of rest required by this
11 paragraph, provided that the farm laborer is compensated at an overtime
12 rate which is at least one and one-half times the laborer's regular rate
13 of pay for all hours worked on such day of rest. The term "farm labor"
14 shall include all services performed in agricultural employment in
15 connection with cultivating the soil, or in connection with raising or
16 harvesting of agricultural commodities, including the raising, shearing,
17 caring for and management of livestock, poultry or dairy. The day of
18 rest authorized under this subdivision should, whenever possible, coin-
19 cide with the traditional day reserved by the farm laborer for religious
20 worship.
21 § 5. Paragraphs b and d of subdivision 2 of section 161 of the labor
22 law, as amended by chapter 281 of the laws of 1941, are amended to read
23 as follows:
24 b. Employees in [dairies, creameries,] milk condenseries, milk powder
25 factories, milk sugar factories, milk shipping stations, butter and
26 cheese factories, ice cream manufacturing plants and milk bottling
27 plants, where not more than seven persons are employed;
28 d. Employees whose duties include not more than three hours' work on
29 Sunday in setting sponges in bakeries, [caring for live animals,] main-
30 taining fires, or making necessary repairs to boilers or machinery.
31 § 6. The labor law is amended by adding a new section 163-a to read as
32 follows:
33 § 163-a. Farm laborers. No person or corporation operating a farm
34 shall require any employee to work more than sixty hours in any calendar
35 week; provided, however, that any overtime work performed by a farm
36 laborer shall be at a rate which is at least one and one-half times the
37 laborer's regular rate of pay. No wage order subject to the provisions
38 of this chapter shall be applicable to a farm laborer other than a wage
39 order established pursuant to section six hundred seventy-four or six
40 hundred seventy-four-a of this chapter.
41 § 7. The opening paragraph of paragraph (a) of subdivision 6 of
42 section 511 of the labor law, as amended by chapter 675 of the laws of
43 1977, is amended to read as follows:
44 The term "employment" [does not include] includes agricultural labor
45 [unless it is covered pursuant to section five hundred sixty-four]. The
46 term "agricultural labor" includes all service performed:
47 § 8. Section 564 of the labor law, as added by chapter 675 of the laws
48 of 1977, is amended to read as follows:
49 § 564. Agricultural labor crew leaders. [1. Coverage. (a) Notwith-
50 standing the provisions of section five hundred sixty of this article,
51 an employer of persons engaged in agricultural labor shall become liable
52 for contributions under this article if the employer:
53 (1) has paid cash remuneration of twenty thousand dollars or more in
54 any calendar quarter to persons employed in agricultural labor, and such
55 liability shall commence on the first day of such quarter, or
S. 6578 4
1 (2) has employed in agricultural labor ten or more persons on each of
2 twenty days during a calendar year or the preceding calendar year, each
3 day being in a different calendar week, and the liability shall in such
4 event commence on the first day of the calendar year, or
5 (3) is liable for the tax imposed under the federal unemployment tax
6 act as an employer of agricultural labor and the liability shall in such
7 event commence on the first day of the calendar quarter in such calendar
8 year when he first paid remuneration for agricultural labor in this
9 state.
10 (b) An employer who becomes liable for contributions under paragraph
11 (a) of this subdivision shall cease to be liable as of the first day of
12 a calendar quarter next following the filing of a written application
13 provided the commissioner finds that the employer:
14 (1) has not paid to persons employed in agricultural labor cash remun-
15 eration of twenty thousand dollars or more in any of the eight calendar
16 quarters preceding such day, and
17 (2) has not employed in agricultural labor ten or more persons on each
18 of twenty days during the current or the preceding calendar year, each
19 day being in a different week, and
20 (3) is not liable for the tax imposed under the federal unemployment
21 tax act as an employer of agricultural labor.
22 2. Crew leader.] Whenever a person renders services as a member of a
23 crew which is paid and furnished by the crew leader to perform services
24 in agricultural labor for another employer, such other employer shall,
25 for the purpose of this article, be deemed to be the employer of such
26 person, unless:
27 [(a)] 1. the crew leader holds a valid certificate of registration
28 under the federal farm labor contractor registration act of nineteen
29 hundred sixty-three or substantially all the members of the crew operate
30 or maintain tractors, mechanized harvesting or [cropdusting] crop dust-
31 ing machinery or any other mechanized equipment which is provided by the
32 crew leader, and
33 [(b)] 2. the crew leader is not an employee of such other employer and
34 has not entered into a written agreement with such employer under which
35 he is designated as an employee.
36 § 9. Paragraph (m) of subdivision 5 of section 225 of the public
37 health law, as amended by section 51 of part A of chapter 58 of the laws
38 of 2010, is amended to read as follows:
39 (m) require that application be made for a permit to operate a farm or
40 food processing labor camp as defined in the sanitary code; authorize
41 appropriate officers or agencies to issue such a permit when the appli-
42 cant is in compliance with the established regulations; prescribe stand-
43 ards for living quarters at farm and food processing labor camps,
44 including provisions for sanitary conditions; light, air, and safety;
45 protection from fire hazards; maintenance; and such other matters as may
46 be appropriate for security of life or health, provided however, that
47 the provisions of the sanitary code established pursuant to the
48 provisions hereof shall apply to all farm and food processing labor
49 camps intended to house migrant workers and which are occupied [by five
50 or more persons]. In the preparation of such regulations, the public
51 health and health planning council may request and shall receive techni-
52 cal assistance from the board of standards and appeals of the state
53 department of labor and the state building code commission. Such regu-
54 lation shall be enforced in the same manner as are other provisions of
55 the sanitary code;
S. 6578 5
1 § 10. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
2 ers' compensation law, Group 14-a as amended by chapter 233 of the laws
3 of 1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
4 amended to read as follows:
5 Group 14-a. On and after January first, nineteen hundred sixty-two,
6 any other employment in a trade, business, or occupation carried on by
7 the employer for pecuniary gain in which one or more employees [other
8 than farm laborers] are employed.
9 Group 14-b. Employment as a farm laborer as provided herein. A farmer
10 shall provide coverage under this chapter for all farm laborers
11 [employed during any part of the twelve consecutive months beginning
12 April first of any calendar year preceded by a calendar year in which
13 the cash remuneration paid to all farm laborers aggregated twelve
14 hundred dollars or more].
15 § 11. Section 51 of the workers' compensation law, as amended by
16 chapter 561 of the laws of 2003, is amended to read as follows:
17 § 51. Posting of notice regarding compensation. Every employer who has
18 complied with section fifty of this article shall post and maintain in a
19 conspicuous place or places in and about his place or places of business
20 typewritten or printed in English and Spanish notices in form prescribed
21 by the chairman, stating the fact that he has complied with all the
22 rules and regulations of the chairman and the board and that he has
23 secured the payment of compensation to his employees and their depen-
24 dents in accordance with the provisions of this chapter, but failure to
25 post such notice as herein provided shall not in any way affect the
26 exclusiveness of the remedy provided for by section eleven of this chap-
27 ter. Every employer who owns or operates automotive or horse-drawn vehi-
28 cles and has no minimum staff of regular employees required to report
29 for work at an established place of business maintained by such employer
30 and every employer who is engaged in the business of moving household
31 goods or furniture shall post such notices in each and every vehicle
32 owned or operated by him. Failure to post or maintain such notice in any
33 of said vehicles shall constitute presumptive evidence that such employ-
34 er has failed to secure the payment of compensation. The chairman may
35 require any employer to furnish a written statement at any time showing
36 the stock corporation, mutual corporation or reciprocal insurer in which
37 such employer is insured or the manner in which such employer has
38 complied with any provision of this chapter. Failure for a period of ten
39 days to furnish such written statement shall constitute presumptive
40 evidence that such employer has neglected or failed in respect of any of
41 the matters so required. Any employer who fails to comply with the
42 provisions of this section shall be required to pay to the board a fine
43 of [up to two hundred fifty] five hundred dollars for each violation, in
44 addition to any other penalties imposed by law to be deposited into the
45 uninsured employers' fund.
46 § 12. The workers' compensation law is amended by adding a new section
47 110-b to read as follows:
48 § 110-b. Reporting of injuries to employer. Every farm labor contrac-
49 tor, foreman or supervisor of farm laborers who has notice of any injury
50 to a farm laborer incurred during the course of employment shall be
51 required to inform the employer, owner or operator of a farm of any such
52 injury.
53 § 13. The opening paragraph of section 120 of the workers' compen-
54 sation law, as amended by section 31 of part SS of chapter 54 of the
55 laws of 2016, is amended to read as follows:
S. 6578 6
1 It shall be unlawful for any employer or his or her duly authorized
2 agent to discharge or fail to reinstate pursuant to section two hundred
3 three-b of this chapter, or in any other manner discriminate against an
4 employee as to his or her employment because such employee has claimed
5 or attempted to claim compensation from such employer, requested a claim
6 form for injuries received in the course of employment, or claimed or
7 attempted to claim any benefits provided under this chapter or because
8 he or she has testified or is about to testify in a proceeding under
9 this chapter and no other valid reason is shown to exist for such action
10 by the employer.
11 § 14. The opening paragraph of paragraph A of subdivision 6 of section
12 201 of the workers' compensation law, as amended by chapter 481 of the
13 laws of 2010, is amended to read as follows:
14 "Employment" means employment in any trade, business or occupation
15 carried on by an employer, except that the following shall not be deemed
16 employment under this article: services performed for the state, a
17 municipal corporation, local governmental agency, other political subdi-
18 vision or public authority; employment subject to the federal railroad
19 unemployment insurance act; service performed on or as an officer or
20 member of the crew of a vessel on the navigable water of the United
21 States or outside the United States; [service as farm laborers;] casual
22 employment and the first forty-five days of extra employment of employ-
23 ees not regularly in employment as otherwise defined herein; service as
24 golf caddies; and service during all or any part of the school year or
25 regular vacation periods as a part-time worker of any person actually in
26 regular attendance during the day time as a student in an elementary or
27 secondary school. The term "employment" shall include domestic or
28 personal work in a private home. The term "employment" shall not include
29 the services of a licensed real estate broker or sales associate if it
30 be proven that (a) substantially all of the remuneration (whether or not
31 paid in cash) for the services performed by such broker or sales associ-
32 ate is directly related to sales or other output (including the perform-
33 ance of services) rather than to the number of hours worked; (b) the
34 services performed by the broker or sales associate are performed pursu-
35 ant to a written contract executed between such broker or sales associ-
36 ate and the person for whom the services are performed within the past
37 twelve to fifteen months; and (c) the written contract provided for in
38 subparagraph (b) of this paragraph was not executed under duress and
39 contains the following provisions:
40 § 15. The opening paragraph of subdivision 5 of section 651 of the
41 labor law, as amended by chapter 503 of the laws of 2016, is amended to
42 read as follows:
43 "Employee" includes any individual employed or permitted to work by an
44 employer in any occupation, but shall not include any individual who is
45 employed or permitted to work: (a) on a casual basis in service as a
46 part time baby sitter in the home of the employer; (b) [in labor on a
47 farm; (c)] in a bona fide executive, administrative, or professional
48 capacity; [(d)] (c) as an outside salesman; [(e)] (d) as a driver
49 engaged in operating a taxicab; [(f)] (e) as a volunteer, learner or
50 apprentice by a corporation, unincorporated association, community
51 chest, fund or foundation organized and operated exclusively for reli-
52 gious, charitable or educational purposes, no part of the net earnings
53 of which inures to the benefit of any private shareholder or individual;
54 [(g)] (f) as a member of a religious order, or as a duly ordained,
55 commissioned or licensed minister, priest or rabbi, or as a sexton, or
56 as a christian science reader; [(h)] (g) in or for such a religious or
S. 6578 7
1 charitable institution, which work is incidental to or in return for
2 charitable aid conferred upon such individual and not under any express
3 contract of hire; [(i)] (h) in or for such a religious, educational or
4 charitable institution if such individual is a student; [(j)] (i) in or
5 for such a religious, educational or charitable institution if the earn-
6 ing capacity of such individual is impaired by age or by physical or
7 mental deficiency or injury; [(k)] (j) in or for a summer camp or
8 conference of such a religious, educational or charitable institution
9 for not more than three months annually; [(l)] (k) as a staff counselor
10 in a children's camp; [(m)] (l) in or for a college or university
11 fraternity, sorority, student association or faculty association, no
12 part of the net earnings of which inures to the benefit of any private
13 shareholder or individual, and which is recognized by such college or
14 university, if such individual is a student; [(n)] (m) by a federal,
15 state or municipal government or political subdivision thereof; [(o)]
16 (n) as a volunteer at a recreational or amusement event run by a busi-
17 ness that operates such events, provided that no single such event lasts
18 longer than eight consecutive days and no more than one such event
19 concerning substantially the same subject matter occurs in any calendar
20 year, where (1) any such volunteer shall be at least eighteen years of
21 age, (2) a business seeking coverage under this paragraph shall notify
22 every volunteer in writing, in language acceptable to the commissioner,
23 that by volunteering his or her services, such volunteer is waiving his
24 or her right to receive the minimum wage pursuant to this article, and
25 (3) such notice shall be signed and dated by a representative of the
26 business and the volunteer and kept on file by the business for thirty-
27 six months; or [(p)] (o) in the delivery of newspapers or shopping news
28 to the consumer by a person who is not performing commercial goods
29 transportation services for a commercial goods transportation contractor
30 within the meaning of article twenty-five-C of this chapter. The exclu-
31 sions from the term "employee" contained in this subdivision shall be as
32 defined by regulations of the commissioner.
33 § 16. Subdivision 1 of section 674 of the labor law, as added by chap-
34 ter 552 of the laws of 1969, is amended to read as follows:
35 1. The commissioner may promulgate such regulations as he deems appro-
36 priate to carry out the purposes of this article and to safeguard mini-
37 mum wage standards. Such regulations may include, but are not limited
38 to, the defining of the circumstances or conditions for the acceptance
39 of non-hourly rates and piece rates as equivalent to the minimum hourly
40 rates established by this article. Such regulations also may include,
41 but are not limited to, waiting time and call-in pay rates; wage
42 provisions governing guaranteed earnings during specified periods of
43 work; allowances for meals, lodging, and other items, services and
44 facilities when furnished by the employer; [and the employment of indi-
45 viduals whose earning capacity is affected or impaired by youth or age,]
46 or by physical or mental deficiency or injury, under special certif-
47 icates issued by the commissioner, at such wages lower than the minimum
48 wage established by this article and for such period as shall be
49 prescribed in such regulations.
50 § 17. Subdivision 2 of section 701 of the labor law, as amended by
51 chapter 43 of the laws of 1989, is amended to read as follows:
52 2. (a) The term "employer" includes any person acting on behalf of or
53 in the interest of an employer, directly or indirectly, with or without
54 his knowledge, and shall include any person who is the purchaser of
55 services performed by a person described in paragraph (b) of subdivision
56 three of this section, but a labor organization or any officer or agent
S. 6578 8
1 thereof shall only be considered an employer with respect to individuals
2 employed by such organization.
3 (b) The term "employer" includes agricultural employers. The term
4 "agricultural employer" shall mean any employer engaged in cultivating
5 the soil or in raising or harvesting any agricultural or horticultural
6 commodity including custom harvesting operators, and employers engaged
7 in the business of crops, livestock and livestock products as defined in
8 section three hundred one of the agriculture and markets law, or other
9 similar agricultural enterprises.
10 § 18. Section 703 of the labor law is amended by adding a new undesig-
11 nated paragraph to read as follows:
12 Notwithstanding any other provision of law, for farm laborers the term
13 "concerted activities" shall not include a right to strike or other
14 concerted stoppage of work or slowdown.
15 § 19. The labor law is amended by adding a new section 704-b to read
16 as follows:
17 § 704-b. Unfair labor practices. 1. It shall be an unfair labor prac-
18 tice for a farm laborer or an employee organization representing farm
19 laborers to strike any agricultural employer. The term "strike" shall
20 mean, for the purposes of this section, any strike or other concerted
21 stoppage of work or slowdown by farm laborers.
22 2. It shall be an unfair labor practice for an agricultural employer
23 to:
24 a. lockout its laborers. The term "lockout" shall mean, for the
25 purposes of this section, a refusal by an agricultural employer to
26 permit farm laborers to work as a result of a dispute with such farm
27 laborers or employee organization representing such farm laborers that
28 affects wages, hours and other terms and conditions of employment of
29 such farm laborers, provided, however, that a lockout shall not include
30 a termination of employment for good cause that does not involve such
31 laborers exercising any rights guaranteed by this article;
32 b. refuse to continue all the terms of an expired agreement until a
33 new agreement is negotiated;
34 c. discourage union organization or to discourage an employee from
35 participating in a union organizing drive, engaging in protected
36 concerted activity, or otherwise exercising the rights guaranteed under
37 this article.
38 3. Nothing in this section shall be construed as to bar any proceeding
39 brought pursuant to section seven hundred four or seven hundred five of
40 this article.
41 § 20. Section 705 of the labor law is amended by adding a new subdivi-
42 sion 1-a to read as follows:
43 1-a. If the choice available to the employees in a negotiating unit is
44 limited to selecting or rejecting a single employee organization, that
45 choice shall be ascertained by the board on the basis of dues deduction
46 authorizations instead of by an election. In such case, the employee
47 organization involved will be certified without an election if a majori-
48 ty of the employees within the unit have executed a showing dues
49 deductions authorizations.
50 § 21. The labor law is amended by adding a new section 702-b to read
51 as follows:
52 § 702-b. Impasse resolution procedures for agricultural employers and
53 farm laborers. 1. For purposes of this section, an impasse may be
54 deemed to exist if the parties fail to achieve agreement by the end of a
55 forty-day period from the date of certification or recognition of an
S. 6578 9
1 employee organization or from the expiration date of a collective
2 bargaining agreement.
3 2. Upon impasse, agricultural employers or recognized employee organ-
4 izations may request the board to render assistance as provided in this
5 section. If the board determines an impasse exists in the course of
6 collective negotiations between an agricultural employer and a recog-
7 nized employee organization, the board shall aid the parties in effect-
8 ing a voluntary resolution of the dispute.
9 3. On request of either party, as provided in subdivision two of this
10 section, and in the event the board determines that an impasse exists in
11 collective negotiations between such employee organization and an agri-
12 cultural employer as to the conditions of employment of farm laborers,
13 the board shall render assistance as follows:
14 a. to assist the parties to effect a voluntary resolution of the
15 dispute, the board shall appoint a mediator from a list of qualified
16 persons maintained by the board;
17 b. if the mediator is unable to effect settlement of the controversy
18 within thirty days after his or her appointment, either party may peti-
19 tion the board to refer the dispute to a neutral arbitrator;
20 c. upon petition of either party, the board shall refer the dispute to
21 a neutral arbitrator as hereinafter provided;
22 i. the neutral arbitrator shall be appointed jointly by the agricul-
23 tural employer and employee organization within ten days after receipt
24 by the board of a petition for arbitration. Each of the respective
25 parties is to share equally the cost of the neutral arbitrator. If,
26 within seven days after the mailing date, the parties are unable to
27 agree upon the neutral arbitrator, the board shall submit to the parties
28 a list of qualified, disinterested persons for the selection of a
29 neutral arbitrator. Each party shall alternately strike from the list
30 one of the names with the order of striking determined by lot, until the
31 remaining one person shall be designated as the neutral arbitrator. This
32 process shall be completed within five days of receipt of this list. The
33 parties shall notify the board of the designated neutral arbitrator;
34 ii. the neutral arbitrator shall hold hearings on all matters related
35 to the dispute. The parties may be heard either in person, by counsel,
36 or by other representatives, as they may respectively designate. The
37 panel may grant more than one adjournment each for each party; provided,
38 however, that a second request of either party and any subsequent
39 adjournments may be granted on request of either party, provided that
40 the party which requests the adjournment shall pay the arbitrator's fee.
41 The parties may present, either orally or in writing, or both, state-
42 ments of fact, supporting witnesses and other evidence, and argument of
43 their respective positions with respect to each case. The arbitrator
44 shall have authority to require the production of such additional
45 evidence, either oral or written as she or he may desire from the
46 parties and shall provide at the request of either party that a full and
47 complete record be kept of any such hearings, the cost of such record to
48 be borne by the requesting party. If such record is created, it shall be
49 shared with both parties regardless of which party paid for it;
50 iii. the arbitrator shall make a just and reasonable determination of
51 the matters in dispute. In arriving at such determination, the arbitra-
52 tor shall specify the basis for her or his findings, taking into consid-
53 eration, in addition to any factors stipulated by the parties or any
54 other relevant factors, the following:
55 A. comparison of the wages, hours and conditions of employment of the
56 employees involved in the arbitration proceeding with the wages, hours,
S. 6578 10
1 and conditions of employment of other employees performing similar
2 services or requiring similar skills under similar working conditions
3 and with other employees generally in agricultural employment in compa-
4 rable communities;
5 B. the interests and welfare of the farm laborers and the financial
6 ability of the agricultural employer to pay;
7 C. comparison of peculiarities in regard to other trades or
8 professions, including specifically, (i) hazards of employment; (ii)
9 physical qualifications; (iii) educational qualifications; (iv) mental
10 qualifications; (v) job training and skills;
11 D. the terms of collective agreements negotiated between the parties
12 in the past providing for compensation and fringe benefits; and
13 E. the impact on the food supply and commodity pricing.
14 iv. the determination of the neutral arbitrator shall be final and
15 binding upon the parties for the period prescribed by the arbitrator,
16 but in no event shall such period exceed two years from the date of the
17 arbitrator's determination;
18 v. the determination of the public arbitration panel shall be subject
19 to review by a court of competent jurisdiction in the manner prescribed
20 by law.
21 § 22. The labor law is amended by adding a new section 674-a to read
22 as follows:
23 § 674-a. Farm laborers wage board. 1. Wage board. The commissioner
24 shall hereby convene a farm laborers wage board. The wage board shall be
25 comprised of three members: one representative of the farm bureau, one
26 representative of the New York State AFL-CIO and one member appointed by
27 the commissioner, who shall be selected from the general public and
28 designated as chairperson. The wage board shall hold its first hearing
29 no later than March first, two thousand twenty. The members of the
30 board shall not receive a salary or other compensation, but shall be
31 paid actual and necessary traveling expenses while engaged in the
32 performance of their duties.
33 2. Organization. Two-thirds of the members of the board shall consti-
34 tute a quorum. The chairperson may from time to time formulate rules
35 governing the manner in which the wage board shall function and perform
36 its duties under this article.
37 3. Powers. The wage board shall have power to conduct public hearings.
38 The board may also consult with agricultural employers and farm labor-
39 ers, and their respective representatives, in the occupation or occupa-
40 tions involved, and with such other persons, including the commissioner
41 and the commissioner of agriculture and markets, as it shall determine.
42 The board shall also have power to administer oaths and to require by
43 subpoena the attendance and testimony of witnesses, and the production
44 of all books, records, and other evidence relative to any matters under
45 inquiry. Such subpoenas shall be signed and issued by the chairperson of
46 the board and shall be served and have the same effect as if issued out
47 of the supreme court. The board shall have power to cause depositions of
48 witnesses residing within or without the state to be taken in the manner
49 prescribed for like depositions in civil actions in the supreme court.
50 The board shall not be bound by common law or statutory rules of proce-
51 dure or evidence.
52 4. Public hearings. Within forty-five days of the appointment of the
53 wage board, the board shall conduct public hearings. The wage board
54 shall only meet within the state and must hold at least three hearings
55 at which the public will be afforded an opportunity to provide comments.
56 At least one Spanish language interpreter shall be present at each
S. 6578 11
1 public hearing to interpret oral testimony delivered in Spanish. Where a
2 witness reveals the need for an interpreter in a language other than
3 Spanish, to the extent practicable, an interpreter in that language
4 shall be provided. Any materials advertising such hearings shall be
5 bilingual in English and Spanish. Any written materials disbursed at the
6 hearing or subsequent to the hearing, including written testimony and
7 hearing transcripts, shall be available in English, Spanish, and, to the
8 extent practicable, any other language upon request.
9 5. Report. The wage board shall make a report to the governor and the
10 legislature, including its recommendations as to overtime work for farm
11 laborers. The report and recommendations of the board shall be submitted
12 only after a vote of not less than a majority of all its members in
13 support of such report and recommendations. Such report shall be
14 submitted no later than December thirty-first, two thousand twenty. The
15 overtime rates recommended by the wage board shall not be in excess of
16 sixty hours, and the wage board shall specifically consider the extent
17 to which overtime hours can be lowered below such amount set in law, and
18 may provide for a series of successively lower overtime work thresholds
19 and phase-in dates as part of its determinations.
20 6. The wage board shall consider existing overtime rates in similarly
21 situated industries in New York state. Nothing contained in the wage
22 board's report or recommendations shall diminish or limit any rights,
23 protections, benefits or entitlements currently available to any farm
24 laborer.
25 7. The commissioner shall comply with section six hundred fifty-six of
26 this chapter upon receipt of the wage board's recommendations. The
27 commissioner may reconvene the same wage board or appoint a new wage
28 board in compliance with section six hundred fifty-nine of this chapter.
29 § 23. Subdivision 2 of section 564 of the labor law is renumbered
30 subdivision 3 and a new subdivision 2 is added to read as follows:
31 2. Exclusion from coverage. For purposes of this section the term
32 "employment" shall not include services rendered by an individual who is
33 admitted to the United States to perform agricultural labor pursuant to
34 8 USC 1188 if, at the time such services are rendered, they are excluded
35 from the definition of employment in section 3306(c) of the Federal
36 Unemployment Tax Act.
37 § 24. Severability. If any word, phrase, clause, sentence, paragraph,
38 subdivision, section or part of this article or the application thereof
39 to any person or circumstances shall be adjudged invalid by a court of
40 competent jurisdiction, such order or judgment shall be confined in its
41 operation to the controversy in which it was rendered, and shall not
42 affect or invalidate the remainder of this article, but shall be
43 confined in its operation to the word, phrase, clause, sentence, para-
44 graph, subdivision, section or part thereof directly involved in the
45 controversy in which such judgment shall have been rendered.
46 § 25. This act shall take effect January 1, 2020; provided, however
47 that the provisions of section nine of this act shall take effect Janu-
48 ary 1, 2021.
