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A08343 Summary:

BILL NOA08343
 
SAME ASSAME AS S06538
 
SPONSORCrespo
 
COSPNSRPerry, Reyes, Ortiz
 
MLTSPNSR
 
Amd 2, 190 & 701, Lab L
 
Relates to dependent workers; defines the term "dependent worker"; requires the commissioner of labor to hold public meetings to examine state laws relating to dependent workers.
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A08343 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8343
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 14, 2019
                                       ___________
 
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on Labor
 
        AN ACT to amend the labor law, in relation to dependent workers
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "dependent worker act".
     3    §  2.  Legislative findings and intent. 1. It is hereby declared to be
     4  the public policy of the state to ensure that laborers and other workers
     5  who depend for their livelihood on working for  others,  offering  their
     6  time,  labor and personal services in exchange for hourly wages or other
     7  compensation, are timely and fully paid  and  informed  regarding  their
     8  earnings, without the uncertainty, delay and denial that may result when
     9  their  employment status is disputed by claims that they are independent
    10  contractors rather than employees.
    11    2. It is further declared to be the public  policy  of  the  state  to
    12  ensure  that such dependent workers shall have the right to organize and
    13  bargain collectively through representatives of their own choosing based
    14  on the state's constitutional recognition that the labor of human beings
    15  is not a commodity or an article of  commerce  and  shall  never  be  so
    16  considered or construed.
    17    3. The legislature finds that the ability of such dependent workers to
    18  find opportunities for work has been transformed by technology to expand
    19  day work to digital work, allowing workers to establish their availabil-
    20  ity  by  the minute and hour, rather than simply by the day. In light of
    21  this shift, the legislature finds that further examination is  warranted
    22  to  determine  the  extent  to  which  various  employment  benefits and
    23  substantive protections that were historic bargains  struck  with  input
    24  from labor and management, through bargaining, legislation, and adminis-
    25  trative  rate setting and rulemaking, should be extended to such digital
    26  work, regardless of employment status. The collective bargaining  oppor-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13384-01-9

        A. 8343                             2
 
     1  tunities  and  public  meetings  provided  through  this legislation can
     2  provide experience and input that is  not  currently  available  to  the
     3  legislature   to  inform  determinations  regarding  such  benefits  and
     4  substantive protections.
     5    4. This chapter shall be deemed an exercise of the police power of the
     6  state  for the protection of the public welfare, prosperity, health, and
     7  peace of the people of the state.
     8    5. Nothing herein shall diminish the rights of any  worker,  including
     9  those  already  or prospectively determined by a court or administrative
    10  agency to be an employee.
    11    § 3. Subdivision 16 of section 2 of the labor law, as added by chapter
    12  564 of the laws of 2010, is renumbered subdivision 16-a and a new subdi-
    13  vision 17 is added to read as follows:
    14    17. "Dependent worker"  means  an  individual  who  provides  personal
    15  services  to  a  consumer  of  such  personal services through a private
    16  sector third-party that: establishes the gross  amounts  earned  by  the
    17  individual;  establishes  the  amounts charged to the consumer; collects
    18  payment from the consumer; pays the individual; or  any  combination  of
    19  the  preceding.  The  term  "dependent worker" applies without regard to
    20  whether the individual provides such services in the name of  the  indi-
    21  vidual  or  in  the name of a business or as a separate business entity,
    22  and without regard to whether the consumer of such personal services  is
    23  an  individual,  business,  other entity, or any combination thereof. No
    24  governmental entity shall be considered a third-party  for  purposes  of
    25  the definition of the term "dependent worker". Whenever the term employ-
    26  ee is defined by law to include a dependent worker for certain purposes,
    27  then for such statute and purposes a dependent worker shall be deemed to
    28  be  employed by the third-party referenced above, who shall be deemed to
    29  be an employer engaged in an employment relationship  with  a  dependent
    30  worker,  unless otherwise excluded from such statute or purposes.  Work-
    31  ers classified as employees by other means  or  who  satisfy  any  other
    32  legal  test  for  employment,  including  those already or prospectively
    33  determined by a court or administrative agency to  be  employees,  shall
    34  not  have  any  rights  or protections diminished by application of this
    35  subdivision.
    36    § 4. Subdivision 2 of section 190 of the labor law, as added by  chap-
    37  ter 548 of the laws of 1966, is amended to read as follows:
    38    2. "Employee" means any person employed for hire by an employer in any
    39  employment  and  for  purposes  of  sections one hundred ninety-one, one
    40  hundred ninety-two, one hundred ninety-five and one hundred ninety-six-d
    41  of this article, as well as any regulations adopted thereunder  and  any
    42  provisions  relating  to  the  enforcement  of  such  sections including
    43  sections one hundred ninety-six, one hundred ninety-six-a,  one  hundred
    44  ninety-seven,  one hundred ninety-eight, one hundred ninety-eight-a, two
    45  hundred eleven, two hundred thirteen, two hundred fifteen,  two  hundred
    46  eighteen, two hundred nineteen, and two hundred nineteen-c of this chap-
    47  ter, shall include a dependent worker, as defined by section two of this
    48  chapter.
    49    §  5.  Subdivision  3  of  section  701 of the labor law is amended by
    50  adding a new paragraph (c) to read as follows:
    51    (c) The term "employee" shall also  include  a  dependent  worker,  as
    52  defined by section two of this chapter, for purposes of this article, of
    53  article  twenty-A,  and of sections two hundred eight, two hundred nine,
    54  two hundred nine-a, and two hundred eleven-a of this chapter, as well as
    55  any regulations promulgated thereunder and any  provisions  relating  to
    56  the  enforcement  of  such  article  and sections including sections one

        A. 8343                             3
 
     1  hundred ninety-six, one hundred ninety-six-a, two  hundred  eleven,  two
     2  hundred thirteen, and two hundred fifteen of this chapter.
     3    §  6. The commissioner of labor shall hold public meetings with repre-
     4  sentatives of businesses, employees and  dependent  workers  to  examine
     5  various state labor and related laws that regulate employment rights and
     6  benefits  to  identify  which  provisions  could  be extended to provide
     7  dependent workers with the same, or  similar,  rights  and  benefits  as
     8  employees have, consistent with the underlying purposes of each statuto-
     9  ry  scheme  without substantially curtailing opportunities for dependent
    10  workers to earn income sufficient to provide  adequate  maintenance  for
    11  themselves and their families, and whether changes should be made to the
    12  definition  of  dependent  worker,  as defined by section 2 of the labor
    13  law.
    14    § 7. The commissioner of labor may hold separate meetings, or  convene
    15  committees, to examine different industries and services, including, but
    16  not  limited  to personal transportation (including taxis, black car and
    17  ride sharing services), local delivery  (including  messenger  and  food
    18  delivery  services),  and various personal services (including temporary
    19  staffing services, cleaning services, and custom errand services).
    20    § 8. The commissioner of labor shall make a report of his or her find-
    21  ings to the governor, the temporary president of  the  senate,  and  the
    22  speaker  of  the  assembly, within one year of the first public meeting.
    23  Such report shall include recommendations for further action and  legis-
    24  lation.
    25    § 9. The provisions of law to be examined by the commissioner of labor
    26  shall include, but not be limited to, the following:
    27    a. social safety net employment laws, including:
    28    i.  compensation  for the unemployed, under the unemployment insurance
    29  law, under article 18 of the labor law;
    30    ii. compensation and  medical  benefits  for  workplace  injuries  and
    31  illnesses under articles 1-8 of the workers' compensation law;
    32    iii.  compensation for non-workplace disability and family leave bene-
    33  fits under the disability benefits law and the paid family  leave  bene-
    34  fits law under article 9 of the workers' compensation law;
    35    iv.  notices  and compensation for workers laid off due to plant clos-
    36  ings under the New York state worker adjustment and retraining notifica-
    37  tion (WARN) act, under article 25-A of the labor law; and
    38    v. notification of  continuation  of  coverage  for  health  insurance
    39  following termination under section 217 of the labor law.
    40    b.  anti-discrimination,  opportunity and privacy protections, includ-
    41  ing:
    42    i. equal opportunity and  anti-discrimination  employment  protections
    43  under the human rights law under article 15 of the executive law;
    44    ii. licensure and employment of persons previously convicted of one or
    45  more criminal offenses under article 23-A of the correction law;
    46    iii. related posting and sexual harassment training requirements under
    47  sections 201-f and 201-g of the labor law;
    48    iv. prohibition on use of lie detectors and other psychological stress
    49  evaluators in employment under article 20-B of the labor law;
    50    v.  prohibition  on  finger  printing under section 201-a of the labor
    51  law;
    52    vi. employee privacy in connection with changing rooms, personal iden-
    53  tifying information, physical examinations  and  nursing  mothers  under
    54  sections 203-c, 203-d, 206-a and 206-c of the labor law;
    55    vii.  various  prohibitions  on discrimination based on child-care for
    56  adoptive parents, lawful outside activities, for failure to meet  ticket

        A. 8343                             4
 
     1  quotas  and  displaying  the  American flag under sections 201-c, 201-d,
     2  215-a and 215-c of the labor law; and
     3    viii.   anti-retaliation   and   anti-discrimination   protections  in
     4  connection with workers' compensation  and  labor  laws  under  sections
     5  210-a and 215 of the labor law.
     6    c. laws regarding payment of wages, including:
     7    i.  payment  of  wages  and related protections under article 6 of the
     8  labor law;
     9    ii. minimum wages and related protections under the minimum  wage  act
    10  under article 19 of the labor law; and
    11    iii.  payment  of fees for medical exams required for employment under
    12  section 201-b of the labor law.
    13    d. laws regulating hours of work, including:
    14    i. employment of minors hours and permitting under article  4  of  the
    15  labor law;
    16    ii.  child  performers  hours,  education and trust requirements under
    17  article 4-A of the labor law;
    18    iii. hours of labor and day of rest requirements under  article  5  of
    19  the labor law; and
    20    iv.  leave  of  absences  for volunteer emergency first responders and
    21  following child-birth under sections 202-l and 206-b of the labor law.
    22    e. laws regulating safety and health, including:
    23    i. right to know protections under the toxic substances provisions  of
    24  article 28 of the labor law; and
    25    ii.  protections  in  connection  with  window  cleaning,  bridges and
    26  tunnels, hotels and motels,  eating  in  certain  workrooms,  factories,
    27  high-voltage  lines,  mercantile  establishments,  mines, explosives and
    28  places of public assembly under sections 202, 202-e, 202-f,  202-h,  205
    29  and articles 11, 14, 15, 16 and 17 of the labor law.
    30    §  10.  This  act shall take effect on the sixtieth day after it shall
    31  have become a law.
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