S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4762
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 6, 2015
                                      ___________
       Introduced by M. of A. NOLAN, SILVER, GOTTFRIED, O'DONNELL, PERRY, COOK,
         COLTON,  JAFFEE, DINOWITZ, GLICK, AUBRY, FAHY, MARKEY, ROZIC -- Multi-
         Sponsored by -- M. of A.   BRENNAN, CUSICK,  HEVESI,  SIMON,  SOLAGES,
         WEINSTEIN -- read once and referred to the Committee on Labor
       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:
    6    (a) The term "employees" includes but is not restricted to  any  indi-
    7  vidual employed by a labor organization; any individual whose employment
    8  has ceased as a consequence of, or in connection with, any current labor
    9  dispute  or  because  of  any  unfair  labor  practice,  and who has not
   10  obtained any other regular and substantially equivalent employment;  and
   11  shall  not  be limited to the employees of a particular employer, unless
   12  the article explicitly states otherwise, but shall not include any indi-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01894-01-5
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    1  vidual employed by his parent or spouse or in the  domestic  service  of
    2  and  directly  employed,  controlled and paid by any person in his home,
    3  any individual whose primary responsibility is the care of a minor child
    4  or  children  and/or  someone  who lives in the home of a person for the
    5  purpose of serving as a companion to a  sick,  convalescing  or  elderly
    6  person  or  any  individuals  employed  only for the duration of a labor
    7  dispute, [or any individuals employed as farm laborers] or[,] any  indi-
    8  vidual  who  participates  in and receives rehabilitative or therapeutic
    9  services in a charitable non-profit rehabilitation facility or sheltered
   10  workshop or any individual employed in a charitable non-profit rehabili-
   11  tation facility or sheltered workshop who has received rehabilitative or
   12  therapeutic services and whose capacity to perform the work for which he
   13  is engaged is substantially impaired by physical or mental deficiency or
   14  injury.
   15    S 3. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
   16  adding a new undesignated paragraph to read as follows:
   17    EVERY  PERSON  EMPLOYED  AS  A  FARM LABORER SHALL BE ALLOWED AT LEAST
   18  TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY  CALENDAR  WEEK.
   19  THIS  REQUIREMENT  SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER
   20  MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
   21  SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR  CROP  CONDI-
   22  TIONS,  SHALL  BE  DEEMED  TO CONSTITUTE THE REST REQUIRED BY THIS PARA-
   23  GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
   24  VOLUNTARILY REFUSING THE REST REQUIRED BY  THIS  PARAGRAPH.    THE  TERM
   25  "FARM  LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN AGRICULTURAL
   26  EMPLOYMENT IN CONNECTION WITH CULTIVATING THE  SOIL,  OR  IN  CONNECTION
   27  WITH  RAISING  OR  HARVESTING OF AGRICULTURAL COMMODITIES, INCLUDING THE
   28  RAISING, SHEARING, CARING FOR AND MANAGEMENT OF  LIVESTOCK,  POULTRY  OR
   29  DAIRY.   THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD, WHEN-
   30  EVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY RESERVED  BY  THE  FARM
   31  LABORER FOR RELIGIOUS WORSHIP.
   32    S  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
   33  law, as amended by chapter 281 of the laws of 1941, are amended to  read
   34  as follows:
   35    b.  Employees in [dairies, creameries,] milk condenseries, milk powder
   36  factories, milk sugar factories,  milk  shipping  stations,  butter  and
   37  cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
   38  plants, where not more than seven persons are employed;
   39    d. Employees whose duties include not more than three hours'  work  on
   40  Sunday  in setting sponges in bakeries, [caring for live animals,] main-
   41  taining fires, or making necessary repairs to boilers or machinery.
   42    S 5. The opening paragraph of subdivision 3  of  section  160  of  the
   43  labor  law, as amended by chapter 481 of the laws of 2010, is amended to
   44  read as follows:
   45    For all other employees, except [those engaged in farm work and] those
   46  affected by subdivision four of section two hundred twenty of this chap-
   47  ter, eight hours.
   48    S 6. Subdivision 1 of section 220 of the labor law is amended to  read
   49  as follows:
   50    1.  Eight hours shall constitute a legal day's work for all classes of
   51  employees in this state except those  engaged  in  [farm  and]  domestic
   52  service unless otherwise provided by law.
   53    S 7. The labor law is amended by adding a new section 163-a to read as
   54  follows:
   55    S  163-A.  FARM  LABORERS.  NO  PERSON OR CORPORATION OPERATING A FARM
   56  SHALL REQUIRE ANY EMPLOYEE TO WORK MORE THAN EIGHT HOURS IN ANY  DAY  OR
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    1  FORTY  HOURS IN ANY CALENDAR WEEK; PROVIDED, HOWEVER, THAT OVERTIME WORK
    2  PERFORMED BY A FARM LABORER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND
    3  ONE-HALF TIMES THE WORKER'S NORMAL WAGE RATE.
    4    S  8.  The  opening  paragraph  of  paragraph  (a) of subdivision 6 of
    5  section 511 of the labor law, as amended by chapter 675 of the  laws  of
    6  1977, is amended to read as follows:
    7    The  term  "employment" [does not include] INCLUDES agricultural labor
    8  [unless it is covered pursuant to section five hundred sixty-four].  The
    9  term "agricultural labor" includes all service performed:
   10    S 9. Section 564 of the labor law, as added by chapter 675 of the laws
   11  of 1977, is amended to read as follows:
   12    S  564.  Agricultural  labor CREW LEADERS.  [1. Coverage. (a) Notwith-
   13  standing the provisions of section five hundred sixty of  this  article,
   14  an employer of persons engaged in agricultural labor shall become liable
   15  for contributions under this article if the employer:
   16    (1)  has  paid cash remuneration of twenty thousand dollars or more in
   17  any calendar quarter to persons employed in agricultural labor, and such
   18  liability shall commence on the first day of such quarter, or
   19    (2) has employed in agricultural labor ten or more persons on each  of
   20  twenty  days during a calendar year or the preceding calendar year, each
   21  day being in a different calendar week, and the liability shall in  such
   22  event commence on the first day of the calendar year, or
   23    (3)  is  liable for the tax imposed under the federal unemployment tax
   24  act as an employer of agricultural labor and the liability shall in such
   25  event commence on the first day of the calendar quarter in such calendar
   26  year when he first paid remuneration  for  agricultural  labor  in  this
   27  state.
   28    (b)  An  employer who becomes liable for contributions under paragraph
   29  (a) of this subdivision shall cease to be liable as of the first day  of
   30  a  calendar  quarter  next following the filing of a written application
   31  provided the commissioner finds that the employer:
   32    (1) has not paid to persons employed in agricultural labor cash remun-
   33  eration of twenty thousand dollars or more in any of the eight  calendar
   34  quarters preceding such day, and
   35    (2) has not employed in agricultural labor ten or more persons on each
   36  of  twenty  days during the current or the preceding calendar year, each
   37  day being in a different week, and
   38    (3) is not liable for the tax imposed under the  federal  unemployment
   39  tax act as an employer of agricultural labor.
   40    2.  Crew  leader.] Whenever a person renders services as a member of a
   41  crew which is paid and furnished by the crew leader to perform  services
   42  in  agricultural  labor for another employer, such other employer shall,
   43  for the purpose of this article, be deemed to be the  employer  of  such
   44  person, unless:
   45    [(a)]  1.  the  crew  leader holds a valid certificate of registration
   46  under the federal farm labor contractor  registration  act  of  nineteen
   47  hundred sixty-three or substantially all the members of the crew operate
   48  or  maintain tractors, mechanized harvesting or cropdusting machinery or
   49  any other mechanized equipment which is provided by the crew leader, and
   50    [(b)] 2. the crew leader is not an employee of such other employer and
   51  has not entered into a written agreement with such employer under  which
   52  he is designated as an employee.
   53    S  10.  Paragraph  (m)  of  subdivision 5 of section 225 of the public
   54  health law, as amended by section 51 of part A of chapter 58 of the laws
   55  of 2010, is amended to read as follows:
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    1    (m) require that application be made for a permit to operate a farm or
    2  food processing labor camp as defined in the  sanitary  code;  authorize
    3  appropriate  officers or agencies to issue such a permit when the appli-
    4  cant is in compliance with the established regulations; prescribe stand-
    5  ards  for  living  quarters  at  farm  and  food processing labor camps,
    6  including provisions for sanitary conditions; light,  air,  and  safety;
    7  protection from fire hazards; maintenance; and such other matters as may
    8  be  appropriate  for  security of life or health, provided however, that
    9  the  provisions  of  the  sanitary  code  established  pursuant  to  the
   10  provisions  hereof  shall  apply  to  all farm and food processing labor
   11  camps intended to house migrant workers and which are occupied [by  five
   12  or  more  persons].  In  the preparation of such regulations, the public
   13  health and health planning council may request and shall receive techni-
   14  cal assistance from the board of standards  and  appeals  of  the  state
   15  department  of  labor and the state building code commission. Such regu-
   16  lation shall be enforced in the same manner as are other  provisions  of
   17  the sanitary code;
   18    S  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
   19  ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
   20  of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
   21  amended to read as follows:
   22    Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
   23  any  other  employment in a trade, business, or occupation carried on by
   24  the employer for pecuniary gain in which one or  more  employees  [other
   25  than farm laborers] are employed.
   26    Group 14-b. Employment as a farm laborer as provided herein.  A farmer
   27  shall  provide  coverage  under  this  chapter  for  all  farm  laborers
   28  [employed during any part of the  twelve  consecutive  months  beginning
   29  April  first  of  any calendar year preceded by a calendar year in which
   30  the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
   31  hundred dollars or more].
   32    S  12.    Section  51  of the workers' compensation law, as amended by
   33  chapter 561 of the laws of 2003, is amended to read as follows:
   34    S 51. Posting of notice regarding compensation. Every employer who has
   35  complied with section fifty of this article shall post and maintain in a
   36  conspicuous place or places in and about his place or places of business
   37  typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
   38  by the chairman, stating the fact that he  has  complied  with  all  the
   39  rules  and  regulations  of  the  chairman and the board and that he has
   40  secured the payment of compensation to his employees  and  their  depen-
   41  dents  in accordance with the provisions of this chapter, but failure to
   42  post such notice as herein provided shall not  in  any  way  affect  the
   43  exclusiveness of the remedy provided for by section eleven of this chap-
   44  ter. Every employer who owns or operates automotive or horse-drawn vehi-
   45  cles  and  has  no minimum staff of regular employees required to report
   46  for work at an established place of business maintained by such employer
   47  and every employer who is engaged in the business  of  moving  household
   48  goods  or  furniture  shall  post such notices in each and every vehicle
   49  owned or operated by him. Failure to post or maintain such notice in any
   50  of said vehicles shall constitute presumptive evidence that such employ-
   51  er has failed to secure the payment of compensation.  The  chairman  may
   52  require  any employer to furnish a written statement at any time showing
   53  the stock corporation, mutual corporation or reciprocal insurer in which
   54  such employer is insured or  the  manner  in  which  such  employer  has
   55  complied with any provision of this chapter. Failure for a period of ten
   56  days  to  furnish  such  written  statement shall constitute presumptive
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    1  evidence that such employer has neglected or failed in respect of any of
    2  the matters so required. Any employer  who  fails  to  comply  with  the
    3  provisions  of this section shall be required to pay to the board a fine
    4  of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
    5  addition  to any other penalties imposed by law to be deposited into the
    6  uninsured employers' fund.
    7    S 13. The workers' compensation law is amended by adding a new section
    8  110-b to read as follows:
    9    S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
   10  TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
   11  TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
   12  REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
   13  INJURY.
   14    S 14. The first undesignated paragraph of section 120 of the  workers'
   15  compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
   16  amended to read as follows:
   17    It shall be unlawful for any employer or his or  her  duly  authorized
   18  agent  to  discharge  or  in  any  other  manner discriminate against an
   19  employee as to his or her employment because such employee  has  claimed
   20  or attempted to claim compensation from such employer, REQUESTED A CLAIM
   21  FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
   22  she  has  testified  or  is  about to testify in a proceeding under this
   23  chapter and no other valid reason is shown to exist for such  action  by
   24  the employer.
   25    S 15. The opening paragraph of paragraph A of subdivision 6 of section
   26  201  of  the workers' compensation law, as amended by chapter 481 of the
   27  laws of 2010, is amended to read as follows:
   28    "Employment" means employment in any  trade,  business  or  occupation
   29  carried on by an employer, except that the following shall not be deemed
   30  employment  under  this  article:  services  performed  for the state, a
   31  municipal corporation, local governmental agency, other political subdi-
   32  vision or public authority; employment subject to the  federal  railroad
   33  unemployment  insurance  act;  service  performed on or as an officer or
   34  member of the crew of a vessel on the  navigable  water  of  the  United
   35  States  or outside the United States; [service as farm laborers;] casual
   36  employment and the first forty-five days of extra employment of  employ-
   37  ees  not regularly in employment as otherwise defined herein; service as
   38  golf caddies; and service during all or any part of the school  year  or
   39  regular vacation periods as a part-time worker of any person actually in
   40  regular  attendance during the day time as a student in an elementary or
   41  secondary school.  The  term  "employment"  shall  include  domestic  or
   42  personal work in a private home. The term "employment" shall not include
   43  the  services  of a licensed real estate broker or sales associate if it
   44  be proven that (a) substantially all of the remuneration (whether or not
   45  paid in cash) for the services performed by such broker or sales associ-
   46  ate is directly related to sales or other output (including the perform-
   47  ance of services) rather than to the number of  hours  worked;  (b)  the
   48  services performed by the broker or sales associate are performed pursu-
   49  ant  to a written contract executed between such broker or sales associ-
   50  ate and the person for whom the services are performed within  the  past
   51  twelve  to  fifteen months; and (c) the written contract provided for in
   52  subparagraph (b) of this paragraph was not  executed  under  duress  and
   53  contains the following provisions:
   54    S  16.  The  opening  paragraph of subdivision 5 of section 651 of the
   55  labor law, as amended by chapter 481 of the laws of 2010, is amended  to
   56  read as follows:
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    1    "Employee" includes any individual employed or permitted to work by an
    2  employer  in any occupation, but shall not include any individual who is
    3  employed or permitted to work: (a) on a casual basis  in  service  as  a
    4  part  time  baby  sitter in the home of the employer; (b) [in labor on a
    5  farm;  (c)]  in  a  bona fide executive, administrative, or professional
    6  capacity; [(d)] (C) as an  outside  salesman;  [(e)]  (D)  as  a  driver
    7  engaged  in  operating  a  taxicab; [(f)] (E) as a volunteer, learner or
    8  apprentice  by  a  corporation,  unincorporated  association,  community
    9  chest,  fund  or foundation organized and operated exclusively for reli-
   10  gious, charitable or educational purposes, no part of the  net  earnings
   11  of which inures to the benefit of any private shareholder or individual;
   12  [(g)]  (F)  as  a  member  of  a religious order, or as a duly ordained,
   13  commissioned or licensed minister, priest or rabbi, or as a  sexton,  or
   14  as  a  christian science reader; [(h)] (G) in or for such a religious or
   15  charitable institution, which work is incidental to  or  in  return  for
   16  charitable  aid conferred upon such individual and not under any express
   17  contract of hire; [(i)] (H) in or for such a religious,  educational  or
   18  charitable  institution if such individual is a student; [(j)] (I) in or
   19  for such a religious, educational or charitable institution if the earn-
   20  ing capacity of such individual is impaired by age  or  by  physical  or
   21  mental  deficiency  or  injury;  [(k)]  (J)  in  or for a summer camp or
   22  conference of such a religious, educational  or  charitable  institution
   23  for  not more than three months annually; [(l)] (K) as a staff counselor
   24  in a children's camp; [(m)] (L)  in  or  for  a  college  or  university
   25  fraternity,  sorority,  student  association  or faculty association, no
   26  part of the net earnings of which inures to the benefit of  any  private
   27  shareholder  or  individual,  and which is recognized by such college or
   28  university, if such individual is a student; [(n)]  (M)  by  a  federal,
   29  state  or  municipal  government  or political subdivision thereof.  The
   30  exclusions from the term "employee" contained in this subdivision  shall
   31  be  as  defined  by  regulations  of the commissioner; or [(o)] (N) as a
   32  volunteer at a recreational or amusement event run by  a  business  that
   33  operates  such  events,  provided that no single such event lasts longer
   34  than eight consecutive days and no more than one such  event  concerning
   35  substantially  the  same subject matter occurs in any calendar year. Any
   36  such volunteer shall be at least eighteen years of age. A business seek-
   37  ing coverage under this paragraph shall notify every volunteer in  writ-
   38  ing,  in  language  acceptable to the commissioner, that by volunteering
   39  his or her services, such volunteer is  waiving  his  or  her  right  to
   40  receive  the minimum wage pursuant to this article. Such notice shall be
   41  signed and dated by a representative of the business and  the  volunteer
   42  and kept on file by the business for thirty-six months.
   43    S 17. Subdivision 1 of section 674 of the labor law, as added by chap-
   44  ter 552 of the laws of 1969, is amended to read as follows:
   45    1. The commissioner may promulgate such regulations as he deems appro-
   46  priate  to carry out the purposes of this article and to safeguard mini-
   47  mum wage standards. Such regulations may include, but  are  not  limited
   48  to,  the  defining of the circumstances or conditions for the acceptance
   49  of non-hourly rates and piece rates as equivalent to the minimum  hourly
   50  rates  established  by  this article. Such regulations also may include,
   51  but are not limited  to,  waiting  time  and  call-in  pay  rates;  wage
   52  provisions  governing  guaranteed  earnings  during specified periods of
   53  work; allowances for meals,  lodging,  and  other  items,  services  and
   54  facilities  when furnished by the employer; [and the employment of indi-
   55  viduals whose earning capacity is affected or impaired by youth or age,]
   56  or by physical or mental deficiency or  injury,  under  special  certif-
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    1  icates  issued by the commissioner, at such wages lower than the minimum
    2  wage established by this  article  and  for  such  period  as  shall  be
    3  prescribed in such regulations.
    4    S  18.  This  act shall take effect immediately, provided that section
    5  ten of this act shall take effect on the thirtieth day  after  it  shall
    6  have become a law.