|SAME AS||SAME AS S02721|
|COSPNSR||De La Rosa, Simon, Colton, Perry, Barron, Jean-Pierre, Mosley, Abinanti, Pellegrino, Hevesi|
|Amd §§701, 161, 160, 220, 511, 564, 651 & 674, add §163-a, Lab L; amd §225, Pub Health L; amd §§3, 51, 120 & 201, add §110-b, Work Comp L|
|Enacts the farmworkers fair labor practices act: grants collective bargaining rights to farm laborers; requires employers of farm laborers to allow at least 24 consecutive hours of rest each week; provides for an 8 hour work day for farm laborers; requires overtime rate at one and one-half times normal rate; makes provisions of unemployment insurance law applicable to farm laborers; provides sanitary code shall apply to all farm and food processing labor camps intended to house migrant workers, regardless of the number of occupants; provides for eligibility of farm laborers for workers' compensation benefits; requires employers of farm laborers to provide such farm laborers with claim forms for workers' compensation claims under certain conditions; requires reporting of injuries to employers of farmworkers.|
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STATE OF NEW YORK ________________________________________________________________________ 4189 2017-2018 Regular Sessions IN ASSEMBLY February 1, 2017 ___________ Introduced by M. of A. NOLAN -- 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 § 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- 13 vidual employed by his parent or spouse or in the domestic service of 14 and directly employed, controlled and paid by any person in his home, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07839-01-7A. 4189 2 1 any individual whose primary responsibility is the care of a minor child 2 or children and/or someone who lives in the home of a person for the 3 purpose of serving as a companion to a sick, convalescing or elderly 4 person or any individuals employed only for the duration of a labor 5 dispute, [ or any individuals employed as farm laborers] or[ ,] any indi- 6 vidual who participates in and receives rehabilitative or therapeutic 7 services in a charitable non-profit rehabilitation facility or sheltered 8 workshop or any individual employed in a charitable non-profit rehabili- 9 tation facility or sheltered workshop who has received rehabilitative or 10 therapeutic services and whose capacity to perform the work for which he 11 is engaged is substantially impaired by physical or mental deficiency or 12 injury. 13 § 3. Subdivision 1 of section 161 of the labor law is amended by 14 adding a new undesignated paragraph to read as follows: 15 Every person employed as a farm laborer shall be allowed at least 16 twenty-four consecutive hours of rest in each and every calendar week. 17 This requirement shall not apply to the parent, child, spouse or other 18 member of the employer's immediate family. Twenty-four consecutive hours 19 spent at rest because of circumstances, such as weather or crop condi- 20 tions, shall be deemed to constitute the rest required by this para- 21 graph. No provision of this paragraph shall prohibit a farm laborer from 22 voluntarily refusing the rest required by this paragraph. The term 23 "farm labor" shall include all services performed in agricultural 24 employment in connection with cultivating the soil, or in connection 25 with raising or harvesting of agricultural commodities, including the 26 raising, shearing, caring for and management of livestock, poultry or 27 dairy. The day of rest authorized under this subdivision should, when- 28 ever possible, coincide with the traditional day reserved by the farm 29 laborer for religious worship. 30 § 4. Paragraphs b and d of subdivision 2 of section 161 of the labor 31 law, as amended by chapter 281 of the laws of 1941, are amended to read 32 as follows: 33 b. Employees in [ dairies, creameries,] milk condenseries, milk powder 34 factories, milk sugar factories, milk shipping stations, butter and 35 cheese factories, ice cream manufacturing plants and milk bottling 36 plants, where not more than seven persons are employed; 37 d. Employees whose duties include not more than three hours' work on 38 Sunday in setting sponges in bakeries, [ caring for live animals,] main- 39 taining fires, or making necessary repairs to boilers or machinery. 40 § 5. The opening paragraph of subdivision 3 of section 160 of the 41 labor law, as amended by chapter 481 of the laws of 2010, is amended to 42 read as follows: 43 For all other employees, except [ those engaged in farm work and] those 44 affected by subdivision four of section two hundred twenty of this chap- 45 ter, eight hours. 46 § 6. Subdivision 1 of section 220 of the labor law is amended to read 47 as follows: 48 1. Eight hours shall constitute a legal day's work for all classes of 49 employees in this state except those engaged in [ farm and] domestic 50 service unless otherwise provided by law. 51 § 7. The labor law is amended by adding a new section 163-a to read as 52 follows: 53 § 163-a. Farm laborers. No person or corporation operating a farm 54 shall require any employee to work more than eight hours in any day or 55 forty hours in any calendar week; provided, however, that overtime workA. 4189 3 1 performed by a farm laborer shall be at a rate which is at least one and 2 one-half times the worker's normal wage rate. 3 § 8. The opening paragraph of paragraph (a) of subdivision 6 of 4 section 511 of the labor law, as amended by chapter 675 of the laws of 5 1977, is amended to read as follows: 6 The term "employment" [ does not include] includes agricultural labor 7 [ unless it is covered pursuant to section five hundred sixty-four]. The 8 term "agricultural labor" includes all service performed: 9 § 9. Section 564 of the labor law, as added by chapter 675 of the laws 10 of 1977, is amended to read as follows: 11 § 564. Agricultural labor crew leaders. [ 1. Coverage. (a) Notwith-12 standing the provisions of section five hundred sixty of this article,13 an employer of persons engaged in agricultural labor shall become liable14 for contributions under this article if the employer:15 (1) has paid cash remuneration of twenty thousand dollars or more in16 any calendar quarter to persons employed in agricultural labor, and such17 liability shall commence on the first day of such quarter, or18 (2) has employed in agricultural labor ten or more persons on each of19 twenty days during a calendar year or the preceding calendar year, each20 day being in a different calendar week, and the liability shall in such21 event commence on the first day of the calendar year, or22 (3) is liable for the tax imposed under the federal unemployment tax23 act as an employer of agricultural labor and the liability shall in such24 event commence on the first day of the calendar quarter in such calendar25 year when he first paid remuneration for agricultural labor in this26 state.27 (b) An employer who becomes liable for contributions under paragraph28 (a) of this subdivision shall cease to be liable as of the first day of29 a calendar quarter next following the filing of a written application30 provided the commissioner finds that the employer:31 (1) has not paid to persons employed in agricultural labor cash remun-32 eration of twenty thousand dollars or more in any of the eight calendar33 quarters preceding such day, and34 (2) has not employed in agricultural labor ten or more persons on each35 of twenty days during the current or the preceding calendar year, each36 day being in a different week, and37 (3) is not liable for the tax imposed under the federal unemployment38 tax act as an employer of agricultural labor.39 2. Crew leader.] Whenever a person renders services as a member of a 40 crew which is paid and furnished by the crew leader to perform services 41 in agricultural labor for another employer, such other employer shall, 42 for the purpose of this article, be deemed to be the employer of such 43 person, unless: 44 [ (a)] 1. the crew leader holds a valid certificate of registration 45 under the federal farm labor contractor registration act of nineteen 46 hundred sixty-three or substantially all the members of the crew operate 47 or maintain tractors, mechanized harvesting or [ cropdusting] crop dust- 48 ing machinery or any other mechanized equipment which is provided by the 49 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 § 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:A. 4189 4 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 five12 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 § 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 [ other25 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 beginning29 April first of any calendar year preceded by a calendar year in which30 the cash remuneration paid to all farm laborers aggregated twelve31 hundred dollars or more]. 32 § 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 § 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 presumptiveA. 4189 5 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 § 13. The workers' compensation law is amended by adding a new section 8 110-b to read as follows: 9 § 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 § 14. The first undesignated paragraph of section 120 of the workers' 15 compensation law, as amended by section 31 of part SS of chapter 54 of 16 the laws of 2016, is amended to read as follows: 17 It shall be unlawful for any employer or his or her duly authorized 18 agent to discharge or fail to reinstate pursuant to section two hundred 19 three-b of this chapter, or in any other manner discriminate against an 20 employee as to his or her employment because such employee has claimed 21 or attempted to claim compensation from such employer, requested a claim 22 form for injuries received in the course of employment, or claimed or 23 attempted to claim any benefits provided under this chapter or because 24 he or she has testified or is about to testify in a proceeding under 25 this chapter and no other valid reason is shown to exist for such action 26 by the employer. 27 § 15. The opening paragraph of paragraph A of subdivision 6 of section 28 201 of the workers' compensation law, as amended by chapter 481 of the 29 laws of 2010, is amended to read as follows: 30 "Employment" means employment in any trade, business or occupation 31 carried on by an employer, except that the following shall not be deemed 32 employment under this article: services performed for the state, a 33 municipal corporation, local governmental agency, other political subdi- 34 vision or public authority; employment subject to the federal railroad 35 unemployment insurance act; service performed on or as an officer or 36 member of the crew of a vessel on the navigable water of the United 37 States or outside the United States; [ service as farm laborers;] casual 38 employment and the first forty-five days of extra employment of employ- 39 ees not regularly in employment as otherwise defined herein; service as 40 golf caddies; and service during all or any part of the school year or 41 regular vacation periods as a part-time worker of any person actually in 42 regular attendance during the day time as a student in an elementary or 43 secondary school. The term "employment" shall include domestic or 44 personal work in a private home. The term "employment" shall not include 45 the services of a licensed real estate broker or sales associate if it 46 be proven that (a) substantially all of the remuneration (whether or not 47 paid in cash) for the services performed by such broker or sales associ- 48 ate is directly related to sales or other output (including the perform- 49 ance of services) rather than to the number of hours worked; (b) the 50 services performed by the broker or sales associate are performed pursu- 51 ant to a written contract executed between such broker or sales associ- 52 ate and the person for whom the services are performed within the past 53 twelve to fifteen months; and (c) the written contract provided for in 54 subparagraph (b) of this paragraph was not executed under duress and 55 contains the following provisions:A. 4189 6 1 § 16. The opening paragraph of subdivision 5 of section 651 of the 2 labor law, as amended by chapter 503 of the laws of 2016, is amended to 3 read as follows: 4 "Employee" includes any individual employed or permitted to work by an 5 employer in any occupation, but shall not include any individual who is 6 employed or permitted to work: (a) on a casual basis in service as a 7 part time baby sitter in the home of the employer; (b) [ in labor on a8 farm; (c)] in a bona fide executive, administrative, or professional 9 capacity; [ (d)] (c) as an outside salesman; [ (e)] (d) as a driver 10 engaged in operating a taxicab; [ (f)] (e) as a volunteer, learner or 11 apprentice by a corporation, unincorporated association, community 12 chest, fund or foundation organized and operated exclusively for reli- 13 gious, charitable or educational purposes, no part of the net earnings 14 of which inures to the benefit of any private shareholder or individual; 15 [ (g)] (f) as a member of a religious order, or as a duly ordained, 16 commissioned or licensed minister, priest or rabbi, or as a sexton, or 17 as a christian science reader; [ (h)] (g) in or for such a religious or 18 charitable institution, which work is incidental to or in return for 19 charitable aid conferred upon such individual and not under any express 20 contract of hire; [ (i)] (h) in or for such a religious, educational or 21 charitable institution if such individual is a student; [ (j)] (i) in or 22 for such a religious, educational or charitable institution if the earn- 23 ing capacity of such individual is impaired by age or by physical or 24 mental deficiency or injury; [ (k)] (j) in or for a summer camp or 25 conference of such a religious, educational or charitable institution 26 for not more than three months annually; [ (l)] (k) as a staff counselor 27 in a children's camp; [ (m)] (l) in or for a college or university 28 fraternity, sorority, student association or faculty association, no 29 part of the net earnings of which inures to the benefit of any private 30 shareholder or individual, and which is recognized by such college or 31 university, if such individual is a student; [ (n)] (m) by a federal, 32 state or municipal government or political subdivision thereof; [ (o)] 33 (n) as a volunteer at a recreational or amusement event run by a busi- 34 ness that operates such events, provided that no single such event lasts 35 longer than eight consecutive days and no more than one such event 36 concerning substantially the same subject matter occurs in any calendar 37 year, where (1) any such volunteer shall be at least eighteen years of 38 age, (2) a business seeking coverage under this paragraph shall notify 39 every volunteer in writing, in language acceptable to the commissioner, 40 that by volunteering his or her services, such volunteer is waiving his 41 or her right to receive the minimum wage pursuant to this article, and 42 (3) such notice shall be signed and dated by a representative of the 43 business and the volunteer and kept on file by the business for thirty- 44 six months; or [ (p)] (o) in the delivery of newspapers or shopping news 45 to the consumer by a person who is not performing commercial goods 46 transportation services for a commercial goods transportation contractor 47 within the meaning of article twenty-five-C of this chapter. The exclu- 48 sions from the term "employee" contained in this subdivision shall be as 49 defined by regulations of the commissioner. 50 § 17. Subdivision 1 of section 674 of the labor law, as added by chap- 51 ter 552 of the laws of 1969, is amended to read as follows: 52 1. The commissioner may promulgate such regulations as he deems appro- 53 priate to carry out the purposes of this article and to safeguard mini- 54 mum wage standards. Such regulations may include, but are not limited 55 to, the defining of the circumstances or conditions for the acceptance 56 of non-hourly rates and piece rates as equivalent to the minimum hourlyA. 4189 7 1 rates established by this article. Such regulations also may include, 2 but are not limited to, waiting time and call-in pay rates; wage 3 provisions governing guaranteed earnings during specified periods of 4 work; allowances for meals, lodging, and other items, services and 5 facilities when furnished by the employer; [ and the employment of indi-6 viduals whose earning capacity is affected or impaired by youth or age,] 7 or by physical or mental deficiency or injury, under special certif- 8 icates issued by the commissioner, at such wages lower than the minimum 9 wage established by this article and for such period as shall be 10 prescribed in such regulations. 11 § 18. This act shall take effect immediately, provided that section 12 ten of this act shall take effect on the thirtieth day after it shall 13 have become a law.