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A04189 Summary:

BILL NOA04189
 
SAME ASSAME AS S02721
 
SPONSORNolan
 
COSPNSRDe La Rosa, Simon, Colton, Perry, Barron, Jean-Pierre, Mosley, Abinanti, Pellegrino, Hevesi, D'Urso
 
MLTSPNSRRodriguez
 
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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A04189 Text:



 
                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.
                                                                   LBD07839-01-7

        A. 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 work

        A. 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 liable
    14  for contributions under this article if the employer:
    15    (1)  has  paid cash remuneration of twenty thousand dollars or more in
    16  any calendar quarter to persons employed in agricultural labor, and such
    17  liability shall commence on the first day of such quarter, or
    18    (2) has employed in agricultural labor ten or more persons on each  of
    19  twenty  days during a calendar year or the preceding calendar year, each
    20  day being in a different calendar week, and the liability shall in  such
    21  event commence on the first day of the calendar year, or
    22    (3)  is  liable for the tax imposed under the federal unemployment tax
    23  act as an employer of agricultural labor and the liability shall in such
    24  event commence on the first day of the calendar quarter in such calendar
    25  year when he first paid remuneration  for  agricultural  labor  in  this
    26  state.
    27    (b)  An  employer who becomes liable for contributions under paragraph
    28  (a) of this subdivision shall cease to be liable as of the first day  of
    29  a  calendar  quarter  next following the filing of a written application
    30  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  calendar
    33  quarters preceding such day, and
    34    (2) has not employed in agricultural labor ten or more persons on each
    35  of  twenty  days during the current or the preceding calendar year, each
    36  day being in a different week, and
    37    (3) is not liable for the tax imposed under the  federal  unemployment
    38  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  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    §  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    §  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 presumptive

        A. 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 a
     8  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 hourly

        A. 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.
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