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A08419 Summary:

BILL NOA08419
 
SAME ASSAME AS S06578
 
SPONSORNolan (MS)
 
COSPNSRBronson, D'Urso, Lifton, Mosley, Reyes, Colton, Sayegh, Perry, Simon, Rodriguez, Cruz, Glick, Dinowitz, Epstein, Englebright, Gottfried, Griffin, Jaffee, Fall, De La Rosa, Pretlow, Jean-Pierre, Abinanti, Arroyo, Ortiz, Aubry, Crespo, O'Donnell, Blake, Hevesi, Cook, Rivera, Williams, Wright, Richardson, Steck, Fernandez, Rosenthal L, Hyndman, Cahill, Weprin, Benedetto, Simotas, Carroll, Miller MG, Rosenthal D, Niou, DenDekker, Lavine, Barron, Ramos, Seawright, Barnwell, Darling, Otis
 
MLTSPNSRAbbate
 
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.
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A08419 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8419
 
SPONSOR: Nolan (MS)
  TITLE OF BILL: 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 insur- ance; 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 employment 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 convening of a farm laborers wage board   PURPOSE OR GENERAL IDEA OF BILL: To establish the Farmworkers Fair Labor Practices Act to grant farm workers overtime, a day of rest, disability insurance, unemployment benefits, and other labor protections granted to other workers in New York State.   SUMMARY OF PROVISIONS: Section 1 of the bill entitles the bill, the "Farm Laborers Fair Labor Practices Act." Section 2 of the bill establishes the legislative intent and findings. Section 3 of the bill amends the Labor Law to provide collective bargaining rights for farm workers. Sections 4 and 5 of the bill amend the Labor Law to allow farm workers 24 hours of rest per week. Section 6 of the bill amends the Labor Law to establish that any work over 60 hours per week would be subject to an overtime rate of one and one-half times the laborer's regular rate of pay. Sections 7 and 8 of the bill amend the Labor Law as it relates to unem- ployment insurance for farm laborers. A/9 Section 9 of the bill amends the Public Health Law to expand the appli- cation of the sanitary code to all farms housing migrant workers. Section 10 of the bill establishes the same eligibility for farmworkers as other workers for workers' compensation. Section 11 of the bill requires the posting of workers' compensation insurance to be posted in English and Spanish and provides for addi- tional penalties for failure to post such notice. Section 12 of the bill requires foremen receiving notice of an injury to a worker suffered in the course of farm employment to inform the employ- er of the injury. Section 13 of the bill amends the Workers' Compensation Law to make it unlawful to discharge an employee for requesting a claim form regarding injuries incurred in the course of employment. Section 14 of the bill amends the state disability law to include farm workers within coverage. Section 15 of the bill pertains to minimum wage coverage. Section 16 of the bill eliminates the sub-minimum wage for underage farm workers. Sections 17-21 of the bill makes changes to the New York State Employ- ment Relations Act to prohibit strikes, stoppages, and slowdowns, prohibit certain unfair labor practices, and establish impasse resol- ution procedures. Section 22 of the bill establishes a Farm Laborers Wage Board to provide recommendations as to overtime work for farm laborers. Section 23 of the bill eliminates the requirement for employers to make unemployment insurance contributions for H2-A visa workers. Section 24 of the bill sets forth a severability clause. Section 25 of the bill establishes an effective date.   JUSTIFICATION: Farmworkers perform essential services for New York's agricultural industry which ranks near the top nationally in dairy, apples, vegeta- bles, grapes, floriculture and other products. Farm work is labor inten- sive that involves arduous tasks, exposure to pesticides, and long hours. Farmworkers frequently suffer physical injuries and illnesses in the course of their employment, often beyond that suffered by workers in other industries. It is unjust that the labor protections provided to other workers in New York such as a day of rest overtime pay, disability insurance, unemployment benefits and collective bargaining have been denied to farmworkers for decades. This legislation would grant farm- workers the basic labor rights long enjoyed by other public and private employees in our State.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None to the State.   EFFECTIVE DATE: This act shall take effect January 1, 2020; provided, however, that the provisions of section nine of this act shall take effect January 1 2021.
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A08419 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8419
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 16, 2019
                                       ___________
 
        Introduced  by  M.  of A. NOLAN, BRONSON, D'URSO, LIFTON, MOSLEY, REYES,
          COLTON,  SAYEGH,  PERRY,  SIMON,  RODRIGUEZ,  CRUZ,  GLICK,  DINOWITZ,
          EPSTEIN,  ENGLEBRIGHT,  GOTTFRIED,  GRIFFIN, JAFFEE, FALL, DE LA ROSA,
          PRETLOW, JEAN-PIERRE, ABINANTI, ARROYO, ORTIZ, AUBRY, CRESPO, DeSTEFA-
          NO, O'DONNELL, BLAKE, HEVESI, COOK, RIVERA, WILLIAMS, WRIGHT, RICHARD-
          SON, STECK, FERNANDEZ, L. ROSENTHAL, HYNDMAN, CAHILL, WEPRIN, BENEDET-
          TO, SIMOTAS, CARROLL,  M. G. MILLER,  D. ROSENTHAL,  NIOU,  DenDEKKER,
          LAVINE,  BARRON,  RAMOS,  SEAWRIGHT,  BARNWELL,  LAWRENCE,  RAYNOR  --
          Multi-Sponsored by -- M. of A.  ABBATE -- (at request of the Governor)
          -- read once and referred to the Committee on Ways and Means
 
        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,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12035-01-9

        A. 8419                             2
 
     1  resulting in over $5 billion annually and making New York a global lead-
     2  er in many crops and agricultural products.  Agriculture plays an essen-
     3  tial  role  in  the  continued  economic growth and vitality of New York
     4  state.   According to the United States Department of Agriculture's 2017
     5  Agricultural Census, 98% of New York's farms are family owned and  these
     6  farms contributed $2.4 billion to the state's GDP in 2017.
     7    2. The legislature further finds that the success of New York's robust
     8  agriculture  industry  is  due to the collaborative work between farmers
     9  and farm laborers. However, farm laborers are one of the few classes  of
    10  employees  that  are not covered by the Federal Fair Labor Standards Act
    11  or the National Labor  Relations  Act  (NLRA),  denying  these  valuable
    12  employees  the  same basic labor protections and the right to collective
    13  bargaining that almost all other private sector workers  enjoy.  Despite
    14  regularly working 50, 60, 70 or even more hours a week doing arduous and
    15  difficult  work, often with heavy equipment, pesticides, fertilizers and
    16  other dangerous materials and in sometimes  hazardous  situations,  farm
    17  laborers  remain  excluded  from  collective bargaining statutes and the
    18  right to a day of rest, overtime and other labor protections that are in
    19  place at the state and/or federal level for other workers.
    20    3. The legislature further finds that  this  industry  is  subject  to
    21  unique  and unpredictable factors including climate and weather, pricing
    22  and market requirements, seasonal  harvests,  immigration,  and  various
    23  federal and state laws, rules and regulations that directly impact farm-
    24  ers  and  require  a unique balance and application of traditional labor
    25  protections to ensure farm laborers have a voice in their own terms  and
    26  conditions  of  employment  and  access to basic labor protections while
    27  also creating adaptability and  responsiveness  to  the  unique  circum-
    28  stances of farm operations.
    29    4.  The legislature further finds that the labor standards included in
    30  this bill are intended solely for the purposes of transitioning  into  a
    31  modern  structure  of rights and benefits for farm laborers that achieve
    32  harmonious labor relations and stability of operations in  the  agricul-
    33  tural  industry and are not intended for any other industry or sector of
    34  the economy.
    35    § 3. Paragraph (a) of subdivision 3 of section 701 of the  labor  law,
    36  as amended by chapter 43 of the laws of 1989, is amended and a new para-
    37  graph (c) is added to read as follows:
    38    (a)  The  term "employees" includes but is not restricted to any indi-
    39  vidual employed by a labor organization; any individual whose employment
    40  has ceased as a consequence of, or in connection with, any current labor
    41  dispute or because of  any  unfair  labor  practice,  and  who  has  not
    42  obtained  any other regular and substantially equivalent employment; and
    43  shall not be limited to the employees of a particular  employer,  unless
    44  the article explicitly states otherwise, but shall not include any indi-
    45  vidual  employed  by  his parent or spouse or in the domestic service of
    46  and directly employed, controlled and paid by any person  in  his  home,
    47  any individual whose primary responsibility is the care of a minor child
    48  or  children  and/or  someone  who lives in the home of a person for the
    49  purpose of serving as a companion to a  sick,  convalescing  or  elderly
    50  person  or  any  individuals  employed  only for the duration of a labor
    51  dispute, [or any individuals employed as farm laborers] or[,] any  indi-
    52  vidual  who  participates  in and receives rehabilitative or therapeutic
    53  services in a charitable non-profit rehabilitation facility or sheltered
    54  workshop or any individual employed in a charitable non-profit rehabili-
    55  tation facility or sheltered workshop who has received rehabilitative or
    56  therapeutic services and whose capacity to perform the work for which he

        A. 8419                             3
 
     1  is engaged is substantially impaired by physical or mental deficiency or
     2  injury.
     3    (c) The term "employee" shall also include farm laborers. "Farm labor-
     4  ers"  shall  mean  any individual engaged or permitted by an employer to
     5  work on a farm, except the parent, spouse, child, or other member of the
     6  employer's immediate family.
     7    § 4. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
     8  adding a new undesignated paragraph to read as follows:
     9    Every  person  employed  as  a  farm laborer shall be allowed at least
    10  twenty-four consecutive hours of rest in each and every  calendar  week.
    11  This  requirement  shall not apply to the parent, child, spouse or other
    12  member of the employer's  immediate  family.    Twenty-four  consecutive
    13  hours  spent  at  rest because of circumstances, such as weather or crop
    14  conditions, shall be deemed to constitute  the  rest  required  by  this
    15  paragraph.  No provision of this paragraph shall prohibit a farm laborer
    16  from voluntarily agreeing to work on such day of rest required  by  this
    17  paragraph,  provided that the farm laborer is compensated at an overtime
    18  rate which is at least one and one-half times the laborer's regular rate
    19  of pay for all hours worked on such day of rest.  The term "farm  labor"
    20  shall  include  all  services  performed  in  agricultural employment in
    21  connection with cultivating the soil, or in connection with  raising  or
    22  harvesting of agricultural commodities, including the raising, shearing,
    23  caring  for  and  management of livestock, poultry or dairy.  The day of
    24  rest authorized under this subdivision should, whenever possible,  coin-
    25  cide with the traditional day reserved by the farm laborer for religious
    26  worship.
    27    §  5.  Paragraphs b and d of subdivision 2 of section 161 of the labor
    28  law, as amended by chapter 281 of the laws of 1941, are amended to  read
    29  as follows:
    30    b.  Employees in [dairies, creameries,] milk condenseries, milk powder
    31  factories, milk sugar factories,  milk  shipping  stations,  butter  and
    32  cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
    33  plants, where not more than seven persons are employed;
    34    d. Employees whose duties include not more than three hours'  work  on
    35  Sunday  in setting sponges in bakeries, [caring for live animals,] main-
    36  taining fires, or making necessary repairs to boilers or machinery.
    37    § 6. The labor law is amended by adding a new section 163-a to read as
    38  follows:
    39    § 163-a. Farm laborers. No person  or  corporation  operating  a  farm
    40  shall require any employee to work more than sixty hours in any calendar
    41  week;  provided,  however,  that  any  overtime work performed by a farm
    42  laborer shall be at a rate which is at least one and one-half times  the
    43  laborer's  regular rate of pay.  No wage order subject to the provisions
    44  of this chapter shall be applicable to a farm laborer other than a  wage
    45  order  established  pursuant  to section six hundred seventy-four or six
    46  hundred seventy-four-a of this chapter.
    47    § 7. The opening paragraph  of  paragraph  (a)  of  subdivision  6  of
    48  section  511  of the labor law, as amended by chapter 675 of the laws of
    49  1977, is amended to read as follows:
    50    The term "employment" [does not include] includes  agricultural  labor
    51  [unless  it is covered pursuant to section five hundred sixty-four]. The
    52  term "agricultural labor" includes all service performed:
    53    § 8. Section 564 of the labor law, as added by chapter 675 of the laws
    54  of 1977, is amended to read as follows:
    55    § 564. Agricultural labor crew leaders.   [1. Coverage.  (a)  Notwith-
    56  standing  the  provisions of section five hundred sixty of this article,

        A. 8419                             4

     1  an employer of persons engaged in agricultural labor shall become liable
     2  for contributions under this article if the employer:
     3    (1)  has  paid cash remuneration of twenty thousand dollars or more in
     4  any calendar quarter to persons employed in agricultural labor, and such
     5  liability shall commence on the first day of such quarter, or
     6    (2) has employed in agricultural labor ten or more persons on each  of
     7  twenty  days during a calendar year or the preceding calendar year, each
     8  day being in a different calendar week, and the liability shall in  such
     9  event commence on the first day of the calendar year, or
    10    (3)  is  liable for the tax imposed under the federal unemployment tax
    11  act as an employer of agricultural labor and the liability shall in such
    12  event commence on the first day of the calendar quarter in such calendar
    13  year when he first paid remuneration  for  agricultural  labor  in  this
    14  state.
    15    (b)  An  employer who becomes liable for contributions under paragraph
    16  (a) of this subdivision shall cease to be liable as of the first day  of
    17  a  calendar  quarter  next following the filing of a written application
    18  provided the commissioner finds that the employer:
    19    (1) has not paid to persons employed in agricultural labor cash remun-
    20  eration of twenty thousand dollars or more in any of the eight  calendar
    21  quarters preceding such day, and
    22    (2) has not employed in agricultural labor ten or more persons on each
    23  of  twenty  days during the current or the preceding calendar year, each
    24  day being in a different week, and
    25    (3) is not liable for the tax imposed under the  federal  unemployment
    26  tax act as an employer of agricultural labor.
    27    2.  Crew  leader.] Whenever a person renders services as a member of a
    28  crew which is paid and furnished by the crew leader to perform  services
    29  in  agricultural  labor for another employer, such other employer shall,
    30  for the purpose of this article, be deemed to be the  employer  of  such
    31  person, unless:
    32    [(a)]  1.  the  crew  leader holds a valid certificate of registration
    33  under the federal farm labor contractor  registration  act  of  nineteen
    34  hundred sixty-three or substantially all the members of the crew operate
    35  or  maintain tractors, mechanized harvesting or [cropdusting] crop dust-
    36  ing machinery or any other mechanized equipment which is provided by the
    37  crew leader, and
    38    [(b)] 2. the crew leader is not an employee of such other employer and
    39  has not entered into a written agreement with such employer under  which
    40  he is designated as an employee.
    41    §  9.  Paragraph  (m)  of  subdivision  5 of section 225 of the public
    42  health law, as amended by section 51 of part A of chapter 58 of the laws
    43  of 2010, is amended to read as follows:
    44    (m) require that application be made for a permit to operate a farm or
    45  food processing labor camp as defined in the  sanitary  code;  authorize
    46  appropriate  officers or agencies to issue such a permit when the appli-
    47  cant is in compliance with the established regulations; prescribe stand-
    48  ards for living quarters  at  farm  and  food  processing  labor  camps,
    49  including  provisions  for  sanitary conditions; light, air, and safety;
    50  protection from fire hazards; maintenance; and such other matters as may
    51  be appropriate for security of life or health,  provided  however,  that
    52  the  provisions  of  the  sanitary  code  established  pursuant  to  the
    53  provisions hereof shall apply to all  farm  and  food  processing  labor
    54  camps  intended to house migrant workers and which are occupied [by five
    55  or more persons]. In the preparation of  such  regulations,  the  public
    56  health and health planning council may request and shall receive techni-

        A. 8419                             5
 
     1  cal  assistance  from  the  board  of standards and appeals of the state
     2  department of labor and the state building code commission.  Such  regu-
     3  lation  shall  be enforced in the same manner as are other provisions of
     4  the sanitary code;
     5    §  10. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
     6  ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
     7  of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
     8  amended to read as follows:
     9    Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
    10  any  other  employment in a trade, business, or occupation carried on by
    11  the employer for pecuniary gain in which one or  more  employees  [other
    12  than farm laborers] are employed.
    13    Group 14-b. Employment as a farm laborer as provided herein.  A farmer
    14  shall  provide  coverage  under  this  chapter  for  all  farm  laborers
    15  [employed during any part of the  twelve  consecutive  months  beginning
    16  April  first  of  any calendar year preceded by a calendar year in which
    17  the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
    18  hundred dollars or more].
    19    §  11.    Section  51  of the workers' compensation law, as amended by
    20  chapter 561 of the laws of 2003, is amended to read as follows:
    21    § 51. Posting of notice regarding compensation. Every employer who has
    22  complied with section fifty of this article shall post and maintain in a
    23  conspicuous place or places in and about his place or places of business
    24  typewritten or printed in English and Spanish notices in form prescribed
    25  by the chairman, stating the fact that he  has  complied  with  all  the
    26  rules  and  regulations  of  the  chairman and the board and that he has
    27  secured the payment of compensation to his employees  and  their  depen-
    28  dents  in accordance with the provisions of this chapter, but failure to
    29  post such notice as herein provided shall not  in  any  way  affect  the
    30  exclusiveness of the remedy provided for by section eleven of this chap-
    31  ter. Every employer who owns or operates automotive or horse-drawn vehi-
    32  cles  and  has  no minimum staff of regular employees required to report
    33  for work at an established place of business maintained by such employer
    34  and every employer who is engaged in the business  of  moving  household
    35  goods  or  furniture  shall  post such notices in each and every vehicle
    36  owned or operated by him. Failure to post or maintain such notice in any
    37  of said vehicles shall constitute presumptive evidence that such employ-
    38  er has failed to secure the payment of compensation.  The  chairman  may
    39  require  any employer to furnish a written statement at any time showing
    40  the stock corporation, mutual corporation or reciprocal insurer in which
    41  such employer is insured or  the  manner  in  which  such  employer  has
    42  complied with any provision of this chapter. Failure for a period of ten
    43  days  to  furnish  such  written  statement shall constitute presumptive
    44  evidence that such employer has neglected or failed in respect of any of
    45  the matters so required. Any employer  who  fails  to  comply  with  the
    46  provisions  of this section shall be required to pay to the board a fine
    47  of [up to two hundred fifty] five hundred dollars for each violation, in
    48  addition to any other penalties imposed by law to be deposited into  the
    49  uninsured employers' fund.
    50    § 12. The workers' compensation law is amended by adding a new section
    51  110-b to read as follows:
    52    §  110-b. Reporting of injuries to employer. Every farm labor contrac-
    53  tor, foreman or supervisor of farm laborers who has notice of any injury
    54  to a farm laborer incurred during the  course  of  employment  shall  be
    55  required to inform the employer, owner or operator of a farm of any such
    56  injury.

        A. 8419                             6
 
     1    §  13.  The  opening  paragraph of section 120 of the workers' compen-
     2  sation law, as amended by section 31 of part SS of  chapter  54  of  the
     3  laws of 2016, is amended to read as follows:
     4    It  shall  be  unlawful for any employer or his or her duly authorized
     5  agent to discharge or fail to reinstate pursuant to section two  hundred
     6  three-b  of this chapter, or in any other manner discriminate against an
     7  employee as to his or her employment because such employee  has  claimed
     8  or attempted to claim compensation from such employer, requested a claim
     9  form  for  injuries  received in the course of employment, or claimed or
    10  attempted to claim any benefits provided under this chapter  or  because
    11  he  or  she  has  testified or is about to testify in a proceeding under
    12  this chapter and no other valid reason is shown to exist for such action
    13  by the employer.
    14    § 14. The opening paragraph of paragraph A of subdivision 6 of section
    15  201 of the workers' compensation law, as amended by chapter 481  of  the
    16  laws of 2010, is amended to read as follows:
    17    "Employment"  means  employment  in  any trade, business or occupation
    18  carried on by an employer, except that the following shall not be deemed
    19  employment under this article:  services  performed  for  the  state,  a
    20  municipal corporation, local governmental agency, other political subdi-
    21  vision  or  public authority; employment subject to the federal railroad
    22  unemployment insurance act; service performed on or  as  an  officer  or
    23  member  of  the  crew  of  a vessel on the navigable water of the United
    24  States or outside the United States; [service as farm laborers;]  casual
    25  employment  and the first forty-five days of extra employment of employ-
    26  ees not regularly in employment as otherwise defined herein; service  as
    27  golf  caddies;  and service during all or any part of the school year or
    28  regular vacation periods as a part-time worker of any person actually in
    29  regular attendance during the day time as a student in an elementary  or
    30  secondary  school.  The  term  "employment"  shall  include  domestic or
    31  personal work in a private home. The term "employment" shall not include
    32  the services of a licensed real estate broker or sales associate  if  it
    33  be proven that (a) substantially all of the remuneration (whether or not
    34  paid in cash) for the services performed by such broker or sales associ-
    35  ate is directly related to sales or other output (including the perform-
    36  ance  of  services)  rather  than to the number of hours worked; (b) the
    37  services performed by the broker or sales associate are performed pursu-
    38  ant to a written contract executed between such broker or sales  associ-
    39  ate  and  the person for whom the services are performed within the past
    40  twelve to fifteen months; and (c) the written contract provided  for  in
    41  subparagraph  (b)  of  this  paragraph was not executed under duress and
    42  contains the following provisions:
    43    § 15. The opening paragraph of subdivision 5 of  section  651  of  the
    44  labor  law, as amended by chapter 503 of the laws of 2016, is amended to
    45  read as follows:
    46    "Employee" includes any individual employed or permitted to work by an
    47  employer in any occupation, but shall not include any individual who  is
    48  employed  or  permitted  to  work: (a) on a casual basis in service as a
    49  part time baby sitter in the home of the employer; (b) [in  labor  on  a
    50  farm;  (c)]  in  a  bona fide executive, administrative, or professional
    51  capacity; [(d)] (c) as an  outside  salesman;  [(e)]  (d)  as  a  driver
    52  engaged  in  operating  a  taxicab; [(f)] (e) as a volunteer, learner or
    53  apprentice  by  a  corporation,  unincorporated  association,  community
    54  chest,  fund  or foundation organized and operated exclusively for reli-
    55  gious, charitable or educational purposes, no part of the  net  earnings
    56  of which inures to the benefit of any private shareholder or individual;

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     1  [(g)]  (f)  as  a  member  of  a religious order, or as a duly ordained,
     2  commissioned or licensed minister, priest or rabbi, or as a  sexton,  or
     3  as  a  christian science reader; [(h)] (g) in or for such a religious or
     4  charitable  institution,  which  work  is incidental to or in return for
     5  charitable aid conferred upon such individual and not under any  express
     6  contract  of  hire; [(i)] (h) in or for such a religious, educational or
     7  charitable institution if such individual is a student; [(j)] (i) in  or
     8  for such a religious, educational or charitable institution if the earn-
     9  ing  capacity  of  such  individual is impaired by age or by physical or
    10  mental deficiency or injury; [(k)] (j)  in  or  for  a  summer  camp  or
    11  conference  of  such  a religious, educational or charitable institution
    12  for not more than three months annually; [(l)] (k) as a staff  counselor
    13  in  a  children's  camp;  [(m)]  (l)  in  or for a college or university
    14  fraternity, sorority, student association  or  faculty  association,  no
    15  part  of  the net earnings of which inures to the benefit of any private
    16  shareholder or individual, and which is recognized by  such  college  or
    17  university,  if  such  individual  is a student; [(n)] (m) by a federal,
    18  state or municipal government or political  subdivision  thereof;  [(o)]
    19  (n)  as  a volunteer at a recreational or amusement event run by a busi-
    20  ness that operates such events, provided that no single such event lasts
    21  longer than eight consecutive days and  no  more  than  one  such  event
    22  concerning  substantially the same subject matter occurs in any calendar
    23  year, where (1) any such volunteer shall be at least eighteen  years  of
    24  age,  (2)  a business seeking coverage under this paragraph shall notify
    25  every volunteer in writing, in language acceptable to the  commissioner,
    26  that  by volunteering his or her services, such volunteer is waiving his
    27  or her right to receive the minimum wage pursuant to this  article,  and
    28  (3)  such  notice  shall  be signed and dated by a representative of the
    29  business and the volunteer and kept on file by the business for  thirty-
    30  six  months; or [(p)] (o) in the delivery of newspapers or shopping news
    31  to the consumer by a person  who  is  not  performing  commercial  goods
    32  transportation services for a commercial goods transportation contractor
    33  within  the meaning of article twenty-five-C of this chapter. The exclu-
    34  sions from the term "employee" contained in this subdivision shall be as
    35  defined by regulations of the commissioner.
    36    § 16. Subdivision 1 of section 674 of the labor law, as added by chap-
    37  ter 552 of the laws of 1969, is amended to read as follows:
    38    1. The commissioner may promulgate such regulations as he deems appro-
    39  priate to carry out the purposes of this article and to safeguard  mini-
    40  mum  wage  standards.  Such regulations may include, but are not limited
    41  to, the defining of the circumstances or conditions for  the  acceptance
    42  of  non-hourly rates and piece rates as equivalent to the minimum hourly
    43  rates established by this article. Such regulations  also  may  include,
    44  but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
    45  provisions governing guaranteed earnings  during  specified  periods  of
    46  work;  allowances  for  meals,  lodging,  and  other items, services and
    47  facilities when furnished by the employer; [and the employment of  indi-
    48  viduals whose earning capacity is affected or impaired by youth or age,]
    49  or  by  physical  or  mental deficiency or injury, under special certif-
    50  icates issued by the commissioner, at such wages lower than the  minimum
    51  wage  established  by  this  article  and  for  such  period as shall be
    52  prescribed in such regulations.
    53    § 17. Subdivision 2 of section 701 of the labor  law,  as  amended  by
    54  chapter 43 of the laws of 1989, is amended to read as follows:
    55    2.  (a) The term "employer" includes any person acting on behalf of or
    56  in the interest of an employer, directly or indirectly, with or  without

        A. 8419                             8
 
     1  his  knowledge,  and  shall  include  any person who is the purchaser of
     2  services performed by a person described in paragraph (b) of subdivision
     3  three of this section, but a labor organization or any officer or  agent
     4  thereof shall only be considered an employer with respect to individuals
     5  employed by such organization.
     6    (b)  The  term  "employer" includes agricultural employers.   The term
     7  "agricultural employer" shall mean any employer engaged  in  cultivating
     8  the  soil  or in raising or harvesting any agricultural or horticultural
     9  commodity including custom harvesting operators, and  employers  engaged
    10  in the business of crops, livestock and livestock products as defined in
    11  section  three  hundred one of the agriculture and markets law, or other
    12  similar agricultural enterprises.
    13    § 18. Section 703 of the labor law is amended by adding a new undesig-
    14  nated paragraph to read as follows:
    15    Notwithstanding any other provision of law, for farm laborers the term
    16  "concerted activities" shall not include a  right  to  strike  or  other
    17  concerted stoppage of work or slowdown.
    18    §  19.  The labor law is amended by adding a new section 704-b to read
    19  as follows:
    20    § 704-b. Unfair labor practices. 1. It shall be an unfair labor  prac-
    21  tice  for  a  farm laborer or an employee organization representing farm
    22  laborers to strike any agricultural employer. The  term  "strike"  shall
    23  mean,  for  the  purposes of this section, any strike or other concerted
    24  stoppage of work or slowdown by farm laborers.
    25    2. It shall be an unfair labor practice for an  agricultural  employer
    26  to:
    27    a.  lockout  its  laborers.  The  term  "lockout"  shall mean, for the
    28  purposes of this section, a  refusal  by  an  agricultural  employer  to
    29  permit  farm  laborers  to  work as a result of a dispute with such farm
    30  laborers or employee organization representing such farm  laborers  that
    31  affects  wages,  hours  and  other terms and conditions of employment of
    32  such farm laborers, provided, however, that a lockout shall not  include
    33  a  termination  of  employment for good cause that does not involve such
    34  laborers exercising any rights guaranteed by this article;
    35    b. refuse to continue all the terms of an expired  agreement  until  a
    36  new agreement is negotiated;
    37    c.  discourage  union  organization  or to discourage an employee from
    38  participating  in  a  union  organizing  drive,  engaging  in  protected
    39  concerted  activity, or otherwise exercising the rights guaranteed under
    40  this article.
    41    3. Nothing in this section shall be construed as to bar any proceeding
    42  brought pursuant to section seven hundred four or seven hundred five  of
    43  this article.
    44    § 20. Section 705 of the labor law is amended by adding a new subdivi-
    45  sion 1-a to read as follows:
    46    1-a. If the choice available to the employees in a negotiating unit is
    47  limited  to  selecting or rejecting a single employee organization, that
    48  choice shall be ascertained by the board on the basis of dues  deduction
    49  authorizations  instead  of  by  an election. In such case, the employee
    50  organization involved will be certified without an election if a majori-
    51  ty of the employees  within  the  unit  have  executed  a  showing  dues
    52  deductions authorizations.
    53    §  21.  The labor law is amended by adding a new section 702-b to read
    54  as follows:
    55    § 702-b. Impasse resolution procedures for agricultural employers  and
    56  farm  laborers.    1.  For  purposes  of this section, an impasse may be

        A. 8419                             9
 
     1  deemed to exist if the parties fail to achieve agreement by the end of a
     2  forty-day period from the date of certification  or  recognition  of  an
     3  employee  organization  or  from  the  expiration  date  of a collective
     4  bargaining agreement.
     5    2.  Upon impasse, agricultural employers or recognized employee organ-
     6  izations may request the board to render assistance as provided in  this
     7  section.  If  the  board  determines  an impasse exists in the course of
     8  collective negotiations between an agricultural employer  and  a  recog-
     9  nized  employee organization, the board shall aid the parties in effect-
    10  ing a voluntary resolution of the dispute.
    11    3. On request of either party, as provided in subdivision two of  this
    12  section, and in the event the board determines that an impasse exists in
    13  collective  negotiations between such employee organization and an agri-
    14  cultural employer as to the conditions of employment of  farm  laborers,
    15  the board shall render assistance as follows:
    16    a.  to  assist  the  parties  to  effect a voluntary resolution of the
    17  dispute, the board shall appoint a mediator from  a  list  of  qualified
    18  persons maintained by the board;
    19    b.  if  the mediator is unable to effect settlement of the controversy
    20  within thirty days after his or her appointment, either party may  peti-
    21  tion the board to refer the dispute to a neutral arbitrator;
    22    c. upon petition of either party, the board shall refer the dispute to
    23  a neutral arbitrator as hereinafter provided;
    24    i.  the  neutral arbitrator shall be appointed jointly by the agricul-
    25  tural employer and employee organization within ten days  after  receipt
    26  by  the  board  of  a petition for arbitration.   Each of the respective
    27  parties is to share equally the cost  of  the  neutral  arbitrator.  If,
    28  within  seven  days  after  the  mailing date, the parties are unable to
    29  agree upon the neutral arbitrator, the board shall submit to the parties
    30  a list of qualified,  disinterested  persons  for  the  selection  of  a
    31  neutral  arbitrator.  Each  party shall alternately strike from the list
    32  one of the names with the order of striking determined by lot, until the
    33  remaining one person shall be designated as the neutral arbitrator. This
    34  process shall be completed within five days of receipt of this list. The
    35  parties shall notify the board of the designated neutral arbitrator;
    36    ii. the neutral arbitrator shall hold hearings on all matters  related
    37  to  the  dispute. The parties may be heard either in person, by counsel,
    38  or by other representatives, as they  may  respectively  designate.  The
    39  panel may grant more than one adjournment each for each party; provided,
    40  however,  that  a  second  request  of  either  party and any subsequent
    41  adjournments may be granted on request of either  party,  provided  that
    42  the party which requests the adjournment shall pay the arbitrator's fee.
    43  The  parties  may  present, either orally or in writing, or both, state-
    44  ments of fact, supporting witnesses and other evidence, and argument  of
    45  their  respective  positions  with  respect to each case. The arbitrator
    46  shall have authority  to  require  the  production  of  such  additional
    47  evidence,  either  oral  or  written  as  she  or he may desire from the
    48  parties and shall provide at the request of either party that a full and
    49  complete record be kept of any such hearings, the cost of such record to
    50  be borne by the requesting party. If such record is created, it shall be
    51  shared with both parties regardless of which party paid for it;
    52    iii. the arbitrator shall make a just and reasonable determination  of
    53  the  matters in dispute. In arriving at such determination, the arbitra-
    54  tor shall specify the basis for her or his findings, taking into consid-
    55  eration, in addition to any factors stipulated by  the  parties  or  any
    56  other relevant factors, the following:

        A. 8419                            10
 
     1    A.  comparison of the wages, hours and conditions of employment of the
     2  employees involved in the arbitration proceeding with the wages,  hours,
     3  and  conditions  of  employment  of  other  employees performing similar
     4  services or requiring similar skills under  similar  working  conditions
     5  and  with other employees generally in agricultural employment in compa-
     6  rable communities;
     7    B. the interests and welfare of the farm laborers  and  the  financial
     8  ability of the agricultural employer to pay;
     9    C.   comparison   of  peculiarities  in  regard  to  other  trades  or
    10  professions, including specifically, (i)  hazards  of  employment;  (ii)
    11  physical  qualifications;  (iii) educational qualifications; (iv) mental
    12  qualifications; (v) job training and skills;
    13    D. the terms of collective agreements negotiated between  the  parties
    14  in the past providing for compensation and fringe benefits; and
    15    E. the impact on the food supply and commodity pricing.
    16    iv.  the  determination  of  the neutral arbitrator shall be final and
    17  binding upon the parties for the period prescribed  by  the  arbitrator,
    18  but  in no event shall such period exceed two years from the date of the
    19  arbitrator's determination;
    20    v. the determination of the public arbitration panel shall be  subject
    21  to  review by a court of competent jurisdiction in the manner prescribed
    22  by law.
    23    § 22. The labor law is amended by adding a new section 674-a  to  read
    24  as follows:
    25    §  674-a.  Farm  laborers wage board.  1. Wage board. The commissioner
    26  shall hereby convene a farm laborers wage board. The wage board shall be
    27  comprised of three members:  one representative of the farm bureau,  one
    28  representative of the New York State AFL-CIO and one member appointed by
    29  the  commissioner,  who  shall  be  selected from the general public and
    30  designated as chairperson. The wage board shall hold its  first  hearing
    31  no  later  than  March  first, two thousand twenty.   The members of the
    32  board shall not receive a salary or other  compensation,  but  shall  be
    33  paid  actual  and  necessary  traveling  expenses  while  engaged in the
    34  performance of their duties.
    35    2. Organization. Two-thirds of the members of the board shall  consti-
    36  tute  a  quorum.   The chairperson may from time to time formulate rules
    37  governing the manner in which the wage board shall function and  perform
    38  its duties under this article.
    39    3. Powers. The wage board shall have power to conduct public hearings.
    40  The  board  may also consult with agricultural employers and farm labor-
    41  ers, and their respective representatives, in the occupation or  occupa-
    42  tions  involved, and with such other persons, including the commissioner
    43  and the commissioner of agriculture and markets, as it shall  determine.
    44  The  board  shall  also have power to administer oaths and to require by
    45  subpoena the attendance and testimony of witnesses, and  the  production
    46  of  all books, records, and other evidence relative to any matters under
    47  inquiry. Such subpoenas shall be signed and issued by the chairperson of
    48  the board and shall be served and have the same effect as if issued  out
    49  of the supreme court. The board shall have power to cause depositions of
    50  witnesses residing within or without the state to be taken in the manner
    51  prescribed  for  like depositions in civil actions in the supreme court.
    52  The board shall not be bound by common law or statutory rules of  proce-
    53  dure or evidence.
    54    4.  Public  hearings. Within forty-five days of the appointment of the
    55  wage board, the board shall conduct  public  hearings.  The  wage  board
    56  shall  only  meet within the state and must hold at least three hearings

        A. 8419                            11
 
     1  at which the public will be afforded an opportunity to provide comments.
     2  At least one Spanish language  interpreter  shall  be  present  at  each
     3  public hearing to interpret oral testimony delivered in Spanish. Where a
     4  witness  reveals  the  need  for an interpreter in a language other than
     5  Spanish, to the extent practicable,  an  interpreter  in  that  language
     6  shall  be  provided.  Any  materials  advertising such hearings shall be
     7  bilingual in English and Spanish. Any written materials disbursed at the
     8  hearing or subsequent to the hearing, including  written  testimony  and
     9  hearing transcripts, shall be available in English, Spanish, and, to the
    10  extent practicable, any other language upon request.
    11    5.  Report. The wage board shall make a report to the governor and the
    12  legislature, including its recommendations as to overtime work for  farm
    13  laborers. The report and recommendations of the board shall be submitted
    14  only  after  a  vote  of  not less than a majority of all its members in
    15  support of such report  and  recommendations.    Such  report  shall  be
    16  submitted no later than December thirty-first, two thousand twenty.  The
    17  overtime  rates  recommended by the wage board shall not be in excess of
    18  sixty hours, and the wage board shall specifically consider  the  extent
    19  to which overtime hours can be lowered below such amount set in law, and
    20  may  provide for a series of successively lower overtime work thresholds
    21  and phase-in dates as part of its determinations.
    22    6. The wage board shall consider existing overtime rates in  similarly
    23  situated  industries  in  New  York state. Nothing contained in the wage
    24  board's report or recommendations shall diminish or  limit  any  rights,
    25  protections,  benefits  or  entitlements currently available to any farm
    26  laborer.
    27    7. The commissioner shall comply with section six hundred fifty-six of
    28  this chapter upon receipt  of  the  wage  board's  recommendations.  The
    29  commissioner  may  reconvene  the  same wage board or appoint a new wage
    30  board in compliance with section six hundred fifty-nine of this chapter.
    31    § 23. Subdivision 2 of section 564 of  the  labor  law  is  renumbered
    32  subdivision 3 and a new subdivision 2 is added to read as follows:
    33    2.  Exclusion  from  coverage.  For  purposes of this section the term
    34  "employment" shall not include services rendered by an individual who is
    35  admitted to the United States to perform agricultural labor pursuant  to
    36  8 USC 1188 if, at the time such services are rendered, they are excluded
    37  from  the  definition  of  employment  in section 3306(c) of the Federal
    38  Unemployment Tax Act.
    39    § 24. Severability. If any word, phrase, clause, sentence,  paragraph,
    40  subdivision,  section or part of this article or the application thereof
    41  to any person or circumstances shall be adjudged invalid by a  court  of
    42  competent  jurisdiction, such order or judgment shall be confined in its
    43  operation to the controversy in which it was  rendered,  and  shall  not
    44  affect  or  invalidate  the  remainder  of  this  article,  but shall be
    45  confined in its operation to the word, phrase, clause,  sentence,  para-
    46  graph,  subdivision,  section  or  part thereof directly involved in the
    47  controversy in which such judgment shall have been rendered.
    48    § 25. This act shall take effect January 1,  2020;  provided,  however
    49  that  the provisions of section nine of this act shall take effect Janu-
    50  ary 1, 2021.
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