NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9235
SPONSOR: Gonzalez-Rojas PURPOSE OR GENERAL IDEA OF BILL:
This bill will prohibit oppressive agricultural child labor
SUMMARY OF PROVISIONS:
Section 1 amends section 133-a of the labor law to add definitions of
"oppressive agricultural labor", "hazardous agricultural activity", and
"serious injury or illness". It amends labor law to prohibit the employ-
ment of oppressive agricultural child farm labor. It amends labor law by
adding fines and penalties for the employment of oppressive child farm
labor. It amends labor law by adding reporting and data collection
requirements on child farm labor.
Section 2 amends labor law by adding a new article that further provides
definition to terms including agricultural activities, farm, and farm
product It also outlines rights that child farm labor workers have when
working.
Section 3 amends section 131 of the labor law to ensure this is in
accordance with education law
Section 4 amends section 132 subdivision 3 of the labor law to ensure it
is consistent with section 131 of labor law
Section 5 amends section 141 subdivision 1 of the labor law to ensure it
is consistent with section 133 of the article related to the commission-
er's ability to implement penalties for violations.
Section 6 sets the effective date.
JUSTIFICATION:
New York is considered a leading agricultural state in the northeast
region of the nation. The industry employs over 55,000 people and that
workforce includes children under the age of 18. Many child farmworkers
may willingly be working on a family farm but many do not have the
rights necessary to protect them and that is the impetus for this legis-
lation. While the federal minimum wage to work full-time in the agricul-
ture industry is 12 years old, the federal minimum age to work full-time
in most other industries is 16 years old. Based on the Census of Agri-
culture, researchers estimate that 33 children are injured on farms each
day across the United States.
Making farm work safer for children is also a matter of racial justice.
In a report by the Lawyers for Good Government, "Chilld Farmworkers: Too
Young, Vulnerable, & Unprotected: Addressing Racial Inequity in Ameri-
ca's Child Labor Laws" the author found that in 1938 when the Fair Labor
Standards Act was enacted it prohibited child labor in factories but
exempted the agricultural industry from child protections. This caused
an end to "white child slavery" but allowed oppressive conditions to
continue for children of color. These conditions have an impact on the
educational outcomes of children as well. Few restrictions on child
labor in agriculture lead to children struggling with staying awake
after working through the weekend. Per the report child farmworkers
"lose time to study and rest and are pressured to drop out to support
their families leading to a 43 - 60% high school dropout rate."
New York is one of twelve states that sets a minimum age of 12 years old
for child farm workers. It also has no limit on the number of days that
a child can work on a farm. This legislation will clearly define what is
defined as "oppressive agricultural child labor" and "hazardous agricul-
tural activity". The bill outlines fines and penalties for violating
these and other work conditions for child farm workers. The legislation
also stipulates reporting requirements that the Department of Labor will
be required to engage in due to the lack of data and information on
child farm work labor.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act will take effect on thirtieth day after it shall have become a
law. Effective immediately, the addition, amendment and/or repeal of any
rule or regulation necessary for the implementation of this act on its
effective date are authorized to be made and completed on or before such
effective date.
STATE OF NEW YORK
________________________________________________________________________
9235
IN ASSEMBLY
February 9, 2022
___________
Introduced by M. of A. GONZALEZ-ROJAS -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to prohibiting oppressive
agricultural child labor; and requiring heat illness prevention for
agricultural employees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 133-a to
2 read as follows:
3 § 133-a. Prohibited employment of minors in agriculture. 1. As used in
4 this section, the following terms shall have the following meanings:
5 a. "Oppressive agricultural child labor" means agricultural employ-
6 ment where (1) any employee who is under the age of sixteen years is
7 employed in any occupation that involves performing a hazardous agricul-
8 tural activity, or that is otherwise particularly hazardous for the
9 employment of children between such ages or detrimental to their health
10 or well-being; (2) any employee who is under the age of sixteen years is
11 employed by an employer when attendance upon instruction is not required
12 by the education law, in any occupation that involves performing a
13 hazardous agricultural activity, or that is otherwise particularly
14 hazardous for the employment of children between such ages or detri-
15 mental to their health or well-being; or (3) any employee who is under
16 the age of sixteen years is employed by an employer unless such minor
17 has an exception pursuant to section one hundred thirty of this article.
18 Such term shall not apply to any minor employed in agriculture by such
19 minor's parents or a person in a parental relationship with such minor
20 on a farm owned by such parent or person in a parental relationship and
21 the employment will not be detrimental to the minor's health or well-be-
22 ing.
23 b. "Hazardous agricultural activity" means any agricultural activity
24 performed by any minor that creates a substantial risk of serious injury
25 or serious illness to any person, including but not limited to:
26 (1) Operating an all-terrain vehicle or similar off-road vehicle;
27 (2) Operating a tractor, forklift, or other heavy equipment;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14252-02-2
A. 9235 2
1 (3) Handling any part of a tobacco plant; and
2 (4) Any task that requires handling pesticides, open containers of
3 pesticides, operating any equipment that may contain pesticide residue,
4 assisting with application of pesticides, acting as a pesticide flagger,
5 performing tasks as a crop advisor during any pesticide application,
6 entering a pesticide treated area during an applicable restricted-entry
7 interval or otherwise have significant risk to pesticide exposure.
8 c. "Serious injury or serious illness" means the permanent loss or
9 substantial impairment of the function of a bodily member, organ or
10 mental faculty; or permanent paralysis or substantial impairment that
11 causes loss of movement or mobility of an arm, leg, foot, hand, or other
12 body part.
13 2. No employer shall employ oppressive agricultural child labor or
14 produce, manufacture, deal, ship, or deliver for shipment any goods
15 produced where the employer knew or reasonably should have known that
16 oppressive child labor was employed to yield such goods.
17 3. If the commissioner finds that an employer has violated any
18 provision of this section or of a rule or regulation promulgated there-
19 under, the commissioner may by an order which shall describe particular-
20 ly the nature of the violation, assess the employer a civil penalty of
21 not less than five hundred dollars and not more than fifteen thousand
22 dollars for each employee who was the subject of such violation, or to
23 imprisonment for not more than five years, or both; and/or a fine of not
24 less than fifteen thousand dollars and not more than sixty thousand one
25 hundred fifteen dollars with regard to each such violation that results
26 in the serious injury, serious illness, or death of any employee under
27 the age of eighteen, which may be doubled where the violation is a
28 repeated or a willful violation, or to imprisonment for not more than
29 five years, or both.
30 4. a. The department shall annually collect and analyze data concern-
31 ing children under the age of eighteen who are employed in agriculture,
32 and each work-related injury, illness, or death of any such child.
33 b. Annually before December thirty-first the department shall submit
34 to the governor and state legislature and publish on such department's
35 website a report which shall include:
36 (1) A summary of the data collected pursuant to this subdivision;
37 (2) An evaluation, based on such data, that reflects the status of
38 child labor and related safety and health hazards; and
39 (3) Any information, based on such data, that leads the commissioner
40 to believe that children under the age of sixteen years may have been
41 employed in violation of this section.
42 c. (1) Any employer, except a minor's parents or a person in a
43 parental relationship with such minor, shall submit a report to the
44 commissioner no later than five days thereafter when the employer is
45 involved in any event related to:
46 (i) A work-related serious injury to an employee under the age of
47 sixteen years employed in agriculture;
48 (ii) A work-related serious illness of an employee under the age of
49 sixteen years employed in agriculture; or
50 (iii) A work-related death of an employee under the age of sixteen
51 years employed in agriculture.
52 (2) Such report shall at a minimum include:
53 (i) The name and address of the employer;
54 (ii) The name, address, and age of the employee;
55 (iii) Details relevant to the incident, to include environmental
56 hazards, chemical or pesticide exposure, use of machinery or tools at
A. 9235 3
1 the time of the incident, work tasks performed at the time of the inci-
2 dent, and other details relating to the incident; and
3 (iv) Any other information the commissioner may by regulation
4 prescribe.
5 d. Any employer who fails to file a report as required pursuant to
6 paragraph c of this subdivision may be assessed, by the commissioner in
7 his or her discretion, a civil penalty of not less than five hundred
8 dollars and not more than seven thousand dollars per violation.
9 5. Any employer who employs agricultural workers under the age of
10 sixteen years shall develop and implement written procedures to comply
11 with the provisions of this section.
12 6. In addition to the rulemaking authority set forth in subdivisions
13 four and five of section one hundred thirty-three of this article, the
14 commissioner shall promulgate any rule or regulation necessary to
15 implement the provisions of this section.
16 § 2. The labor law is amended by adding a new article 34 to read as
17 follows:
18 ARTICLE 34
19 HEAT ILLNESS PREVENTION DURING AGRICULTURAL ACTIVITIES
20 Section 960. Heat illness prevention during agricultural activities.
21 § 960. Heat illness prevention during agricultural activities. 1. As
22 used in this section, the following terms shall have the following mean-
23 ings:
24 a. "Agricultural activities" shall mean any condition or activity
25 which occurs on a farm in connection with the commercial production of
26 farm products and includes, but is not limited to, marketed produce at
27 roadside stands or farm markets; noise; odors; dust; fumes; operation of
28 machinery and irrigation pumps; movement, including, but not limited to,
29 use of current county road ditches, streams, rivers, canals, and drains,
30 and use of water for agricultural activities; ground and aerial applica-
31 tion of seed, fertilizers, conditioners, and plant protection products;
32 keeping of bees for production of agricultural or apicultural products;
33 employment and use of labor; roadway movement of equipment and live-
34 stock; protection from damage by wildlife; prevention of trespass;
35 construction and maintenance of buildings, fences, roads, bridges,
36 ponds, drains, waterways, and similar features and maintenance of stream
37 banks and watercourses; and conversion from one agricultural activity to
38 another, including a change in the type of plant-related farm product
39 being produced. The term includes use of new practices and equipment
40 consistent with technological development within the agricultural indus-
41 try.
42 b. "Farm" means the land, buildings, freshwater ponds, freshwater
43 culturing and growing facilities, and machinery used in the commercial
44 production of farm products.
45 c. "Farm product" means those plants and animals useful to humans and
46 includes, but is not limited to, forages and sod crops, dairy and dairy
47 products, poultry and poultry products, livestock, including breeding,
48 grazing, and recreational equine use, fruits, vegetables, flowers,
49 seeds, grasses, trees, freshwater fish and fish products, apiaries and
50 apiary products, equine and other similar products, or any other product
51 which incorporates the use of food, feed, fiber, or fur.
52 2. Employees shall have access to potable drinking water that is
53 fresh, pure, suitably cool, and provided to employees free of charge by
54 the employer when performing agricultural activities. The water shall be
55 located as close as practicable to the areas where employees are work-
A. 9235 4
1 ing. Employers shall provide water in sufficient quantity to allow
2 employees to drink at least thirty-two fluid ounces of water per hour
3 per employee. Employers shall encourage employees to drink water
4 frequently.
5 3. a. Shade that is open to the air or provided with ventilation or
6 cooling shall be present when the temperature exceeds eighty degrees
7 Fahrenheit. Employers shall provide timely access to shade upon an
8 employee's request when the temperature does not exceed eighty degrees
9 Fahrenheit.
10 b. Employees shall be allowed a preventative cool-down rest in the
11 shade for a minimum of five minutes per hour when performing agricul-
12 tural activities.
13 c. Where the employer can demonstrate that it is unsafe or infeasible
14 to have shade present on a continuous basis, the employer may utilize
15 alternative procedures that provide equivalent protection.
16 d. Employees who experience symptoms of heat illness shall not be
17 ordered back to work until any symptoms of heat illness have subsided
18 and shall be provided timely appropriate first aid or emergency
19 response.
20 4. The commissioner shall promulgate any rule or regulation necessary
21 to implement the provisions of this section and that require employers
22 to train supervisors and employees to protect employees from heat-relat-
23 ed illness caused by heat stress.
24 § 3. Paragraph f of subdivision 3 of section 131 of the labor law, as
25 amended by chapter 975 of the laws of 1966, is amended to read as
26 follows:
27 f. A minor fourteen or fifteen years of age may be employed in farm
28 service pursuant to section one hundred thirty-three-a of this article,
29 when attendance upon instruction is not required by the education law,
30 provided such minor presents a farm work permit issued in accordance
31 with the education law. Such permit shall be valid only when signed by
32 the employer and it shall not be valid for work in or in connection with
33 a factory.
34 § 4. Subparagraph 1 of paragraph a of subdivision 3 of section 132 of
35 the labor law, as amended by chapter 1017 of the laws of 1971, is
36 amended to read as follows:
37 (1) Work on a farm pursuant to the provisions of section one hundred
38 thirty-three-a of this article;
39 § 5. Subdivision 1 of section 141 of the labor law, as amended by
40 chapter 642 of the laws of 1991, is amended to read as follows:
41 1. [If] Notwithstanding the violations set forth in subdivision three
42 of section one hundred thirty-three-a of this article, if the commis-
43 sioner finds that an employer has violated any provision of this article
44 or of a rule or regulation promulgated thereunder, the commissioner may
45 by an order which shall describe particularly the nature of the
46 violation, assess the employer a civil penalty of not more than one
47 thousand dollars for the first such violation, not more than two thou-
48 sand dollars for a second violation and not more than three thousand
49 dollars for a third or subsequent violation. Such penalty shall be paid
50 to the commissioner for deposit in the treasury of the state. In assess-
51 ing the amount of the penalty, the commissioner shall give due consider-
52 ation to the size of the employer's business, the good faith of the
53 employer, the gravity of the violation, the history of previous
54 violations and the failure to comply with record-keeping or other
55 requirements, provided, however, that where such violation involves
56 illegal employment during which a minor is seriously injured or dies,
A. 9235 5
1 such penalty shall be treble the maximum penalty allowable under the law
2 for such violation. For the purposes of this subdivision, a minor shall
3 be deemed to be seriously injured if such injury results in a permanent
4 partial or permanent total disability as determined by the workers'
5 compensation board.
6 § 6. This act shall take effect on the thirtieth day after it shall
7 have become a law. Effective immediately, the addition, amendment and/or
8 repeal of any rule or regulation necessary for the implementation of
9 this act on its effective date are authorized to be made and completed
10 on or before such effective date.
