S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1543
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 12, 2015
                                      ___________
       Introduced  by  M.  of  A. MAGEE, McLAUGHLIN, LOPEZ, STIRPE, BRINDISI --
         Multi-Sponsored by -- M.  of A. CROUCH -- read once  and  referred  to
         the Committee on Labor
       AN ACT to amend the labor law, in relation to excluding certain seasonal
         fair workers from the definition of employee for purposes of the mini-
         mum wage act
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 5 of section 651 of the labor law,  as  amended
    2  by chapter 481 of the laws of 2010, is amended to read as follows:
    3    5. "Employee" includes any individual employed or permitted to work by
    4  an  employer in any occupation, but shall not include any individual who
    5  is employed or permitted to work: (a) on a casual basis in service as  a
    6  part  time  baby  sitter  in the home of the employer; (b) in labor on a
    7  farm; (c) in a bona  fide  executive,  administrative,  or  professional
    8  capacity; (d) as an outside salesman; (e) as a driver engaged in operat-
    9  ing  a  taxicab;  (f)  as a volunteer, learner or apprentice by a corpo-
   10  ration, unincorporated association, community chest, fund or  foundation
   11  organized  and  operated exclusively for religious, charitable or educa-
   12  tional purposes, no part of the net earnings  of  which  inures  to  the
   13  benefit  of  any private shareholder or individual; (g) as a member of a
   14  religious order, or as a duly ordained, commissioned or licensed  minis-
   15  ter,  priest or rabbi, or as a sexton, or as a christian science reader;
   16  (h) in or for such a religious or charitable institution, which work  is
   17  incidental  to or in return for charitable aid conferred upon such indi-
   18  vidual and not under any express contract of hire; (i) in or for such  a
   19  religious, educational or charitable institution if such individual is a
   20  student;  (j)  in  or  for  such  a religious, educational or charitable
   21  institution if the earning capacity of such individual  is  impaired  by
   22  age  or  by  physical  or  mental  deficiency or injury; (k) in or for a
   23  summer camp or conference of such a religious, educational or charitable
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05511-01-5
       A. 1543                             2
    1  institution for not more than three months  annually;  (l)  as  a  staff
    2  counselor  in  a  children's camp; (m) in or for a college or university
    3  fraternity, sorority, student association  or  faculty  association,  no
    4  part  of  the net earnings of which inures to the benefit of any private
    5  shareholder or individual, and which is recognized by  such  college  or
    6  university,  if such individual is a student; (n) by a federal, state or
    7  municipal government or political subdivision thereof[.  The  exclusions
    8  from  the  term  "employee"  contained  in  this subdivision shall be as
    9  defined by regulations of the commissioner; or]; (o) as a volunteer at a
   10  recreational or amusement event run by a  business  that  operates  such
   11  events,  provided  that  no  single  such  event lasts longer than eight
   12  consecutive days and no more than one such event concerning substantial-
   13  ly the same subject matter occurs in any calendar year. Any such  volun-
   14  teer  shall be at least eighteen years of age. A business seeking cover-
   15  age under this paragraph shall notify every  volunteer  in  writing,  in
   16  language acceptable to the commissioner, that by volunteering his or her
   17  services,  such  volunteer  is  waiving  his or her right to receive the
   18  minimum wage pursuant to this article. Such notice shall be  signed  and
   19  dated  by a representative of the business and the volunteer and kept on
   20  file by the business for thirty-six months[.]; OR (P) AN EMPLOYEE  OF  A
   21  TRAVELING AMUSEMENT OR RECREATIONAL ESTABLISHMENT WHO RESIDES OUTSIDE OF
   22  THIS  STATE,  PROVIDED  THAT  (I)  SUCH ESTABLISHMENT ADHERES TO CURRENT
   23  STATE MINIMUM WAGE RATES FOR  ALL  EMPLOYEES,  (II)  SUCH  ESTABLISHMENT
   24  MEETS THE BUSINESS OPERATIONS CRITERIA ESTABLISHED UNDER PARAGRAPH THREE
   25  OF SUBDIVISION A OF SECTION THIRTEEN OF THE FEDERAL FAIR LABOR STANDARDS
   26  ACT,  AND  (III)  SUCH  PERSON  IS EMPLOYED IN HIS OR HER CAPACITY AS AN
   27  EMPLOYEE ON  THE  PREMISES  OF  A  COUNTY  OR  AGRICULTURAL  FAIRGROUND;
   28  PROVIDED,  HOWEVER,  THAT  THE  PROVISIONS  OF  THIS PARAGRAPH SHALL NOT
   29  SUPERSEDE THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT OR APPLY  TO  A
   30  POLICY  THAT  IS THE RESULT OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN
   31  AN EMPLOYER AND A RECOGNIZED OR  CERTIFIED  EMPLOYEE  ORGANIZATION.  THE
   32  EXCLUSIONS  FROM THE TERM "EMPLOYEE" CONTAINED IN THIS SUBDIVISION SHALL
   33  BE AS DEFINED BY REGULATIONS OF THE COMMISSIONER.
   34    "Employee" also includes any individual employed or permitted to  work
   35  in  any  non-teaching  capacity by a school district or board of cooper-
   36  ative educational services except that the provisions  of  sections  six
   37  hundred fifty-three through six hundred fifty-nine of this article shall
   38  not be applicable in any such case.
   39    S  2.   This act shall take effect on the thirtieth day after it shall
   40  have become a law.