S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1291
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                    January 9, 2015
                                      ___________
       Introduced  by  Sens. ESPAILLAT, ADDABBO, AVELLA, BRESLIN, COMRIE, DIAZ,
         DILAN, GIANARIS, HAMILTON, HASSELL-THOMPSON, HOYLMAN, KENNEDY,  KLEIN,
         KRUEGER,  LATIMER, MONTGOMERY, PARKER, PERALTA, PERKINS, RIVERA, SAMP-
         SON, SANDERS, SAVINO,  SQUADRON,  STAVISKY,  STEWART-COUSINS  --  read
         twice  and  ordered  printed,  and when printed to be committed 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    S  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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01894-01-5
       S. 1291                             2
    1  shall not be limited to the employees of a particular  employer,  unless
    2  the article explicitly states otherwise, but shall not include any indi-
    3  vidual  employed  by  his parent or spouse or in the domestic service of
    4  and  directly  employed,  controlled and paid by any person in his home,
    5  any individual whose primary responsibility is the care of a minor child
    6  or children and/or someone who lives in the home of  a  person  for  the
    7  purpose  of  serving  as  a companion to a sick, convalescing or elderly
    8  person or any individuals employed only for  the  duration  of  a  labor
    9  dispute,  [or any individuals employed as farm laborers] or[,] any indi-
   10  vidual who participates in and receives  rehabilitative  or  therapeutic
   11  services in a charitable non-profit rehabilitation facility or sheltered
   12  workshop or any individual employed in a charitable non-profit rehabili-
   13  tation facility or sheltered workshop who has received rehabilitative or
   14  therapeutic services and whose capacity to perform the work for which he
   15  is engaged is substantially impaired by physical or mental deficiency or
   16  injury.
   17    S  3.  Subdivision  1  of  section  161 of the labor law is amended by
   18  adding a new undesignated paragraph to read as follows:
   19    EVERY PERSON EMPLOYED AS A FARM LABORER  SHALL  BE  ALLOWED  AT  LEAST
   20  TWENTY-FOUR  CONSECUTIVE  HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.
   21  THIS REQUIREMENT SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE  OR  OTHER
   22  MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
   23  SPENT  AT  REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR CROP CONDI-
   24  TIONS, SHALL BE DEEMED TO CONSTITUTE THE REST  REQUIRED  BY  THIS  PARA-
   25  GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
   26  VOLUNTARILY  REFUSING  THE  REST  REQUIRED BY THIS PARAGRAPH.   THE TERM
   27  "FARM LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN  AGRICULTURAL
   28  EMPLOYMENT  IN  CONNECTION  WITH  CULTIVATING THE SOIL, OR IN CONNECTION
   29  WITH RAISING OR HARVESTING OF AGRICULTURAL  COMMODITIES,  INCLUDING  THE
   30  RAISING,  SHEARING,  CARING  FOR AND MANAGEMENT OF LIVESTOCK, POULTRY OR
   31  DAIRY.  THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD,  WHEN-
   32  EVER  POSSIBLE,  COINCIDE  WITH THE TRADITIONAL DAY RESERVED BY THE FARM
   33  LABORER FOR RELIGIOUS WORSHIP.
   34    S 4. Paragraphs b and d of subdivision 2 of section 161 of  the  labor
   35  law,  as amended by chapter 281 of the laws of 1941, are amended to read
   36  as follows:
   37    b. Employees in [dairies, creameries,] milk condenseries, milk  powder
   38  factories,  milk  sugar  factories,  milk  shipping stations, butter and
   39  cheese factories, ice  cream  manufacturing  plants  and  milk  bottling
   40  plants, where not more than seven persons are employed;
   41    d.  Employees  whose duties include not more than three hours' work on
   42  Sunday in setting sponges in bakeries, [caring for live animals,]  main-
   43  taining fires, or making necessary repairs to boilers or machinery.
   44    S  5.  The  opening  paragraph  of subdivision 3 of section 160 of the
   45  labor law, as amended by chapter 481 of the laws of 2010, is amended  to
   46  read as follows:
   47    For all other employees, except [those engaged in farm work and] those
   48  affected by subdivision four of section two hundred twenty of this chap-
   49  ter, eight hours.
   50    S  6. Subdivision 1 of section 220 of the labor law is amended to read
   51  as follows:
   52    1. Eight hours shall constitute a legal day's work for all classes  of
   53  employees  in  this  state  except  those engaged in [farm and] domestic
   54  service unless otherwise provided by law.
   55    S 7. The labor law is amended by adding a new section 163-a to read as
   56  follows:
       S. 1291                             3
    1    S 163-A. FARM LABORERS. NO PERSON  OR  CORPORATION  OPERATING  A  FARM
    2  SHALL  REQUIRE  ANY EMPLOYEE TO WORK MORE THAN EIGHT HOURS IN ANY DAY OR
    3  FORTY HOURS IN ANY CALENDAR WEEK; PROVIDED, HOWEVER, THAT OVERTIME  WORK
    4  PERFORMED BY A FARM LABORER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND
    5  ONE-HALF TIMES THE WORKER'S NORMAL WAGE RATE.
    6    S  8.  The  opening  paragraph  of  paragraph  (a) of subdivision 6 of
    7  section 511 of the labor law, as amended by chapter 675 of the  laws  of
    8  1977, is amended to read as follows:
    9    The  term  "employment" [does not include] INCLUDES agricultural labor
   10  [unless it is covered pursuant to section five hundred sixty-four].  The
   11  term "agricultural labor" includes all service performed:
   12    S 9. Section 564 of the labor law, as added by chapter 675 of the laws
   13  of 1977, is amended to read as follows:
   14    S  564.  Agricultural  labor CREW LEADERS.  [1. Coverage. (a) Notwith-
   15  standing the provisions of section five hundred sixty of  this  article,
   16  an employer of persons engaged in agricultural labor shall become liable
   17  for contributions under this article if the employer:
   18    (1)  has  paid cash remuneration of twenty thousand dollars or more in
   19  any calendar quarter to persons employed in agricultural labor, and such
   20  liability shall commence on the first day of such quarter, or
   21    (2) has employed in agricultural labor ten or more persons on each  of
   22  twenty  days during a calendar year or the preceding calendar year, each
   23  day being in a different calendar week, and the liability shall in  such
   24  event commence on the first day of the calendar year, or
   25    (3)  is  liable for the tax imposed under the federal unemployment tax
   26  act as an employer of agricultural labor and the liability shall in such
   27  event commence on the first day of the calendar quarter in such calendar
   28  year when he first paid remuneration  for  agricultural  labor  in  this
   29  state.
   30    (b)  An  employer who becomes liable for contributions under paragraph
   31  (a) of this subdivision shall cease to be liable as of the first day  of
   32  a  calendar  quarter  next following the filing of a written application
   33  provided the commissioner finds that the employer:
   34    (1) has not paid to persons employed in agricultural labor cash remun-
   35  eration of twenty thousand dollars or more in any of the eight  calendar
   36  quarters preceding such day, and
   37    (2) has not employed in agricultural labor ten or more persons on each
   38  of  twenty  days during the current or the preceding calendar year, each
   39  day being in a different week, and
   40    (3) is not liable for the tax imposed under the  federal  unemployment
   41  tax act as an employer of agricultural labor.
   42    2.  Crew  leader.] Whenever a person renders services as a member of a
   43  crew which is paid and furnished by the crew leader to perform  services
   44  in  agricultural  labor for another employer, such other employer shall,
   45  for the purpose of this article, be deemed to be the  employer  of  such
   46  person, unless:
   47    [(a)]  1.  the  crew  leader holds a valid certificate of registration
   48  under the federal farm labor contractor  registration  act  of  nineteen
   49  hundred sixty-three or substantially all the members of the crew operate
   50  or  maintain tractors, mechanized harvesting or cropdusting machinery or
   51  any other mechanized equipment which is provided by the crew leader, and
   52    [(b)] 2. the crew leader is not an employee of such other employer and
   53  has not entered into a written agreement with such employer under  which
   54  he is designated as an employee.
       S. 1291                             4
    1    S  10.  Paragraph  (m)  of  subdivision 5 of section 225 of the public
    2  health law, as amended by section 51 of part A of chapter 58 of the laws
    3  of 2010, is amended to read as follows:
    4    (m) require that application be made for a permit to operate a farm or
    5  food  processing  labor  camp as defined in the sanitary code; authorize
    6  appropriate officers or agencies to issue such a permit when the  appli-
    7  cant is in compliance with the established regulations; prescribe stand-
    8  ards  for  living  quarters  at  farm  and  food processing labor camps,
    9  including provisions for sanitary conditions; light,  air,  and  safety;
   10  protection from fire hazards; maintenance; and such other matters as may
   11  be  appropriate  for  security of life or health, provided however, that
   12  the  provisions  of  the  sanitary  code  established  pursuant  to  the
   13  provisions  hereof  shall  apply  to  all farm and food processing labor
   14  camps intended to house migrant workers and which are occupied [by  five
   15  or  more  persons].  In  the preparation of such regulations, the public
   16  health and health planning council may request and shall receive techni-
   17  cal assistance from the board of standards  and  appeals  of  the  state
   18  department  of  labor and the state building code commission. Such regu-
   19  lation shall be enforced in the same manner as are other  provisions  of
   20  the sanitary code;
   21    S  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
   22  ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
   23  of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
   24  amended to read as follows:
   25    Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
   26  any  other  employment in a trade, business, or occupation carried on by
   27  the employer for pecuniary gain in which one or  more  employees  [other
   28  than farm laborers] are employed.
   29    Group 14-b. Employment as a farm laborer as provided herein.  A farmer
   30  shall  provide  coverage  under  this  chapter  for  all  farm  laborers
   31  [employed during any part of the  twelve  consecutive  months  beginning
   32  April  first  of  any calendar year preceded by a calendar year in which
   33  the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
   34  hundred dollars or more].
   35    S  12.    Section  51  of the workers' compensation law, as amended by
   36  chapter 561 of the laws of 2003, is amended to read as follows:
   37    S 51. Posting of notice regarding compensation. Every employer who has
   38  complied with section fifty of this article shall post and maintain in a
   39  conspicuous place or places in and about his place or places of business
   40  typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
   41  by the chairman, stating the fact that he  has  complied  with  all  the
   42  rules  and  regulations  of  the  chairman and the board and that he has
   43  secured the payment of compensation to his employees  and  their  depen-
   44  dents  in accordance with the provisions of this chapter, but failure to
   45  post such notice as herein provided shall not  in  any  way  affect  the
   46  exclusiveness of the remedy provided for by section eleven of this chap-
   47  ter. Every employer who owns or operates automotive or horse-drawn vehi-
   48  cles  and  has  no minimum staff of regular employees required to report
   49  for work at an established place of business maintained by such employer
   50  and every employer who is engaged in the business  of  moving  household
   51  goods  or  furniture  shall  post such notices in each and every vehicle
   52  owned or operated by him. Failure to post or maintain such notice in any
   53  of said vehicles shall constitute presumptive evidence that such employ-
   54  er has failed to secure the payment of compensation.  The  chairman  may
   55  require  any employer to furnish a written statement at any time showing
   56  the stock corporation, mutual corporation or reciprocal insurer in which
       S. 1291                             5
    1  such employer is insured or  the  manner  in  which  such  employer  has
    2  complied with any provision of this chapter. Failure for a period of ten
    3  days  to  furnish  such  written  statement shall constitute presumptive
    4  evidence that such employer has neglected or failed in respect of any of
    5  the  matters  so  required.  Any  employer  who fails to comply with the
    6  provisions of this section shall be required to pay to the board a  fine
    7  of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
    8  addition  to any other penalties imposed by law to be deposited into the
    9  uninsured employers' fund.
   10    S 13. The workers' compensation law is amended by adding a new section
   11  110-b to read as follows:
   12    S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
   13  TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
   14  TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
   15  REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
   16  INJURY.
   17    S 14. The first undesignated paragraph of section 120 of the  workers'
   18  compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
   19  amended to read as follows:
   20    It shall be unlawful for any employer or his or  her  duly  authorized
   21  agent  to  discharge  or  in  any  other  manner discriminate against an
   22  employee as to his or her employment because such employee  has  claimed
   23  or attempted to claim compensation from such employer, REQUESTED A CLAIM
   24  FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
   25  she  has  testified  or  is  about to testify in a proceeding under this
   26  chapter and no other valid reason is shown to exist for such  action  by
   27  the employer.
   28    S 15. The opening paragraph of paragraph A of subdivision 6 of section
   29  201  of  the workers' compensation law, as amended by chapter 481 of the
   30  laws of 2010, is amended to read as follows:
   31    "Employment" means employment in any  trade,  business  or  occupation
   32  carried on by an employer, except that the following shall not be deemed
   33  employment  under  this  article:  services  performed  for the state, a
   34  municipal corporation, local governmental agency, other political subdi-
   35  vision or public authority; employment subject to the  federal  railroad
   36  unemployment  insurance  act;  service  performed on or as an officer or
   37  member of the crew of a vessel on the  navigable  water  of  the  United
   38  States  or outside the United States; [service as farm laborers;] casual
   39  employment and the first forty-five days of extra employment of  employ-
   40  ees  not regularly in employment as otherwise defined herein; service as
   41  golf caddies; and service during all or any part of the school  year  or
   42  regular vacation periods as a part-time worker of any person actually in
   43  regular  attendance during the day time as a student in an elementary or
   44  secondary school.  The  term  "employment"  shall  include  domestic  or
   45  personal work in a private home. The term "employment" shall not include
   46  the  services  of a licensed real estate broker or sales associate if it
   47  be proven that (a) substantially all of the remuneration (whether or not
   48  paid in cash) for the services performed by such broker or sales associ-
   49  ate is directly related to sales or other output (including the perform-
   50  ance of services) rather than to the number of  hours  worked;  (b)  the
   51  services performed by the broker or sales associate are performed pursu-
   52  ant  to a written contract executed between such broker or sales associ-
   53  ate and the person for whom the services are performed within  the  past
   54  twelve  to  fifteen months; and (c) the written contract provided for in
   55  subparagraph (b) of this paragraph was not  executed  under  duress  and
   56  contains the following provisions:
       S. 1291                             6
    1    S  16.  The  opening  paragraph of subdivision 5 of section 651 of the
    2  labor law, as amended by chapter 481 of the laws of 2010, 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.    The
   33  exclusions  from the term "employee" contained in this subdivision shall
   34  be as defined by regulations of the commissioner;  or  [(o)]  (N)  as  a
   35  volunteer  at  a  recreational or amusement event run by a business that
   36  operates such events, provided that no single such  event  lasts  longer
   37  than  eight  consecutive days and no more than one such event concerning
   38  substantially the same subject matter occurs in any calendar  year.  Any
   39  such volunteer shall be at least eighteen years of age. A business seek-
   40  ing  coverage under this paragraph shall notify every volunteer in writ-
   41  ing, in language acceptable to the commissioner,  that  by  volunteering
   42  his  or  her  services,  such  volunteer  is waiving his or her right to
   43  receive the minimum wage pursuant to this article. Such notice shall  be
   44  signed  and  dated by a representative of the business and the volunteer
   45  and kept on file by the business for thirty-six months.
   46    S 17. Subdivision 1 of section 674 of the labor law, as added by chap-
   47  ter 552 of the laws of 1969, is amended to read as follows:
   48    1. The commissioner may promulgate such regulations as he deems appro-
   49  priate to carry out the purposes of this article and to safeguard  mini-
   50  mum  wage  standards.  Such regulations may include, but are not limited
   51  to, the defining of the circumstances or conditions for  the  acceptance
   52  of  non-hourly rates and piece rates as equivalent to the minimum hourly
   53  rates established by this article. Such regulations  also  may  include,
   54  but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
   55  provisions governing guaranteed earnings  during  specified  periods  of
   56  work;  allowances  for  meals,  lodging,  and  other items, services and
       S. 1291                             7
    1  facilities when furnished by the employer; [and the employment of  indi-
    2  viduals whose earning capacity is affected or impaired by youth or age,]
    3  or  by  physical  or  mental deficiency or injury, under special certif-
    4  icates  issued by the commissioner, at such wages lower than the minimum
    5  wage established by this  article  and  for  such  period  as  shall  be
    6  prescribed in such regulations.
    7    S  18.  This  act shall take effect immediately, provided that section
    8  ten of this act shall take effect on the thirtieth day  after  it  shall
    9  have become a law.