S T A T E   O F   N E W   Y O R K
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                                   106

                      Second Extraordinary Session

                            I N  S E N A T E

                              June 24, 2009
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Rules

AN ACT to amend the labor law, in relation  to  minimum  wage  and  rest
  standards for farm workers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 2 of section 671 of the labor law, as added  by
chapter  552  of the laws of 1969, is amended and a new subdivision 8 is
added to read as follows:
  2. "Employee" includes any individual employed or permitted to work by
an employer on a farm but shall not include: (a) domestic service in the
home of the employer; (b) the parent, spouse, child or other  member  of
the  employer's  immediate family; (c) [a minor under seventeen years of
age employed as a hand harvest worker on the same farm as his parent  or
guardian and who is paid on a piece-rate basis at the same piece rate as
employees seventeen years of age or over; (d)] an individual employed or
permitted  to  work  for  a federal, state, or a municipal government or
political subdivision thereof; or [(e)] (D) an individual  to  whom  the
provisions of article nineteen of this chapter are applicable.
  8.  "REGULAR  HOURLY WAGE" MEANS THE AMOUNT THAT THE EMPLOYEE IS REGU-
LARLY PAID FOR EACH HOUR OF WORK. WHEN AN EMPLOYEE IS PAID  ON  A  PIECE
WORK  BASIS,  SALARY  OR  ANY  BASIS OTHER THAN HOURLY RATE, THE REGULAR
HOURLY WAGE RATE SHALL BE DETERMINED BY DIVIDING THE TOTAL HOURS  WORKED
DURING THE WEEK INTO THE EMPLOYEE'S TOTAL EARNINGS.
  S  2. Subdivision 1 of section 674 of the labor law, as added by chap-
ter 552 of the laws of 1969, is amended to read as follows:
  1. The commissioner may promulgate such regulations as he OR SHE deems
appropriate to carry out the purposes of this article and  to  safeguard
minimum wage standards. Such regulations may include, but are not limit-
ed  to,  the defining of the circumstances or conditions for the accept-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12048-01-9
              

S. 106                              2

ance of non-hourly rates and piece rates as equivalent  to  the  minimum
hourly  rates  established  by  this  article. Such regulations also may
include, but are not limited to, waiting time  and  call-in  pay  rates;
MATTERS  RELATING  TO THE PAYMENT OF OVERTIME; wage provisions governing
guaranteed earnings during specified periods  of  work;  allowances  for
meals,  lodging, and other items, services and facilities when furnished
by the employer; and the employment of individuals whose earning capaci-
ty is affected or impaired by youth or age, or  by  physical  or  mental
deficiency  or  injury, under special certificates issued by the commis-
sioner, at such wages lower than the minimum wage  established  by  this
article and for such period as shall be prescribed in such regulations.
  S  3.  Subdivision  2  of  section  673 of the labor law is renumbered
subdivision 3, and a new subdivision 2 is added to read as follows:
  2. OVERTIME RATE. EVERY EMPLOYER SUBJECT TO  THE  PROVISIONS  OF  THIS
ARTICLE  SHALL  PAY  TO  EACH  OF  ITS EMPLOYEES FOR EACH HOUR WORKED IN
EXCESS OF FORTY HOURS PER WEEK A WAGE OF NOT LESS THAN ONE AND  ONE-HALF
TIMES THE EMPLOYEE'S REGULAR HOURLY WAGE.
  S  4.  The labor law is amended by adding a new section 675 to read as
follows:
  S 675. ADVISORY COUNCIL.  1. AN ADVISORY COUNCIL ON MINIMUM WAGE STAN-
DARDS FOR FARM WORKERS IS HEREBY ESTABLISHED TO ADVISE AND  MAKE  RECOM-
MENDATIONS TO THE COMMISSIONER IN RELATION TO THE COMMISSIONER'S RESPON-
SIBILITIES  UNDER  THIS  ARTICLE.  THE  COUNCIL  SHALL  CONSIST OF SEVEN
MEMBERS APPOINTED BY THE COMMISSIONER; THREE MEMBERS SHALL REPRESENT THE
INTERESTS OF FARMERS AND GROWERS,  THREE  MEMBERS  SHALL  REPRESENT  THE
INTERESTS  OF  FARM  EMPLOYEES AND ONE MEMBER SHALL REPRESENT THE PUBLIC
AND SHALL BE DESIGNATED BY THE COMMISSIONER AS IMPARTIAL CHAIR.
  2. THE TERM OF EACH MEMBER OF  THE  ADVISORY  COUNCIL  SHALL  BE  FIVE
YEARS,  OR  UNTIL  A  SUCCESSOR IS APPOINTED, EXCEPT THAT OF THE MEMBERS
FIRST APPOINTED, ONE MEMBER REPRESENTING FARMERS  AND  GROWERS  AND  ONE
MEMBER  REPRESENTING FARM EMPLOYEES SHALL BE APPOINTED FOR A TERM OF ONE
YEAR, ONE MEMBER OF EACH SUCH TWO GROUPS SHALL BE APPOINTED FOR  A  TERM
OF  TWO YEARS, ONE MEMBER OF EACH SUCH TWO GROUPS SHALL BE APPOINTED FOR
A TERM OF THREE YEARS; AND THE MEMBER FIRST APPOINTED AS CHAIR SHALL  BE
APPOINTED FOR A TERM OF THREE YEARS.
  3.  THE ADVISORY COUNCIL SHALL CONSIDER ALL MATTERS IN CONNECTION WITH
MINIMUM WAGES FOR FARM WORKERS REFERRED TO IT BY  THE  COMMISSIONER  AND
ADVISE  THE  COMMISSIONER WITH RESPECT THERETO, AND MAY MAKE SUCH RECOM-
MENDATIONS TO THE COMMISSIONER IN CONNECTION WITH MINIMUM WAGES FOR FARM
WORKERS AS IT MAY DEEM NECESSARY.
  4. THE ADVISORY COUNCIL MAY TAKE  TESTIMONY,  SUBPOENA  WITNESSES  AND
REQUIRE  THE PRODUCTION OF BOOKS, RECORDS AND PAPERS, AND HOLD PUBLIC OR
PRIVATE HEARINGS.
  5. THE ADVISORY COUNCIL MAY REQUEST AND SHALL RECEIVE SUCH ASSISTANCE,
SERVICE AND DATA FROM ANY AGENCY OF THE  STATE  OR  FROM  ANY  POLITICAL
SUBDIVISION  THEREOF AS WILL ENABLE IT PROPERLY TO CARRY OUT ITS RESPON-
SIBILITIES.
  6. THE MEMBERS OF THE ADVISORY COUNCIL  SHALL  SERVE  WITHOUT  COMPEN-
SATION  BUT  SHALL  BE  ALLOWED  ACTUAL AND NECESSARY TRAVELING EXPENSES
WHILE ENGAGED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.
  7. THE COMMISSIONER SHALL DESIGNATE AN EMPLOYEE OF THE  DEPARTMENT  TO
SERVE AS SECRETARY TO THE ADVISORY COUNCIL, WHO SHALL NOT BE A MEMBER OF
SUCH  COUNCIL  AND  WHO  SHALL  NOT  RECEIVE ANY ADDITIONAL COMPENSATION
THEREFOR.
  8. THE ADVISORY COUNCIL MAY ADOPT SUCH RULES AND REGULATIONS TO GOVERN
ITS  OWN  PROCEEDINGS.  THE  SECRETARY  SHALL  KEEP  A  RECORD  OF   ALL

S. 106                              3

PROCEEDINGS  OF  THE  ADVISORY COUNCIL WHICH SHALL SHOW THE NAME OF EACH
MEMBER PRESENT AT THE MEETINGS AND OF EVERY  MATTER  CONSIDERED  BY  THE
ADVISORY  COUNCIL  AND  THE  ACTION TAKEN THEREON. SUCH RECORDS SHALL BE
FILED IN THE OFFICE OF THE COMMISSIONER OR SUCH OTHER LOCATION SPECIFIED
BY THE COMMISSIONER FOR THIS PURPOSE.
  S  5. Subdivisions 1 and 2 of section 161 of the labor law, as amended
by chapter 281 of the laws of 1941, paragraph  e  of  subdivision  2  as
amended by chapter 187 of the laws of 1952, paragraph f of subdivision 2
as  added  by  chapter  872  of the laws of 1947, are amended to read as
follows:
  1. Every  employer  operating  a  factory,  mercantile  establishment,
hotel,  restaurant,  or freight or passenger elevator in any building or
place shall, except as herein otherwise  provided,  allow  every  person
employed  in  such establishment or in the care, custody or operation of
any such elevator, at least twenty-four consecutive hours of rest in any
calendar week. Every employer operating a place in which motion pictures
are shown shall allow  the  projectionist  or  operator  of  the  motion
picture  machine  and engineers and firemen therein at least twenty-four
consecutive hours of rest in any calendar week. Every employer operating
a place in which legitimate theatre productions  such  as  dramatic  and
musical  productions  are  shown or exhibited shall allow all employees,
including the performers in the cast therein and engineers and  firemen,
at  least twenty-four consecutive hours of rest in each and every calen-
dar week, but this shall not apply to any place wherein motion pictures,
vaudeville or incidental stage presentations or  a  combination  thereof
are  regularly  given  throughout  the week as the established policy of
such place; except that engineers and firemen  employed  in  such  place
shall  be  allowed at least twenty-four consecutive hours of rest in any
calendar week. No employer shall operate such  establishment,  place  or
elevator  on  Sunday unless he shall comply with subdivision three. This
section does not authorize any work on Sunday not permitted now or here-
after by law.
  Every owner, lessee and operator of a dwelling,  apartment,  loft  and
office  building, garage, storage place and building, wherein or whereat
a watchman or watchmen or engineer or fireman are employed, shall  allow
such  person  or  persons  so  employed at least twenty-four consecutive
hours of rest in each and every calendar week.
  Every owner, lessee or operator of a warehouse, storagehouse,  office,
dwelling,  apartment, loft and any other building or structure wherein a
janitor, superintendent, supervisor or manager or engineer or fireman is
employed, shall allow such person or persons so employed at least  twen-
ty-four consecutive hours of rest in each and every calendar week.
  EVERY  EMPLOYER  OF  AN  EMPLOYEE, AS DEFINED IN ARTICLE NINETEEN-A OF
THIS CHAPTER, SHALL ALLOW SUCH EMPLOYEE AT LEAST TWENTY-FOUR CONSECUTIVE
HOURS OF REST IN EACH AND EVERY CALENDAR WEEK; PROVIDED,  HOWEVER,  THAT
SUCH  EMPLOYEE MAY WAIVE HIS OR HER RIGHT TO SUCH DAY OF REST SO LONG AS
SUCH WAIVER IS DONE KNOWINGLY AND WITH THE FULL AND VOLUNTARY CONSENT OF
THE EMPLOYEE.
  2. [This] EXCEPT AS SET FORTH ELSEWHERE IN THIS SECTION, THIS  section
shall not apply to:
  a. Foreman in charge;
  b.  Employees  in  dairies, creameries, milk condenseries, milk powder
factories, milk sugar factories,  milk  shipping  stations,  butter  and
cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
plants, where not more than seven persons are employed;

S. 106                              4

  c. Employees, if the board in its discretion approves, engaged  in  an
industrial  or manufacturing process necessarily continuous, in which no
employee is permitted to work more than eight hours in any calendar day;
  d.  Employees  whose duties include not more than three hours' work on
Sunday in setting sponges in bakeries, caring for  live  animals,  main-
taining fires, or making necessary repairs to boilers or machinery.
  e.  Employees  in  resort  or seasonal hotels and restaurants in rural
communities and in cities and villages having a population of less  than
fifteen  thousand  inhabitants, excluding that portion of the population
of a third class city residing outside of its corporation  tax  district
where  such  city embraces the entire area of a former township. As used
in this subdivision, the term "resort" shall apply to any  establishment
enumerated  herein which operates for not more than four calendar months
and fifteen days in each year, and the term "seasonal"  shall  apply  to
any  establishment enumerated herein in which the number of employees is
increased by at least one hundred per cent from the slack to the busiest
season.
  f. Employees in dry dock plants engaged in making repairs to ships.
  S 6. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.