S T A T E O F N E W Y O R K
________________________________________________________________________
5202--A
2013-2014 Regular Sessions
I N A S S E M B L Y
February 21, 2013
___________
Introduced by M. of A. MAGEE, McLAUGHLIN, P. LOPEZ, STIRPE, BRINDISI --
Multi-Sponsored by -- M. of A. CROUCH -- read once and referred to the
Committee on Labor -- recommitted to the Committee on Labor in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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:
Section 1. Subdivision 5 of section 651 of the labor law, as amended
by chapter 481 of the laws of 2010, is amended to read as follows:
5. "Employee" includes any individual employed or permitted to work by
an employer in any occupation, but shall not include any individual who
is employed or permitted to work: (a) on a casual basis in service as a
part time baby sitter in the home of the employer; (b) in labor on a
farm; (c) in a bona fide executive, administrative, or professional
capacity; (d) as an outside salesman; (e) as a driver engaged in operat-
ing a taxicab; (f) as a volunteer, learner or apprentice by a corpo-
ration, unincorporated association, community chest, fund or foundation
organized and operated exclusively for religious, charitable or educa-
tional purposes, no part of the net earnings of which inures to the
benefit of any private shareholder or individual; (g) as a member of a
religious order, or as a duly ordained, commissioned or licensed minis-
ter, priest or rabbi, or as a sexton, or as a christian science reader;
(h) in or for such a religious or charitable institution, which work is
incidental to or in return for charitable aid conferred upon such indi-
vidual and not under any express contract of hire; (i) in or for such a
religious, educational or charitable institution if such individual is a
student; (j) in or for such a religious, educational or charitable
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02098-06-3
A. 5202--A 2
institution if the earning capacity of such individual is impaired by
age or by physical or mental deficiency or injury; (k) in or for a
summer camp or conference of such a religious, educational or charitable
institution for not more than three months annually; (l) as a staff
counselor in a children's camp; (m) in or for a college or university
fraternity, sorority, student association or faculty association, no
part of the net earnings of which inures to the benefit of any private
shareholder or individual, and which is recognized by such college or
university, if such individual is a student; (n) by a federal, state or
municipal government or political subdivision thereof[. The exclusions
from the term "employee" contained in this subdivision shall be as
defined by regulations of the commissioner; or]; (o) as a volunteer at a
recreational or amusement event run by a business that operates such
events, provided that no single such event lasts longer than eight
consecutive days and no more than one such event concerning substantial-
ly the same subject matter occurs in any calendar year. Any such volun-
teer shall be at least eighteen years of age. A business seeking cover-
age under this paragraph shall notify every volunteer in writing, in
language acceptable to the commissioner, that by volunteering his or her
services, such volunteer is waiving his or her right to receive the
minimum wage pursuant to this article. Such notice shall be signed and
dated by a representative of the business and the volunteer and kept on
file by the business for thirty-six months[.]; OR (P) AN EMPLOYEE OF A
TRAVELING AMUSEMENT OR RECREATIONAL ESTABLISHMENT WHO RESIDES OUTSIDE OF
THIS STATE, PROVIDED THAT (I) SUCH ESTABLISHMENT ADHERES TO CURRENT
STATE MINIMUM WAGE RATES FOR ALL EMPLOYEES, (II) SUCH ESTABLISHMENT
MEETS THE BUSINESS OPERATIONS CRITERIA ESTABLISHED UNDER PARAGRAPH THREE
OF SUBDIVISION A OF SECTION THIRTEEN OF THE FEDERAL FAIR LABOR STANDARDS
ACT, AND (III) SUCH PERSON IS EMPLOYED IN HIS OR HER CAPACITY AS AN
EMPLOYEE ON THE PREMISES OF A COUNTY OR AGRICULTURAL FAIRGROUND;
PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT
SUPERSEDE THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT OR APPLY TO A
POLICY THAT IS THE RESULT OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN
AN EMPLOYER AND A RECOGNIZED OR CERTIFIED EMPLOYEE ORGANIZATION. THE
EXCLUSIONS FROM THE TERM "EMPLOYEE" CONTAINED IN THIS SUBDIVISION SHALL
BE AS DEFINED BY REGULATIONS OF THE COMMISSIONER.
"Employee" also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or board of cooper-
ative educational services except that the provisions of sections six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
S 2. This act shall take effect on the thirtieth day after it shall
have become a law.