S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1223
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2017
                                ___________
 
 Introduced by M. of A. NOLAN, GOTTFRIED, O'DONNELL, PERRY, COOK, COLTON,
   JAFFEE,  DINOWITZ,  GLICK,  AUBRY,  FAHY,  ROZIC, HUNTER, SEPULVEDA --
   Multi-Sponsored by -- M. of A. CUSICK, GALEF, SIMON, WEINSTEIN -- read
   once and referred 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:
 
   Section 1. This act shall be known and may be cited as "the  farmwork-
 ers fair labor practices act".
   §  2.  Paragraph (a) of subdivision 3 of section 701 of the labor law,
 as amended by chapter 43 of the laws of 1989,  is  amended  to  read  as
 follows:
   (a)  The  term "employees" includes but is not restricted to any indi-
 vidual employed by a labor organization; any individual whose employment
 has ceased as a consequence of, or in connection with, any current labor
 dispute or because of  any  unfair  labor  practice,  and  who  has  not
 obtained  any other regular and substantially equivalent employment; and
 shall not be limited to the employees of a particular  employer,  unless
 the article explicitly states otherwise, but shall not include any indi-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00011-02-7

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 vidual  employed  by  his parent or spouse or in the domestic service of
 and directly employed, controlled and paid by any person  in  his  home,
 any individual whose primary responsibility is the care of a minor child
 or  children  and/or  someone  who lives in the home of a person for the
 purpose of serving as a companion to a  sick,  convalescing  or  elderly
 person  or  any  individuals  employed  only for the duration of a labor
 dispute, [or any individuals employed as farm laborers] or[,] any  indi-
 vidual  who  participates  in and receives rehabilitative or therapeutic
 services in a charitable non-profit rehabilitation facility or sheltered
 workshop or any individual employed in a charitable non-profit rehabili-
 tation facility or sheltered workshop who has received rehabilitative or
 therapeutic services and whose capacity to perform the work for which he
 is engaged is substantially impaired by physical or mental deficiency or
 injury.
   § 3. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
 adding a new undesignated paragraph to read as follows:
   EVERY  PERSON  EMPLOYED  AS  A  FARM LABORER SHALL BE ALLOWED AT LEAST
 TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY  CALENDAR  WEEK.
 THIS  REQUIREMENT  SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER
 MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
 SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR  CROP  CONDI-
 TIONS,  SHALL  BE  DEEMED  TO CONSTITUTE THE REST REQUIRED BY THIS PARA-
 GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
 VOLUNTARILY REFUSING THE REST REQUIRED BY  THIS  PARAGRAPH.    THE  TERM
 "FARM  LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN AGRICULTURAL
 EMPLOYMENT IN CONNECTION WITH CULTIVATING THE  SOIL,  OR  IN  CONNECTION
 WITH  RAISING  OR  HARVESTING OF AGRICULTURAL COMMODITIES, INCLUDING THE
 RAISING, SHEARING, CARING FOR AND MANAGEMENT OF  LIVESTOCK,  POULTRY  OR
 DAIRY.   THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD, WHEN-
 EVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY RESERVED  BY  THE  FARM
 LABORER FOR RELIGIOUS WORSHIP.
   §  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
 law, as amended by chapter 281 of the laws of 1941, are amended to  read
 as follows:
   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;
   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.
   § 5. The opening paragraph of subdivision 3  of  section  160  of  the
 labor  law, as amended by chapter 481 of the laws of 2010, is amended to
 read as follows:
   For all other employees, except [those engaged in farm work and] those
 affected by subdivision four of section two hundred twenty of this chap-
 ter, eight hours.
   § 6. Subdivision 1 of section 220 of the labor law is amended to  read
 as follows:
   1.  Eight hours shall constitute a legal day's work for all classes of
 employees in this state except those  engaged  in  [farm  and]  domestic
 service unless otherwise provided by law.
   § 7. The labor law is amended by adding a new section 163-a to read as
 follows:
   §  163-A.  FARM  LABORERS.  NO  PERSON OR CORPORATION OPERATING A FARM
 SHALL REQUIRE ANY EMPLOYEE TO WORK MORE THAN EIGHT HOURS IN ANY  DAY  OR

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 FORTY  HOURS IN ANY CALENDAR WEEK; PROVIDED, HOWEVER, THAT OVERTIME WORK
 PERFORMED BY A FARM LABORER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND
 ONE-HALF TIMES THE WORKER'S NORMAL WAGE RATE.
   §  8.  The  opening  paragraph  of  paragraph  (a) of subdivision 6 of
 section 511 of the labor law, as amended by chapter 675 of the  laws  of
 1977, is amended to read as follows:
   The  term  "employment" [does not include] INCLUDES agricultural labor
 [unless it is covered pursuant to section five hundred sixty-four].  The
 term "agricultural labor" includes all service performed:
   § 9. Section 564 of the labor law, as added by chapter 675 of the laws
 of 1977, is amended to read as follows:
   §  564.  Agricultural  labor CREW LEADERS.  [1. Coverage. (a) Notwith-
 standing the provisions of section five hundred sixty of  this  article,
 an employer of persons engaged in agricultural labor shall become liable
 for contributions under this article if the employer:
   (1)  has  paid cash remuneration of twenty thousand dollars or more in
 any calendar quarter to persons employed in agricultural labor, and such
 liability shall commence on the first day of such quarter, or
   (2) has employed in agricultural labor ten or more persons on each  of
 twenty  days during a calendar year or the preceding calendar year, each
 day being in a different calendar week, and the liability shall in  such
 event commence on the first day of the calendar year, or
   (3)  is  liable for the tax imposed under the federal unemployment tax
 act as an employer of agricultural labor and the liability shall in such
 event commence on the first day of the calendar quarter in such calendar
 year when he first paid remuneration  for  agricultural  labor  in  this
 state.
   (b)  An  employer who becomes liable for contributions under paragraph
 (a) of this subdivision shall cease to be liable as of the first day  of
 a  calendar  quarter  next following the filing of a written application
 provided the commissioner finds that the employer:
   (1) has not paid to persons employed in agricultural labor cash remun-
 eration of twenty thousand dollars or more in any of the eight  calendar
 quarters preceding such day, and
   (2) has not employed in agricultural labor ten or more persons on each
 of  twenty  days during the current or the preceding calendar year, each
 day being in a different week, and
   (3) is not liable for the tax imposed under the  federal  unemployment
 tax act as an employer of agricultural labor.
   2.  Crew  leader.] Whenever a person renders services as a member of a
 crew which is paid and furnished by the crew leader to perform  services
 in  agricultural  labor for another employer, such other employer shall,
 for the purpose of this article, be deemed to be the  employer  of  such
 person, unless:
   [(a)]  1.  the  crew  leader holds a valid certificate of registration
 under the federal farm labor contractor  registration  act  of  nineteen
 hundred sixty-three or substantially all the members of the crew operate
 or  maintain tractors, mechanized harvesting or cropdusting machinery or
 any other mechanized equipment which is provided by the crew leader, and
   [(b)] 2. the crew leader is not an employee of such other employer and
 has not entered into a written agreement with such employer under  which
 he is designated as an employee.
   §  10.  Paragraph  (m)  of  subdivision 5 of section 225 of the public
 health law, as amended by section 51 of part A of chapter 58 of the laws
 of 2010, is amended to read as follows:

 A. 1223                             4
 
   (m) require that application be made for a permit to operate a farm or
 food processing labor camp as defined in the  sanitary  code;  authorize
 appropriate  officers or agencies to issue such a permit when the appli-
 cant is in compliance with the established regulations; prescribe stand-
 ards  for  living  quarters  at  farm  and  food processing labor camps,
 including provisions for sanitary conditions; light,  air,  and  safety;
 protection from fire hazards; maintenance; and such other matters as may
 be  appropriate  for  security of life or health, provided however, that
 the  provisions  of  the  sanitary  code  established  pursuant  to  the
 provisions  hereof  shall  apply  to  all farm and food processing labor
 camps intended to house migrant workers and which are occupied [by  five
 or  more  persons].  In  the preparation of such regulations, the public
 health and health planning council may request and shall receive techni-
 cal assistance from the board of standards  and  appeals  of  the  state
 department  of  labor and the state building code commission. Such regu-
 lation shall be enforced in the same manner as are other  provisions  of
 the sanitary code;
   §  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
 ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
 of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
 amended to read as follows:
   Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
 any  other  employment in a trade, business, or occupation carried on by
 the employer for pecuniary gain in which one or  more  employees  [other
 than farm laborers] are employed.
   Group 14-b. Employment as a farm laborer as provided herein.  A farmer
 shall  provide  coverage  under  this  chapter  for  all  farm  laborers
 [employed during any part of the  twelve  consecutive  months  beginning
 April  first  of  any calendar year preceded by a calendar year in which
 the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
 hundred dollars or more].
   §  12.    Section  51  of the workers' compensation law, as amended by
 chapter 561 of the laws of 2003, is amended to read as follows:
   § 51. Posting of notice regarding compensation. Every employer who has
 complied with section fifty of this article shall post and maintain in a
 conspicuous place or places in and about his place or places of business
 typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
 by the chairman, stating the fact that he  has  complied  with  all  the
 rules  and  regulations  of  the  chairman and the board and that he has
 secured the payment of compensation to his employees  and  their  depen-
 dents  in accordance with the provisions of this chapter, but failure to
 post such notice as herein provided shall not  in  any  way  affect  the
 exclusiveness of the remedy provided for by section eleven of this chap-
 ter. Every employer who owns or operates automotive or horse-drawn vehi-
 cles  and  has  no minimum staff of regular employees required to report
 for work at an established place of business maintained by such employer
 and every employer who is engaged in the business  of  moving  household
 goods  or  furniture  shall  post such notices in each and every vehicle
 owned or operated by him. Failure to post or maintain such notice in any
 of said vehicles shall constitute presumptive evidence that such employ-
 er has failed to secure the payment of compensation.  The  chairman  may
 require  any employer to furnish a written statement at any time showing
 the stock corporation, mutual corporation or reciprocal insurer in which
 such employer is insured or  the  manner  in  which  such  employer  has
 complied with any provision of this chapter. Failure for a period of ten
 days  to  furnish  such  written  statement shall constitute presumptive

 A. 1223                             5
 
 evidence that such employer has neglected or failed in respect of any of
 the matters so required. Any employer  who  fails  to  comply  with  the
 provisions  of this section shall be required to pay to the board a fine
 of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
 addition  to any other penalties imposed by law to be deposited into the
 uninsured employers' fund.
   § 13. The workers' compensation law is amended by adding a new section
 110-b to read as follows:
   § 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
 TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
 TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
 REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
 INJURY.
   § 14. The opening paragraph of section 120  of  the  workers'  compen-
 sation  law,  as  amended  by section 31 of part SS of chapter 54 of the
 laws of 2016, is amended to read as follows:
   It shall be unlawful for any employer or his or  her  duly  authorized
 agent  to discharge or fail to reinstate pursuant to section two hundred
 three-b of this chapter, or in any other manner discriminate against  an
 employee  as  to his or her employment because such employee has claimed
 or attempted to claim compensation from such employer, REQUESTED A CLAIM
 FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT,  or  claimed  or
 attempted  to  claim any benefits provided under this chapter or because
 he or she has testified or is about to testify  in  a  proceeding  under
 this chapter and no other valid reason is shown to exist for such action
 by the employer.
   § 15. The opening paragraph of paragraph A of subdivision 6 of section
 201  of  the workers' compensation law, as amended by chapter 481 of the
 laws of 2010, is amended to read as follows:
   "Employment" means employment in any  trade,  business  or  occupation
 carried on by an employer, except that the following shall not be deemed
 employment  under  this  article:  services  performed  for the state, a
 municipal corporation, local governmental agency, other political subdi-
 vision or public authority; employment subject to the  federal  railroad
 unemployment  insurance  act;  service  performed on or as an officer or
 member of the crew of a vessel on the  navigable  water  of  the  United
 States  or outside the United States; [service as farm laborers;] casual
 employment and the first forty-five days of extra employment of  employ-
 ees  not regularly in employment as otherwise defined herein; service as
 golf caddies; and service during all or any part of the school  year  or
 regular vacation periods as a part-time worker of any person actually in
 regular  attendance during the day time as a student in an elementary or
 secondary school.  The  term  "employment"  shall  include  domestic  or
 personal work in a private home. The term "employment" shall not include
 the  services  of a licensed real estate broker or sales associate if it
 be proven that (a) substantially all of the remuneration (whether or not
 paid in cash) for the services performed by such broker or sales associ-
 ate is directly related to sales or other output (including the perform-
 ance of services) rather than to the number of  hours  worked;  (b)  the
 services performed by the broker or sales associate are performed pursu-
 ant  to a written contract executed between such broker or sales associ-
 ate and the person for whom the services are performed within  the  past
 twelve  to  fifteen months; and (c) the written contract provided for in
 subparagraph (b) of this paragraph was not  executed  under  duress  and
 contains the following provisions:

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   §  16.  The  opening  paragraph of subdivision 5 of section 651 of the
 labor law, as amended by chapter 503 of the laws of 2016, is amended  to
 read as follows:
   "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)]  (C)  as  an  outside  salesman;  [(e)] (D) as a driver
 engaged in operating a taxicab; [(f)] (E) as  a  volunteer,  learner  or
 apprentice  by  a  corporation,  unincorporated  association,  community
 chest, fund or foundation organized and operated exclusively  for  reli-
 gious,  charitable  or educational purposes, no part of the net earnings
 of which inures to the benefit of any private shareholder or individual;
 [(g)] (F) as a member of a religious  order,  or  as  a  duly  ordained,
 commissioned  or  licensed minister, priest or rabbi, or as a sexton, or
 as a christian science reader; [(h)] (G) in or for such a  religious  or
 charitable  institution,  which  work  is incidental to or in return for
 charitable aid conferred upon such individual and not under any  express
 contract  of  hire; [(i)] (H) in or for such a religious, educational or
 charitable institution if such individual is a student; [(j)] (I) in  or
 for such a religious, educational or charitable institution if the earn-
 ing  capacity  of  such  individual is impaired by age or by physical or
 mental deficiency or injury; [(k)] (J)  in  or  for  a  summer  camp  or
 conference  of  such  a religious, educational or charitable institution
 for not more than three months annually; [(l)] (K) as a staff  counselor
 in  a  children's  camp;  [(m)]  (L)  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)] (M) by a federal,
 state or municipal government or political  subdivision  thereof;  [(o)]
 (N)  as  a volunteer at a recreational or amusement event run by a busi-
 ness that operates such events, provided that no single such event lasts
 longer than eight consecutive days and  no  more  than  one  such  event
 concerning  substantially the same subject matter occurs in any calendar
 year, where (1) any such volunteer shall be at least eighteen  years  of
 age,  (2)  a business seeking coverage 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,  and
 (3)  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)] (O) in the delivery of newspapers or shopping news
 to the consumer by a person  who  is  not  performing  commercial  goods
 transportation services for a commercial goods transportation contractor
 within  the meaning of article twenty-five-C of this chapter. The exclu-
 sions from the term "employee" contained in this subdivision shall be as
 defined by regulations of the commissioner.
   § 17. 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 deems appro-
 priate to carry out the purposes of this article and to safeguard  mini-
 mum  wage  standards.  Such regulations may include, but are not limited
 to, the defining of the circumstances or conditions for  the  acceptance
 of  non-hourly rates and piece rates as equivalent to the minimum hourly

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 rates established by this article. Such regulations  also  may  include,
 but  are  not  limited  to,  waiting  time  and  call-in pay rates; 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  indi-
 viduals whose earning capacity is affected or impaired by youth or age,]
 or  by  physical  or  mental deficiency or injury, under special certif-
 icates issued by the commissioner, at such wages lower than the  minimum
 wage  established  by  this  article  and  for  such  period as shall be
 prescribed in such regulations.
   § 18. This act shall take effect immediately,  provided  that  section
 ten  of  this  act shall take effect on the thirtieth day after it shall
 have become a law.