NY State Senate Bill 2019-S6538

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to labor
Jun 15, 2019	referred to rules

2019-S6538 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§2, 190 & 701, Lab L

2019-S6538 (ACTIVE) - Summary

Relates to dependent workers; defines the term "dependent worker"; requires the commissioner of labor to hold public meetings to examine state laws relating to dependent workers.

2019-S6538 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6538

SPONSOR: SAVINO
 
TITLE OF BILL:  An act to amend the labor law, in relation to depend-
ent workers

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to extend wage payment and collective
bargaining protections to dependent workers and examine other labor and
related laws to identify additional employment rights and benefits which
could be provided to such workers in the future.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill would establish that the title of this act shall
be known and cited as the "Dependent Worker Act."

Section 2 of the bill would set forth the legislative findings and
intent.

Section 3 of the bill amends Subdivision 16 of section 2 of the labor
law, and renumbers subdivision 16-a and a new subdivision 17 is added
defining a "dependent worker" as an individual that provides personal
services to a consumer through a private third-party that establishes
the amounts earned by the worker or charged to the consumer, or collects
payment from the consumer, or pays the individual, or any combination
thereof.

Section 4 of the bill Amends Subdivision 2 of section 190 of the labor
law to include dependent workers under the definition of "employee" for
the purposes of: frequency and method of wage payments; wage notice and
record-keeping requirements; retaining tips; filing wage complaints;
initiating wage theft claims; criminal and civil penalties for wage
violations; and anti-retaliation provisions.

Section 5 of the bill add a new paragraph (c )to subdivision 3 of
section 701 to the labor law to include dependent workers under the
definition of "employee" for the purposes of the New York State Employ-
ment Relations Act, granting them the right to unionize, collectively
bargain, strike, and participate in union activities.

Section 6 of the bill would require the Commissioner of Labor to hold
public meetings with representatives of businesses, employees, and
dependent workers to examine various employment rights and benefits
which could be extended to such workers in the future.

Section 7 of the bill would authorize the Commissioner of Labor to hold
separate public meetings, or convene committees, to examine different
industries and services with regard to the potential extension of such
rights and benefits.

Section 8 of the bill would require the Commissioner of Labor to create,
a report of his or her findings with recommendations for further action
and legislation to the Governor, the Temporary President of the Senate,
and the Speaker of the Assembly within one year of the first public
meeting.


Section 9 of the bill would set forth the provisions of law to be exam-
ined by the Commissioner, which would include, but not be limited to:
unemployment insurance, workers' compensation; disability benefits, and
paid family leave; notices and compensation under the New York State
Worker Adjustment and Retraining Notification (WARN) Act; continuation
of coverage for health insurance following termination; antidiscrimi-
nation, equal opportunity, sexual harassment prevention, and privacy
protections; minimum wage and other wage laws; hours of work, day of
rest, and the employment of minors; and health and safety requirements.

Section 10 of the bill would set forth an effective date of 60 days
after enactment.

 
JUSTIFICATION:

In the modern "gig economy", many people have begun working several
part-time jobs or using their existing skills and assets (e.g., homes,
cars, professional services) just to make ends meet. Combined with the
rapid development of new technology over the last decade, these factors
have enabled the on-demand gig economy to flourish.  However, the clas-
sification of on-demand workers, who obtain their work on a job-by-job
basis through online platforms or "apps", has led to ambiguity in the
law and continued uncertainty for these individuals.

A report released in April 2019 by the Worker Institute at Cornell
University's ILR School found that New York's regulatory structure does
not provide the necessary level of oversight to curb abuse and obscurity
in the on-demand economy. On-demand platform companies determine the
rules that workers must follow, discipline workers for poor performance,
specify how and when the work must be done, and control the exchange of
payment between the worker and consumer, making these workers wholly
dependent on the control and direction of their employer. However, these
"dependent workers" are not afforded the same protections and benefits
under the law as traditional employees, making them vulnerable to vari-
ous forms of exploitation, abuse, misclassification, harassment, and
discrimination.

While estimates of the size of the on-demand workforce vary due to a
lack of a clear definition of what constitutes "dependent worker" under
the law, it has become clear that these individuals continue to experi-
ence low and unstable earnings, lack important worker protections and
benefits, and often face dangerous health and safety hazards on the job.
This legislation will help protect worker, business, and taxpayer inter-
ests by awarding dependent workers crucial wage and collective bargain-
ing protections now, while requiring the New York State Department of
Labor to examine additional employment rights and benefits that may be
extended to such workers in the future.

 
PRIOR LEGISLATIVE HISTORY:

2019 Session - New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have

2019-S6538 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6538
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               June 15, 2019
                                ___________
 
 Introduced  by  Sen.  SAVINO -- 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 dependent workers
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Short  title. This act shall be known and may be cited as
 the "dependent worker act".
   § 2. Legislative findings and intent. 1. It is hereby declared  to  be
 the public policy of the state to ensure that laborers and other workers
 who  depend  for  their livelihood on working for others, offering their
 time, labor and personal services in exchange for hourly wages or  other
 compensation,  are  timely  and  fully paid and informed regarding their
 earnings, without the uncertainty, delay and denial that may result when
 their employment status is disputed by claims that they are  independent
 contractors rather than employees.
   2.  It  is  further  declared  to be the public policy of the state to
 ensure that such dependent workers shall have the right to organize  and
 bargain collectively through representatives of their own choosing based
 on the state's constitutional recognition that the labor of human beings
 is  not  a  commodity  or  an  article of commerce and shall never be so
 considered or construed.
   3. The legislature finds that the ability of such dependent workers to
 find opportunities for work has been transformed by technology to expand
 day work to digital work, allowing workers to establish their availabil-
 ity by the minute and hour, rather than simply by the day. In  light  of
 this  shift, the legislature finds that further examination is warranted
 to determine  the  extent  to  which  various  employment  benefits  and
 substantive  protections  that  were historic bargains struck with input
 from labor and management, through bargaining, legislation, and adminis-
 trative rate setting and rulemaking, should be extended to such  digital
 work,  regardless of employment status. The collective bargaining oppor-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13384-01-9

 S. 6538                             2
 
 tunities and public  meetings  provided  through  this  legislation  can
 provide  experience  and  input  that  is not currently available to the
 legislature  to  inform  determinations  regarding  such  benefits   and
 substantive protections.
   4. This chapter shall be deemed an exercise of the police power of the
 state  for the protection of the public welfare, prosperity, health, and
 peace of the people of the state.
   5. Nothing herein shall diminish the rights of any  worker,  including
 those  already  or prospectively determined by a court or administrative
 agency to be an employee.
   § 3. Subdivision 16 of section 2 of the labor law, as added by chapter
 564 of the laws of 2010, is renumbered subdivision 16-a and a new subdi-
 vision 17 is added to read as follows:
   17. "DEPENDENT WORKER"  MEANS  AN  INDIVIDUAL  WHO  PROVIDES  PERSONAL
 SERVICES  TO  A  CONSUMER  OF  SUCH  PERSONAL SERVICES THROUGH A PRIVATE
 SECTOR THIRD-PARTY THAT: ESTABLISHES THE GROSS  AMOUNTS  EARNED  BY  THE
 INDIVIDUAL;  ESTABLISHES  THE  AMOUNTS CHARGED TO THE CONSUMER; COLLECTS
 PAYMENT FROM THE CONSUMER; PAYS THE INDIVIDUAL; OR  ANY  COMBINATION  OF
 THE  PRECEDING.  THE  TERM  "DEPENDENT WORKER" APPLIES WITHOUT REGARD TO
 WHETHER THE INDIVIDUAL PROVIDES SUCH SERVICES IN THE NAME OF  THE  INDI-
 VIDUAL  OR  IN  THE NAME OF A BUSINESS OR AS A SEPARATE BUSINESS ENTITY,
 AND WITHOUT REGARD TO WHETHER THE CONSUMER OF SUCH PERSONAL SERVICES  IS
 AN  INDIVIDUAL,  BUSINESS,  OTHER ENTITY, OR ANY COMBINATION THEREOF. NO
 GOVERNMENTAL ENTITY SHALL BE CONSIDERED A THIRD-PARTY  FOR  PURPOSES  OF
 THE DEFINITION OF THE TERM "DEPENDENT WORKER". WHENEVER THE TERM EMPLOY-
 EE IS DEFINED BY LAW TO INCLUDE A DEPENDENT WORKER FOR CERTAIN PURPOSES,
 THEN FOR SUCH STATUTE AND PURPOSES A DEPENDENT WORKER SHALL BE DEEMED TO
 BE  EMPLOYED BY THE THIRD-PARTY REFERENCED ABOVE, WHO SHALL BE DEEMED TO
 BE AN EMPLOYER ENGAGED IN AN EMPLOYMENT RELATIONSHIP  WITH  A  DEPENDENT
 WORKER,  UNLESS OTHERWISE EXCLUDED FROM SUCH STATUTE OR PURPOSES.  WORK-
 ERS CLASSIFIED AS EMPLOYEES BY OTHER MEANS  OR  WHO  SATISFY  ANY  OTHER
 LEGAL  TEST  FOR  EMPLOYMENT,  INCLUDING  THOSE ALREADY OR PROSPECTIVELY
 DETERMINED BY A COURT OR ADMINISTRATIVE AGENCY TO  BE  EMPLOYEES,  SHALL
 NOT  HAVE  ANY  RIGHTS  OR PROTECTIONS DIMINISHED BY APPLICATION OF THIS
 SUBDIVISION.
   § 4. Subdivision 2 of section 190 of the labor law, as added by  chap-
 ter 548 of the laws of 1966, is amended to read as follows:
   2. "Employee" means any person employed for hire by an employer in any
 employment  AND  FOR  PURPOSES  OF  SECTIONS ONE HUNDRED NINETY-ONE, ONE
 HUNDRED NINETY-TWO, ONE HUNDRED NINETY-FIVE AND ONE HUNDRED NINETY-SIX-D
 OF THIS ARTICLE, AS WELL AS ANY REGULATIONS ADOPTED THEREUNDER  AND  ANY
 PROVISIONS  RELATING  TO  THE  ENFORCEMENT  OF  SUCH  SECTIONS INCLUDING
 SECTIONS ONE HUNDRED NINETY-SIX, ONE HUNDRED NINETY-SIX-A,  ONE  HUNDRED
 NINETY-SEVEN,  ONE HUNDRED NINETY-EIGHT, ONE HUNDRED NINETY-EIGHT-A, TWO
 HUNDRED ELEVEN, TWO HUNDRED THIRTEEN, TWO HUNDRED FIFTEEN,  TWO  HUNDRED
 EIGHTEEN, TWO HUNDRED NINETEEN, AND TWO HUNDRED NINETEEN-C OF THIS CHAP-
 TER, SHALL INCLUDE A DEPENDENT WORKER, AS DEFINED BY SECTION TWO OF THIS
 CHAPTER.
   §  5.  Subdivision  3  of  section  701 of the labor law is amended by
 adding a new paragraph (c) to read as follows:
   (C) THE TERM "EMPLOYEE" SHALL ALSO  INCLUDE  A  DEPENDENT  WORKER,  AS
 DEFINED BY SECTION TWO OF THIS CHAPTER, FOR PURPOSES OF THIS ARTICLE, OF
 ARTICLE  TWENTY-A,  AND OF SECTIONS TWO HUNDRED EIGHT, TWO HUNDRED NINE,
 TWO HUNDRED NINE-A, AND TWO HUNDRED ELEVEN-A OF THIS CHAPTER, AS WELL AS
 ANY REGULATIONS PROMULGATED THEREUNDER AND ANY  PROVISIONS  RELATING  TO
 THE  ENFORCEMENT  OF  SUCH  ARTICLE  AND SECTIONS INCLUDING SECTIONS ONE

 S. 6538                             3
 
 HUNDRED NINETY-SIX, ONE HUNDRED NINETY-SIX-A, TWO  HUNDRED  ELEVEN,  TWO
 HUNDRED THIRTEEN, AND TWO HUNDRED FIFTEEN OF THIS CHAPTER.
   §  6. The commissioner of labor shall hold public meetings with repre-
 sentatives of businesses, employees and  dependent  workers  to  examine
 various state labor and related laws that regulate employment rights and
 benefits  to  identify  which  provisions  could  be extended to provide
 dependent workers with the same, or  similar,  rights  and  benefits  as
 employees have, consistent with the underlying purposes of each statuto-
 ry  scheme  without substantially curtailing opportunities for dependent
 workers to earn income sufficient to provide  adequate  maintenance  for
 themselves and their families, and whether changes should be made to the
 definition  of  dependent  worker,  as defined by section 2 of the labor
 law.
   § 7. The commissioner of labor may hold separate meetings, or  convene
 committees, to examine different industries and services, including, but
 not  limited  to personal transportation (including taxis, black car and
 ride sharing services), local delivery  (including  messenger  and  food
 delivery  services),  and various personal services (including temporary
 staffing services, cleaning services, and custom errand services).
   § 8. The commissioner of labor shall make a report of his or her find-
 ings to the governor, the temporary president of  the  senate,  and  the
 speaker  of  the  assembly, within one year of the first public meeting.
 Such report shall include recommendations for further action and  legis-
 lation.
   § 9. The provisions of law to be examined by the commissioner of labor
 shall include, but not be limited to, the following:
   a. social safety net employment laws, including:
   i.  compensation  for the unemployed, under the unemployment insurance
 law, under article 18 of the labor law;
   ii. compensation and  medical  benefits  for  workplace  injuries  and
 illnesses under articles 1-8 of the workers' compensation law;
   iii.  compensation for non-workplace disability and family leave bene-
 fits under the disability benefits law and the paid family  leave  bene-
 fits law under article 9 of the workers' compensation law;
   iv.  notices  and compensation for workers laid off due to plant clos-
 ings under the New York state worker adjustment and retraining notifica-
 tion (WARN) act, under article 25-A of the labor law; and
   v. notification of  continuation  of  coverage  for  health  insurance
 following termination under section 217 of the labor law.
   b.  anti-discrimination,  opportunity and privacy protections, includ-
 ing:
   i. equal opportunity and  anti-discrimination  employment  protections
 under the human rights law under article 15 of the executive law;
   ii. licensure and employment of persons previously convicted of one or
 more criminal offenses under article 23-A of the correction law;
   iii. related posting and sexual harassment training requirements under
 sections 201-f and 201-g of the labor law;
   iv. prohibition on use of lie detectors and other psychological stress
 evaluators in employment under article 20-B of the labor law;
   v.  prohibition  on  finger  printing under section 201-a of the labor
 law;
   vi. employee privacy in connection with changing rooms, personal iden-
 tifying information, physical examinations  and  nursing  mothers  under
 sections 203-c, 203-d, 206-a and 206-c of the labor law;
   vii.  various  prohibitions  on discrimination based on child-care for
 adoptive parents, lawful outside activities, for failure to meet  ticket

 S. 6538                             4
 
 quotas  and  displaying  the  American flag under sections 201-c, 201-d,
 215-a and 215-c of the labor law; and
   viii.   anti-retaliation   and   anti-discrimination   protections  in
 connection with workers' compensation  and  labor  laws  under  sections
 210-a and 215 of the labor law.
   c. laws regarding payment of wages, including:
   i.  payment  of  wages  and related protections under article 6 of the
 labor law;
   ii. minimum wages and related protections under the minimum  wage  act
 under article 19 of the labor law; and
   iii.  payment  of fees for medical exams required for employment under
 section 201-b of the labor law.
   d. laws regulating hours of work, including:
   i. employment of minors hours and permitting under article  4  of  the
 labor law;
   ii.  child  performers  hours,  education and trust requirements under
 article 4-A of the labor law;
   iii. hours of labor and day of rest requirements under  article  5  of
 the labor law; and
   iv.  leave  of  absences  for volunteer emergency first responders and
 following child-birth under sections 202-l and 206-b of the labor law.
   e. laws regulating safety and health, including:
   i. right to know protections under the toxic substances provisions  of
 article 28 of the labor law; and
   ii.  protections  in  connection  with  window  cleaning,  bridges and
 tunnels, hotels and motels,  eating  in  certain  workrooms,  factories,
 high-voltage  lines,  mercantile  establishments,  mines, explosives and
 places of public assembly under sections 202, 202-e, 202-f,  202-h,  205
 and articles 11, 14, 15, 16 and 17 of the labor law.
   §  10.  This  act shall take effect on the sixtieth day after it shall
 have become a law.

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Senate Bill S6538

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

2019-S6538 (ACTIVE) - Details

2019-S6538 (ACTIVE) - Summary

2019-S6538 (ACTIVE) - Sponsor Memo

2019-S6538 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6538

Share this bill

Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Labor Committee

2019-S6538 (ACTIVE) - Details

2019-S6538 (ACTIVE) - Summary

2019-S6538 (ACTIVE) - Sponsor Memo

2019-S6538 (ACTIVE) - Bill Text download pdf

Comments