S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3726
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2021
                                ___________
 
 Introduced  by  Sen.  ORTT  --  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  collective  bargaining
   rights  to  farm laborers; to amend the public health law, in relation
   to the application of the sanitary code to all farm and food  process-
   ing  labor  camps  for  migrant workers; to amend the workers' compen-
   sation law in relation to the eligibility of farm laborers  for  work-
   ers'  compensation  benefits  and  in  relation  to  service  as  farm
   laborers; to amend the labor law, in relation to labor on a  farm;  to
   repeal  sections  1,  2,  24 and 25 of chapter 105 of the laws of 2019
   relating to farm laborers; and repealing  certain  provisions  of  the
   labor law and the workers' compensation law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Sections 1, 2, 24 and 25 of chapter 105 of the laws of 2019
 are REPEALED.
   § 2. Paragraph (a) of subdivision 3 of section 701 of the  labor  law,
 as  amended  by  chapter  105 of the laws of 2019, 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-
 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

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

                                                            LBD08050-01-1

 S. 3726                             2
 
 person or any individuals employed only for  the  duration  of  a  labor
 dispute, OR ANY INDIVIDUALS EMPLOYED AS FARM LABORERS or, any individual
 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 rehabilitation
 facility or sheltered workshop who has received rehabilitative or thera-
 peutic services and whose capacity to perform the work for which  he  is
 engaged  is  substantially  impaired by physical or mental deficiency or
 injury.
   § 3. Paragraph (c) of subdivision 3 of section 701 of the labor law is
 REPEALED.
   § 4. The closing paragraph of subdivision 1  of  section  161  of  the
 labor law is REPEALED.
   §  5.  Paragraphs b and d of subdivision 2 of section 161 of the labor
 law, as amended by chapter 105 of the laws of 2019, 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.
   § 6. Section 163-a of the labor law is REPEALED.
   § 7. The opening paragraph  of  paragraph  (a)  of  subdivision  6  of
 section  511  of the labor law, as amended by chapter 105 of the laws of
 2019, is amended to read as follows:
   The term "employment" [includes] DOES NOT INCLUDE  agricultural  labor
 UNLESS  IT  IS COVERED PURSUANT TO SECTION FIVE HUNDRED SIXTY-FOUR.  The
 term "agricultural labor" includes all service performed:
   § 8. Section 564 of the labor law, as amended by section  8,  subdivi-
 sion 2 as added and subdivision 3 as renumbered by section 23 of chapter
 105 of the laws of 2019, 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

 S. 3726                             3
 
   (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:
   [1.] (A) 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 [crop dusting]  CROPDUST-
 ING machinery or any other mechanized equipment which is provided by the
 crew leader, and
   [2.  Exclusion  from  coverage.  For purposes of this section the term
 "employment" shall not include services rendered by an individual who is
 admitted to the United States to perform agricultural labor pursuant  to
 8 USC 1188 if, at the time such services are rendered, they are excluded
 from  the  definition  of  employment  in section 3306(c) of the Federal
 Unemployment Tax Act.
   3.] (B) 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.
   § 9. Paragraph (m) of subdivision 5  of  section  225  of  the  public
 health law, as amended by chapter 105 of the laws of 2019, is amended to
 read as follows:
   (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;
   §  10. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
 ers' compensation law, as amended by chapter 105 of the  laws  of  2019,
 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

 S. 3726                             4
 
 REMUNERATION PAID TO ALL FARM LABORERS AGGREGATED TWELVE HUNDRED DOLLARS
 OR MORE.
   § 11. Section 51 of the workers' compensation law, as amended by chap-
 ter 105 of the laws of 2019, 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
 dependents  in accordance with the provisions of this chapter, but fail-
 ure 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
 chapter. Every employer who owns or operates automotive  or  horse-drawn
 vehicles  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 employer 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 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 [five hundred] UP TO TWO HUNDRED FIFTY dollars for
 each violation, in addition to any other penalties imposed by law to  be
 deposited into the uninsured employers' fund.
   § 12. Section 110-b of the workers' compensation law is REPEALED.
   §  13.  The  opening  paragraph of section 120 of the workers' compen-
 sation law, as amended by chapter 105 of the laws of 2019, 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 proceed-
 ing under this chapter and no other valid reason is shown to  exist  for
 such action by the employer.
   § 14. The opening paragraph of paragraph A of subdivision 6 of section
 201  of  the workers' compensation law, as amended by chapter 105 of the
 laws of 2019, 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

 S. 3726                             5
 
 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:
   §  15.  The  opening  paragraph of subdivision 5 of section 651 of the
 labor law, as amended by chapter 105 of the laws of 2019, 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;  [(c)]  (D)  as  an  outside  salesman;  [(d)] (E) as a driver
 engaged in operating a taxicab; [(e)] (F) 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;
 [(f)] (G) 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; [(g)] (H) 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; [(h)] (I) in or for such a religious, educational or
 charitable institution if such individual is a student; [(i)] (J) 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; [(j)] (K)  in  or  for  a  summer  camp  or
 conference  of  such  a religious, educational or charitable institution
 for not more than three months annually; [(k)] (L) as a staff  counselor
 in  a  children's  camp;  [(l)]  (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; [(m)] (N) by a federal,
 state or municipal government or political  subdivision  thereof;  [(n)]
 (O)  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

 S. 3726                             6
 
 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 [(o)] (P) 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.
   § 16. Subdivision 1 of section 674 of the labor  law,  as  amended  by
 chapter 105 of the laws of 2019, 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
 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.
   § 17. Subdivision 2 of section 701 of the labor  law,  as  amended  by
 chapter 105 of the laws of 2019, is amended to read as follows:
   2.  [(a)]  The term "employer" includes any person acting on behalf of
 or in the interest of an employer, directly or indirectly, with or with-
 out his knowledge, and shall include any person who is the purchaser  of
 services performed by a person described in paragraph (b) of subdivision
 three  of this section, but a labor organization or any officer or agent
 thereof shall only be considered an employer with respect to individuals
 employed by such organization.
   [(b) The term "employer" includes  agricultural  employers.  The  term
 "agricultural  employer"  shall mean any employer engaged in cultivating
 the soil or in raising or harvesting any agricultural  or  horticultural
 commodity  including  custom harvesting operators, and employers engaged
 in the business of crops, livestock and livestock products as defined in
 section three hundred one of the agriculture and markets law,  or  other
 similar agricultural enterprises.]
   §  18.  The  closing  paragraph  of  section  703  of the labor law is
 REPEALED.
   § 19. Section 704-b of the labor law is REPEALED.
   § 20. Subdivision 1-a of section 705 of the labor law is REPEALED.
   § 21. Section 702-b of the labor law is REPEALED.
   § 22. Section 674-a of the labor law is REPEALED.
   § 23. Severability clause. If any clause, sentence, paragraph,  subdi-
 vision,  section  or  part of this act shall be adjudged by any court of
 competent jurisdiction to be invalid, such judgment  shall  not  affect,
 impair,  or  invalidate  the remainder thereof, but shall be confined in

 S. 3726                             7
 
 its operation to the clause, sentence, paragraph,  subdivision,  section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the  legislature  that  this  act  would  have been enacted even if such
 invalid provisions had not been included herein.
   § 24. This act shall take effect immediately and shall  be  deemed  to
 have been in full force and effect on and after January 1, 2022.