Bill Text: NY S04247 | 2015-2016 | General Assembly | Introduced
Bill Title: Enacts the Farmworkers' Fair Labor Practices Act; includes farm laborers within provisions pertaining to overtime compensation and unemployment insurance; relates to the eligibility of farm laborers for disability benefits.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2016-01-06 - REFERRED TO LABOR [S04247 Detail]
Download: New_York-2015-S04247-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4247
2015-2016 Regular Sessions
I N S E N A T E
March 11, 2015
___________
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT establishing the "farmworkers' fair labor practices act"; to
amend the labor law, in relation to allowing farm workers one day of
rest each week, and including farm laborers within the provisions
pertaining to overtime compensation and unemployment insurance; and to
amend the workers' compensation law, in relation to service as farm
laborers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act shall be known and may be cited as the "farmwork-
2 ers' fair labor practices act".
3 S 2. Subdivision 16 of section 2 of the labor law, as added by chapter
4 564 of the laws of 2010, is renumbered subdivision 22 and five new
5 subdivisions 17, 18, 19, 20 and 21 are added to read as follows:
6 17. "FARM" SHALL MEAN AN AGRICULTURAL FOR-PROFIT BUSINESS INVOLVED IN
7 COMMERCIAL ENTERPRISE WITH RESPECT TO STOCK, DAIRY, POULTRY, FUR-BEARING
8 ANIMAL, FRUIT AND TRUCK FARMS; PLANTATIONS; ORCHARDS; NURSERIES; GREEN-
9 HOUSES AND SIMILAR STRUCTURES USED PRIMARILY FOR THE RAISING OF AGRICUL-
10 TURAL OR HORTICULTURAL COMMODITIES.
11 18. "FARM EMPLOYMENT" SHALL MEAN THE SERVICES PERFORMED BY AN EMPLOYEE
12 ON A FARM IN THE EMPLOY OF THE OWNER, FARM CONTRACTOR, LESSEE OR OPERA-
13 TOR OF A FARM IN CONNECTION WITH:
14 (A) CULTIVATING THE SOIL;
15 (B) RAISING OR HARVESTING ANY AGRICULTURAL OR HORTICULTURAL COMMODITY,
16 INCLUDING THE RAISING OR HATCHING OF POULTRY, THE RAISING, SHEARING,
17 FEEDING, CARING FOR, TRAINING, MANAGEMENT OF LIVESTOCK, BEES, FUR-BEAR-
18 ING ANIMALS AND WILDLIFE;
19 (C) THE PRODUCTION OR HARVESTING OF MAPLE SYRUP OR MAPLE SUGAR;
20 (D) THE OPERATION, MANAGEMENT, CONSERVATION, IMPROVEMENT OR MAINTE-
21 NANCE OF A FARM AND ITS TOOLS AND EQUIPMENT;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08384-02-5
S. 4247 2
1 (E) THE OPERATION OR MAINTENANCE OF DITCHES, CANALS, RESERVOIRS OR
2 WATERWAYS USED EXCLUSIVELY FOR REMOVING, SUPPLYING AND STORING WATER FOR
3 FARMING PURPOSES; AND
4 (F) THE HANDLING, PLANTING, DRYING, PACKING, PACKAGING, PROCESSING,
5 FREEZING, GRADING, STORING OR DELIVERING TO MARKET OR TO A CARRIER FOR
6 TRANSPORTATION TO MARKET, OF ANY AGRICULTURAL OR HORTICULTURAL COMMODITY
7 RAISED ON THE EMPLOYER'S FARM.
8 FARM EMPLOYMENT SHALL NOT MEAN SERVICES PERFORMED IN CONNECTION WITH
9 COMMERCIAL CANNING, FREEZING, GRADING OR OTHER PROCESSING OF ANY AGRI-
10 CULTURAL OR HORTICULTURAL COMMODITY NOT RAISED ON THE EMPLOYER'S FARM.
11 19. "FARM EMPLOYER" SHALL MEAN ANY INDIVIDUAL, PARTNERSHIP, ASSOCI-
12 ATION, CORPORATION, COOPERATIVE, BUSINESS TRUST, LEGAL REPRESENTATIVE OR
13 ORGANIZED GROUP OF PERSONS ACTING AS AN EMPLOYER OF A FARM EMPLOYEE. IF
14 A FARM LABOR CONTRACTOR RECRUITS OR SUPPLIES FARM WORKERS FOR WORK ON A
15 FARM, SUCH FARM WORKERS SHALL BE DEEMED TO BE EMPLOYEES OF THE OWNER,
16 LESSEE OR OPERATOR OF SUCH FARM.
17 20. "FARM EMPLOYEE" SHALL MEAN ANY INDIVIDUAL ENGAGED OR PERMITTED BY
18 AN EMPLOYER TO WORK ON A FARM, EXCEPT:
19 (A) THE PARENT, SPOUSE, CHILD OR OTHER MEMBER OF THE EMPLOYER'S IMME-
20 DIATE FAMILY RELATED TO THE THIRD DEGREE OF CONSANGUINITY OR AFFINITY;
21 (B) AN INDIVIDUAL EMPLOYED BY THE FEDERAL, STATE OR MUNICIPAL GOVERN-
22 MENT OR A POLITICAL SUBDIVISION THEREOF; AND
23 (C) FOR THAT PART OF THE WORKING TIME COVERED BY THE PROVISIONS OF
24 ANOTHER MINIMUM WAGE ORDER PROMULGATED BY THE COMMISSIONER.
25 21. "TEMPORARY VISA WORKER" SHALL MEAN AN ALIEN ADMITTED TO THE UNITED
26 STATES TO PERFORM AGRICULTURAL LABOR PURSUANT TO 8 USC 1184(C) AND 8 USC
27 1101(A)(15)(H) OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT IF, AT THE
28 TIME SUCH SERVICES ARE RENDERED, THEY ARE EXCLUDED FROM THE DEFINITION
29 OF EMPLOYMENT AS PROVIDED IN 26 USC 3306(C) OF THE FEDERAL UNEMPLOYMENT
30 TAX ACT.
31 S 3. Subdivision 1 of section 161 of the labor law is amended by
32 adding a new undesignated paragraph to read as follows:
33 EVERY PERSON EMPLOYED AS A FARM LABORER SHALL BE ALLOWED AT LEAST
34 TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK. A
35 FARM LABORER MAY CONSENT IN WRITING TO WAIVE THIS RIGHT AND WORK ON THE
36 DAY OF REST, PROVIDED THAT HE OR SHE SHALL BE PAID AS PROVIDED UNDER
37 SECTION ONE HUNDRED SIXTY-THREE-A OF THIS TITLE. THIS PARAGRAPH SHALL
38 NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER MEMBER OF THE EMPLOYER'S
39 FAMILY RELATED BY THE THIRD DEGREE OF CONSANGUINITY OR AFFINITY. TWEN-
40 TY-FOUR CONSECUTIVE HOURS SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH
41 AS WEATHER OR CROP CONDITIONS, SHALL BE DEEMED TO CONSTITUTE THE REST
42 REQUIRED BY THIS PARAGRAPH. THE DAY OF REST SHOULD BE THE SAME AS THE
43 TRADITIONAL DAY RESERVED BY THE FARM LABORER FOR RELIGIOUS WORSHIP,
44 WHENEVER POSSIBLE.
45 S 4. Paragraphs b and d of subdivision 2 of section 161 of the labor
46 law, as amended by chapter 281 of the laws of 1941, are amended to read
47 as follows:
48 b. Employees in [dairies, creameries,] milk condenseries, milk powder
49 factories, milk sugar factories, milk shipping stations, butter and
50 cheese factories, ice cream manufacturing plants and milk bottling
51 plants, where not more than seven persons are employed;
52 d. Employees whose duties include not more than three hours' work on
53 Sunday in setting sponges in bakeries, [caring for live animals,] main-
54 taining fires, or making necessary repairs to boilers or machinery.
55 S 5. The labor law is amended by adding a new section 163-a to read as
56 follows:
S. 4247 3
1 S 163-A. HOURS OF AGRICULTURAL EMPLOYMENT. NO FARM EMPLOYER OPERATING
2 A FARM SHALL REQUIRE ANY FARM EMPLOYEE TO WORK MORE THAN TEN WORK HOURS
3 IN ANY DAY, SIXTY WORK HOURS IN ANY CALENDAR WEEK, OR SIX DAYS IN ANY
4 CALENDAR WEEK, UNLESS SUCH FARM EMPLOYEE IS PAID AS FOLLOWS:
5 1. HOURLY RATE. ANY FARM EMPLOYEE WHO IS PAID ON AN HOURLY BASIS AND
6 WHO IS EIGHTEEN YEARS OF AGE OR OVER, OR WHO IS SIXTEEN OR SEVENTEEN
7 YEARS OF AGE AND NOT REQUIRED BY LAW TO ATTEND SCHOOL SHALL NOT BE
8 EMPLOYED OVERTIME HOURS UNLESS THE FARM EMPLOYEE RECEIVES ONE AND
9 ONE-HALF TIMES THE REGULAR RATE FOR SUCH OVERTIME WORK HOURS.
10 2. PIECE WORK RATE. ANY FARM EMPLOYEE PAID AT A PIECE RATE WHO IS
11 EIGHTEEN YEARS OF AGE OR OVER, OR WHO IS SIXTEEN OR SEVENTEEN YEARS OF
12 AGE AND NOT REQUIRED BY LAW TO ATTEND SCHOOL SHALL NOT BE EMPLOYED OVER-
13 TIME HOURS UNLESS THE FARM EMPLOYEE RECEIVES ONE AND ONE-HALF TIMES THE
14 PREVAILING PIECE RATE SET BY THE UNITED STATES DEPARTMENT OF LABOR
15 PURSUANT TO THE H-2A TEMPORARY VISA PROGRAM AUTHORIZED BY THE FEDERAL
16 IMMIGRATION AND NATIONALITY ACT OF 1952, AS AMENDED, FOR ALL OVERTIME
17 WORK HOURS.
18 3. SALARIED RATE. ANY FARM EMPLOYEE PAID AT A SALARIED RATE AND NOT
19 WORKING AS A MANAGER OR SUPERVISOR WHO IS EIGHTEEN YEARS OF AGE OR OVER,
20 OR WHO IS SIXTEEN OR SEVENTEEN YEARS OF AGE AND NOT REQUIRED BY LAW TO
21 ATTEND SCHOOL SHALL NOT BE EMPLOYED OVERTIME HOURS UNLESS HE OR SHE
22 RECEIVES ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE OR SHE IS
23 EMPLOYED DIVIDED BY FORTY FOR ALL OVERTIME WORK HOURS.
24 4. A CONTRACT BETWEEN A FARM EMPLOYER AND A FARM EMPLOYEE MAY ALLOW
25 FOR DISCIPLINE OR DISMISSAL OF A FARM EMPLOYEE WHO REFUSES TO WORK OVER-
26 TIME HOURS OTHER THAN ON THE DAY OF REST WITHOUT A MEDICAL OR SUCH OTHER
27 EXCUSE PERMITTED BY REGULATION OF THE COMMISSIONER.
28 FOR PURPOSES OF THIS SECTION, "WORK HOURS" SHALL MEAN THE HOURS THAT A
29 FARM EMPLOYEE IS PERMITTED TO WORK OR IS REQUIRED TO BE AVAILABLE FOR
30 WORK AT THE ASSIGNED PLACE OF WORK, AND SHALL INCLUDE TIME SPENT IN
31 GOING FROM ONE FIELD TO ANOTHER, IN WAITING FOR BASKETS, PICKUP OR
32 BREAKDOWN OF MACHINERY OR EQUIPMENT WHERE THE FARM EMPLOYER REQUIRES THE
33 FARM EMPLOYEE TO REMAIN AT THE SITE OF THE BREAKDOWN DURING REPAIRS.
34 TIME NOT WORKED BECAUSE OF WEATHER CONDITIONS SHALL NOT BE CONSIDERED AS
35 HOURS WORKED. AN EMPLOYEE WHO LIVES ON THE PREMISES OF THE EMPLOYER, OR
36 IN COMPARABLE FACILITIES AT THE WORK SITE, SHALL NOT BE CONSIDERED TO
37 HAVE WORKED OR TO HAVE BEEN AVAILABLE FOR WORK: (A) DURING NORMAL SLEEP-
38 ING HOURS SOLELY BECAUSE THE EMPLOYEE IS REQUIRED TO BE ON CALL DURING
39 SUCH HOURS; OR (B) AT ANY OTHER TIME WHEN THE EMPLOYEE IS FREE TO LEAVE
40 THE PLACE OF EMPLOYMENT.
41 FOR PURPOSES OF THIS SECTION, "OVERTIME HOURS" SHALL MEAN HOURS WORKED
42 BY A FARM EMPLOYEE OF MORE THAN TEN HOURS IN ANY DAY, SIXTY HOURS IN A
43 CALENDAR WEEK, OR SIX DAYS IN A CALENDAR WEEK.
44 S 6. Subdivision 2 of section 564 of the labor law is renumbered
45 subdivision 3 and a new subdivision 2 is added to read as follows:
46 2. EXCLUSION FROM COVERAGE. THE TERM "EMPLOYMENT" DOES NOT INCLUDE
47 SERVICES RENDERED BY AN INDIVIDUAL WHO IS AN ALIEN ADMITTED TO THE
48 UNITED STATES TO PERFORM AGRICULTURAL LABOR PURSUANT TO 8 USC 1184(C)
49 AND 8 USC 1101(A)(15)(H) OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT
50 IF, AT THE TIME SUCH SERVICES ARE RENDERED, THEY ARE EXCLUDED FROM THE
51 DEFINITION OF EMPLOYMENT AS PROVIDED IN 26 USC 3306(C) OF THE FEDERAL
52 UNEMPLOYMENT TAX ACT.
53 S 7. Subdivision 1 of section 674 of the labor law, as added by chap-
54 ter 552 of the laws of 1969, is amended to read as follows:
55 1. The commissioner may promulgate such regulations as he deems appro-
56 priate to carry out the purposes of this article and to safeguard mini-
S. 4247 4
1 mum wage standards. Such regulations may include, but are not limited
2 to, the defining of the circumstances or conditions for the acceptance
3 of non-hourly rates and piece rates as equivalent to the minimum hourly
4 rates established by this article. Such regulations also may include,
5 but are not limited to, waiting time and call-in pay rates; wage
6 provisions governing guaranteed earnings during specified periods of
7 work; AND allowances for meals, lodging, and other items, services and
8 facilities when furnished by the employer[; and the employment of indi-
9 viduals whose earning capacity is affected or impaired by youth or age,
10 or by physical or mental deficiency or injury, under special certif-
11 icates issued by the commissioner, at such wages lower than the minimum
12 wage established by this article and for such period as shall be
13 prescribed in such regulations].
14 S 8. The opening paragraph of paragraph A of subdivision 6 of section
15 201 of the workers' compensation law, as amended by chapter 481 of the
16 laws of 2010, is amended to read as follows:
17 "Employment" means employment in any trade, business or occupation
18 carried on by an employer, except that the following shall not be deemed
19 employment under this article: services performed for the state, a
20 municipal corporation, local governmental agency, other political subdi-
21 vision or public authority; employment subject to the federal railroad
22 unemployment insurance act; service performed on or as an officer or
23 member of the crew of a vessel on the navigable water of the United
24 States or outside the United States; [service as farm laborers;] SERVICE
25 AS A TEMPORARY VISA WORKER AS DEFINED BY SUBDIVISION TWENTY-ONE OF
26 SECTION TWO OF THE LABOR LAW; casual employment and the first forty-five
27 days of extra employment of employees not regularly in employment as
28 otherwise defined herein; service as golf caddies; and service during
29 all or any part of the school year or regular vacation periods as a
30 part-time worker of any person actually in regular attendance during the
31 day time as a student in an elementary or secondary school. The term
32 "employment" shall include domestic or personal work in a private home.
33 The term "employment" shall not include the services of a licensed real
34 estate broker or sales associate if it be proven that (a) substantially
35 all of the remuneration (whether or not paid in cash) for the services
36 performed by such broker or sales associate is directly related to sales
37 or other output (including the performance of services) rather than to
38 the number of hours worked; (b) the services performed by the broker or
39 sales associate are performed pursuant to a written contract executed
40 between such broker or sales associate and the person for whom the
41 services are performed within the past twelve to fifteen months; and (c)
42 the written contract provided for in subparagraph (b) of this paragraph
43 was not executed under duress and contains the following provisions:
44 S 9. The commissioner of labor shall report to the governor, the
45 speaker of the assembly and the temporary president of the senate no
46 later than one year after the date this act shall take effect on the
47 feasibility and practicality of allowing farm employees to organize for
48 purposes of collective bargaining. In preparing such report, the commis-
49 sioner of labor will consult with representatives of and advocates for
50 farm employees, individuals and agencies that employ farm employees, and
51 relevant state agencies including but not limited to the department of
52 agriculture and markets and the public employment relations board. The
53 report shall address the feasibility of an employee organization formed
54 in accordance with the State Labor Relations Act, how bargaining units
55 for such organizations could be formed, whether there are any unique
56 issues which arise in this context and whether there are other possible
S. 4247 5
1 frameworks for collective organization or for ensuring the benefits that
2 accompany organization for farm employees. The commissioner of labor
3 shall also report, with the assistance of an interagency working group
4 which shall include but not be limited to the chair of the workers'
5 compensation board and the commissioner of agriculture and markets, on
6 how best to provide easily accessible educational and informational
7 material for farm employers and farm employees. Such material shall
8 cover employment benefits and applicable tax and insurance laws.
9 S 10. This act shall take effect on the first of April next succeeding
10 the date on which it shall have become a law.
