Bill Text: NY A01470 | 2009-2010 | General Assembly | Amended


Bill Title: Relates to provisions regarding domestic workers and such workers' employment regulations concerning hours of labor and wages, employment restrictions and employment contracts.

Spectrum: Partisan Bill (Democrat 60-0)

Status: (Passed) 2010-08-31 - signed chap.481 [A01470 Detail]

Download: New_York-2009-A01470-Amended.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        1470--B
                                                               Cal. No. 125
                              2009-2010 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 7, 2009
                                      ___________
       Introduced  by  M. of A. WRIGHT, CLARK, COLTON, FARRELL, McENENY, PERRY,
         ROBINSON, TOWNS,  ROSENTHAL,  ORTIZ,  KAVANAGH,  V. LOPEZ,  O'DONNELL,
         SCHIMEL,  LANCMAN,  ALESSI, ZEBROWSKI, CAMARA, MAYERSOHN, SCARBOROUGH,
         JEFFRIES, RAMOS, CASTRO,  ESPAILLAT,  P. RIVERA,  COOK,  BROOK-KRASNY,
         JAFFEE,  POWELL,  AUBRY,  BARRON,  PRETLOW, PEOPLES-STOKES, M. MILLER,
         PAULIN -- Multi-Sponsored by -- M. of A. BENJAMIN,  BOYLAND,  BRENNAN,
         DenDEKKER,  GLICK,  HEASTIE,  HOOPER, JACOBS, KELLNER, LAVINE, LENTOL,
         LUPARDO, MARKEY, MENG, MILLMAN, PHEFFER, REILLY,  N. RIVERA,  SWEENEY,
         THIELE,  TITUS, WEINSTEIN, WEISENBERG -- read once and referred to the
         Committee on Labor -- reported and referred to the Committee on  Codes
         --  committee  discharged,  bill amended, ordered reprinted as amended
         and recommitted to said committee -- reported from committee, advanced
         to a third reading, amended and ordered reprinted, retaining its place
         on the order of third reading
       AN ACT to amend the labor  law,  the  executive  law  and  the  workers'
         compensation  law,  in  relation to establishing regulations regarding
         employment of domestic workers including hours  of  labor,  wages  and
         employment contracts
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Legislative findings and intent. Many thousands of domestic
    2  workers are employed in New York state  as  housekeepers,  nannies,  and
    3  companions  to  the elderly. The labor of domestic workers is central to
    4  the ongoing prosperity that the state enjoys, and yet, despite the value
    5  of their work, domestic workers do not receive the  same  protection  of
    6  many  state  laws  as  do  workers in other industries. Domestic workers
    7  often labor under harsh conditions, work long hours for low wages  with-
    8  out  benefits or job security, are isolated in their workplaces, and are
    9  endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
   10  emotional  and  psychological  abuse. Moreover, many domestic workers in
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00150-18-0
       A. 1470--B                          2
    1  the state of New York are women of color who, because of  race  and  sex
    2  discrimination,  are  particularly vulnerable to unfair labor practices.
    3  Additionally, domestic workers are not afforded  by  law  the  right  to
    4  organize labor unions for the purpose of collective bargaining.
    5    The  legislature finds that because domestic workers care for the most
    6  important elements of their employers' lives, their families and  homes,
    7  it  is  in  the  interest of employees, employers, and the people of the
    8  state of New York to ensure that the  rights  of  domestic  workers  are
    9  respected, protected, and enforced.
   10    S 2. Section 2 of the labor law is amended by adding a new subdivision
   11  16 to read as follows:
   12    16.  "DOMESTIC WORKER" SHALL MEAN A PERSON EMPLOYED IN A HOME OR RESI-
   13  DENCE FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION  FOR
   14  A  SICK,  CONVALESCING OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER
   15  DOMESTIC SERVICE PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE  ANY  INDI-
   16  VIDUAL  (A)  WORKING  ON A CASUAL BASIS, (B) WHO IS ENGAGED IN PROVIDING
   17  COMPANIONSHIP SERVICES, AS DEFINED IN PARAGRAPH FIFTEEN  OF  SUBDIVISION
   18  (A)  OF  SECTION 213 OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS
   19  EMPLOYED BY AN EMPLOYER OR AGENCY OTHER THAN  THE  FAMILY  OR  HOUSEHOLD
   20  USING  HIS  OR  HER  SERVICES,  OR  (C) WHO IS A RELATIVE THROUGH BLOOD,
   21  MARRIAGE OR ADOPTION OF:  (1) THE EMPLOYER; OR (2) THE PERSON  FOR  WHOM
   22  THE WORKER IS DELIVERING SERVICES UNDER A PROGRAM FUNDED OR ADMINISTERED
   23  BY FEDERAL, STATE OR LOCAL GOVERNMENT.
   24    S  3.  The  executive  law is amended by adding a new section 296-b to
   25  read as follows:
   26    S 296-B. UNLAWFUL DISCRIMINATORY PRACTICES RELATING TO DOMESTIC  WORK-
   27  ERS. 1. FOR THE PURPOSES OF THIS SECTION:  "DOMESTIC WORKERS" SHALL HAVE
   28  THE MEANING SET FORTH IN SECTION TWO OF THE LABOR LAW.
   29    2. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO:
   30    (A)  ENGAGE  IN UNWELCOME SEXUAL ADVANCES, REQUESTS FOR SEXUAL FAVORS,
   31  OR OTHER VERBAL OR PHYSICAL CONDUCT OF A SEXUAL  NATURE  TO  A  DOMESTIC
   32  WORKER WHEN: (I) SUBMISSION TO SUCH CONDUCT IS MADE EITHER EXPLICITLY OR
   33  IMPLICITLY  A  TERM  OR  CONDITION  OF  AN INDIVIDUAL'S EMPLOYMENT; (II)
   34  SUBMISSION TO OR REJECTION OF SUCH CONDUCT BY AN INDIVIDUAL IS  USED  AS
   35  THE  BASIS  FOR EMPLOYMENT DECISIONS AFFECTING SUCH INDIVIDUAL; OR (III)
   36  SUCH CONDUCT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING  WITH
   37  AN  INDIVIDUAL'S  WORK PERFORMANCE BY CREATING AN INTIMIDATING, HOSTILE,
   38  OR OFFENSIVE WORKING ENVIRONMENT.
   39    (B) SUBJECT A DOMESTIC WORKER TO UNWELCOME HARASSMENT BASED ON GENDER,
   40  RACE, RELIGION OR NATIONAL ORIGIN, WHERE SUCH HARASSMENT HAS THE PURPOSE
   41  OR EFFECT OF UNREASONABLY INTERFERING WITH AN INDIVIDUAL'S WORK PERFORM-
   42  ANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRON-
   43  MENT.
   44    S 4. Subdivisions 5 and 6 of section 292 of the executive law,  subdi-
   45  vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
   46  as  amended  by  chapter 166 of the laws of 2000, are amended to read as
   47  follows:
   48    5. The term "employer" does not include any employer with  fewer  than
   49  four  persons  in  his  OR HER employ EXCEPT AS SET FORTH IN SECTION TWO
   50  HUNDRED NINETY-SIX-B OF THIS TITLE.
   51    6. The term "employee" in this article does not include any individual
   52  employed by his or her parents, spouse or  child,  or  in  the  domestic
   53  service  of  any person EXCEPT AS SET FORTH IN SECTION TWO HUNDRED NINE-
   54  TY-SIX-B OF THIS TITLE.
   55    S 5. Subdivision 3 of section 160 of the labor law is amended to  read
   56  as follows:
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    1    3.  For all other employees, except those engaged in farm [or domestic
    2  service] WORK and those affected by  subdivision  four  of  section  two
    3  hundred [and] twenty OF THIS CHAPTER, eight hours.
    4    S  6.  The labor law is amended by adding a new section 170 to read as
    5  follows:
    6    S 170. HOURS OF LABOR FOR DOMESTIC WORKERS. NO PERSON  OR  CORPORATION
    7  EMPLOYING A DOMESTIC WORKER AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION
    8  TWO OF THIS CHAPTER, SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN
    9  FORTY  HOURS IN A WEEK, OR FORTY-FOUR HOURS IN A WEEK FOR DOMESTIC WORK-
   10  ERS WHO RESIDE IN THE  HOME  OF  THEIR  EMPLOYER;  UNLESS  THEY  RECEIVE
   11  COMPENSATION  FOR OVERTIME WORK AT A RATE WHICH IS AT LEAST ONE AND ONE-
   12  HALF TIMES THE WORKER'S NORMAL WAGE RATE.
   13    S 7. Subdivision 1 of section 161 of  the  labor  law  is  amended  by
   14  adding a new undesignated paragraph to read as follows:
   15    EVERY  PERSON  EMPLOYED AS A DOMESTIC WORKER AS DEFINED IN SUBDIVISION
   16  SIXTEEN OF SECTION TWO OF THIS CHAPTER, SHALL BE ALLOWED AT LEAST  TWEN-
   17  TY-FOUR  CONSECUTIVE  HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.  NO
   18  PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A DOMESTIC WORKER FROM VOLUN-
   19  TARILY AGREEING TO WORK ON SUCH DAY OF REST REQUIRED BY THIS  PARAGRAPH,
   20  PROVIDED  THAT  THE  WORKER  IS COMPENSATED AT THE OVERTIME RATE FOR ALL
   21  HOURS WORKED ON SUCH DAY OF REST. THE DAY OF REST AUTHORIZED UNDER  THIS
   22  SUBDIVISION SHOULD, WHENEVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY
   23  RESERVED  BY  THE  DOMESTIC  WORKER FOR RELIGIOUS WORSHIP.  IN ADDITION,
   24  AFTER ONE YEAR OF WORK WITH THE SAME EMPLOYER A DOMESTIC WORKER SHALL BE
   25  ENTITLED TO AT LEAST THREE DAYS OF REST IN EACH  CALENDAR  YEAR  AT  THE
   26  REGULAR RATE OF COMPENSATION.
   27    S  8.  Subdivision  5  of  section 651 of the labor law, as amended by
   28  chapter 640 of the laws of 2005, is amended to read as follows:
   29    5. "Employee" includes any individual employed or permitted to work by
   30  an employer in any occupation, but shall not include any individual  who
   31  is  employed or permitted to work: (a) ON A CASUAL BASIS in service as a
   32  part time baby sitter in the home of the employer[; or someone who lives
   33  in the home of an employer for the purpose of serving as a companion  to
   34  a  sick,  convalescing  or elderly person, and whose principal duties do
   35  not include housekeeping]; (b) in labor on a farm; (c) in  a  bona  fide
   36  executive,  administrative,  or professional capacity; (d) as an outside
   37  salesman; (e) as a driver engaged in  operating  a  taxicab;  (f)  as  a
   38  volunteer,  learner or apprentice by a corporation, unincorporated asso-
   39  ciation, community chest, fund  or  foundation  organized  and  operated
   40  exclusively  for  religious, charitable or educational purposes, no part
   41  of the net earnings of which inures to the benefit of any private share-
   42  holder or individual; (g) as a member of a religious order, or as a duly
   43  ordained, commissioned or licensed minister, priest or rabbi,  or  as  a
   44  sexton, or as a christian science reader; (h) in or for such a religious
   45  or  charitable institution, which work is incidental to or in return for
   46  charitable aid conferred upon such individual and not under any  express
   47  contract  of hire; (i) in or for such a religious, educational or chari-
   48  table institution if such individual is a student; (j) in or for such  a
   49  religious, educational or charitable institution if the earning capacity
   50  of such individual is impaired by age or by physical or mental deficien-
   51  cy  or injury; (k) in or for a summer camp or conference of such a reli-
   52  gious, educational or charitable institution for  not  more  than  three
   53  months  annually;  (l) as a staff counselor in a children's camp; (m) in
   54  or for a college or university fraternity, sorority, student association
   55  or faculty association, no part of the net earnings of which  inures  to
   56  the  benefit  of  any  private  shareholder  or individual, and which is
       A. 1470--B                          4
    1  recognized by such college  or  university,  if  such  individual  is  a
    2  student;  (n)  by  a federal, state or municipal government or political
    3  subdivision thereof. The exclusions from the term  "employee"  contained
    4  in  this  subdivision  shall be as defined by regulations of the commis-
    5  sioner; or (o) as a volunteer at a recreational or amusement  event  run
    6  by  a  business  that operates such events, provided that no single such
    7  event lasts longer than eight consecutive days and no more than one such
    8  event concerning substantially the same subject  matter  occurs  in  any
    9  calendar  year.  Any  such volunteer shall be at least eighteen years of
   10  age. A business seeking coverage under this paragraph shall notify every
   11  volunteer in writing, in language acceptable to the  commissioner,  that
   12  by  volunteering  his  or her services, such volunteer is waiving his or
   13  her right to receive the minimum wage pursuant  to  this  article.  Such
   14  notice shall be signed and dated by a representative of the business and
   15  the volunteer and kept on file by the business for thirty-six months.
   16    "Employee"  also includes any individual employed or permitted to work
   17  in any non-teaching capacity by a school district or  board  of  cooper-
   18  ative  educational  services  except that the provisions of sections six
   19  hundred fifty-three through six hundred fifty-nine of this article shall
   20  not be applicable in any such case.
   21    S 9. The opening paragraph of subdivision 5 and the opening  paragraph
   22  of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
   23  sation law, the opening paragraph of subdivision 5 as amended by chapter
   24  205 of the laws of 1993 and the opening  paragraph  of  paragraph  A  of
   25  subdivision 6 as amended by chapter 903 of the laws of 1986, are amended
   26  to read as follows:
   27    "Employee" means a person engaged in the service of an employer in any
   28  employment  defined  in  subdivision six of this section, except a minor
   29  child of the employer, [except  a  domestic  or  personal  worker  in  a
   30  private  home  who is employed for less than forty hours per week by any
   31  one employer, and] except a duly  ordained,  commissioned,  or  licensed
   32  minister,  priest  or  rabbi,  a  sexton, a christian science reader, or
   33  member of a religious order, or an executive officer  of  a  corporation
   34  who  at  all times during the period involved owns all of the issued and
   35  outstanding stock of the corporation and holds all of the offices pursu-
   36  ant to paragraph (e) of section seven hundred fifteen  of  the  business
   37  corporation  law  or  two executive officers of a corporation who at all
   38  times during the period involved between them own all of the issued  and
   39  outstanding  stock  of  such  corporation  and  hold  all  such  offices
   40  provided, however, that each officer must own  at  least  one  share  of
   41  stock, except as provided in section two hundred twelve of this article,
   42  or  an  executive  officer  of  an incorporated religious, charitable or
   43  educational institution, or persons engaged in a professional or  teach-
   44  ing  capacity  in or for a religious, charitable or educational institu-
   45  tion, or volunteers in or for a  religious,  charitable  or  educational
   46  institution,  or  persons  participating in and receiving rehabilitative
   47  services in a sheltered workshop operated by a religious, charitable  or
   48  educational  institution under a certificate issued by the United States
   49  department of labor, or recipients of charitable aid from a religious or
   50  charitable institution who perform work in or for the institution  which
   51  is  incidental  to  or in return for the aid conferred, and not under an
   52  express contract of hire. The terms  "religious,  charitable  or  educa-
   53  tional  institution"  mean  a  corporation,  unincorporated association,
   54  community chest, fund or foundation organized and  operated  exclusively
   55  for  religious,  charitable  or educational purposes, no part of the net
       A. 1470--B                          5
    1  earnings of which inure to the benefit of  any  private  shareholder  or
    2  individual.
    3    "Employment"  means  employment  in  any trade, business or occupation
    4  carried on by an employer, except that the following shall not be deemed
    5  employment under this article:  services  performed  for  the  state,  a
    6  municipal corporation, local governmental agency, other political subdi-
    7  vision  or  public authority; employment subject to the federal railroad
    8  unemployment insurance act; service performed on or  as  an  officer  or
    9  member  of  the  crew  of  a vessel on the navigable water of the United
   10  States or outside the United States; service as  farm  laborers;  casual
   11  employment  and the first forty-five days of extra employment of employ-
   12  ees not regularly in employment as otherwise defined herein; service  as
   13  golf  caddies;  and service during all or any part of the school year or
   14  regular vacation periods as a part-time worker of any person actually in
   15  regular attendance during the day time as a student in an elementary  or
   16  secondary  school.  THE  TERM  "EMPLOYMENT"  SHALL  INCLUDE  DOMESTIC OR
   17  PERSONAL WORK IN A PRIVATE HOME. The term "employment" shall not include
   18  the services of a licensed real estate broker or sales associate  if  it
   19  be proven that (a) substantially all of the remuneration (whether or not
   20  paid in cash) for the services performed by such broker or sales associ-
   21  ate is directly related to sales or other output (including the perform-
   22  ance  of  services)  rather  than to the number of hours worked; (b) the
   23  services performed by the broker or sales associate are performed pursu-
   24  ant to a written contract executed between such broker or sales  associ-
   25  ate  and  the person for whom the services are performed within the past
   26  twelve to fifteen months; and (c) the written contract provided  for  in
   27  [paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
   28  under duress and contains the following provisions:
   29    S  10.  The  commissioner  of  labor shall report to the governor, the
   30  speaker of the assembly and the temporary president of the senate before
   31  November 1, 2010 on the feasibility and practicality of allowing  domes-
   32  tic  workers  to  organize  for  purposes  of  collective bargaining. In
   33  preparing such report, the  commissioner  of  labor  will  consult  with
   34  representatives  of  domestic  workers and individuals and agencies that
   35  employ domestic workers,  and  relevant  state  agencies  including  the
   36  public  employment  relations board. The report shall address the feasi-
   37  bility of an employee organization formed in accordance with  the  State
   38  Labor  Relations  Act, how bargaining units for such organizations could
   39  be formed, whether there are any  unique  issues  which  arise  in  this
   40  context  and  whether there are other possible frameworks for collective
   41  organization or for ensuring the benefits  that  accompany  organization
   42  for  domestic workers. The commissioner of labor shall also report, with
   43  the assistance of an interagency working group which shall  include  but
   44  not  be  limited  to  the  chair of the workers' compensation board, the
   45  superintendent of insurance, the commissioner of health and the  commis-
   46  sioner of economic development, on how best to provide easily accessible
   47  educational  and informational material for domestic employers and work-
   48  ers. Such material shall cover employment benefits,  tax  and  insurance
   49  laws.
   50    S  11.  This act shall take effect on the ninetieth day after it shall
   51  have become a law.
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