Bill Text: NY S03843 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes the "farmworkers' fair labor practices act" which allows certain farm laborers to take a minimum of one day of rest per week and prohibits farm employers from requiring their laborers to work more than ten hours in any day, sixty hours in any week or six consecutive days in any week, except in certain circumstances.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-02-19 - REFERRED TO LABOR [S03843 Detail]

Download: New_York-2019-S03843-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          3843
                               2019-2020 Regular Sessions
                    IN SENATE
                                    February 19, 2019
                                       ___________
        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    § 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.
                                                                   LBD10040-01-9

        S. 3843                             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    §  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    §  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    § 5. The labor law is amended by adding a new section 163-a to read as
    56  follows:

        S. 3843                             3
     1    § 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  one-
     9  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    §  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    § 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. 3843                             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    § 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    §  9.  The  commissioner  of  labor  shall report to the governor, the
    45  speaker of the assembly and the temporary president of the senate before
    46  April 1, 2020 on the  feasibility  and  practicality  of  allowing  farm
    47  employees  to organize for purposes of collective bargaining. In prepar-
    48  ing such report, the commissioner of labor will consult  with  represen-
    49  tatives  of  and  advocates for farm employees, individuals and agencies
    50  that employ farm employees, and relevant state  agencies  including  but
    51  not  limited to the department of agriculture and markets and the public
    52  employment relations board. The report shall address the feasibility  of
    53  an  employee  organization  formed  in  accordance  with the State Labor
    54  Relations Act, how bargaining units  for  such  organizations  could  be
    55  formed,  whether there are any unique issues which arise in this context
    56  and whether there are other possible frameworks for collective organiza-

        S. 3843                             5
     1  tion or for ensuring the benefits that accompany organization  for  farm
     2  employees. The commissioner of labor shall also report, with the assist-
     3  ance  of  an  interagency  working  group which shall include but not be
     4  limited  to the chair of the workers' compensation board and the commis-
     5  sioner of agriculture and markets, on how best to provide easily  acces-
     6  sible educational and informational material for farm employers and farm
     7  employees.  Such material shall cover employment benefits and applicable
     8  tax and insurance laws.
     9    § 10. This act shall take effect April 1, 2020.
feedback