Bill Text: NY S08166 | 2009-2010 | General Assembly | Introduced
Bill Title: Enacts the farmworkers fair labor practices act: requires employers of farm laborers to allow at least 24 consecutive hours of rest each week; provides for a 10 hour work day for farm laborers; requires overtime rate at one and one-half times normal rate; makes provisions of unemployment insurance law applicable to farm laborers; provides sanitary code shall apply to all farm and food processing labor camps intended to house migrant workers, regardless of the number of occupants; provides for eligibility of farm laborers for workers' compensation benefits; requires employers of farm laborers to provide such farm laborers with claim forms for workers' compensation claims under certain conditions; requires reporting of injuries to employers of farmworkers.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2010-06-14 - REFERRED TO RULES [S08166 Detail]
Download: New_York-2009-S08166-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8166
I N S E N A T E
June 14, 2010
___________
Introduced by Sen. ESPADA -- 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 allowing farmworkers one
day of rest each week, and including farm laborers within the
provisions pertaining to overtime compensation and unemployment insur-
ance, and regulating the farm employment of certain employees whose
earning capacity is affected or impaired by youth or age; to amend the
public health law, in relation to the application of the sanitary code
to all farm and food processing labor camps for migrant workers; and
to amend the workers' compensation law, in relation to the eligibility
of farm laborers for disability benefits and the provision of claim
forms to farm laborers injured in the course of employment and 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. Section 2 of the labor law is amended by adding a new subdivision
4 16 to read as follows:
5 16. "FARM LABOR" SHALL INCLUDE ALL SERVICES PERFORMED IN AGRICULTURAL
6 EMPLOYMENT IN CONNECTION WITH CULTIVATING THE SOIL, OR IN CONNECTION
7 WITH RAISING OR HARVESTING OF AGRICULTURAL COMMODITIES, INCLUDING
8 SERVICES PERFORMED ON ORCHARDS, PLANTATIONS, NURSERIES AND GREENHOUSES,
9 AND SHALL INCLUDE THE RAISING, HATCHING, SHEARING, CARING FOR AND
10 MANAGEMENT OF LIVESTOCK, POULTRY, DAIRY, BEES AND FUR-BEARING ANIMALS,
11 AND SHALL INCLUDE THE HARVESTING OR PRODUCTION OF MAPLE SYRUP OR MAPLE
12 SUGAR, AND SHALL INCLUDE THE OPERATION AND MAINTENANCE OF FARM EQUIPMENT
13 AND IMPROVEMENT OR MAINTENANCE OF FARM WATER USE AREAS, AND SHALL
14 INCLUDE THE PLANTING, DRYING, PACKAGING OR OTHER PROCESSING OF ANY AGRI-
15 CULTURAL OR HORTICULTURAL COMMODITY RAISED ON THE EMPLOYER'S FARM. THE
16 TERM "FARM LABOR" SHALL NOT INCLUDE SERVICES PERFORMED IN CONNECTION
17 WITH COMMERCIAL CANNING, FREEZING, GRADING OR OTHER PROCESSING OF ANY
18 AGRICULTURAL OR HORTICULTURAL COMMODITY NOT RAISED ON THE EMPLOYER'S
19 FARM. THIS SUBDIVISION SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17654-02-0
S. 8166 2
1 OTHER MEMBER OF THE EMPLOYER'S FAMILY RELATED BY THE THIRD DEGREE OF
2 CONSANGUINITY OR AFFINITY.
3 S 3. Subdivision 1 of section 161 of the labor law is amended by
4 adding a new undesignated paragraph to read as follows:
5 EVERY PERSON EMPLOYED AS A FARM LABORER SHALL BE ALLOWED AT LEAST
6 TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK. A
7 FARM LABORER MAY CONSENT IN WRITING TO WAIVE THIS RIGHT AND WORK ON THE
8 DAY OF REST, PROVIDED THAT HE OR SHE SHALL BE PAID AS PROVIDED UNDER
9 SECTION ONE HUNDRED SIXTY-THREE-A OF THIS TITLE. THIS PARAGRAPH SHALL
10 NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER MEMBER OF THE EMPLOYER'S
11 FAMILY RELATED BY THE THIRD DEGREE OF CONSANGUINITY OR AFFINITY. TWEN-
12 TY-FOUR CONSECUTIVE HOURS SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH
13 AS WEATHER OR CROP CONDITIONS, SHALL BE DEEMED TO CONSTITUTE THE REST
14 REQUIRED BY THIS PARAGRAPH. THE DAY OF REST SHOULD BE THE SAME AS THE
15 TRADITIONAL DAY RESERVED BY THE FARM LABORER FOR RELIGIOUS WORSHIP,
16 WHENEVER POSSIBLE.
17 S 4. Paragraphs b and d of subdivision 2 of section 161 of the labor
18 law, as amended by chapter 281 of the laws of 1941, are amended to read
19 as follows:
20 b. Employees in [dairies, creameries,] milk condenseries, milk powder
21 factories, milk sugar factories, milk shipping stations, butter and
22 cheese factories, ice cream manufacturing plants and milk bottling
23 plants, where not more than seven persons are employed;
24 d. Employees whose duties include not more than three hours' work on
25 Sunday in setting sponges in bakeries, [caring for live animals,] main-
26 taining fires, or making necessary repairs to boilers or machinery.
27 S 5. The labor law is amended by adding a new section 163-a to read as
28 follows:
29 S 163-A. HOURS OF AGRICULTURAL EMPLOYMENT. NO PERSON OR CORPORATION
30 OPERATING A FARM SHALL REQUIRE ANY FARM LABORER TO WORK MORE THAN TEN
31 HOURS IN ANY DAY, SIXTY HOURS IN ANY CALENDAR WEEK, OR SIX DAYS IN ANY
32 CALENDAR WEEK, UNLESS SUCH FARM LABORER IS PAID AS FOLLOWS:
33 A. HOURLY RATE. (1) ANY FARM LABORER WHO IS PAID ON AN HOURLY BASIS
34 AND WHO IS EIGHTEEN YEARS OF AGE OR OVER, OR WHO IS SIXTEEN OR SEVENTEEN
35 YEARS OF AGE AND NOT REQUIRED BY LAW TO ATTEND SCHOOL SHALL NOT BE
36 EMPLOYED MORE THAN TEN HOURS IN ANY DAY, OR MORE THAN SIXTY HOURS IN ANY
37 CALENDAR WEEK, OR MORE THAN SIX DAYS IN ANY CALENDAR WEEK UNLESS THE
38 FARM LABORER RECEIVES ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH
39 HE OR SHE IS EMPLOYED FOR ALL HOURS WORKED IN EXCESS OF TEN HOURS IN ANY
40 DAY OR SIXTY HOURS IN ANY CALENDAR WEEK. ANY FARM LABORER WHO WORKS ON
41 THE SEVENTH DAY IN ANY CALENDAR WEEK SHALL RECEIVE ONE AND ONE-HALF
42 TIMES THE REGULAR RATE AT WHICH HE OR SHE IS EMPLOYED FOR THE FIRST
43 EIGHT HOURS WORKED, AND TWO TIMES THE REGULAR RATE AT WHICH HE OR SHE IS
44 EMPLOYED FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS THAT DAY.
45 (2) BEGINNING ON JANUARY FIRST, TWO THOUSAND FOURTEEN, ANY FARM LABOR-
46 ER WHO IS PAID AN HOURLY WAGE RATE SHALL NOT BE EMPLOYED MORE THAN TEN
47 HOURS IN ANY DAY OR MORE THAN FIFTY-FIVE HOURS IN ANY CALENDAR WEEK
48 UNLESS THE FARM LABORER RECEIVES ONE AND ONE-HALF TIMES THE REGULAR RATE
49 AT WHICH HE OR SHE IS EMPLOYED FOR ALL HOURS WORKED IN EXCESS OF TEN
50 HOURS IN ANY DAY OR FIFTY-FIVE HOURS IN ANY CALENDAR WEEK. ANY FARM
51 LABORER WHO WORKS ON THE SEVENTH DAY IN ANY CALENDAR WEEK SHALL RECEIVE
52 ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE OR SHE IS EMPLOYED
53 FOR THE FIRST EIGHT HOURS WORKED, AND TWO TIMES THE REGULAR RATE AT
54 WHICH HE OR SHE IS EMPLOYED FOR ALL HOURS WORKED IN EXCESS OF EIGHT
55 HOURS THAT DAY.
S. 8166 3
1 B. PIECE WORK RATE. (1) ANY FARM LABORER WHO IS PAID ON A PIECE RATE
2 BASIS SHALL BE PAID AT A RATE WHICH SHALL BE NO LESS THAN ONE HUNDRED
3 FIFTY PERCENT OF THE MINIMUM WAGE RATE ESTABLISHED BY REGULATIONS OF THE
4 DEPARTMENT FOR HOURS WORKED IN EXCESS OF TEN HOURS IN ANY DAY OR SIXTY
5 HOURS IN ANY CALENDAR WEEK.
6 (2) BEGINNING ON JANUARY FIRST, TWO THOUSAND THIRTEEN, ANY FARM LABOR-
7 ER WHO IS PAID ON A PIECE WORK BASIS SHALL BE PAID AT A RATE NO LESS
8 THAN ONE HUNDRED FIFTY PERCENT OF THE MINIMUM WAGE RATE ESTABLISHED BY
9 REGULATIONS OF THE DEPARTMENT FOR HOURS WORKED IN EXCESS OF TEN HOURS IN
10 ANY DAY OR FIFTY-FIVE HOURS IN ANY CALENDAR WEEK.
11 (3) ANY FARM LABORER WHO IS PAID A PIECE WORK RATE WHO WORKS ON THE
12 SEVENTH DAY IN ANY CALENDAR WEEK SHALL BE PAID AT A RATE NO LESS THAN
13 ONE HUNDRED FIFTY PERCENT OF THE MINIMUM WAGE RATE ESTABLISHED BY REGU-
14 LATIONS OF THE DEPARTMENT FOR THE FIRST EIGHT HOURS AND TWO HUNDRED
15 PERCENT OF THAT MINIMUM WAGE RATE FOR ANY HOURS WORKED IN EXCESS OF
16 EIGHT ON THAT DAY. NOTHING IN THIS SECTION SHALL PROHIBIT A FARM EMPLOY-
17 ER FROM PAYING A PIECE WORK RATE IN EXCESS OF THE RATES REQUIRED BY THIS
18 SECTION.
19 S 6. Section 564 of the labor law, as added by chapter 675 of the laws
20 of 1977, is amended to read as follows:
21 S 564. Agricultural labor. 1. Coverage. (a) Notwithstanding the
22 provisions of section five hundred sixty of this article, an employer of
23 persons engaged in agricultural labor shall become liable for contrib-
24 utions under this article if the employer:
25 (1) has paid cash remuneration of [twenty thousand] SIX THOUSAND TWO
26 HUNDRED FIFTY dollars or more in any calendar quarter to persons
27 employed in agricultural labor, and such liability shall commence on the
28 first day of such quarter, or
29 (2) has employed in agricultural labor ten or more persons on each of
30 twenty days during a calendar year or the preceding calendar year, each
31 day being in a different calendar week, and the liability shall in such
32 event commence on the first day of the calendar year, or
33 (3) is liable for the tax imposed under the federal unemployment tax
34 act as an employer of agricultural labor and the liability shall in such
35 event commence on the first day of the calendar quarter in such calendar
36 year when he first paid remuneration for agricultural labor in this
37 state.
38 (b) An employer who becomes liable for contributions under paragraph
39 (a) of this subdivision shall cease to be liable as of the first day of
40 a calendar quarter next following the filing of a written application
41 provided the commissioner finds that the employer:
42 (1) has not paid to persons employed in agricultural labor cash remun-
43 eration of [twenty thousand] SIX THOUSAND TWO HUNDRED FIFTY dollars or
44 more in any of the eight calendar quarters preceding such day, and
45 (2) has not employed in agricultural labor ten or more persons on each
46 of twenty days during the current or the preceding calendar year, each
47 day being in a different week, and
48 (3) is not liable for the tax imposed under the federal unemployment
49 tax act as an employer of agricultural labor.
50 2. EXCLUSION FROM COVERAGE. THE TERM "EMPLOYMENT" DOES NOT INCLUDE
51 SERVICES RENDERED BY AN INDIVIDUAL WHO IS AN ALIEN ADMITTED TO THE
52 UNITED STATES TO PERFORM AGRICULTURAL LABOR PURSUANT TO SECTIONS 214(C)
53 AND 101(A)(15)(H) OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT IF, AT
54 THE TIME SUCH SERVICES ARE RENDERED, THEY ARE EXCLUDED FROM THE DEFI-
55 NITION OF EMPLOYMENT IN SECTION 3306(C) OF THE FEDERAL UNEMPLOYMENT TAX
56 ACT.
S. 8166 4
1 3. Crew leader. Whenever a person renders services as a member of a
2 crew which is paid and furnished by the crew leader to perform services
3 in agricultural labor for another employer, such other employer shall,
4 for the purpose of this article, be deemed to be the employer of such
5 person, unless:
6 (a) the crew leader holds a valid certificate of registration under
7 the federal farm labor contractor registration act of nineteen hundred
8 sixty-three or substantially all the members of the crew operate or
9 maintain tractors, mechanized harvesting or cropdusting machinery or any
10 other mechanized equipment which is provided by the crew leader, and
11 (b) the crew leader is not an employee of such other employer and has
12 not entered into a written agreement with such employer under which he
13 is designated as an employee.
14 S 7. Subdivision 1 of section 674 of the labor law, as added by chap-
15 ter 552 of the laws of 1969, is amended to read as follows:
16 1. The commissioner may promulgate such regulations as he deems appro-
17 priate to carry out the purposes of this article and to safeguard mini-
18 mum wage standards. Such regulations may include, but are not limited
19 to, the defining of the circumstances or conditions for the acceptance
20 of non-hourly rates and piece rates as equivalent to the minimum hourly
21 rates established by this article. Such regulations also may include,
22 but are not limited to, waiting time and call-in pay rates; wage
23 provisions governing guaranteed earnings during specified periods of
24 work; allowances for meals, lodging, and other items, services and
25 facilities when furnished by the employer; [and the employment of indi-
26 viduals whose earning capacity is affected or impaired by youth or age,]
27 or by physical or mental deficiency or injury, under special certif-
28 icates issued by the commissioner, at such wages lower than the minimum
29 wage established by this article and for such period as shall be
30 prescribed in such regulations.
31 S 8. Paragraph (m) of subdivision 5 of section 225 of the public
32 health law, as amended by chapter 894 of the laws of 1958 and such
33 subdivision as renumbered by chapter 626 of the laws of 1971, is amended
34 to read as follows:
35 (m) require that application be made for a permit to operate a farm or
36 food processing labor camp as defined in the sanitary code; authorize
37 appropriate officers or agencies to issue such a permit when the appli-
38 cant is in compliance with the established regulations; prescribe stand-
39 ards for living quarters at farm and food processing labor camps,
40 including provisions for sanitary conditions; light, air, and safety;
41 protection from fire hazards; maintenance; and such other matters as may
42 be appropriate for security of life or health, provided however, that
43 the provisions of the sanitary code established pursuant to the
44 provisions hereof shall apply to all farm and food processing labor
45 camps intended to house migrant workers and which are occupied [by five
46 or more persons]. In the preparation of such regulations, the public
47 health council may request and shall receive technical assistance from
48 the board of standards and appeals of the state department of labor and
49 the state building code commission. Such regulation shall be enforced in
50 the same manner as are other provisions of the sanitary code;
51 S 9. Section 51 of the workers' compensation law, as amended by chap-
52 ter 561 of the laws of 2003, is amended to read as follows:
53 S 51. Posting of notice regarding compensation. Every employer who
54 has complied with section fifty of this article shall post and maintain
55 in a conspicuous place or places in and about his place or places of
56 business typewritten or printed IN ENGLISH AND SPANISH notices in form
S. 8166 5
1 prescribed by the chairman, stating the fact that he has complied with
2 all the rules and regulations of the chairman and the board and that he
3 has secured the payment of compensation to his employees and their
4 dependents in accordance with the provisions of this chapter, but fail-
5 ure to post such notice as herein provided shall not in any way affect
6 the exclusiveness of the remedy provided for by section eleven of this
7 chapter. Every employer who owns or operates automotive or horse-drawn
8 vehicles and has no minimum staff of regular employees required to
9 report for work at an established place of business maintained by such
10 employer and every employer who is engaged in the business of moving
11 household goods or furniture shall post such notices in each and every
12 vehicle owned or operated by him. Failure to post or maintain such
13 notice in any of said vehicles shall constitute presumptive evidence
14 that such employer has failed to secure the payment of compensation.
15 The chairman may require any employer to furnish a written statement at
16 any time showing the stock corporation, mutual corporation or reciprocal
17 insurer in which such employer is insured or the manner in which such
18 employer has complied with any provision of this chapter. Failure for a
19 period of ten days to furnish such written statement shall constitute
20 presumptive evidence that such employer has neglected or failed in
21 respect of any of the matters so required. Any employer who fails to
22 comply with the provisions of this section shall be required to pay to
23 the board a fine of up to two hundred fifty dollars for each violation,
24 in addition to any other penalties imposed by law to be deposited into
25 the uninsured employers' fund.
26 S 10. The workers' compensation law is amended by adding a new
27 section 110-b to read as follows:
28 S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR CONTRAC-
29 TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
30 TO A FARM LABORER INCURRED DURING THE COURSE OF EMPLOYMENT SHALL BE
31 REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
32 INJURY.
33 S 11. The first undesignated paragraph of section 120 of the workers'
34 compensation law, as amended by chapter 61 of the laws of 1989, is
35 amended to read as follows:
36 It shall be unlawful for any employer or his or her duly authorized
37 agent to discharge or in any other manner discriminate against an
38 employee as to his or her employment because such employee has claimed
39 or attempted to claim compensation from such employer, REQUESTED A CLAIM
40 FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
41 she has testified or is about to testify in a proceeding under this
42 chapter and no other valid reason is shown to exist for such action by
43 the employer.
44 S 12. The opening paragraph of paragraph A of subdivision 6 of section
45 201 of the workers' compensation law, as amended by chapter 903 of the
46 laws of 1986, is amended to read as follows:
47 "Employment" means employment in any trade, business or occupation
48 carried on by an employer, except that the following shall not be deemed
49 employment under this article: services performed for the state, a
50 municipal corporation, local governmental agency, other political subdi-
51 vision or public authority; employment subject to the federal railroad
52 unemployment insurance act; service performed on or as an officer or
53 member of the crew of a vessel on the navigable water of the United
54 States or outside the United States; [service as farm laborers;] casual
55 employment and the first forty-five days of extra employment of employ-
56 ees not regularly in employment as otherwise defined herein; service as
S. 8166 6
1 golf caddies; and service during all or any part of the school year or
2 regular vacation periods as a part-time worker of any person actually in
3 regular attendance during the day time as a student in an elementary or
4 secondary school. The term "employment" shall not include the services
5 of a licensed real estate broker or sales associate if it be proven that
6 (a) substantially all of the remuneration (whether or not paid in cash)
7 for the services performed by such broker or sales associate is directly
8 related to sales or other output (including the performance of services)
9 rather than to the number of hours worked; (b) the services performed by
10 the broker or sales associate are performed pursuant to a written
11 contract executed between such broker or sales associate and the person
12 for whom the services are performed within the past twelve to fifteen
13 months; and (c) the written contract provided for in [paragraph] SUBPAR-
14 AGRAPH (b) herein was not executed under duress and contains the follow-
15 ing provisions:
16 S 13. Nothing in this act shall be deemed to diminish the rights,
17 privileges, or remedies of any farm laborer under any collective
18 bargaining agreement entered into on or after the effective date of this
19 act.
20 S 14. This act shall take effect April 1, 2011, provided that section
21 twelve of this act shall take effect on the one hundred eightieth day
22 after it shall have become a law, and provided further, that section
23 five of this act shall take effect January 1, 2012.
