S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA,  FOLEY,  HASSELL-THOMPSON,  HUNTLEY, KLEIN, MONSERRATE, OPPEN-
  HEIMER, PADAVAN,  PARKER,  PERKINS,  SAMPSON,  SCHNEIDERMAN,  SERRANO,
  SQUADRON,  STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee  on  Labor  --  reported  favorably  from said committee and
  committed to the Committee on Codes -- reported  favorably  from  said
  committee  and  committed  to  the  Committee  on Finance -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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:

  Section 1. Legislative findings and intent.  Many thousands of  domes-
tic workers are employed in New York state as housekeepers, nannies, and
companions  to  the elderly. The labor of domestic workers is central to
the ongoing prosperity that the state enjoys, and yet, despite the value
of their work, domestic workers do not receive the  same  protection  of
many  state  laws  as  do  workers in other industries. Domestic workers
often labor under harsh conditions, work long hours for low wages  with-
out  benefits or job security, are isolated in their workplaces, and are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
emotional  and  psychological abuse.  Moreover, many domestic workers in
the state of New York are women of color who, because of  race  and  sex
discrimination, are particularly vulnerable to unfair labor practices.
  The  legislature finds that because domestic workers care for the most
important elements of their employers' lives, their families and  homes,
it  is  in  the  interest of employees, employers, and the people of the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00150-06-9
              

S. 2311--A                          2

state of New York to ensure that the  rights  of  domestic  workers  are
respected, protected, and enforced.
  Domestic  workers  have  historically  been  excluded from many of the
traditional protections afforded by the labor law. Additionally,  domes-
tic  workers  are not afforded by law the right to organize labor unions
for the purpose  of  collective  bargaining.  Given  the  limited  legal
protections  historically  provided  to domestic workers, and bearing in
mind the unique conditions and demands of this private home-based indus-
try, the legislature further finds that domestic workers are entitled to
industry-specific protections and labor standards.
  S 2. The labor law is amended by adding a new article 19-C to read  as
follows:
                              ARTICLE 19-C
                  LABOR STANDARDS FOR DOMESTIC WORKERS
SECTION 695. DEFINITIONS.
        696. OTHER EMPLOYMENT CONDITIONS.
        697. REMEDIES.
        698. SEVERABILITY.
  S  695. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1. "DOMESTIC WORKER" MEANS A PERSON EMPLOYED IN A  HOME  OR  RESIDENCE
FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION TO A SICK,
CONVALESCING  OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER DOMESTIC
SERVICE PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE ANY  INDIVIDUAL  WHO
IS  ENGAGED  IN  PROVIDING  COMPANIONSHIP  SERVICES,  AS  DEFINED  IN  S
213(A)(15) OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS  EMPLOYED
BY AN EMPLOYER OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD USING HIS OR
HER SERVICES.
  2.  "PAID TIME OFF" MEANS DAYS THAT THE DOMESTIC WORKER IS ENTITLED TO
TIME OFF WITH PAY CALCULATED AT EACH DOMESTIC WORKER'S REGULAR  RATE  OF
PAY FOR HIS OR HER REGULAR HOURS WORKED ON THAT DAY.
  S  696.  OTHER  EMPLOYMENT  CONDITIONS. 1. DAY OF REST. (A) A DOMESTIC
WORKER SHALL BE ENTITLED TO AT LEAST TWENTY-FOUR  CONSECUTIVE  HOURS  OF
REST IN EACH AND EVERY CALENDAR WEEK.
  (B)  NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON HIS OR HER DAY OF
REST.
  (C) IN THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON HIS  OR  HER
DAY  OF REST, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL
HOURS WORKED ON HIS OR HER DAY OF REST OR AT TWICE HIS  OR  HER  REGULAR
RATE  IF SUCH HOURS CONSTITUTE HOURS WORKED BEYOND FORTY HOURS IN A WORK
WEEK.
  2. PAID TIME OFF. (A) A DOMESTIC  WORKER  SHALL  BE  ENTITLED  TO  THE
FOLLOWING HOLIDAYS:
  (1) NEW YEAR'S DAY;
  (2) MARTIN LUTHER KING JR.'S BIRTHDAY;
  (3) INDEPENDENCE DAY;
  (4) THANKSGIVING;
  (5) LABOR DAY;
  (6) CHRISTMAS DAY.
  (B) NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON A HOLIDAY.
  (C)  IN  THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON A HOLIDAY,
HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL HOURS  WORKED
ON THE HOLIDAY OR AT TWICE HIS OR HER REGULAR RATE IF SUCH HOURS CONSTI-
TUTE HOURS WORKED BEYOND FORTY HOURS IN A WORK WEEK.
  (D)  DOMESTIC  WORKERS  ARE  ENTITLED TO AT LEAST SEVEN SICK DAYS EACH
YEAR.

S. 2311--A                          3

  (E) DOMESTIC WORKERS ARE ENTITLED TO AT LEAST FIVE VACATION  DAYS  PER
YEAR  WHICH  SHALL BE AGREED UPON WITH THE EMPLOYER AT LEAST THIRTY DAYS
IN ADVANCE OF THE FIRST VACATION DAY.
  3.  TERMINATION  AND  SEVERANCE.  (A) A DOMESTIC WORKER IS ENTITLED TO
WRITTEN NOTICE OF TERMINATION TWENTY-ONE DAYS BEFORE HIS  OR  HER  FINAL
DAY  OF  EMPLOYMENT. AN EMPLOYER WHO FAILS TO GIVE NOTICE AS REQUIRED BY
THIS ARTICLE IS LIABLE TO EACH EMPLOYEE ENTITLED TO NOTICE WHO LOST  HIS
OR HER EMPLOYMENT FOR:
  (B)  BACK  PAY AT THE AVERAGE REGULAR RATE OF COMPENSATION RECEIVED BY
THE EMPLOYEE DURING THE LAST THREE YEARS OF HIS OR  HER  EMPLOYMENT,  OR
THE EMPLOYEE'S FINAL RATE OF COMPENSATION, WHICHEVER IS HIGHER.
  (C)  THE VALUE OF THE COST OF ANY BENEFITS TO WHICH THE EMPLOYEE WOULD
HAVE BEEN ENTITLED.
  4. BACK PAY AND OTHER LIABILITY UNDER THIS SECTION IS  CALCULATED  FOR
THE  PERIOD  OF THE EMPLOYER'S VIOLATION, UP TO A MAXIMUM OF SIXTY DAYS,
OR ONE-HALF THE NUMBER OF DAYS THAT THE EMPLOYEE  WAS  EMPLOYED  BY  THE
EMPLOYER, WHICHEVER PERIOD IS SMALLER.
  S  697.  REMEDIES.   1. CRIMINAL PENALTIES. ANY EMPLOYER OR HIS OR HER
AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO PAYS OR  PROVIDES
OR  AGREES  TO PAY OR PROVIDE TO ANY DOMESTIC WORKER LESS THAN THE WAGE,
OR BENEFITS APPLICABLE UNDER THIS ARTICLE SHALL BE SUBJECT  TO  CRIMINAL
PENALTIES  PURSUANT  TO  SECTIONS  ONE  HUNDRED  NINETY-EIGHT-A  AND ONE
HUNDRED NINETY-EIGHT-C OF THIS CHAPTER.
  2. CIVIL ACTIONS. (A) IF ANY DOMESTIC WORKER IS PAID  OR  PROVIDED  BY
HIS  OR HER EMPLOYER LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR SHE
IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, HE OR SHE MAY  RECOVER
IN  A  CIVIL ACTION THE AMOUNT OF ANY SUCH UNDERPAYMENTS OF WAGES OR THE
VALUE OF SUCH BENEFITS COSTS AND SUCH REASONABLE ATTORNEY'S FEES AS  MAY
BE  ALLOWED  BY  THE  COURT,  AND  IF SUCH UNDERPAYMENT OF OR FAILURE TO
PROVIDE BENEFITS WAS WILLFUL, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES
EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL OF SUCH UNDERPAYMENTS  OR  THE
VALUE  OF  BENEFITS FOUND TO BE DUE HIM OR HER AND ANY AGREEMENT BETWEEN
HIM OR HER AND HIS OR HER EMPLOYER TO WORK FOR LESS THAN  SUCH  WAGE  OR
WITHOUT SUCH BENEFITS SHALL BE NO DEFENSE TO SUCH ACTION.
  (B)  ON  BEHALF  OF ANY DOMESTIC WORKER PAID OR PROVIDED LESS THAN THE
WAGES, OR BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER  THE  PROVISIONS
OF  THIS  ARTICLE,  THE  COMMISSIONER  OR ATTORNEY GENERAL MAY BRING ANY
LEGAL ACTION NECESSARY  NOTWITHSTANDING  ANY  LAW  TO  THE  CONTRARY  TO
COLLECT  SUCH  CLAIM AND THE EMPLOYER SHALL BE REQUIRED TO PAY THE COSTS
AND, IF SUCH UNDERPAYMENT OF WAGES OR FAILURE TO  PROVIDE  BENEFITS  WAS
WILLFUL, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE
PERCENT  OF  THE  TOTAL  OF  SUCH UNDERPAYMENTS OR THE VALUE OF BENEFITS
FOUND TO BE DUE HIM OR HER. SUCH CLAIM, AND LIQUIDATED DAMAGES SHALL  BE
PAID TO THE DOMESTIC WORKER.
  (C)  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, AN ACTION TO RECOVER
UPON A LIABILITY IMPOSED BY THIS ARTICLE MUST BE  COMMENCED  WITHIN  SIX
YEARS.
  S  698. SEVERABILITY. IF ANY PART OR PROVISION OF THIS ARTICLE, OR THE
APPLICATION OF THIS ARTICLE TO  ANY  PERSON  OR  CIRCUMSTANCE,  IS  HELD
INVALID,  THE  REMAINDER  OF  THIS ARTICLE, INCLUDING THE APPLICATION OF
SUCH PART OR PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL  NOT  BE
AFFECTED  BY SUCH A HOLDING AND SHALL CONTINUE IN FULL FORCE AND EFFECT.
TO THIS END, THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE.
  S 3. Subdivisions 5 and 6 of section 292 of the executive law,  subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6

S. 2311--A                          4

as  amended  by  chapter 166 of the laws of 2000, are amended to read as
follows:
  5.  The  term "employer" does not include any employer with fewer than
four persons  in  his  OR  HER  employ.  NOTWITHSTANDING  THE  PRECEDING
SENTENCE,  THE  TERM  "EMPLOYER"  INCLUDES ANY EMPLOYER EMPLOYING ONE OR
MORE DOMESTIC WORKERS, AS DEFINED BY SECTION SIX HUNDRED NINETY-FIVE  OF
THE LABOR LAW.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her parents, spouse or child[, or in the domestic
service of any person].
  S 4. Subdivision 3 of section 160 of the labor law is amended to  read
as follows:
  3.  For all other employees, except those engaged in farm [or domestic
service] WORK and those affected by  subdivision  four  of  section  two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S  5.  The  opening  paragraph  of subdivision 1 of section 218 of the
labor law, as amended by chapter 304 of the laws of 2007, is amended  to
read as follows:
  If  the  commissioner  determines  that  an  employer  has  violated a
provision of article six (payment of wages), article  nineteen  (minimum
wage  act),  article nineteen-A, ARTICLE NINETEEN-C, section two hundred
twelve-a, section two hundred twelve-b, section  one  hundred  sixty-one
(day  of  rest)  or section one hundred sixty-two (meal periods) of this
chapter, or a rule or regulation promulgated thereunder, the commission-
er shall issue to the employer an order directing compliance  therewith,
which  shall  describe particularly the nature of the alleged violation.
In addition to directing payment of wages, benefits or wage  supplements
found to be due, such order, if issued to an employer who previously has
been found in violation of those provisions, rules or regulations, or to
an  employer  whose  violation  is  willful  or  egregious, shall direct
payment to the commissioner of an additional sum as a civil  penalty  in
an  amount  equal to double the total amount found to be due. In no case
shall the order direct payment of an amount less than the  total  wages,
benefits  or  wage supplements found by the commissioner to be due, plus
the appropriate civil penalty. Where the violation is for a reason other
than the employer's failure to pay wages, benefits or  wage  supplements
found to be due, the order shall direct payment to the commissioner of a
civil  penalty  in  an  amount  not to exceed one thousand dollars for a
first violation, two thousand dollars for a second  violation  or  three
thousand  dollars  for a third or subsequent violation. In assessing the
amount of the penalty, the commissioner shall give due consideration  to
the size of the employer's business, the good faith of the employer, the
gravity of the violation, the history of previous violations and, in the
case of wages, benefits or supplements violations, the failure to comply
with recordkeeping or other non-wage requirements.
  S  6.  Subdivision  1  of  section 219 of the labor law, as amended by
chapter 417 of the laws of 1987, is amended to read as follows:
  1. If the commissioner determines that an employer has failed  to  pay
wages,  benefits  or  wage  supplements required pursuant to article six
(payment of wages), article nineteen (minimum wage  act)  [or],  article
[nineteen-a]  NINETEEN-A,  OR  ARTICLE  NINETEEN-C of this chapter, or a
rule or regulation promulgated thereunder, the commissioner shall  issue
to  the  employer  an  order directing compliance therewith, which shall
describe particularly the nature of the alleged  violation.  Such  order
shall  direct payment of wages or supplements found to be due, including
interest at the rate of interest then in effect  as  prescribed  by  the

S. 2311--A                          5

superintendent  of  banks  pursuant to section fourteen-a of the banking
law per annum from the date of the  underpayment  to  the  date  of  the
payment.
  S  7.  Subdivision  5  of  section 651 of the labor law, as amended by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "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 WHILE A MINOR
in service as a part time baby sitter in the home of the  employer[;  or
someone  who lives in the home of an employer for the purpose of serving
as a companion to a sick, convalescing  or  elderly  person,  and  whose
principal  duties  do not include housekeeping]; (b) in labor on a farm;
(c) in a bona fide executive, administrative, or professional  capacity;
(d) as an outside salesman; (e) as a driver engaged in operating a taxi-
cab;  (f)  as a volunteer, learner or apprentice by a corporation, unin-
corporated association, community chest, fund  or  foundation  organized
and  operated  exclusively  for  religious,  charitable  or  educational
purposes, no part of the net earnings of which inures to the benefit  of
any  private  shareholder  or individual; (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; (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; (i) in or for such a religious,
educational or charitable institution if such individual is  a  student;
(j) in or for such a religious, educational or charitable institution if
the  earning  capacity of such individual is impaired by age or by phys-
ical or mental deficiency or injury; (k) in or  for  a  summer  camp  or
conference  of  such  a religious, educational or charitable institution
for not more than three months annually; (l) as a staff counselor  in  a
children's  camp;  (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; (n)  by  a  federal,  state  or  municipal
government  or  political  subdivision  thereof. The exclusions from the
term "employee" contained in this subdivision shall  be  as  defined  by
regulations of the commissioner; or (o) as a volunteer at a recreational
or amusement event run by a business 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 year. Any such volunteer shall be at least
eighteen  years of age. 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. 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.
  "Employee" also includes any individual employed or permitted to  work
in  any  non-teaching  capacity by a school district or board of cooper-
ative educational services except that the provisions  of  sections  six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.

S. 2311--A                          6

  S  8.  Paragraph (a) of subdivision 3 of section 701 of the labor law,
as amended by chapter 43 of the laws of 1989,  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  OR  HER  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  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 therapeu-
tic services in a charitable non-profit rehabilitation facility or shel-
tered workshop or any individual employed  in  a  charitable  non-profit
rehabilitation facility or sheltered workshop who has received rehabili-
tative  or  therapeutic  services and whose capacity to perform the work
for which he OR SHE is engaged is substantially impaired by physical  or
mental deficiency or injury.
  S 9. Subdivisions 1 and 3 of section 875 of the labor law, as added by
chapter 551 of the laws of 1980, is amended to read as follows:
  1.  "Employer" means any individual, partnership, corporation or asso-
ciation engaged in a business who has employees including the state  and
its  political  subdivisions.  The  term  "employer"  [does not include]
INCLUDES  the  employment  of  domestic  workers  [or  casual  laborers]
employed at the place of residence of his or her employer.
  3.  "Workplace"  means any location [away from the home], permanent or
temporary, where any employee performs  any  work-related  duty  in  the
course of his OR HER employment.
  S 10. The opening paragraph of subdivision 5 and the opening paragraph
of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205 of the laws of 1993, the opening paragraph of paragraph A of  subdi-
vision  6  as amended by chapter 903 of the laws of 1986, are amended to
read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment defined in subdivision six of this section,  except  a  minor
child  of  the  employer[,  except  a  domestic  or personal worker in a
private home who is employed for less than forty hours per week  by  any
one  employer,]  and  except  a duly ordained, commissioned, or licensed
minister, priest or rabbi, a sexton,  a  christian  science  reader,  or
member  of  a  religious order, or an executive officer of a corporation
who at all times during the period involved owns all of the  issued  and
outstanding stock of the corporation and holds all of the offices pursu-
ant  to  paragraph  (e) of section seven hundred fifteen of the business
corporation law or two executive officers of a corporation  who  at  all
times  during the period involved between them own all of the issued and
outstanding  stock  of  such  corporation  and  hold  all  such  offices
provided,  however,  that  each  officer  must own at least one share of
stock, except as provided in section two hundred twelve of this article,
or an executive officer of  an  incorporated  religious,  charitable  or

S. 2311--A                          7

educational  institution, or persons engaged in a professional or teach-
ing capacity in or for a religious, charitable or  educational  institu-
tion,  or  volunteers  in  or for a religious, charitable or educational
institution,  or  persons  participating in and receiving rehabilitative
services in a sheltered workshop operated by a religious, charitable  or
educational  institution under a certificate issued by the United States
department of labor, or recipients of charitable aid from a religious or
charitable institution who perform work in or for the institution  which
is  incidental  to  or in return for the aid conferred, and not under an
express contract of hire. The terms  "religious,  charitable  or  educa-
tional  institution"  mean  a  corporation,  unincorporated association,
community chest, fund or foundation organized and  operated  exclusively
for  religious,  charitable  or educational purposes, no part of the net
earnings of which inure to the benefit of  any  private  shareholder  or
individual.
  "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
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
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S  11.  The  commissioner  of labor shall report to the speaker of the
assembly and the temporary president of the senate  before  December  1,
2010 on the feasibility and practicality of full- and part-time domestic
workers being able to obtain common employment benefits such as vacation
pay,  severance pay, personal leave, or health insurance or other health
coverage through collective bargaining or by law. The commissioner shall
recommend measures to make these benefits affordable  to  employers  and
attainable  for  workers. The commissioner shall also convene an intera-
gency task force to report to the speaker  and  majority  leader  before
December 1, 2010, which shall include but not be limited to the chair of
the  workers'  compensation  board, the superintendent of insurance, the
commissioner of health and the executive director of the  department  of
economic  development,  to  provide  easily  accessible  educational and
informational material for domestic employers and workers. Such material
shall cover employment benefit, tax and insurance laws.

S. 2311--A                          8

  S 12. This act shall take effect on January first next succeeding  the
date  on  which it shall have become a law; provided that section two of
this act shall take effect on the ninetieth  day  after  it  shall  have
become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--B

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA,  FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, MONSERRATE,
  OPPENHEIMER, PADAVAN, PARKER, PERKINS, SAMPSON, SCHNEIDERMAN, SERRANO,
  SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Labor --  reported  favorably  from  said  committee  and
  committed  to  the  Committee on Codes -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on  Codes  -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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:

  Section 1. Legislative findings and intent.  Many thousands of  domes-
tic workers are employed in New York state as housekeepers, nannies, and
companions  to  the elderly. The labor of domestic workers is central to
the ongoing prosperity that the state enjoys, and yet, despite the value
of their work, domestic workers do not receive the  same  protection  of
many  state  laws  as  do  workers in other industries. Domestic workers
often labor under harsh conditions, work long hours for low wages  with-
out  benefits or job security, are isolated in their workplaces, and are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
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.
                                                           LBD00150-07-0

              

S. 2311--B                          2

the state of New York are women of color who, because of  race  and  sex
discrimination, are particularly vulnerable to unfair labor practices.
  The  legislature finds that because domestic workers care for the most
important elements of their employers' lives, their families and  homes,
it  is  in  the  interest of employees, employers, and the people of the
state of New York to ensure that the  rights  of  domestic  workers  are
respected, protected, and enforced.
  Domestic  workers  have  historically  been  excluded from many of the
traditional protections afforded by the labor law. Additionally,  domes-
tic  workers  are not afforded by law the right to organize labor unions
for the purpose  of  collective  bargaining.  Given  the  limited  legal
protections  historically  provided  to domestic workers, and bearing in
mind the unique conditions and demands of this private home-based indus-
try, the legislature further finds that domestic workers are entitled to
industry-specific protections and labor standards.
  S 2. The labor law is amended by adding a new article 19-C to read  as
follows:
                              ARTICLE 19-C
                  LABOR STANDARDS FOR DOMESTIC WORKERS
SECTION 695. DEFINITIONS.
        696. OTHER EMPLOYMENT CONDITIONS.
        697. REMEDIES.
        698. SEVERABILITY.
  S  695. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1. "DOMESTIC WORKER" MEANS A PERSON EMPLOYED IN A  HOME  OR  RESIDENCE
FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION TO A SICK,
CONVALESCING  OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER DOMESTIC
SERVICE PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE ANY  INDIVIDUAL  WHO
IS  ENGAGED  IN  PROVIDING  COMPANIONSHIP  SERVICES,  AS  DEFINED  IN  S
213(A)(15) OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS  EMPLOYED
BY AN EMPLOYER OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD USING HIS OR
HER SERVICES.
  2.  "PAID TIME OFF" MEANS DAYS THAT THE DOMESTIC WORKER IS ENTITLED TO
TIME OFF WITH PAY CALCULATED AT EACH DOMESTIC WORKER'S REGULAR  RATE  OF
PAY FOR HIS OR HER REGULAR HOURS WORKED ON THAT DAY.
  S  696.  OTHER  EMPLOYMENT  CONDITIONS. 1. DAY OF REST. (A) A DOMESTIC
WORKER SHALL BE ENTITLED TO AT LEAST TWENTY-FOUR  CONSECUTIVE  HOURS  OF
REST IN EACH AND EVERY CALENDAR WEEK.
  (B)  NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON HIS OR HER DAY OF
REST.
  (C) IN THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON HIS  OR  HER
DAY  OF REST, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL
HOURS WORKED ON HIS OR HER DAY OF REST OR AT TWICE HIS  OR  HER  REGULAR
RATE  IF SUCH HOURS CONSTITUTE HOURS WORKED BEYOND FORTY HOURS IN A WORK
WEEK.
  2. PAID TIME OFF. (A) A DOMESTIC  WORKER  SHALL  BE  ENTITLED  TO  THE
FOLLOWING HOLIDAYS:
  (1) NEW YEAR'S DAY;
  (2) MARTIN LUTHER KING JR.'S BIRTHDAY;
  (3) INDEPENDENCE DAY;
  (4) THANKSGIVING;
  (5) LABOR DAY;
  (6) CHRISTMAS DAY.
  (B) NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON A HOLIDAY.

S. 2311--B                          3

  (C)  IN  THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON A HOLIDAY,
HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL HOURS  WORKED
ON THE HOLIDAY OR AT TWICE HIS OR HER REGULAR RATE IF SUCH HOURS CONSTI-
TUTE HOURS WORKED BEYOND FORTY HOURS IN A WORK WEEK.
  (D)  DOMESTIC  WORKERS  ARE  ENTITLED TO AT LEAST SEVEN SICK DAYS EACH
YEAR.
  (E) DOMESTIC WORKERS ARE ENTITLED TO AT LEAST FIVE VACATION  DAYS  PER
YEAR  WHICH  SHALL BE AGREED UPON WITH THE EMPLOYER AT LEAST THIRTY DAYS
IN ADVANCE OF THE FIRST VACATION DAY.
  3. TERMINATION AND SEVERANCE. (A) A DOMESTIC  WORKER  IS  ENTITLED  TO
WRITTEN  NOTICE OF TERMINATION FOURTEEN DAYS BEFORE HIS OR HER FINAL DAY
OF EMPLOYMENT. AN EMPLOYER WHO FAILS TO GIVE NOTICE AS REQUIRED BY  THIS
ARTICLE  IS  LIABLE  TO EACH EMPLOYEE ENTITLED TO NOTICE WHO LOST HIS OR
HER EMPLOYMENT FOR:
  (B) BACK PAY AT THE AVERAGE REGULAR RATE OF COMPENSATION  RECEIVED  BY
THE  EMPLOYEE  DURING  THE LAST THREE YEARS OF HIS OR HER EMPLOYMENT, OR
THE EMPLOYEE'S FINAL RATE OF COMPENSATION, WHICHEVER IS HIGHER.
  (C) THE VALUE OF THE COST OF ANY BENEFITS TO WHICH THE EMPLOYEE  WOULD
HAVE BEEN ENTITLED.
  4.  BACK  PAY AND OTHER LIABILITY UNDER THIS SECTION IS CALCULATED FOR
THE PERIOD OF THE EMPLOYER'S VIOLATION, UP TO A MAXIMUM OF  SIXTY  DAYS,
OR  ONE-HALF  THE  NUMBER  OF DAYS THAT THE EMPLOYEE WAS EMPLOYED BY THE
EMPLOYER, WHICHEVER PERIOD IS SMALLER.
  S 697. REMEDIES.  1. CRIMINAL PENALTIES. ANY EMPLOYER OR  HIS  OR  HER
AGENT,  OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO PAYS OR PROVIDES
OR AGREES TO PAY OR PROVIDE TO ANY DOMESTIC WORKER LESS THAN  THE  WAGE,
OR  BENEFITS  APPLICABLE UNDER THIS ARTICLE SHALL BE SUBJECT TO CRIMINAL
PENALTIES PURSUANT  TO  SECTIONS  ONE  HUNDRED  NINETY-EIGHT-A  AND  ONE
HUNDRED NINETY-EIGHT-C OF THIS CHAPTER.
  2.  CIVIL  ACTIONS.  (A) IF ANY DOMESTIC WORKER IS PAID OR PROVIDED BY
HIS OR HER EMPLOYER LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR  SHE
IS  ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, HE OR SHE MAY RECOVER
IN A CIVIL ACTION THE AMOUNT OF ANY SUCH UNDERPAYMENTS OF WAGES  OR  THE
VALUE  OF SUCH BENEFITS COSTS AND SUCH REASONABLE ATTORNEY'S FEES AS MAY
BE ALLOWED BY THE COURT, AND IF  SUCH  UNDERPAYMENT  OF  OR  FAILURE  TO
PROVIDE BENEFITS WAS WILLFUL, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES
EQUAL  TO  TWENTY-FIVE PERCENT OF THE TOTAL OF SUCH UNDERPAYMENTS OR THE
VALUE OF BENEFITS FOUND TO BE DUE HIM OR HER AND ANY  AGREEMENT  BETWEEN
HIM  OR  HER  AND HIS OR HER EMPLOYER TO WORK FOR LESS THAN SUCH WAGE OR
WITHOUT SUCH BENEFITS SHALL BE NO DEFENSE TO SUCH ACTION.
  (B) ON BEHALF OF ANY DOMESTIC WORKER PAID OR PROVIDED  LESS  THAN  THE
WAGES,  OR  BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER THE PROVISIONS
OF THIS ARTICLE, THE COMMISSIONER OR  ATTORNEY  GENERAL  MAY  BRING  ANY
LEGAL  ACTION  NECESSARY  NOTWITHSTANDING  ANY  LAW  TO  THE CONTRARY TO
COLLECT SUCH CLAIM AND THE EMPLOYER SHALL BE REQUIRED TO PAY  THE  COSTS
AND,  IF  SUCH  UNDERPAYMENT OF WAGES OR FAILURE TO PROVIDE BENEFITS WAS
WILLFUL, AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE
PERCENT OF THE TOTAL OF SUCH UNDERPAYMENTS  OR  THE  VALUE  OF  BENEFITS
FOUND  TO BE DUE HIM OR HER. SUCH CLAIM, AND LIQUIDATED DAMAGES SHALL BE
PAID TO THE DOMESTIC WORKER.
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION  TO  RECOVER
UPON  A  LIABILITY  IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX
YEARS.
  S 698. SEVERABILITY. IF ANY PART OR PROVISION OF THIS ARTICLE, OR  THE
APPLICATION  OF  THIS  ARTICLE  TO  ANY  PERSON OR CIRCUMSTANCE, IS HELD
INVALID, THE REMAINDER OF THIS ARTICLE,  INCLUDING  THE  APPLICATION  OF

S. 2311--B                          4

SUCH  PART  OR PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL NOT BE
AFFECTED BY SUCH A HOLDING AND SHALL CONTINUE IN FULL FORCE AND  EFFECT.
TO THIS END, THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE.
  S  3. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
as amended by chapter 166 of the laws of 2000, are amended  to  read  as
follows:
  5.  The  term "employer" does not include any employer with fewer than
four persons  in  his  OR  HER  employ.  NOTWITHSTANDING  THE  PRECEDING
SENTENCE,  THE  TERM  "EMPLOYER"  INCLUDES ANY EMPLOYER EMPLOYING ONE OR
MORE DOMESTIC WORKERS, AS DEFINED BY SECTION SIX HUNDRED NINETY-FIVE  OF
THE LABOR LAW.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her parents, spouse or child[, or in the domestic
service of any person].
  S 4. Subdivision 3 of section 160 of the labor law is amended to  read
as follows:
  3.  For all other employees, except those engaged in farm [or domestic
service] WORK and those affected by  subdivision  four  of  section  two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S  5.  The  opening  paragraph  of subdivision 1 of section 218 of the
labor law, as amended by chapter 304 of the laws of 2007, is amended  to
read as follows:
  If  the  commissioner  determines  that  an  employer  has  violated a
provision of article six (payment of wages), article  nineteen  (minimum
wage  act),  article nineteen-A, ARTICLE NINETEEN-C, section two hundred
twelve-a, section two hundred twelve-b, section  one  hundred  sixty-one
(day  of  rest)  or section one hundred sixty-two (meal periods) of this
chapter, or a rule or regulation promulgated thereunder, the commission-
er shall issue to the employer an order directing compliance  therewith,
which  shall  describe particularly the nature of the alleged violation.
In addition to directing payment of wages, benefits or wage  supplements
found to be due, such order, if issued to an employer who previously has
been found in violation of those provisions, rules or regulations, or to
an  employer  whose  violation  is  willful  or  egregious, shall direct
payment to the commissioner of an additional sum as a civil  penalty  in
an  amount  equal to double the total amount found to be due. In no case
shall the order direct payment of an amount less than the  total  wages,
benefits  or  wage supplements found by the commissioner to be due, plus
the appropriate civil penalty. Where the violation is for a reason other
than the employer's failure to pay wages, benefits or  wage  supplements
found to be due, the order shall direct payment to the commissioner of a
civil  penalty  in  an  amount  not to exceed one thousand dollars for a
first violation, two thousand dollars for a second  violation  or  three
thousand  dollars  for a third or subsequent violation. In assessing the
amount of the penalty, the commissioner shall give due consideration  to
the size of the employer's business, the good faith of the employer, the
gravity of the violation, the history of previous violations and, in the
case of wages, benefits or supplements violations, the failure to comply
with recordkeeping or other non-wage requirements.
  S  6.  Subdivision  1  of  section 219 of the labor law, as amended by
chapter 417 of the laws of 1987, is amended to read as follows:
  1. If the commissioner determines that an employer has failed  to  pay
wages,  benefits  or  wage  supplements required pursuant to article six
(payment of wages), article nineteen (minimum wage  act)  [or],  article
[nineteen-a]  NINETEEN-A,  OR  ARTICLE  NINETEEN-C of this chapter, or a

S. 2311--B                          5

rule or regulation promulgated thereunder, the commissioner shall  issue
to  the  employer  an  order directing compliance therewith, which shall
describe particularly the nature of the alleged  violation.  Such  order
shall  direct payment of wages or supplements found to be due, including
interest at the rate of interest then in effect  as  prescribed  by  the
superintendent  of  banks  pursuant to section fourteen-a of the banking
law per annum from the date of the  underpayment  to  the  date  of  the
payment.
  S  7.  Subdivision  5  of  section 651 of the labor law, as amended by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "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 WHILE A MINOR
in service as a part time baby sitter in the home of the  employer[;  or
someone  who lives in the home of an employer for the purpose of serving
as a companion to a sick, convalescing  or  elderly  person,  and  whose
principal  duties  do not include housekeeping]; (b) in labor on a farm;
(c) in a bona fide executive, administrative, or professional  capacity;
(d) as an outside salesman; (e) as a driver engaged in operating a taxi-
cab;  (f)  as a volunteer, learner or apprentice by a corporation, unin-
corporated association, community chest, fund  or  foundation  organized
and  operated  exclusively  for  religious,  charitable  or  educational
purposes, no part of the net earnings of which inures to the benefit  of
any  private  shareholder  or individual; (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; (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; (i) in or for such a religious,
educational or charitable institution if such individual is  a  student;
(j) in or for such a religious, educational or charitable institution if
the  earning  capacity of such individual is impaired by age or by phys-
ical or mental deficiency or injury; (k) in or  for  a  summer  camp  or
conference  of  such  a religious, educational or charitable institution
for not more than three months annually; (l) as a staff counselor  in  a
children's  camp;  (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; (n)  by  a  federal,  state  or  municipal
government  or  political  subdivision  thereof. The exclusions from the
term "employee" contained in this subdivision shall  be  as  defined  by
regulations of the commissioner; or (o) as a volunteer at a recreational
or amusement event run by a business 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 year. Any such volunteer shall be at least
eighteen  years of age. 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. 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.
  "Employee" also includes any individual employed or permitted to  work
in  any  non-teaching  capacity by a school district or board of cooper-

S. 2311--B                          6

ative educational services except that the provisions  of  sections  six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S  8.  Paragraph (a) of subdivision 3 of section 701 of the labor law,
as amended by chapter 43 of the laws of 1989,  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  OR  HER  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  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 therapeu-
tic services in a charitable non-profit rehabilitation facility or shel-
tered workshop or any individual employed  in  a  charitable  non-profit
rehabilitation facility or sheltered workshop who has received rehabili-
tative  or  therapeutic  services and whose capacity to perform the work
for which he OR SHE is engaged is substantially impaired by physical  or
mental deficiency or injury.
  S 9. Subdivisions 1 and 3 of section 875 of the labor law, as added by
chapter 551 of the laws of 1980, are amended to read as follows:
  1.  "Employer" means any individual, partnership, corporation or asso-
ciation engaged in a business who has employees including the state  and
its  political  subdivisions.  The  term  "employer"  [does not include]
INCLUDES  the  employment  of  domestic  workers  [or  casual  laborers]
employed at the place of residence of his or her employer.
  3.  "Workplace"  means any location [away from the home], permanent or
temporary, where any employee performs  any  work-related  duty  in  the
course of his OR HER employment.
  S 10. The opening paragraph of subdivision 5 and the opening paragraph
of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205 of the laws of 1993, the opening paragraph of paragraph A of  subdi-
vision  6  as amended by chapter 903 of the laws of 1986, are amended to
read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment defined in subdivision six of this section,  except  a  minor
child  of  the  employer[,  except  a  domestic  or personal worker in a
private home who is employed for less than forty hours per week  by  any
one  employer,]  and  except  a duly ordained, commissioned, or licensed
minister, priest or rabbi, a sexton,  a  christian  science  reader,  or
member  of  a  religious order, or an executive officer of a corporation
who at all times during the period involved owns all of the  issued  and
outstanding stock of the corporation and holds all of the offices pursu-
ant  to  paragraph  (e) of section seven hundred fifteen of the business
corporation law or two executive officers of a corporation  who  at  all
times  during the period involved between them own all of the issued and
outstanding  stock  of  such  corporation  and  hold  all  such  offices

S. 2311--B                          7

provided,  however,  that  each  officer  must own at least one share of
stock, except as provided in section two hundred twelve of this article,
or an executive officer of  an  incorporated  religious,  charitable  or
educational  institution, or persons engaged in a professional or teach-
ing capacity in or for a religious, charitable or  educational  institu-
tion,  or  volunteers  in  or for a religious, charitable or educational
institution, or persons participating in  and  receiving  rehabilitative
services  in a sheltered workshop operated by a religious, charitable or
educational institution under a certificate issued by the United  States
department of labor, or recipients of charitable aid from a religious or
charitable  institution who perform work in or for the institution which
is incidental to or in return for the aid conferred, and  not  under  an
express  contract  of  hire.  The terms "religious, charitable or educa-
tional institution"  mean  a  corporation,  unincorporated  association,
community  chest,  fund or foundation organized and operated exclusively
for religious, charitable or educational purposes, no part  of  the  net
earnings  of  which  inure  to the benefit of any private shareholder or
individual.
  "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
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
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S 11. The commissioner of labor shall report to  the  speaker  of  the
assembly  and  the  temporary president of the senate before December 1,
2011 on the feasibility and practicality of full- and part-time domestic
workers being able to obtain common employment benefits such as vacation
pay, severance pay, personal leave, or health insurance or other  health
coverage through collective bargaining or by law. The commissioner shall
recommend  measures  to  make these benefits affordable to employers and
attainable for workers. The commissioner shall also convene  an  intera-
gency  task  force  to  report to the speaker and majority leader before
December 1, 2011, which shall include but not be limited to the chair of
the workers' compensation board, the superintendent  of  insurance,  the
commissioner  of  health and the executive director of the department of

S. 2311--B                          8

economic development,  to  provide  easily  accessible  educational  and
informational material for domestic employers and workers. Such material
shall cover employment benefit, tax and insurance laws.
  S  12. This act shall take effect on January first next succeeding the
date on which it shall have become a law; provided that section  two  of
this  act  shall  take  effect  on the ninetieth day after it shall have
become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--C
    Cal. No. 196

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
  PADAVAN,  PARKER,  PERALTA,  PERKINS,  SAMPSON, SCHNEIDERMAN, SERRANO,
  SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Labor --  reported  favorably  from  said  committee  and
  committed  to  the  Committee on Codes -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on  Codes  -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  reported  favorably  from  said  committee  and
  committed  to the Committee on Finance -- reported favorably from said
  committee, ordered to first and second  report,  ordered  to  a  third
  reading,  amended  and  ordered  reprinted, retaining its place in 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:

  Section 1. Legislative findings and intent.  Many thousands of  domes-
tic workers are employed in New York state as housekeepers, nannies, and
companions  to  the elderly. The labor of domestic workers is central to
the ongoing prosperity that the state enjoys, and yet, despite the value
of their work, domestic workers do not receive the  same  protection  of
many  state  laws  as  do  workers in other industries. Domestic workers
often labor under harsh conditions, work long hours for low wages  with-

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

                                                           LBD00150-13-0

S. 2311--C                          2

out  benefits or job security, are isolated in their workplaces, and are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
emotional  and  psychological abuse.  Moreover, many domestic workers in
the  state  of  New York are women of color who, because of race and sex
discrimination, are particularly vulnerable to unfair labor practices.
  The legislature finds that because domestic workers care for the  most
important  elements of their employers' lives, their families and homes,
it is in the interest of employees, employers, and  the  people  of  the
state  of  New  York  to  ensure that the rights of domestic workers are
respected, protected, and enforced.
  Domestic workers have historically been  excluded  from  many  of  the
traditional  protections afforded by the labor law. Additionally, domes-
tic workers are not afforded by law the right to organize  labor  unions
for  the  purpose  of  collective  bargaining.  Given  the limited legal
protections historically provided to domestic workers,  and  bearing  in
mind the unique conditions and demands of this private home-based indus-
try, the legislature further finds that domestic workers are entitled to
industry-specific protections and labor standards.
  S  2. The labor law is amended by adding a new article 19-C to read as
follows:
                              ARTICLE 19-C
                  LABOR STANDARDS FOR DOMESTIC WORKERS
SECTION 695. DEFINITIONS.
        696. OTHER EMPLOYMENT CONDITIONS.
        697. REMEDIES.
        698. SEVERABILITY.
  S 695. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1.  "DOMESTIC  WORKER"  MEANS A PERSON EMPLOYED IN A HOME OR RESIDENCE
FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION TO A SICK,
CONVALESCING OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER  DOMESTIC
SERVICE  PURPOSE.  "DOMESTIC WORKER" DOES NOT INCLUDE ANY INDIVIDUAL WHO
IS  ENGAGED  IN  PROVIDING  COMPANIONSHIP  SERVICES,  AS  DEFINED  IN  S
213(A)(15)  OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS EMPLOYED
BY AN EMPLOYER OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD USING HIS OR
HER SERVICES.
  2. "PAID TIME OFF" MEANS DAYS THAT THE DOMESTIC WORKER IS ENTITLED  TO
TIME  OFF  WITH PAY CALCULATED AT EACH DOMESTIC WORKER'S REGULAR RATE OF
PAY FOR HIS OR HER REGULAR HOURS WORKED ON THAT DAY.
  S 696. OTHER EMPLOYMENT CONDITIONS.  1. HOURS OF  LABOR  FOR  DOMESTIC
WORKERS. NO PERSON OR CORPORATION EMPLOYING A DOMESTIC WORKER AS DEFINED
IN  SUBDIVISION  ONE  OF SECTION SIX HUNDRED NINETY-FIVE OF THIS ARTICLE
SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN  EIGHT  HOURS  IN  A
DAY;  PROVIDED HOWEVER THAT OVERTIME WORK PERFORMED BY AGREEMENT BETWEEN
A DOMESTIC WORKER AND HIS OR HER EMPLOYER SHALL BE AT A RATE WHICH IS AT
LEAST ONE AND ONE-HALF TIMES THE WORKER'S NORMAL HOURLY RATE.
  2.  DAY OF REST. (A) A DOMESTIC WORKER SHALL BE ENTITLED TO  AT  LEAST
TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.
  (B)  NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON HIS OR HER DAY OF
REST.
  (C) IN THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON HIS  OR  HER
DAY  OF REST, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL
HOURS WORKED ON HIS OR HER DAY OF REST.
  3. PAID TIME OFF. (A) A DOMESTIC WORKER WHOSE  REGULAR  WORK  SCHEDULE
FOR  A  GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK SHALL BE ENTITLED
TO PAID TIME OFF ON THE FOLLOWING HOLIDAYS:

S. 2311--C                          3

  (1) NEW YEAR'S DAY;
  (2) MARTIN LUTHER KING JR.'S BIRTHDAY;
  (3) INDEPENDENCE DAY;
  (4) THANKSGIVING;
  (5) LABOR DAY;
  (6) CHRISTMAS DAY.
  (B) NO DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOY-
ER  IS  AT  LEAST  TWENTY  HOURS PER WEEK SHALL BE REQUIRED TO WORK ON A
HOLIDAY.
  (C) IN THE EVENT THAT A DOMESTIC WORKER WHOSE  REGULAR  WORK  SCHEDULE
FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK AGREES TO WORK ON A
HOLIDAY,  HE  OR  SHE  WILL  BE COMPENSATED AT THE OVERTIME RATE FOR ALL
HOURS WORKED ON THE HOLIDAY.
  (D) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER
IS AT LEAST FORTY HOURS A WEEK SHALL BE ENTITLED TO SEVEN DAYS  OF  PAID
TIME  OFF FOR SICK LEAVE EACH YEAR. A DOMESTIC WORKER WHOSE REGULAR WORK
SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK  BUT  LESS
THAN  FORTY HOURS A WEEK SHALL BE ENTITLED TO FOUR DAYS OF PAID TIME OFF
FOR SICK LEAVE EACH YEAR.  NOTHING  IN  THIS  PROVISION  SHALL  PROHIBIT
EMPLOYERS FROM PROVIDING MORE GENEROUS PAID TIME OFF FOR SICK LEAVE.
  (E) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER
IS  AT  LEAST  FORTY HOURS A WEEK SHALL BE ENTITLED TO FIVE DAYS OF PAID
TIME OFF FOR VACATION EACH YEAR. A DOMESTIC WORKER  WHOSE  REGULAR  WORK
SCHEDULE  FOR  A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK BUT LESS
THAN FORTY HOURS A WEEK SHALL BE ENTITLED TO THREE DAYS OF PAID TIME OFF
FOR VACATION EACH YEAR. VACATION SHALL BE AGREED UPON WITH THE  EMPLOYER
AT  LEAST  THIRTY DAYS IN ADVANCE OF THE FIRST VACATION DAY.  NOTHING IN
THIS PROVISION SHALL PROHIBIT EMPLOYERS  FROM  PROVIDING  MORE  GENEROUS
PAID TIME OFF FOR VACATION.
  4.  TERMINATION  AND  SEVERANCE.  (A) A DOMESTIC WORKER IS ENTITLED TO
WRITTEN NOTICE OF TERMINATION FOURTEEN DAYS BEFORE HIS OR HER FINAL  DAY
OF  EMPLOYMENT. AN EMPLOYER WHO FAILS TO GIVE NOTICE AS REQUIRED BY THIS
ARTICLE IS LIABLE TO EACH EMPLOYEE ENTITLED TO NOTICE WHO  LOST  HIS  OR
HER EMPLOYMENT FOR:
  (I)  BACK  PAY  FOR  THE  PERIOD IN WHICH THE EMPLOYEE WAS ENTITLED TO
NOTICE AT THE AVERAGE REGULAR  RATE  OF  COMPENSATION  RECEIVED  BY  THE
EMPLOYEE  DURING  THE  LAST THREE YEARS OF HIS OR HER EMPLOYMENT, OR THE
EMPLOYEE'S FINAL RATE OF COMPENSATION, WHICHEVER IS HIGHER.
  (II) THE VALUE OF THE COST OF ANY BENEFITS TO WHICH THE EMPLOYEE WOULD
HAVE BEEN ENTITLED DURING THE PERIOD IN WHICH THE EMPLOYEE WAS  ENTITLED
TO NOTICE.
  (B)  NOTWITHSTANDING  ANY OTHER PROVISION OF THIS ARTICLE, NO EMPLOYER
SHALL BE LIABLE FOR FAILURE TO PROVIDE NOTICE OF TERMINATION.
  (I) TO AN EMPLOYEE WHO IS CONVICTED OF COMMITTING AN UNLAWFUL  ACT  OF
THEFT OR DESTRUCTION OF PROPERTY; OR
  (II)  WHEN  THE  EMPLOYER  HAS A REASONABLE GOOD FAITH BELIEF THAT THE
EMPLOYEE HAS COMMITTED ASSAULT, NEGLECT OR ABUSE IN  THE  WORKPLACE.  IN
SUCH A CASE, THE EMPLOYER SHALL HAVE THE BURDEN OF SHOWING SUCH AN ACT.
  (C)  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE REMEDIES
PROVIDED IN SUBDIVISION ONE OF SECTION SIX HUNDRED NINETY-SEVEN OF  THIS
ARTICLE  SHALL  NOT  BE  APPLICABLE  TO AN EMPLOYER'S FAILURE TO PROVIDE
NOTICE OF TERMINATION.
  5. BACK PAY.   BACK PAY AND OTHER  LIABILITY  UNDER  THIS  SECTION  IS
CALCULATED  FOR  THE PERIOD OF THE EMPLOYER'S VIOLATION, UP TO A MAXIMUM
OF SIXTY DAYS, OR ONE-HALF THE NUMBER OF  DAYS  THAT  THE  EMPLOYEE  WAS
EMPLOYED BY THE EMPLOYER, WHICHEVER PERIOD IS SMALLER.

S. 2311--C                          4

  S  697.  REMEDIES.   1. CRIMINAL PENALTIES. ANY EMPLOYER OR HIS OR HER
AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO PAYS OR  PROVIDES
OR  AGREES  TO PAY OR PROVIDE TO ANY DOMESTIC WORKER LESS THAN THE WAGE,
OR BENEFITS APPLICABLE UNDER THIS ARTICLE SHALL BE SUBJECT  TO  CRIMINAL
PENALTIES  PURSUANT  TO  SECTIONS  ONE  HUNDRED  NINETY-EIGHT-A  AND ONE
HUNDRED NINETY-EIGHT-C OF THIS CHAPTER.
  2. CIVIL ACTIONS. (A) IF ANY DOMESTIC WORKER IS PAID  OR  PROVIDED  BY
HIS  OR HER EMPLOYER LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR SHE
IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, HE OR SHE MAY  RECOVER
IN  A CIVIL ACTION THE AMOUNT OF ANY SUCH UNDERPAYMENTS OF WAGES AND THE
VALUE OF SUCH BENEFITS COSTS AND MAY SEEK ANY OTHER REMEDY AVAILABLE  TO
THE  COMMISSIONER UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER
AND SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER.
  (B) ON BEHALF OF ANY DOMESTIC WORKER PAID OR PROVIDED  LESS  THAN  THE
WAGES,  OR  BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER THE PROVISIONS
OF THIS ARTICLE, THE COMMISSIONER OR  ATTORNEY  GENERAL  MAY  BRING  ANY
LEGAL  ACTION  NECESSARY  NOTWITHSTANDING  ANY  LAW  TO  THE CONTRARY TO
COLLECT SUCH CLAIM AND MAY  SEEK  ANY  OTHER  REMEDY  AVAILABLE  TO  THE
COMMISSIONER  UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER AND
SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER.
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION  TO  RECOVER
UPON  A  LIABILITY  IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX
YEARS.
  S 698. SEVERABILITY. IF ANY PART OR PROVISION OF THIS ARTICLE, OR  THE
APPLICATION  OF  THIS  ARTICLE  TO  ANY  PERSON OR CIRCUMSTANCE, IS HELD
INVALID, THE REMAINDER OF THIS ARTICLE,  INCLUDING  THE  APPLICATION  OF
SUCH  PART  OR PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL NOT BE
AFFECTED BY SUCH A HOLDING AND SHALL CONTINUE IN FULL FORCE AND  EFFECT.
TO THIS END, THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE.
  S  3. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
as amended by chapter 166 of the laws of 2000, are amended  to  read  as
follows:
  5.  The  term "employer" does not include any employer with fewer than
four persons  in  his  OR  HER  employ.  NOTWITHSTANDING  THE  PRECEDING
SENTENCE,  THE  TERM  "EMPLOYER"  INCLUDES ANY EMPLOYER EMPLOYING ONE OR
MORE DOMESTIC WORKERS, AS DEFINED BY SECTION SIX HUNDRED NINETY-FIVE  OF
THE LABOR LAW.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her parents, spouse or child[, or in the domestic
service of any person].
  S 4. Subdivision 3 of section 160 of the labor law is amended to  read
as follows:
  3.  For all other employees, except those engaged in farm [or domestic
service] WORK and those affected by  subdivision  four  of  section  two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S  5.  The  opening  paragraph  of subdivision 1 of section 218 of the
labor law, as amended by chapter 304 of the laws of 2007, is amended  to
read as follows:
  If  the  commissioner  determines  that  an  employer  has  violated a
provision of article six (payment of wages), article  nineteen  (minimum
wage  act),  article  nineteen-A  (MINIMUM WAGE STANDARDS AND PROTECTIVE
LABOR PRACTICES FOR FARM WORKERS), ARTICLE NINETEEN-C  (LABOR  STANDARDS
FOR  DOMESTIC  WORKERS), section two hundred twelve-a (MIGRANT REGISTRA-
TION LAW), section two hundred twelve-b (FARM LABOR CAMP  COMMISSARIES),
section  one  hundred  sixty-one  (day  of  rest) or section one hundred

S. 2311--C                          5

sixty-two (meal periods) of  this  chapter,  or  a  rule  or  regulation
promulgated  thereunder, the commissioner shall issue to the employer an
order directing compliance therewith, which shall describe  particularly
the nature of the alleged violation. In addition to directing payment of
wages,  benefits  or  wage  supplements  found to be due, such order, if
issued to an employer who previously has  been  found  in  violation  of
those  provisions,  rules  or  regulations,  or  to  an  employer  whose
violation is willful or egregious, shall direct payment to  the  commis-
sioner  of  an  additional  sum as a civil penalty in an amount equal to
double the total amount found to be due. In  no  case  shall  the  order
direct  payment of an amount less than the total wages, benefits or wage
supplements found by the commissioner to be due,  plus  the  appropriate
civil  penalty.  Where  the  violation  is  for  a reason other than the
employer's failure to pay wages, benefits or wage supplements  found  to
be  due,  the  order shall direct payment to the commissioner of a civil
penalty in an amount not to exceed one  thousand  dollars  for  a  first
violation, two thousand dollars for a second violation or three thousand
dollars  for a third or subsequent violation. In assessing the amount of
the penalty, the commissioner shall give due consideration to  the  size
of  the employer's business, the good faith of the employer, the gravity
of the violation, the history of previous violations and, in the case of
wages, benefits or supplements violations, the failure  to  comply  with
recordkeeping or other non-wage requirements.
  S  6.  Subdivision  1  of  section 219 of the labor law, as amended by
chapter 417 of the laws of 1987, is amended to read as follows:
  1. If the commissioner determines that an employer has failed  to  pay
wages,  benefits  or  wage  supplements required pursuant to article six
(payment of wages), article nineteen (minimum wage  act)  [or],  article
[nineteen-a]  NINETEEN-A  (MINIMUM  WAGE  STANDARDS AND PROTECTIVE LABOR
PRACTICES FOR FARM WORKERS), OR ARTICLE NINETEEN-C (LABOR STANDARDS  FOR
DOMESTIC  WORKERS)  of this chapter, or a rule or regulation promulgated
thereunder, the commissioner  shall  issue  to  the  employer  an  order
directing  compliance  therewith,  which shall describe particularly the
nature of the alleged violation. Such  order  shall  direct  payment  of
wages  or supplements found to be due, including interest at the rate of
interest then in effect as prescribed by  the  superintendent  of  banks
pursuant  to  section  fourteen-a  of the banking law per annum from the
date of the underpayment to the date of the payment.
  S 7. Subdivision 5 of section 651 of the  labor  law,  as  amended  by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "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 WHILE  A  MINOR
in  service  as a part time baby sitter in the home of the employer[; or
someone who lives in the home of an employer for the purpose of  serving
as  a  companion  to  a  sick, convalescing or elderly person, and whose
principal duties do not include housekeeping]; (b) in labor on  a  farm;
(c)  in a bona fide executive, administrative, or professional capacity;
(d) as an outside salesman; (e) as a driver engaged in operating a taxi-
cab; (f) as a volunteer, learner or apprentice by a  corporation,  unin-
corporated  association,  community  chest, fund or foundation organized
and  operated  exclusively  for  religious,  charitable  or  educational
purposes,  no part of the net earnings of which inures to the benefit of
any private shareholder or individual; (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;  (h)  in  or

S. 2311--C                          6

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; (i) in or for such a  religious,
educational  or  charitable institution if such individual is a student;
(j) in or for such a religious, educational or charitable institution if
the earning capacity of such individual is impaired by age or  by  phys-
ical  or  mental  deficiency  or  injury; (k) in or for a summer camp or
conference of such a religious, educational  or  charitable  institution
for  not  more than three months annually; (l) as a staff counselor in a
children's camp; (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;  (n)  by a federal, state or municipal
government or political subdivision thereof.  The  exclusions  from  the
term  "employee"  contained  in  this subdivision shall be as defined by
regulations of the commissioner; or (o) as a volunteer at a recreational
or amusement event run by a business 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 year. Any such volunteer shall be at least
eighteen years of age. 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.  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.
  "Employee"  also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or  board  of  cooper-
ative  educational  services  except that the provisions of sections six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S 8. Paragraph (a) of subdivision 3 of section 701 of the  labor  law,
as  amended  by  chapter  43  of the laws of 1989, 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 OR HER 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 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  therapeu-
tic services in a charitable non-profit rehabilitation facility or shel-
tered  workshop  or  any  individual employed in a charitable non-profit
rehabilitation facility or sheltered workshop who has received rehabili-
tative or therapeutic services and whose capacity to  perform  the  work

S. 2311--C                          7

for  which he OR SHE is engaged is substantially impaired by physical or
mental deficiency or injury.
  S 9. Subdivisions 1 and 3 of section 875 of the labor law, as added by
chapter 551 of the laws of 1980, are amended to read as follows:
  1.  "Employer" means any individual, partnership, corporation or asso-
ciation engaged in a business who has employees including the state  and
its  political  subdivisions.  The  term  "employer"  [does not include]
INCLUDES  the  employment  of  domestic  workers  [or  casual  laborers]
employed at the place of residence of his or her employer.
  3.  "Workplace"  means any location [away from the home], permanent or
temporary, where any employee performs  any  work-related  duty  in  the
course of his OR HER employment.
  S 10. The opening paragraph of subdivision 5 and the opening paragraph
of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205 of the laws of 1993, the opening paragraph of paragraph A of  subdi-
vision  6  as amended by chapter 903 of the laws of 1986, are amended to
read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment defined in subdivision six of this section,  except  a  minor
child  of  the  employer[,  except  a  domestic  or personal worker in a
private home who is employed for less than forty hours per week  by  any
one  employer,]  and  except  a duly ordained, commissioned, or licensed
minister, priest or rabbi, a sexton,  a  christian  science  reader,  or
member  of  a  religious order, or an executive officer of a corporation
who at all times during the period involved owns all of the  issued  and
outstanding stock of the corporation and holds all of the offices pursu-
ant  to  paragraph  (e) of section seven hundred fifteen of the business
corporation law or two executive officers of a corporation  who  at  all
times  during the period involved between them own all of the issued and
outstanding  stock  of  such  corporation  and  hold  all  such  offices
provided,  however,  that  each  officer  must own at least one share of
stock, except as provided in section two hundred twelve of this article,
or an executive officer of  an  incorporated  religious,  charitable  or
educational  institution, or persons engaged in a professional or teach-
ing capacity in or for a religious, charitable or  educational  institu-
tion,  or  volunteers  in  or for a religious, charitable or educational
institution, or persons participating in  and  receiving  rehabilitative
services  in a sheltered workshop operated by a religious, charitable or
educational institution under a certificate issued by the United  States
department of labor, or recipients of charitable aid from a religious or
charitable  institution who perform work in or for the institution which
is incidental to or in return for the aid conferred, and  not  under  an
express  contract  of  hire.  The terms "religious, charitable or educa-
tional institution"  mean  a  corporation,  unincorporated  association,
community  chest,  fund or foundation organized and operated exclusively
for religious, charitable or educational purposes, no part  of  the  net
earnings  of  which  inure  to the benefit of any private shareholder or
individual.
  "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
member of the crew of a vessel on the  navigable  water  of  the  United

S. 2311--C                          8

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
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S  11.  The  commissioner  of labor shall report to the speaker of the
assembly and the temporary president of the senate  before  December  1,
2011 on the feasibility and practicality of full- and part-time domestic
workers being able to obtain common employment benefits such as vacation
pay,  severance pay, personal leave, or health insurance or other health
coverage through collective bargaining or by law. The commissioner shall
recommend measures to make these benefits affordable  to  employers  and
attainable  for  workers. The commissioner shall also convene an intera-
gency task force to report to the speaker  and  majority  leader  before
December 1, 2011, which shall include but not be limited to the chair of
the  workers'  compensation  board, the superintendent of insurance, the
commissioner of health and the executive director of the  department  of
economic  development,  to  provide  easily  accessible  educational and
informational material for domestic employers and workers. Such material
shall cover employment benefit, tax and insurance laws.
  S 12. This act shall take effect on January first next succeeding  the
date  on  which it shall have become a law; provided that section two of
this act shall take effect on the ninetieth  day  after  it  shall  have
become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--D
    Cal. No. 196

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
  PADAVAN,  PARKER,  PERALTA,  PERKINS,  SAMPSON, SCHNEIDERMAN, SERRANO,
  SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Labor --  reported  favorably  from  said  committee  and
  committed  to  the  Committee on Codes -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on  Codes  -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  reported  favorably  from  said  committee  and
  committed  to the Committee on Finance -- reported favorably from said
  committee, ordered to first and second  report,  ordered  to  a  third
  reading,  amended  and  ordered  reprinted, retaining its place in the
  order of third reading -- again amended and ordered reprinted, retain-
  ing its place in 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:

  Section 1. Legislative findings and intent.  Many thousands of  domes-
tic workers are employed in New York state as housekeepers, nannies, and
companions  to  the elderly. The labor of domestic workers is central to
the ongoing prosperity that the state enjoys, and yet, despite the value
of their work, domestic workers do not receive the  same  protection  of
many  state  laws  as  do  workers in other industries. Domestic workers

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

                                                           LBD00150-14-0

S. 2311--D                          2

often labor under harsh conditions, work long hours for low wages  with-
out  benefits or job security, are isolated in their workplaces, and are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
emotional  and  psychological abuse.  Moreover, many domestic workers in
the state of New York are women of color who, because of  race  and  sex
discrimination, are particularly vulnerable to unfair labor practices.
  The  legislature finds that because domestic workers care for the most
important elements of their employers' lives, their families and  homes,
it  is  in  the  interest of employees, employers, and the people of the
state of New York to ensure that the  rights  of  domestic  workers  are
respected, protected, and enforced.
  Domestic  workers  have  historically  been  excluded from many of the
traditional protections afforded by the labor law. Additionally,  domes-
tic  workers  are not afforded by law the right to organize labor unions
for the purpose  of  collective  bargaining.  Given  the  limited  legal
protections  historically  provided  to domestic workers, and bearing in
mind the unique conditions and demands of this private home-based indus-
try, the legislature further finds that domestic workers are entitled to
industry-specific protections and labor standards.
  S 2. The labor law is amended by adding a new article 19-C to read  as
follows:
                              ARTICLE 19-C
                  LABOR STANDARDS FOR DOMESTIC WORKERS
SECTION 695. DEFINITIONS.
        696. OTHER EMPLOYMENT CONDITIONS.
        697. REMEDIES.
        698. SEVERABILITY.
  S  695. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1. "DOMESTIC WORKER" MEANS A PERSON EMPLOYED IN A  HOME  OR  RESIDENCE
FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION TO A SICK,
CONVALESCING  OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER DOMESTIC
SERVICE PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE ANY  INDIVIDUAL  WHO
IS  ENGAGED  IN  PROVIDING  COMPANIONSHIP  SERVICES,  AS  DEFINED  IN  S
213(A)(15) OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS  EMPLOYED
BY AN EMPLOYER OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD USING HIS OR
HER SERVICES. "DOMESTIC WORKER" ALSO DOES NOT INCLUDE ANY INDIVIDUAL WHO
IS ENGAGED AS AN AU PAIR AS IS SET OUT IN TITLE 22, SECTION 62.31 OF THE
CODE OF FEDERAL REGULATIONS.
  2.  "PAID TIME OFF" MEANS DAYS THAT THE DOMESTIC WORKER IS ENTITLED TO
TIME OFF WITH PAY CALCULATED AT EACH DOMESTIC WORKER'S REGULAR  RATE  OF
PAY FOR HIS OR HER REGULAR HOURS WORKED ON THAT DAY.
  S  696.  OTHER EMPLOYMENT CONDITIONS.   1. HOURS OF LABOR FOR DOMESTIC
WORKERS. NO PERSON OR CORPORATION EMPLOYING A DOMESTIC WORKER AS DEFINED
IN SUBDIVISION ONE OF SECTION SIX HUNDRED NINETY-FIVE  OF  THIS  ARTICLE
SHALL  REQUIRE  ANY  DOMESTIC  WORKER TO WORK MORE THAN EIGHT HOURS IN A
DAY; PROVIDED HOWEVER THAT OVERTIME WORK PERFORMED BY AGREEMENT  BETWEEN
A DOMESTIC WORKER AND HIS OR HER EMPLOYER SHALL BE AT A RATE WHICH IS AT
LEAST ONE AND ONE-HALF TIMES THE WORKER'S NORMAL HOURLY RATE.
  2.    DAY OF REST. (A) A DOMESTIC WORKER SHALL BE ENTITLED TO AT LEAST
TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.
  (B) NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON HIS OR HER DAY  OF
REST.
  (C)  IN  THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON HIS OR HER
DAY OF REST, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR  ALL
HOURS WORKED ON HIS OR HER DAY OF REST.

S. 2311--D                          3

  3.  PAID  TIME  OFF. (A) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE
FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK SHALL  BE  ENTITLED
TO PAID TIME OFF ON THE FOLLOWING HOLIDAYS:
  (1) NEW YEAR'S DAY;
  (2) MARTIN LUTHER KING JR.'S BIRTHDAY;
  (3) INDEPENDENCE DAY;
  (4) THANKSGIVING;
  (5) LABOR DAY;
  (6) CHRISTMAS DAY.
  (B) NO DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOY-
ER  IS  AT  LEAST  TWENTY  HOURS PER WEEK SHALL BE REQUIRED TO WORK ON A
HOLIDAY.
  (C) IN THE EVENT THAT A DOMESTIC WORKER WHOSE  REGULAR  WORK  SCHEDULE
FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK AGREES TO WORK ON A
HOLIDAY,  HE  OR  SHE  WILL  BE COMPENSATED AT THE OVERTIME RATE FOR ALL
HOURS WORKED ON THE HOLIDAY.
  (D) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER
IS AT LEAST FORTY HOURS A WEEK SHALL BE ENTITLED TO SEVEN DAYS  OF  PAID
TIME  OFF FOR SICK LEAVE EACH YEAR. A DOMESTIC WORKER WHOSE REGULAR WORK
SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK  BUT  LESS
THAN  FORTY HOURS A WEEK SHALL BE ENTITLED TO FOUR DAYS OF PAID TIME OFF
FOR SICK LEAVE EACH YEAR.  NOTHING  IN  THIS  PROVISION  SHALL  PROHIBIT
EMPLOYERS FROM PROVIDING MORE GENEROUS PAID TIME OFF FOR SICK LEAVE.
  (E) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER
IS  AT  LEAST  FORTY HOURS A WEEK SHALL BE ENTITLED TO FIVE DAYS OF PAID
TIME OFF FOR VACATION EACH YEAR. A DOMESTIC WORKER  WHOSE  REGULAR  WORK
SCHEDULE  FOR  A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK BUT LESS
THAN FORTY HOURS A WEEK SHALL BE ENTITLED TO THREE DAYS OF PAID TIME OFF
FOR VACATION EACH YEAR. VACATION SHALL BE AGREED UPON WITH THE  EMPLOYER
AT  LEAST  THIRTY DAYS IN ADVANCE OF THE FIRST VACATION DAY.  NOTHING IN
THIS PROVISION SHALL PROHIBIT EMPLOYERS  FROM  PROVIDING  MORE  GENEROUS
PAID TIME OFF FOR VACATION.
  4.  TERMINATION  AND  SEVERANCE.  (A) A DOMESTIC WORKER IS ENTITLED TO
WRITTEN NOTICE OF TERMINATION FOURTEEN DAYS BEFORE HIS OR HER FINAL  DAY
OF  EMPLOYMENT. AN EMPLOYER WHO FAILS TO GIVE NOTICE AS REQUIRED BY THIS
ARTICLE IS LIABLE TO EACH EMPLOYEE ENTITLED TO NOTICE WHO  LOST  HIS  OR
HER EMPLOYMENT FOR:
  (I)  BACK  PAY  FOR  THE  PERIOD IN WHICH THE EMPLOYEE WAS ENTITLED TO
NOTICE AT THE AVERAGE REGULAR  RATE  OF  COMPENSATION  RECEIVED  BY  THE
EMPLOYEE  DURING  THE  LAST THREE YEARS OF HIS OR HER EMPLOYMENT, OR THE
EMPLOYEE'S FINAL RATE OF COMPENSATION, WHICHEVER IS HIGHER.
  (II) THE VALUE OF THE COST OF ANY BENEFITS TO WHICH THE EMPLOYEE WOULD
HAVE BEEN ENTITLED DURING THE PERIOD IN WHICH THE EMPLOYEE WAS  ENTITLED
TO NOTICE.
  (B)  NOTWITHSTANDING  ANY OTHER PROVISION OF THIS ARTICLE, NO EMPLOYER
SHALL BE LIABLE FOR FAILURE TO PROVIDE NOTICE OF TERMINATION.
  (I) TO AN EMPLOYEE WHO IS CONVICTED OF COMMITTING AN UNLAWFUL  ACT  OF
THEFT OR DESTRUCTION OF PROPERTY; OR
  (II)  WHEN  THE  EMPLOYER  HAS A REASONABLE GOOD FAITH BELIEF THAT THE
EMPLOYEE HAS COMMITTED ASSAULT, NEGLECT OR ABUSE IN  THE  WORKPLACE.  IN
SUCH A CASE, THE EMPLOYER SHALL HAVE THE BURDEN OF SHOWING SUCH AN ACT.
  (C)  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE REMEDIES
PROVIDED IN SUBDIVISION ONE OF SECTION SIX HUNDRED NINETY-SEVEN OF  THIS
ARTICLE  SHALL  NOT  BE  APPLICABLE  TO AN EMPLOYER'S FAILURE TO PROVIDE
NOTICE OF TERMINATION.

S. 2311--D                          4

  5. BACK PAY.   BACK PAY AND OTHER  LIABILITY  UNDER  THIS  SECTION  IS
CALCULATED  FOR  THE PERIOD OF THE EMPLOYER'S VIOLATION, UP TO A MAXIMUM
OF SIXTY DAYS, OR ONE-HALF THE NUMBER OF  DAYS  THAT  THE  EMPLOYEE  WAS
EMPLOYED BY THE EMPLOYER, WHICHEVER PERIOD IS SMALLER.
  S  697.  REMEDIES.   1. CRIMINAL PENALTIES. ANY EMPLOYER OR HIS OR HER
AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO PAYS OR  PROVIDES
OR  AGREES  TO PAY OR PROVIDE TO ANY DOMESTIC WORKER LESS THAN THE WAGE,
OR BENEFITS APPLICABLE UNDER THIS ARTICLE SHALL BE SUBJECT  TO  CRIMINAL
PENALTIES  PURSUANT  TO  SECTIONS  ONE  HUNDRED  NINETY-EIGHT-A  AND ONE
HUNDRED NINETY-EIGHT-C OF THIS CHAPTER.
  2. CIVIL ACTIONS. (A) IF ANY DOMESTIC WORKER IS PAID  OR  PROVIDED  BY
HIS  OR HER EMPLOYER LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR SHE
IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, HE OR SHE MAY  RECOVER
IN  A CIVIL ACTION THE AMOUNT OF ANY SUCH UNDERPAYMENTS OF WAGES AND THE
VALUE OF SUCH BENEFITS COSTS AND MAY SEEK ANY OTHER REMEDY AVAILABLE  TO
THE  COMMISSIONER UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER
AND SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER.
  (B) ON BEHALF OF ANY DOMESTIC WORKER PAID OR PROVIDED  LESS  THAN  THE
WAGES,  OR  BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER THE PROVISIONS
OF THIS ARTICLE, THE COMMISSIONER OR  ATTORNEY  GENERAL  MAY  BRING  ANY
LEGAL  ACTION  NECESSARY  NOTWITHSTANDING  ANY  LAW  TO  THE CONTRARY TO
COLLECT SUCH CLAIM AND MAY  SEEK  ANY  OTHER  REMEDY  AVAILABLE  TO  THE
COMMISSIONER  UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER AND
SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER.
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION  TO  RECOVER
UPON  A  LIABILITY  IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX
YEARS.
  S 698. SEVERABILITY. IF ANY PART OR PROVISION OF THIS ARTICLE, OR  THE
APPLICATION  OF  THIS  ARTICLE  TO  ANY  PERSON OR CIRCUMSTANCE, IS HELD
INVALID, THE REMAINDER OF THIS ARTICLE,  INCLUDING  THE  APPLICATION  OF
SUCH  PART  OR PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL NOT BE
AFFECTED BY SUCH A HOLDING AND SHALL CONTINUE IN FULL FORCE AND  EFFECT.
TO THIS END, THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE.
  S  3. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
as amended by chapter 166 of the laws of 2000, are amended  to  read  as
follows:
  5.  The  term "employer" does not include any employer with fewer than
four persons  in  his  OR  HER  employ.  NOTWITHSTANDING  THE  PRECEDING
SENTENCE,  THE  TERM  "EMPLOYER"  INCLUDES ANY EMPLOYER EMPLOYING ONE OR
MORE DOMESTIC WORKERS, AS DEFINED BY SECTION SIX HUNDRED NINETY-FIVE  OF
THE LABOR LAW.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her parents, spouse or child[, or in the domestic
service of any person].
  S 4. Subdivision 3 of section 160 of the labor law is amended to  read
as follows:
  3.  For all other employees, except those engaged in farm [or domestic
service] WORK and those affected by  subdivision  four  of  section  two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S  5.  The  opening  paragraph  of subdivision 1 of section 218 of the
labor law, as amended by chapter 304 of the laws of 2007, is amended  to
read as follows:
  If  the  commissioner  determines  that  an  employer  has  violated a
provision of article six (payment of wages), article  nineteen  (minimum
wage  act),  article  nineteen-A  (MINIMUM WAGE STANDARDS AND PROTECTIVE

S. 2311--D                          5

LABOR PRACTICES FOR FARM WORKERS), ARTICLE NINETEEN-C  (LABOR  STANDARDS
FOR  DOMESTIC  WORKERS), section two hundred twelve-a (MIGRANT REGISTRA-
TION LAW), section two hundred twelve-b (FARM LABOR CAMP  COMMISSARIES),
section  one  hundred  sixty-one  (day  of  rest) or section one hundred
sixty-two (meal periods) of  this  chapter,  or  a  rule  or  regulation
promulgated  thereunder, the commissioner shall issue to the employer an
order directing compliance therewith, which shall describe  particularly
the nature of the alleged violation. In addition to directing payment of
wages,  benefits  or  wage  supplements  found to be due, such order, if
issued to an employer who previously has  been  found  in  violation  of
those  provisions,  rules  or  regulations,  or  to  an  employer  whose
violation is willful or egregious, shall direct payment to  the  commis-
sioner  of  an  additional  sum as a civil penalty in an amount equal to
double the total amount found to be due. In  no  case  shall  the  order
direct  payment of an amount less than the total wages, benefits or wage
supplements found by the commissioner to be due,  plus  the  appropriate
civil  penalty.  Where  the  violation  is  for  a reason other than the
employer's failure to pay wages, benefits or wage supplements  found  to
be  due,  the  order shall direct payment to the commissioner of a civil
penalty in an amount not to exceed one  thousand  dollars  for  a  first
violation, two thousand dollars for a second violation or three thousand
dollars  for a third or subsequent violation. In assessing the amount of
the penalty, the commissioner shall give due consideration to  the  size
of  the employer's business, the good faith of the employer, the gravity
of the violation, the history of previous violations and, in the case of
wages, benefits or supplements violations, the failure  to  comply  with
recordkeeping or other non-wage requirements.
  S  6.  Subdivision  1  of  section 219 of the labor law, as amended by
chapter 417 of the laws of 1987, is amended to read as follows:
  1. If the commissioner determines that an employer has failed  to  pay
wages,  benefits  or  wage  supplements required pursuant to article six
(payment of wages), article nineteen (minimum wage  act)  [or],  article
[nineteen-a]  NINETEEN-A  (MINIMUM  WAGE  STANDARDS AND PROTECTIVE LABOR
PRACTICES FOR FARM WORKERS), OR ARTICLE NINETEEN-C (LABOR STANDARDS  FOR
DOMESTIC  WORKERS)  of this chapter, or a rule or regulation promulgated
thereunder, the commissioner  shall  issue  to  the  employer  an  order
directing  compliance  therewith,  which shall describe particularly the
nature of the alleged violation. Such  order  shall  direct  payment  of
wages  or supplements found to be due, including interest at the rate of
interest then in effect as prescribed by  the  superintendent  of  banks
pursuant  to  section  fourteen-a  of the banking law per annum from the
date of the underpayment to the date of the payment.
  S 7. Subdivision 5 of section 651 of the  labor  law,  as  amended  by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "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 WHILE  A  MINOR
in  service  as a part time baby sitter in the home of the employer[; or
someone who lives in the home of an employer for the purpose of  serving
as  a  companion  to  a  sick, convalescing or elderly person, and whose
principal duties do not include housekeeping]; (b) in labor on  a  farm;
(c)  in a bona fide executive, administrative, or professional capacity;
(d) as an outside salesman; (e) as a driver engaged in operating a taxi-
cab; (f) as a volunteer, learner or apprentice by a  corporation,  unin-
corporated  association,  community  chest, fund or foundation organized
and  operated  exclusively  for  religious,  charitable  or  educational

S. 2311--D                          6

purposes,  no part of the net earnings of which inures to the benefit of
any private shareholder or individual; (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; (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; (i) in or for such a religious,
educational or charitable institution if such individual is  a  student;
(j) in or for such a religious, educational or charitable institution if
the  earning  capacity of such individual is impaired by age or by phys-
ical or mental deficiency or injury; (k) in or  for  a  summer  camp  or
conference  of  such  a religious, educational or charitable institution
for not more than three months annually; (l) as a staff counselor  in  a
children's  camp;  (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; (n)  by  a  federal,  state  or  municipal
government  or  political  subdivision  thereof. The exclusions from the
term "employee" contained in this subdivision shall  be  as  defined  by
regulations of the commissioner; or (o) as a volunteer at a recreational
or amusement event run by a business 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 year. Any such volunteer shall be at least
eighteen  years of age. 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. 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.
  "Employee" also includes any individual employed or permitted to  work
in  any  non-teaching  capacity by a school district or board of cooper-
ative educational services except that the provisions  of  sections  six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S  8.  Paragraph (a) of subdivision 3 of section 701 of the labor law,
as amended by chapter 43 of the laws of 1989,  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  OR  HER  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  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 therapeu-
tic services in a charitable non-profit rehabilitation facility or shel-

S. 2311--D                          7

tered workshop or any individual employed  in  a  charitable  non-profit
rehabilitation facility or sheltered workshop who has received rehabili-
tative  or  therapeutic  services and whose capacity to perform the work
for  which he OR SHE is engaged is substantially impaired by physical or
mental deficiency or injury.
  S 9. Subdivisions 1 and 3 of section 875 of the labor law, as added by
chapter 551 of the laws of 1980, are amended to read as follows:
  1. "Employer" means any individual, partnership, corporation or  asso-
ciation  engaged in a business who has employees including the state and
its political subdivisions.  The  term  "employer"  [does  not  include]
INCLUDES  the  employment  of  domestic  workers  [or  casual  laborers]
employed at the place of residence of his or her employer.
  3. "Workplace" means any location [away from the home],  permanent  or
temporary,  where  any  employee  performs  any work-related duty in the
course of his OR HER employment.
  S 10. The opening paragraph of subdivision 5 and the opening paragraph
of paragraph A of subdivision 6 of section 201 of the  workers'  compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205  of the laws of 1993, the opening paragraph of paragraph A of subdi-
vision 6 as amended by chapter 903 of the laws of 1986, are  amended  to
read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment  defined  in  subdivision six of this section, except a minor
child of the employer[, except  a  domestic  or  personal  worker  in  a
private  home  who is employed for less than forty hours per week by any
one employer,] and except a duly  ordained,  commissioned,  or  licensed
minister,  priest  or  rabbi,  a  sexton, a christian science reader, or
member of a religious order, or an executive officer  of  a  corporation
who  at  all times during the period involved owns all of the issued and
outstanding stock of the corporation and holds all of the offices pursu-
ant to paragraph (e) of section seven hundred fifteen  of  the  business
corporation  law  or  two executive officers of a corporation who at all
times during the period involved between them own all of the issued  and
outstanding  stock  of  such  corporation  and  hold  all  such  offices
provided, however, that each officer must own  at  least  one  share  of
stock, except as provided in section two hundred twelve of this article,
or  an  executive  officer  of  an incorporated religious, charitable or
educational institution, or persons engaged in a professional or  teach-
ing  capacity  in or for a religious, charitable or educational institu-
tion, or volunteers in or for a  religious,  charitable  or  educational
institution,  or  persons  participating in and receiving rehabilitative
services in a sheltered workshop operated by a religious, charitable  or
educational  institution under a certificate issued by the United States
department of labor, or recipients of charitable aid from a religious or
charitable institution who perform work in or for the institution  which
is  incidental  to  or in return for the aid conferred, and not under an
express contract of hire. The terms  "religious,  charitable  or  educa-
tional  institution"  mean  a  corporation,  unincorporated association,
community chest, fund or foundation organized and  operated  exclusively
for  religious,  charitable  or educational purposes, no part of the net
earnings of which inure to the benefit of  any  private  shareholder  or
individual.
  "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-

S. 2311--D                          8

vision  or  public authority; employment subject to the federal railroad
unemployment insurance act; service performed on or  as  an  officer  or
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
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S 11. The commissioner of labor shall report to  the  speaker  of  the
assembly  and  the  temporary president of the senate before December 1,
2011 on the feasibility and practicality of full- and part-time domestic
workers being able to obtain common employment benefits such as vacation
pay, severance pay, personal leave, or health insurance or other  health
coverage through collective bargaining or by law. The commissioner shall
recommend  measures  to  make these benefits affordable to employers and
attainable for workers. The commissioner shall also convene  an  intera-
gency  task  force  to  report to the speaker and majority leader before
December 1, 2011, which shall include but not be limited to the chair of
the workers' compensation board, the superintendent  of  insurance,  the
commissioner  of  health and the executive director of the department of
economic development,  to  provide  easily  accessible  educational  and
informational material for domestic employers and workers. Such material
shall cover employment benefit, tax and insurance laws.
  S  12. This act shall take effect on January first next succeeding the
date on which it shall have become a law; provided that section  two  of
this  act  shall  take  effect  on the ninetieth day after it shall have
become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--E
    Cal. No. 196

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
  PADAVAN,  PARKER,  PERALTA,  PERKINS,  SAMPSON, SCHNEIDERMAN, SERRANO,
  SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Labor --  reported  favorably  from  said  committee  and
  committed  to  the  Committee on Codes -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on  Codes  -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  reported  favorably  from  said  committee  and
  committed  to the Committee on Finance -- reported favorably from said
  committee, ordered to first and second  report,  ordered  to  a  third
  reading,  amended  and  ordered  reprinted, retaining its place in the
  order of third reading -- again amended and ordered reprinted, retain-
  ing its place in the order of third reading -- passed  by  Senate  and
  delivered  to  the  Assembly, recalled, vote reconsidered, restored to
  third reading, amended and ordered reprinted, retaining its  place  in
  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:

  Section 1. Legislative findings and intent. Many thousands of domestic
workers  are  employed  in  New York state as housekeepers, nannies, and
companions to the elderly. The labor of domestic workers is  central  to

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

                                                           LBD00150-19-0

S. 2311--E                          2

the ongoing prosperity that the state enjoys, and yet, despite the value
of  their  work,  domestic workers do not receive the same protection of
many state laws as do workers  in  other  industries.  Domestic  workers
often  labor under harsh conditions, work long hours for low wages with-
out benefits or job security, are isolated in their workplaces, and  are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
emotional and psychological abuse. Moreover, many  domestic  workers  in
the  state  of  New York are women of color who, because of race and sex
discrimination, are particularly vulnerable to unfair  labor  practices.
Additionally,  domestic  workers  are  not  afforded by law the right to
organize labor unions for the purpose of collective bargaining.
  The legislature finds that because domestic workers care for the  most
important  elements of their employers' lives, their families and homes,
it is in the interest of employees, employers, and  the  people  of  the
state  of  New  York  to  ensure that the rights of domestic workers are
respected, protected, and enforced.
  S 2. Section 2 of the labor law is amended by adding a new subdivision
16 to read as follows:
  16. "DOMESTIC WORKER" SHALL MEAN A PERSON EMPLOYED IN A HOME OR  RESI-
DENCE  FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION FOR
A SICK, CONVALESCING OR ELDERLY PERSON, HOUSEKEEPING, OR FOR  ANY  OTHER
DOMESTIC  SERVICE  PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE ANY INDI-
VIDUAL (A) WORKING ON A CASUAL BASIS, (B) WHO IS  ENGAGED  IN  PROVIDING
COMPANIONSHIP  SERVICES,  AS DEFINED IN PARAGRAPH FIFTEEN OF SUBDIVISION
(A) OF SECTION 213 OF THE FAIR LABOR STANDARDS ACT OF 1938, AND  WHO  IS
EMPLOYED  BY  AN  EMPLOYER  OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD
USING HIS OR HER SERVICES, OR (C)  WHO  IS  A  RELATIVE  THROUGH  BLOOD,
MARRIAGE  OR  ADOPTION OF:  (1) THE EMPLOYER; OR (2) THE PERSON FOR WHOM
THE WORKER IS DELIVERING SERVICES UNDER A PROGRAM FUNDED OR ADMINISTERED
BY FEDERAL, STATE OR LOCAL GOVERNMENT.
  S 3. The executive law is amended by adding a  new  section  296-b  to
read as follows:
  S  296-B. UNLAWFUL DISCRIMINATORY PRACTICES RELATING TO DOMESTIC WORK-
ERS. 1. FOR THE PURPOSES OF THIS SECTION:  "DOMESTIC WORKERS" SHALL HAVE
THE MEANING SET FORTH IN SECTION TWO OF THE LABOR LAW.
  2. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO:
  (A) ENGAGE IN UNWELCOME SEXUAL ADVANCES, REQUESTS FOR  SEXUAL  FAVORS,
OR  OTHER  VERBAL  OR  PHYSICAL CONDUCT OF A SEXUAL NATURE TO A DOMESTIC
WORKER WHEN: (I) SUBMISSION TO SUCH CONDUCT IS MADE EITHER EXPLICITLY OR
IMPLICITLY A TERM OR  CONDITION  OF  AN  INDIVIDUAL'S  EMPLOYMENT;  (II)
SUBMISSION  TO  OR REJECTION OF SUCH CONDUCT BY AN INDIVIDUAL IS USED AS
THE BASIS FOR EMPLOYMENT DECISIONS AFFECTING SUCH INDIVIDUAL;  OR  (III)
SUCH  CONDUCT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING WITH
AN INDIVIDUAL'S WORK PERFORMANCE BY CREATING AN  INTIMIDATING,  HOSTILE,
OR OFFENSIVE WORKING ENVIRONMENT.
  (B) SUBJECT A DOMESTIC WORKER TO UNWELCOME HARASSMENT BASED ON GENDER,
RACE, RELIGION OR NATIONAL ORIGIN, WHERE SUCH HARASSMENT HAS THE PURPOSE
OR EFFECT OF UNREASONABLY INTERFERING WITH AN INDIVIDUAL'S WORK PERFORM-
ANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRON-
MENT.
  S  4. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
as amended by chapter 166 of the laws of 2000, are amended  to  read  as
follows:

S. 2311--E                          3

  5.  The  term "employer" does not include any employer with fewer than
four persons in his OR HER employ EXCEPT AS SET  FORTH  IN  SECTION  TWO
HUNDRED NINETY-SIX-B OF THIS TITLE.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her  parents, spouse or child, or in the domestic
service of any person EXCEPT AS SET FORTH IN SECTION TWO  HUNDRED  NINE-
TY-SIX-B OF THIS TITLE.
  S  5. Subdivision 3 of section 160 of the labor law is amended to read
as follows:
  3. For all other employees, except those engaged in farm [or  domestic
service]  WORK  and  those  affected  by subdivision four of section two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S 6. The labor law is amended by adding a new section 170 to  read  as
follows:
  S  170.  HOURS OF LABOR FOR DOMESTIC WORKERS. NO PERSON OR CORPORATION
EMPLOYING A DOMESTIC WORKER AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION
TWO OF THIS CHAPTER, SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN
FORTY HOURS IN A WEEK, OR FORTY-FOUR HOURS IN A WEEK FOR DOMESTIC  WORK-
ERS  WHO  RESIDE  IN  THE  HOME  OF  THEIR EMPLOYER; UNLESS THEY RECEIVE
COMPENSATION FOR OVERTIME WORK AT A RATE WHICH IS AT LEAST ONE AND  ONE-
HALF TIMES THE WORKER'S NORMAL WAGE RATE.
  S  7.  Subdivision  1  of  section  161 of the labor law is amended by
adding a new undesignated paragraph to read as follows:
  EVERY PERSON EMPLOYED AS A DOMESTIC WORKER AS DEFINED  IN  SUBDIVISION
SIXTEEN  OF SECTION TWO OF THIS CHAPTER, SHALL BE ALLOWED AT LEAST TWEN-
TY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.    NO
PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A DOMESTIC WORKER FROM VOLUN-
TARILY  AGREEING TO WORK ON SUCH DAY OF REST REQUIRED BY THIS PARAGRAPH,
PROVIDED THAT THE WORKER IS COMPENSATED AT THE  OVERTIME  RATE  FOR  ALL
HOURS  WORKED ON SUCH DAY OF REST. THE DAY OF REST AUTHORIZED UNDER THIS
SUBDIVISION SHOULD, WHENEVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY
RESERVED BY THE DOMESTIC WORKER FOR RELIGIOUS  WORSHIP.    IN  ADDITION,
AFTER ONE YEAR OF WORK WITH THE SAME EMPLOYER A DOMESTIC WORKER SHALL BE
ENTITLED  TO  AT  LEAST  THREE DAYS OF REST IN EACH CALENDAR YEAR AT THE
REGULAR RATE OF COMPENSATION.
  S 8. Subdivision 5 of section 651 of the  labor  law,  as  amended  by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "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[; or someone who lives
in  the home of an employer for the purpose of serving as a companion to
a sick, convalescing or elderly person, and whose  principal  duties  do
not  include  housekeeping];  (b) in labor on a farm; (c) in a bona fide
executive, administrative, or professional capacity; (d) as  an  outside
salesman;  (e)  as  a  driver  engaged  in operating a taxicab; (f) as a
volunteer, learner or apprentice by a corporation, unincorporated  asso-
ciation,  community  chest,  fund  or  foundation organized and operated
exclusively for religious, charitable or educational purposes,  no  part
of the net earnings of which inures to the benefit of any private share-
holder or individual; (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; (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; (i) in or for such a religious, educational or  chari-

S. 2311--E                          4

table  institution if such individual is a student; (j) in or for such a
religious, educational or charitable institution if the earning capacity
of such individual is impaired by age or by physical or mental deficien-
cy  or injury; (k) in or for a summer camp or conference of such a reli-
gious, educational or charitable institution for  not  more  than  three
months  annually;  (l) as a staff counselor in a children's camp; (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;  (n)  by  a federal, state or municipal government or political
subdivision thereof. The exclusions from the term  "employee"  contained
in  this  subdivision  shall be as defined by regulations of the commis-
sioner; or (o) as a volunteer at a recreational or amusement  event  run
by  a  business  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  year.  Any  such volunteer shall be at least eighteen years of
age. 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.  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.
  "Employee"  also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or  board  of  cooper-
ative  educational  services  except that the provisions of sections six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S 9. The opening paragraph of subdivision 5 and the opening  paragraph
of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205 of the laws of 1993 and the opening  paragraph  of  paragraph  A  of
subdivision 6 as amended by chapter 903 of the laws of 1986, are amended
to read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment  defined  in  subdivision six of this section, except a minor
child of the employer, [except  a  domestic  or  personal  worker  in  a
private  home  who is employed for less than forty hours per week by any
one employer, and] except a duly  ordained,  commissioned,  or  licensed
minister,  priest  or  rabbi,  a  sexton, a christian science reader, or
member of a religious order, or an executive officer  of  a  corporation
who  at  all times during the period involved owns all of the issued and
outstanding stock of the corporation and holds all of the offices pursu-
ant to paragraph (e) of section seven hundred fifteen  of  the  business
corporation  law  or  two executive officers of a corporation who at all
times during the period involved between them own all of the issued  and
outstanding  stock  of  such  corporation  and  hold  all  such  offices
provided, however, that each officer must own  at  least  one  share  of
stock, except as provided in section two hundred twelve of this article,
or  an  executive  officer  of  an incorporated religious, charitable or
educational institution, or persons engaged in a professional or  teach-
ing  capacity  in or for a religious, charitable or educational institu-
tion, or volunteers in or for a  religious,  charitable  or  educational
institution,  or  persons  participating in and receiving rehabilitative
services in a sheltered workshop operated by a religious, charitable  or

S. 2311--E                          5

educational  institution under a certificate issued by the United States
department of labor, or recipients of charitable aid from a religious or
charitable institution who perform work in or for the institution  which
is  incidental  to  or in return for the aid conferred, and not under an
express contract of hire. The terms  "religious,  charitable  or  educa-
tional  institution"  mean  a  corporation,  unincorporated association,
community chest, fund or foundation organized and  operated  exclusively
for  religious,  charitable  or educational purposes, no part of the net
earnings of which inure to the benefit of  any  private  shareholder  or
individual.
  "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
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
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S  10.  The  commissioner  of  labor shall report to the governor, the
speaker of the assembly and the temporary president of the senate before
November 1, 2010 on the feasibility and practicality of allowing  domes-
tic  workers  to  organize  for  purposes  of  collective bargaining. In
preparing such report, the  commissioner  of  labor  will  consult  with
representatives  of  domestic  workers and individuals and agencies that
employ domestic workers,  and  relevant  state  agencies  including  the
public  employment  relations board. The report shall address the feasi-
bility of an employee organization formed in accordance with  the  State
Labor  Relations  Act, how bargaining units for such organizations could
be formed, whether there are any  unique  issues  which  arise  in  this
context  and  whether there are other possible frameworks for collective
organization or for ensuring the benefits  that  accompany  organization
for  domestic workers. The commissioner of labor shall also report, with
the assistance of an interagency working group which shall  include  but
not  be  limited  to  the  chair of the workers' compensation board, the
superintendent of insurance, the commissioner of health and the  commis-
sioner of economic development, on how best to provide easily accessible
educational  and informational material for domestic employers and work-

S. 2311--E                          6

ers. Such material shall cover employment benefits,  tax  and  insurance
laws.
  S  11.  This act shall take effect on the ninetieth day after it shall
have become a law.