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

                                  7470

                            I N  S E N A T E

                             April 14, 2010
                               ___________

Introduced  by Sens. VALESKY, MAZIARZ -- read twice and ordered printed,
  and when printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to excluding certain seasonal
  fair workers from the definition of employee for purposes of the mini-
  mum wage act

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  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) 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, conva-
lescing 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  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 chari-
table institution, which work is incidental to or in return for charita-
ble aid conferred  upon  such  individual  and  not  under  any  express
contract  of hire; (i) in or for such a religious, educational or chari-
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

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

                                                           LBD16829-01-0

S. 7470                             2

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[.];
OR  (P)  AN  EMPLOYEE  OF  AN  AMUSEMENT  OR  RECREATIONAL ESTABLISHMENT
PROVIDED THAT (1) SUCH ESTABLISHMENT ADHERES TO  CURRENT  STATE  MINIMUM
WAGE RATES FOR ALL EMPLOYEES, (2) MEETS THE BUSINESS OPERATIONS CRITERIA
ESTABLISHED  UNDER  PARAGRAPH THREE OF SUBDIVISION A OF SECTION THIRTEEN
OF THE FEDERAL FAIR LABOR STANDARDS ACT, AND (3) IS EMPLOYED IN  HIS  OR
HER  CAPACITY AS AN EMPLOYEE ON THE PREMISES OF A COUNTY OR AGRICULTURAL
FAIRGROUND.
  "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 2.  This act shall take effect immediately.