senate Bill S1743A

2013-2014 Legislative Session

Enacts the farmworkers fair labor practices act, granting collective bargaining rights, workers' compensation and unemployment benefits to farmworkers

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

do you support this bill?

Actions

view actions (11)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Apr 28, 2014 reported and committed to finance
Mar 11, 2014 notice of committee consideration - requested
Jan 08, 2014 referred to labor
Jun 19, 2013 amended by restoring to previous print 1743a
Jun 03, 2013 print number 1743a
amend and recommit to labor
Jun 18, 2013 print number 1743b
amend (t) and recommit to labor
Apr 22, 2013 notice of committee consideration - withdrawn
Mar 11, 2013 notice of committee consideration - requested
Jan 09, 2013 referred to labor

Votes

view votes

Apr 28, 2014 - Labor committee Vote

S1743A
8
5
committee
8
Aye
5
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Labor committee vote details

Bill Amendments

Original
A (Active)
B
Original
A (Active)
B

Co-Sponsors

view additional co-sponsors

S1743 - Bill Details

See Assembly Version of this Bill:
A1792A
Current Committee:
Senate Finance
Law Section:
Labor Law
Laws Affected:
Amd §§160, 161, 220, 511, 564, 651, 674 & 701, add §163-a, Lab L; amd §225, Pub Health L; amd §§3, 51, 120, 201, add §110-b, Work Comp L
Versions Introduced in Previous Legislative Sessions:
2011-2012: A1652, S1862
2009-2010: A1867, S2247

S1743 - Bill Texts

view summary

Enacts the farmworkers fair labor practices act: grants collective bargaining rights to farm laborers; requires employers of farm laborers to allow at least 24 consecutive hours of rest each week; provides for an 8 hour work day for farm laborers; requires overtime rate at one and one-half times normal rate; makes provisions of unemployment insurance law applicable to farm laborers; provides sanitary code shall apply to all farm and food processing labor camps intended to house migrant workers, regardless of the number of occupants; provides for eligibility of farm laborers for workers' compensation benefits; requires employers of farm laborers to provide such farm laborers with claim forms for workers' compensation claims under certain conditions; requires reporting of injuries to employers of farmworkers.

view sponsor memo
BILL NUMBER:S1743

TITLE OF BILL:
An act
to amend the labor law, in relation to
granting collective bargaining rights to farm laborers and
allowing farm workers one day of rest each week and
including farm laborers within the provisions pertaining to overtime
compensation and unemployment insurance; to
amend the public health law, in relation to the application of the
sanitary code to all farm and food processing labor camps for migrant
workers; to amend the workers' compensation
law, in relation to the eligibility of farm laborers for
workers' compensation benefits
and the
provision of claim forms to farm
laborers injured in the course of employment and
in relation to service as farm
laborers; and to amend the labor law, in relation to labor on a farm and
regulating the employment of certain employees whose earning capacity is
affected or impaired by youth or age

PURPOSE OR GENERAL IDEA OF BILL:
To establish the Farmworkers Fair Labor practices Act to allow farm
workers overtime, a day of rest, disability insurance, unemployment
benefits, and other labor protections granted to other workers in New
York State.
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill entitles the bill "The Farmworkers Pair Labor
Practices Act."

Section 2 of the bill amends section 2 of the labor law to define the
term "farm labor."

Section 3 of the bill amends section 161 of the labor law to allow
farm workers 24 consecutive hours of rest each week and to Provide
for payment of overtime for working on the day of rest.

Section 4 of the bill amends section 161 of the labor law to allow
workers employed in dairies, creameries, and who care for live
animals 24 hours of rest during each calendar week.

Section 5 of the bill establishes a new section 163-a of the labor law
to establish an overtime rate for farmworkers who work more than ten
hours a day, sixty hours a week, or six days a week.

Section 6 of the bill amends section 564 of the labor law to change
the unemployment insurance threshold to make farmworkers eligible for
benefits if their employers paid at least $6250 in a calendar
quarter. A new subdivision(2) is added to eliminate unemployment
contributions by employers for farmworkers who are ineligible for
benefits under the
federal unemployment tax act.


Section 7 of the bill amends section 674 of the labor law to exclude
the subminimum wage for underage farm workers.

Section 8 of the bill amends section 701 of the labor law to provide
collective bargaining rights to workers of a farm employer with gross
sales of at least $650,000 during the previous calendar year.

Section 9 of the bill adds a new section 704-a to the labor law to
require a 21-day cooling off period between certain farm employers
and employees before they use a work stoppage or lockout to settle a
labor dispute,

Section 10 of the bill establishes an advisory committee on
agricultural collective bargaining to report to the legislature and
governor by December 31, 2010 with recommendations to implement
collective bargaining procedures, and to foster labor-management
cooperation and dispute resolution between farm employers and
farmworkers.

Section 11 of the bill amends section 225 of the public health law to
expand the application of the state sanitary code to farmworker
housing occupied by less than five migrant workers,

Section 12 of the bill amends section 51 of the workers' compensation
law to require the posting of notice of workers' compensation
insurance in English and Spanish, and to increase the penalty from
$250 to $500 for failure to Post such notice.

Section 13 of the hill adds a new section 110-b to the workers'
compensation law to require foremen who receive notice of an injury
to a worker suffered in the course of farm employment to inform the
employer of the injury.

Section 14 of the bill amends the section 120 of the workers'
compensation law to make it unlawful to discharge an employee for
requesting a claim form relating to injuries incurred in the course
of employment.

Section 15 of the bill amends section 201 of the workers' compensation
law to provide disability insurance coverage to farm workers.

Section 16 of the bill adds a new section to protect the rights of
farm-workers established under a collective bargaining agreement.

Section 17 of the bill establishes the effective dates of the rights
established under the act.

EXISTING LAW:

Section 161 of the labor law excludes farmworkers from the right to a
day of rest.

The fair labor standards act, 29 U.S.C. section 213, excludes
farmworkers from the right to overtime pay for work in excess of 40
hours a week,


Section 564 of the labor law excludes farmworkers from eligibility for
unemployment benefits unless their employer pays at least $20,000 in
cash renumeration during a calendar quarter,

Section 674 of the labor law allows underage farmworkers to be paid
less than the minimum wage rate.

Section 701 of the labor law excludes farmworkers from the right to
collective bargaining.

Section 225 of the public health law exempts the application of the
state sanitary code to housing for migrant farmworkers occupied by
less than five persons.

Section 51 of the workers' compensation law establishes a fine of up
to $250 for failure to post notice of workers' compensation insurance.

Section 201(6)(A) of the workers, compensation law excludes
farmworkers from the right to disability insurance.

JUSTIFICATION:
Farmworkers perform essential services for New York's agricultural
industry which ranks near the top nationally in dairy. apples,
vegetables, grapes, floriculture and other products. Farm work is
labor intensive that involves arduous tasks, exposure to pesticides,
and long hours. Farmworkers frequently suffer physical injuries and
illnesses in the course of their employment, often beyond that
suffered by workers in other industries. It is unjust that the labor
protections provided to other workers in New York such as a day of
rest. overtime pay. disability insurance, unemployment benefits and
collective bargaining have been denied to farmworkers for decades.
This legislation would grant farm-workers the basic labor rights long
enjoyed by other public and private employees in our State.

PRIOR LEGISLATIVE HISTORY:
2009: S.2247 Reported from Labor to Codes: A.1967 Passed Assembly.
2008: S.3884 Reported from Labor to Rules; A 7528 Advanced to 3rd
Reading.

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE:
This act shall take effect immediately, provided that
section ten of this act shall take effect on the thirtieth day after
it shall have become a law.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1743

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  ESPAILLAT, ADAMS, ADDABBO, AVELLA, BRESLIN, DIAZ,
  DILAN, GIANARIS, HASSELL-THOMPSON, KLEIN, KRUEGER, MONTGOMERY, PARKER,
  PERALTA, PERKINS, RIVERA, SAMPSON, SAVINO, SERRANO,  SMITH,  SQUADRON,
  STAVISKY,  STEWART-COUSINS -- 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  granting  collective
  bargaining  rights  to farm laborers and allowing farm workers one day
  of rest each week and including farm laborers  within  the  provisions
  pertaining  to  overtime  compensation  and unemployment insurance; to
  amend the public health law, in relation to  the  application  of  the
  sanitary  code to all farm and food processing labor camps for migrant
  workers; to amend the workers' compensation law, in  relation  to  the
  eligibility  of  farm  laborers for workers' compensation benefits and
  the provision of claim forms to farm laborers injured in the course of
  employment and in relation to service as farm laborers; and  to  amend
  the  labor  law,  in  relation  to  labor on a farm and regulating the
  employment of certain employees whose earning capacity is affected  or
  impaired by youth or age

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

  Section 1. This act shall be known and may be cited as "the  farmwork-
ers fair labor practices act".
  S  2.  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00123-01-3

S. 1743                             2

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 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 indi-
vidual who participates in and receives  rehabilitative  or  therapeutic
services in a charitable non-profit rehabilitation facility or sheltered
workshop or any individual employed in a charitable non-profit rehabili-
tation facility or sheltered workshop who has received rehabilitative or
therapeutic services and whose capacity to perform the work for which he
is engaged is substantially impaired by physical or mental deficiency or
injury.
  S  3.  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 FARM LABORER  SHALL  BE  ALLOWED  AT  LEAST
TWENTY-FOUR  CONSECUTIVE  HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.
THIS REQUIREMENT SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE  OR  OTHER
MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
SPENT  AT  REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR CROP CONDI-
TIONS, SHALL BE DEEMED TO CONSTITUTE THE REST  REQUIRED  BY  THIS  PARA-
GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
VOLUNTARILY  REFUSING  THE  REST  REQUIRED BY THIS PARAGRAPH.   THE TERM
"FARM LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN  AGRICULTURAL
EMPLOYMENT  IN  CONNECTION  WITH  CULTIVATING THE SOIL, OR IN CONNECTION
WITH RAISING OR HARVESTING OF AGRICULTURAL  COMMODITIES,  INCLUDING  THE
RAISING,  SHEARING,  CARING  FOR AND MANAGEMENT OF LIVESTOCK, POULTRY OR
DAIRY.  THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD,  WHEN-
EVER  POSSIBLE,  COINCIDE  WITH THE TRADITIONAL DAY RESERVED BY THE FARM
LABORER FOR RELIGIOUS WORSHIP.
  S 4. Paragraphs b and d of subdivision 2 of section 161 of  the  labor
law,  as amended by chapter 281 of the laws of 1941, are amended to read
as follows:
  b. Employees in [dairies, creameries,] milk condenseries, milk  powder
factories,  milk  sugar  factories,  milk  shipping stations, butter and
cheese factories, ice  cream  manufacturing  plants  and  milk  bottling
plants, where not more than seven persons are employed;
  d.  Employees  whose duties include not more than three hours' work on
Sunday in setting sponges in bakeries, [caring for live animals,]  main-
taining fires, or making necessary repairs to boilers or machinery.
  S  5.  The  opening  paragraph  of subdivision 3 of section 160 of the
labor law, as amended by chapter 481 of the laws of 2010, is amended  to
read as follows:
  For all other employees, except [those engaged in farm work and] those
affected by subdivision four of section two hundred twenty of this chap-
ter, eight hours.
  S  6. Subdivision 1 of section 220 of the labor law is amended to read
as follows:
  1. Eight hours shall constitute a legal day's work for all classes  of
employees  in  this  state  except  those engaged in [farm and] domestic
service unless otherwise provided by law.
  S 7. The labor law is amended by adding a new section 163-a to read as
follows:

S. 1743                             3

  S 163-A. FARM LABORERS. NO PERSON  OR  CORPORATION  OPERATING  A  FARM
SHALL  REQUIRE  ANY  EMPLOYEE  TO WORK MORE THAN EIGHT HOURS IN ANY DAY;
PROVIDED, HOWEVER, THAT OVERTIME WORK PERFORMED BY A FARM LABORER  SHALL
BE  AT  A  RATE  WHICH  IS  AT LEAST ONE AND ONE-HALF TIMES THE WORKER'S
NORMAL WAGE RATE.
  S  8.  The  opening  paragraph  of  paragraph  (a) of subdivision 6 of
section 511 of the labor law, as amended by chapter 675 of the  laws  of
1977, is amended to read as follows:
  The  term  "employment" [does not include] INCLUDES agricultural labor
[unless it is covered pursuant to section five hundred sixty-four].  The
term "agricultural labor" includes all service performed:
  S 9. Section 564 of the labor law, as added by chapter 675 of the laws
of 1977, is amended to read as follows:
  S  564.  Agricultural  labor CREW LEADERS.  [1. Coverage. (a) Notwith-
standing the provisions of section five hundred sixty of  this  article,
an employer of persons engaged in agricultural labor shall become liable
for contributions under this article if the employer:
  (1)  has  paid cash remuneration of twenty thousand dollars or more in
any calendar quarter to persons employed in agricultural labor, and such
liability shall commence on the first day of such quarter, or
  (2) has employed in agricultural labor ten or more persons on each  of
twenty  days during a calendar year or the preceding calendar year, each
day being in a different calendar week, and the liability shall in  such
event commence on the first day of the calendar year, or
  (3)  is  liable for the tax imposed under the federal unemployment tax
act as an employer of agricultural labor and the liability shall in such
event commence on the first day of the calendar quarter in such calendar
year when he first paid remuneration  for  agricultural  labor  in  this
state.
  (b)  An  employer who becomes liable for contributions under paragraph
(a) of this subdivision shall cease to be liable as of the first day  of
a  calendar  quarter  next following the filing of a written application
provided the commissioner finds that the employer:
  (1) has not paid to persons employed in agricultural labor cash remun-
eration of twenty thousand dollars or more in any of the eight  calendar
quarters preceding such day, and
  (2) has not employed in agricultural labor ten or more persons on each
of  twenty  days during the current or the preceding calendar year, each
day being in a different week, and
  (3) is not liable for the tax imposed under the  federal  unemployment
tax act as an employer of agricultural labor.
  2.  Crew  leader.] Whenever a person renders services as a member of a
crew which is paid and furnished by the crew leader to perform  services
in  agricultural  labor for another employer, such other employer shall,
for the purpose of this article, be deemed to be the  employer  of  such
person, unless:
  [(a)]  1.  the  crew  leader holds a valid certificate of registration
under the federal farm labor contractor  registration  act  of  nineteen
hundred sixty-three or substantially all the members of the crew operate
or  maintain tractors, mechanized harvesting or cropdusting machinery or
any other mechanized equipment which is provided by the crew leader, and
  [(b)] 2. the crew leader is not an employee of such other employer and
has not entered into a written agreement with such employer under  which
he is designated as an employee.

S. 1743                             4

  S  10.  Paragraph  (m)  of  subdivision 5 of section 225 of the public
health law, as amended by section 51 of part A of chapter 58 of the laws
of 2010, is amended to read as follows:
  (m) require that application be made for a permit to operate a farm or
food  processing  labor  camp as defined in the sanitary code; authorize
appropriate officers or agencies to issue such a permit when the  appli-
cant is in compliance with the established regulations; prescribe stand-
ards  for  living  quarters  at  farm  and  food processing labor camps,
including provisions for sanitary conditions; light,  air,  and  safety;
protection from fire hazards; maintenance; and such other matters as may
be  appropriate  for  security of life or health, provided however, that
the  provisions  of  the  sanitary  code  established  pursuant  to  the
provisions  hereof  shall  apply  to  all farm and food processing labor
camps intended to house migrant workers and which are occupied [by  five
or  more  persons].  In  the preparation of such regulations, the public
health and health planning council may request and shall receive techni-
cal assistance from the board of standards  and  appeals  of  the  state
department  of  labor and the state building code commission. Such regu-
lation shall be enforced in the same manner as are other  provisions  of
the sanitary code;
  S  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
amended to read as follows:
  Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
any  other  employment in a trade, business, or occupation carried on by
the employer for pecuniary gain in which one or  more  employees  [other
than farm laborers] are employed.
  Group 14-b. Employment as a farm laborer as provided herein.  A farmer
shall  provide  coverage  under  this  chapter  for  all  farm  laborers
[employed during any part of the  twelve  consecutive  months  beginning
April  first  of  any calendar year preceded by a calendar year in which
the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
hundred dollars or more].
  S  12.    Section  51  of the workers' compensation law, as amended by
chapter 561 of the laws of 2003, is amended to read as follows:
  S 51. Posting of notice regarding compensation. Every employer who has
complied with section fifty of this article shall post and maintain in a
conspicuous place or places in and about his place or places of business
typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
by the chairman, stating the fact that he  has  complied  with  all  the
rules  and  regulations  of  the  chairman and the board and that he has
secured the payment of compensation to his employees  and  their  depen-
dents  in accordance with the provisions of this chapter, but failure to
post such notice as herein provided shall not  in  any  way  affect  the
exclusiveness of the remedy provided for by section eleven of this chap-
ter. Every employer who owns or operates automotive or horse-drawn vehi-
cles  and  has  no minimum staff of regular employees required to report
for work at an established place of business maintained by such employer
and every employer who is engaged in the business  of  moving  household
goods  or  furniture  shall  post such notices in each and every vehicle
owned or operated by him. Failure to post or maintain such notice in any
of said vehicles shall constitute presumptive evidence that such employ-
er has failed to secure the payment of compensation.  The  chairman  may
require  any employer to furnish a written statement at any time showing
the stock corporation, mutual corporation or reciprocal insurer in which

S. 1743                             5

such employer is insured or  the  manner  in  which  such  employer  has
complied with any provision of this chapter. Failure for a period of ten
days  to  furnish  such  written  statement shall constitute presumptive
evidence that such employer has neglected or failed in respect of any of
the  matters  so  required.  Any  employer  who fails to comply with the
provisions of this section shall be required to pay to the board a  fine
of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
addition  to any other penalties imposed by law to be deposited into the
uninsured employers' fund.
  S 13. The workers' compensation law is amended by adding a new section
110-b to read as follows:
  S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
INJURY.
  S 14. The first undesignated paragraph of section 120 of the  workers'
compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
amended to read as follows:
  It shall be unlawful for any employer or his or  her  duly  authorized
agent  to  discharge  or  in  any  other  manner discriminate against an
employee as to his or her employment because such employee  has  claimed
or attempted to claim compensation from such employer, REQUESTED A CLAIM
FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
she  has  testified  or  is  about to testify in a proceeding under this
chapter and no other valid reason is shown to exist for such  action  by
the employer.
  S 15. The opening paragraph of paragraph A of subdivision 6 of section
201  of  the workers' compensation law, as amended by chapter 481 of the
laws of 2010, is amended to read as follows:
  "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
subparagraph (b) of this paragraph was not  executed  under  duress  and
contains the following provisions:

S. 1743                             6

  S  16.  The  opening  paragraph of subdivision 5 of section 651 of the
labor law, as amended by chapter 481 of the laws of 2010, is amended  to
read as follows:
  "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; (b) [in labor on a
farm; (c)] in a bona fide  executive,  administrative,  or  professional
capacity;  [(d)]  (C)  as  an  outside  salesman;  [(e)] (D) as a driver
engaged in operating a taxicab; [(f)] (E) as  a  volunteer,  learner  or
apprentice  by  a  corporation,  unincorporated  association,  community
chest, fund or foundation organized and operated exclusively  for  reli-
gious,  charitable  or educational purposes, no part of the net earnings
of which inures to the benefit of any private shareholder or individual;
[(g)] (F) 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)] (G) 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)] (H) in or for such a religious, educational or
charitable institution if such individual is a student; [(j)] (I) in  or
for such a religious, educational or charitable institution if the earn-
ing  capacity  of  such  individual is impaired by age or by physical or
mental deficiency or injury; [(k)] (J)  in  or  for  a  summer  camp  or
conference  of  such  a religious, educational or charitable institution
for not more than three months annually; [(l)] (K) as a staff  counselor
in  a  children's  camp;  [(m)]  (L)  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)] (M) 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)]  (N)  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 seek-
ing  coverage under this paragraph shall notify every volunteer in writ-
ing, 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.
  S 17. Subdivision 1 of section 674 of the labor law, as added by chap-
ter 552 of the laws of 1969, is amended to read as follows:
  1. The commissioner may promulgate such regulations as he deems appro-
priate to carry out the purposes of this article and to safeguard  mini-
mum  wage  standards.  Such regulations may include, but are not limited
to, the defining of the circumstances or conditions for  the  acceptance
of  non-hourly rates and piece rates as equivalent to the minimum hourly
rates established by this article. Such regulations  also  may  include,
but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
provisions governing guaranteed earnings  during  specified  periods  of
work;  allowances  for  meals,  lodging,  and  other items, services and

S. 1743                             7

facilities when furnished by the employer; [and the employment of  indi-
viduals whose earning capacity is affected or impaired by youth or age,]
or  by  physical  or  mental deficiency or injury, under special certif-
icates  issued by the commissioner, at such wages lower than the minimum
wage established by this  article  and  for  such  period  as  shall  be
prescribed in such regulations.
  S  18.  This  act shall take effect immediately, provided that section
ten of this act shall take effect on the thirtieth day  after  it  shall
have become a law.

Co-Sponsors

view additional co-sponsors

S1743A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A1792A
Current Committee:
Senate Finance
Law Section:
Labor Law
Laws Affected:
Amd §§160, 161, 220, 511, 564, 651, 674 & 701, add §163-a, Lab L; amd §225, Pub Health L; amd §§3, 51, 120, 201, add §110-b, Work Comp L
Versions Introduced in Previous Legislative Sessions:
2011-2012: A1652, S1862
2009-2010: A1867, S2247

S1743A (ACTIVE) - Bill Texts

view summary

Enacts the farmworkers fair labor practices act: grants collective bargaining rights to farm laborers; requires employers of farm laborers to allow at least 24 consecutive hours of rest each week; provides for an 8 hour work day for farm laborers; requires overtime rate at one and one-half times normal rate; makes provisions of unemployment insurance law applicable to farm laborers; provides sanitary code shall apply to all farm and food processing labor camps intended to house migrant workers, regardless of the number of occupants; provides for eligibility of farm laborers for workers' compensation benefits; requires employers of farm laborers to provide such farm laborers with claim forms for workers' compensation claims under certain conditions; requires reporting of injuries to employers of farmworkers.

view sponsor memo
BILL NUMBER:S1743A REVISED MEMO 04/25/2014

TITLE OF BILL: An act to amend the labor law, in relation to granting
collective bargaining rights to farm laborers and allowing farm
workers one day of rest each week and including farm laborers within
the provisions pertaining to overtime compensation and unemployment
insurance; to amend the public health law, in relation to the
application of the sanitary code to all farm and food processing labor
camps for migrant workers; to amend the workers' compensation law, in
relation to the eligibility of farm laborers for workers' compensation
benefits and the provision of claim forms to farm laborers injured in
the course of employment and in relation to service as farm laborers;
and to amend the labor law, in relation to labor on a farm and
regulating the employment of certain employees whose earning capacity
is affected or impaired by youth or age

PURPOSE OR GENERAL IDEA OF BILL:

To establish the Farmworkers Fair Labor practices Act to allow farm
workers overtime, a day of rest, disability insurance, unemployment
benefits, and other labor protections granted to other workers in New
York State.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill entitles the bill, the farmworkers fair labor
practices act.

Section 2 of the bill amends the Labor Law to provide collective
bargaining rights for farm workers.

Section 3 of the bill amends the Labor Law to allow farm workers 24
hours of rest a week.

Sections 4-5 of the bill amend § 161 of the Labor Law to allow a day
of rest for agricultural workers.

Section 6 of the bill amends the Labor Law to reiterate that eight
hours shall constitute a legal day's work for farm workers.

Section 7 of the bill provides that farm workers shall be paid
overtime after eight hours of work and 60 hours a week at the rate of
time and one half.

Sections 8-9 of the bill amend the Labor Law as it relates to
unemployment insurance for farm laborers.

Section 10 of the bill amends the Public Health Law to expand the
application of the sanitary code to farms occupied by migrant
labor-present application for farms hiring five or more migrants.

Section 11 of the bill establishes the same eligibility for
farmworkers as other workers for workers' compensation.

Section 12 of the bill requires the posting of workers' compensation
insurance to be posted in English and Spanish; provides for additional
penalties for failure to post workers' compensation insurance notice.


Section 13 of the bill requires foremen receiving notice of an injury
to a worker suffered in the course of farm employment to inform the
employer of the injury.

Section 14 of the bill amends § 120 of the Workers' compensation Law
to make it unlawful to discharge an employee for requesting a claim
form regarding injuries incurred in the course of employment.

Section 15 of the bill amends the state disability law to include farm
workers within coverage.

Section 16 of the bill pertains to coverage within the minimum wage
act.

Section 17 of the bill excludes the sub-minimum wage for underage farm
workers.

Section 18 of the bill is the effective date.

JUSTIFICATION:

Farmworkers perform essential services for New York's agricultural
industry which ranks near the top nationally in dairy, apples,
vegetables, grapes, floriculture and other products. Farm work is
labor intensive that involves arduous tasks, exposure to pesticides,
and long hours. Farmworkers frequently suffer physical injuries and
illnesses in the course of their employment, often beyond that
suffered by workers in other industries. It is unjust that the labor
protections provided to other workers in New York such as a day of
rest overtime pay, disability insurance, unemployment benefits and
collective bargaining have been denied to farmworkers for decades.
This legislation would grant farm-workers the basic labor rights long
enjoyed by other public and private employees in our State.

PRIOR LEGISLATIVE HISTORY:

2009: S.2247 Reported from Labor to Codes: A.1967 Passed Assembly.
2008: S.3884 Reported from Labor to Rules; A 7528 Advanced to 3rd
Reading.

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

This act shall take effect immediately, provided that section ten of
this act shall take effect on the thirtieth day after it shall have
become a law.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1743--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  ESPAILLAT, ADAMS, ADDABBO, AVELLA, BRESLIN, DIAZ,
  DILAN, GIANARIS, HASSELL-THOMPSON, HOYLMAN, KENNEDY,  KLEIN,  KRUEGER,
  LATIMER,   MONTGOMERY,  PARKER,  PERALTA,  PERKINS,  RIVERA,  SAMPSON,
  SANDERS, SAVINO, SERRANO, SMITH, SQUADRON,  STAVISKY,  STEWART-COUSINS
  -- read twice and ordered printed, and when printed to be committed to
  the  Committee on Labor -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the  labor  law,  in  relation  to  granting  collective
  bargaining  rights  to farm laborers and allowing farm workers one day
  of rest each week and including farm laborers  within  the  provisions
  pertaining  to  overtime  compensation  and unemployment insurance; to
  amend the public health law, in relation to  the  application  of  the
  sanitary  code to all farm and food processing labor camps for migrant
  workers; to amend the workers' compensation law, in  relation  to  the
  eligibility  of  farm  laborers for workers' compensation benefits and
  the provision of claim forms to farm laborers injured in the course of
  employment and in relation to service as farm laborers; and  to  amend
  the  labor  law,  in  relation  to  labor on a farm and regulating the
  employment of certain employees whose earning capacity is affected  or
  impaired by youth or age

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

  Section 1. This act shall be known and may be cited as "the  farmwork-
ers fair labor practices act".
  S  2.  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00123-03-3

S. 1743--A                          2

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 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  indi-
vidual  who  participates  in and receives rehabilitative or therapeutic
services in a charitable non-profit rehabilitation facility or sheltered
workshop or any individual employed in a charitable non-profit rehabili-
tation facility or sheltered workshop who has received rehabilitative or
therapeutic services and whose capacity to perform the work for which he
is engaged is substantially impaired by physical or mental deficiency or
injury.
  S 3. 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  FARM LABORER SHALL BE ALLOWED AT LEAST
TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY  CALENDAR  WEEK.
THIS  REQUIREMENT  SHALL NOT APPLY TO THE PARENT, CHILD, SPOUSE OR OTHER
MEMBER OF THE EMPLOYER'S IMMEDIATE FAMILY. TWENTY-FOUR CONSECUTIVE HOURS
SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH AS WEATHER OR  CROP  CONDI-
TIONS,  SHALL  BE  DEEMED  TO CONSTITUTE THE REST REQUIRED BY THIS PARA-
GRAPH. NO PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A FARM LABORER FROM
VOLUNTARILY REFUSING THE REST REQUIRED BY  THIS  PARAGRAPH.    THE  TERM
"FARM  LABOR"  SHALL  INCLUDE  ALL  SERVICES  PERFORMED  IN AGRICULTURAL
EMPLOYMENT IN CONNECTION WITH CULTIVATING THE  SOIL,  OR  IN  CONNECTION
WITH  RAISING  OR  HARVESTING OF AGRICULTURAL COMMODITIES, INCLUDING THE
RAISING, SHEARING, CARING FOR AND MANAGEMENT OF  LIVESTOCK,  POULTRY  OR
DAIRY.   THE DAY OF REST AUTHORIZED UNDER THIS SUBDIVISION SHOULD, WHEN-
EVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY RESERVED  BY  THE  FARM
LABORER FOR RELIGIOUS WORSHIP.
  S  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
law, as amended by chapter 281 of the laws of 1941, are amended to  read
as follows:
  b.  Employees in [dairies, creameries,] milk condenseries, milk powder
factories, milk sugar factories,  milk  shipping  stations,  butter  and
cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
plants, where not more than seven persons are employed;
  d. Employees whose duties include not more than three hours'  work  on
Sunday  in setting sponges in bakeries, [caring for live animals,] main-
taining fires, or making necessary repairs to boilers or machinery.
  S 5. The opening paragraph of subdivision 3  of  section  160  of  the
labor  law, as amended by chapter 481 of the laws of 2010, is amended to
read as follows:
  For all other employees, except [those engaged in farm work and] those
affected by subdivision four of section two hundred twenty of this chap-
ter, eight hours.
  S 6. Subdivision 1 of section 220 of the labor law is amended to  read
as follows:
  1.  Eight hours shall constitute a legal day's work for all classes of
employees in this state except those  engaged  in  [farm  and]  domestic
service unless otherwise provided by law.

S. 1743--A                          3

  S 7. The labor law is amended by adding a new section 163-a to read as
follows:
  S  163-A.  FARM  LABORERS.  NO  PERSON OR CORPORATION OPERATING A FARM
SHALL REQUIRE ANY EMPLOYEE TO WORK MORE THAN EIGHT HOURS IN ANY  DAY  OR
FORTY  HOURS IN ANY CALENDAR WEEK; PROVIDED, HOWEVER, THAT OVERTIME WORK
PERFORMED BY A FARM LABORER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND
ONE-HALF TIMES THE WORKER'S NORMAL WAGE RATE.
  S 8. The opening paragraph  of  paragraph  (a)  of  subdivision  6  of
section  511  of the labor law, as amended by chapter 675 of the laws of
1977, is amended to read as follows:
  The term "employment" [does not include] INCLUDES  agricultural  labor
[unless  it is covered pursuant to section five hundred sixty-four]. The
term "agricultural labor" includes all service performed:
  S 9. Section 564 of the labor law, as added by chapter 675 of the laws
of 1977, is amended to read as follows:
  S 564. Agricultural labor CREW LEADERS.   [1. Coverage.  (a)  Notwith-
standing  the  provisions of section five hundred sixty of this article,
an employer of persons engaged in agricultural labor shall become liable
for contributions under this article if the employer:
  (1) has paid cash remuneration of twenty thousand dollars or  more  in
any calendar quarter to persons employed in agricultural labor, and such
liability shall commence on the first day of such quarter, or
  (2)  has employed in agricultural labor ten or more persons on each of
twenty days during a calendar year or the preceding calendar year,  each
day  being in a different calendar week, and the liability shall in such
event commence on the first day of the calendar year, or
  (3) is liable for the tax imposed under the federal  unemployment  tax
act as an employer of agricultural labor and the liability shall in such
event commence on the first day of the calendar quarter in such calendar
year  when  he  first  paid  remuneration for agricultural labor in this
state.
  (b) An employer who becomes liable for contributions  under  paragraph
(a)  of this subdivision shall cease to be liable as of the first day of
a calendar quarter next following the filing of  a  written  application
provided the commissioner finds that the employer:
  (1) has not paid to persons employed in agricultural labor cash remun-
eration  of twenty thousand dollars or more in any of the eight calendar
quarters preceding such day, and
  (2) has not employed in agricultural labor ten or more persons on each
of twenty days during the current or the preceding calendar  year,  each
day being in a different week, and
  (3)  is  not liable for the tax imposed under the federal unemployment
tax act as an employer of agricultural labor.
  2. Crew leader.] Whenever a person renders services as a member  of  a
crew  which is paid and furnished by the crew leader to perform services
in agricultural labor for another employer, such other  employer  shall,
for  the  purpose  of this article, be deemed to be the employer of such
person, unless:
  [(a)] 1. the crew leader holds a  valid  certificate  of  registration
under  the  federal  farm  labor contractor registration act of nineteen
hundred sixty-three or substantially all the members of the crew operate
or maintain tractors, mechanized harvesting or cropdusting machinery  or
any other mechanized equipment which is provided by the crew leader, and
  [(b)] 2. the crew leader is not an employee of such other employer and
has  not entered into a written agreement with such employer under which
he is designated as an employee.

S. 1743--A                          4

  S 10. Paragraph (m) of subdivision 5 of  section  225  of  the  public
health law, as amended by section 51 of part A of chapter 58 of the laws
of 2010, is amended to read as follows:
  (m) require that application be made for a permit to operate a farm or
food  processing  labor  camp as defined in the sanitary code; authorize
appropriate officers or agencies to issue such a permit when the  appli-
cant is in compliance with the established regulations; prescribe stand-
ards  for  living  quarters  at  farm  and  food processing labor camps,
including provisions for sanitary conditions; light,  air,  and  safety;
protection from fire hazards; maintenance; and such other matters as may
be  appropriate  for  security of life or health, provided however, that
the  provisions  of  the  sanitary  code  established  pursuant  to  the
provisions  hereof  shall  apply  to  all farm and food processing labor
camps intended to house migrant workers and which are occupied [by  five
or  more  persons].  In  the preparation of such regulations, the public
health and health planning council may request and shall receive techni-
cal assistance from the board of standards  and  appeals  of  the  state
department  of  labor and the state building code commission. Such regu-
lation shall be enforced in the same manner as are other  provisions  of
the sanitary code;
  S  11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work-
ers' compensation law, Group 14-a as amended by chapter 233 of the  laws
of  1961 and Group 14-b as added by chapter 646 of the laws of 1966, are
amended to read as follows:
  Group 14-a. On and after January first,  nineteen  hundred  sixty-two,
any  other  employment in a trade, business, or occupation carried on by
the employer for pecuniary gain in which one or  more  employees  [other
than farm laborers] are employed.
  Group 14-b. Employment as a farm laborer as provided herein.  A farmer
shall  provide  coverage  under  this  chapter  for  all  farm  laborers
[employed during any part of the  twelve  consecutive  months  beginning
April  first  of  any calendar year preceded by a calendar year in which
the cash remuneration  paid  to  all  farm  laborers  aggregated  twelve
hundred dollars or more].
  S  12.    Section  51  of the workers' compensation law, as amended by
chapter 561 of the laws of 2003, is amended to read as follows:
  S 51. Posting of notice regarding compensation. Every employer who has
complied with section fifty of this article shall post and maintain in a
conspicuous place or places in and about his place or places of business
typewritten or printed IN ENGLISH AND SPANISH notices in form prescribed
by the chairman, stating the fact that he  has  complied  with  all  the
rules  and  regulations  of  the  chairman and the board and that he has
secured the payment of compensation to his employees  and  their  depen-
dents  in accordance with the provisions of this chapter, but failure to
post such notice as herein provided shall not  in  any  way  affect  the
exclusiveness of the remedy provided for by section eleven of this chap-
ter. Every employer who owns or operates automotive or horse-drawn vehi-
cles  and  has  no minimum staff of regular employees required to report
for work at an established place of business maintained by such employer
and every employer who is engaged in the business  of  moving  household
goods  or  furniture  shall  post such notices in each and every vehicle
owned or operated by him. Failure to post or maintain such notice in any
of said vehicles shall constitute presumptive evidence that such employ-
er has failed to secure the payment of compensation.  The  chairman  may
require  any employer to furnish a written statement at any time showing
the stock corporation, mutual corporation or reciprocal insurer in which

S. 1743--A                          5

such employer is insured or  the  manner  in  which  such  employer  has
complied with any provision of this chapter. Failure for a period of ten
days  to  furnish  such  written  statement shall constitute presumptive
evidence that such employer has neglected or failed in respect of any of
the  matters  so  required.  Any  employer  who fails to comply with the
provisions of this section shall be required to pay to the board a  fine
of [up to two hundred fifty] FIVE HUNDRED dollars for each violation, in
addition  to any other penalties imposed by law to be deposited into the
uninsured employers' fund.
  S 13. The workers' compensation law is amended by adding a new section
110-b to read as follows:
  S 110-B. REPORTING OF INJURIES TO EMPLOYER. EVERY FARM LABOR  CONTRAC-
TOR, FOREMAN OR SUPERVISOR OF FARM LABORERS WHO HAS NOTICE OF ANY INJURY
TO  A  FARM  LABORER  INCURRED  DURING THE COURSE OF EMPLOYMENT SHALL BE
REQUIRED TO INFORM THE EMPLOYER, OWNER OR OPERATOR OF A FARM OF ANY SUCH
INJURY.
  S 14. The first undesignated paragraph of section 120 of the  workers'
compensation  law,  as  amended  by  chapter  61 of the laws of 1989, is
amended to read as follows:
  It shall be unlawful for any employer or his or  her  duly  authorized
agent  to  discharge  or  in  any  other  manner discriminate against an
employee as to his or her employment because such employee  has  claimed
or attempted to claim compensation from such employer, REQUESTED A CLAIM
FORM FOR INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT, or because he or
she  has  testified  or  is  about to testify in a proceeding under this
chapter and no other valid reason is shown to exist for such  action  by
the employer.
  S 15. The opening paragraph of paragraph A of subdivision 6 of section
201  of  the workers' compensation law, as amended by chapter 481 of the
laws of 2010, is amended to read as follows:
  "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
subparagraph (b) of this paragraph was not  executed  under  duress  and
contains the following provisions:

S. 1743--A                          6

  S  16.  The  opening  paragraph of subdivision 5 of section 651 of the
labor law, as amended by chapter 481 of the laws of 2010, is amended  to
read as follows:
  "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; (b) [in labor on a
farm; (c)] in a bona fide  executive,  administrative,  or  professional
capacity;  [(d)]  (C)  as  an  outside  salesman;  [(e)] (D) as a driver
engaged in operating a taxicab; [(f)] (E) as  a  volunteer,  learner  or
apprentice  by  a  corporation,  unincorporated  association,  community
chest, fund or foundation organized and operated exclusively  for  reli-
gious,  charitable  or educational purposes, no part of the net earnings
of which inures to the benefit of any private shareholder or individual;
[(g)] (F) 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)] (G) 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)] (H) in or for such a religious, educational or
charitable institution if such individual is a student; [(j)] (I) in  or
for such a religious, educational or charitable institution if the earn-
ing  capacity  of  such  individual is impaired by age or by physical or
mental deficiency or injury; [(k)] (J)  in  or  for  a  summer  camp  or
conference  of  such  a religious, educational or charitable institution
for not more than three months annually; [(l)] (K) as a staff  counselor
in  a  children's  camp;  [(m)]  (L)  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)] (M) 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)]  (N)  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 seek-
ing  coverage under this paragraph shall notify every volunteer in writ-
ing, 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.
  S 17. Subdivision 1 of section 674 of the labor law, as added by chap-
ter 552 of the laws of 1969, is amended to read as follows:
  1. The commissioner may promulgate such regulations as he deems appro-
priate to carry out the purposes of this article and to safeguard  mini-
mum  wage  standards.  Such regulations may include, but are not limited
to, the defining of the circumstances or conditions for  the  acceptance
of  non-hourly rates and piece rates as equivalent to the minimum hourly
rates established by this article. Such regulations  also  may  include,
but  are  not  limited  to,  waiting  time  and  call-in pay rates; wage
provisions governing guaranteed earnings  during  specified  periods  of
work;  allowances  for  meals,  lodging,  and  other items, services and

S. 1743--A                          7

facilities when furnished by the employer; [and the employment of  indi-
viduals whose earning capacity is affected or impaired by youth or age,]
or  by  physical  or  mental deficiency or injury, under special certif-
icates  issued by the commissioner, at such wages lower than the minimum
wage established by this  article  and  for  such  period  as  shall  be
prescribed in such regulations.
  S  18.  This  act shall take effect immediately, provided that section
ten of this act shall take effect on the thirtieth day  after  it  shall
have become a law.

Co-Sponsors

view additional co-sponsors

S1743B - Bill Details

See Assembly Version of this Bill:
A1792A
Current Committee:
Senate Finance
Law Section:
Labor Law
Laws Affected:
Amd §§160, 161, 220, 511, 564, 651, 674 & 701, add §163-a, Lab L; amd §225, Pub Health L; amd §§3, 51, 120, 201, add §110-b, Work Comp L
Versions Introduced in Previous Legislative Sessions:
2011-2012: A1652, S1862
2009-2010: A1867, S2247

S1743B - Bill Texts

view summary

Enacts the farmworkers fair labor practices act: grants collective bargaining rights to farm laborers; requires employers of farm laborers to allow at least 24 consecutive hours of rest each week; provides for an 8 hour work day for farm laborers; requires overtime rate at one and one-half times normal rate; makes provisions of unemployment insurance law applicable to farm laborers; provides sanitary code shall apply to all farm and food processing labor camps intended to house migrant workers, regardless of the number of occupants; provides for eligibility of farm laborers for workers' compensation benefits; requires employers of farm laborers to provide such farm laborers with claim forms for workers' compensation claims under certain conditions; requires reporting of injuries to employers of farmworkers.

view sponsor memo
BILL NUMBER:S1743B

TITLE OF BILL: An act to amend the labor law, in relation to granting
collective bargaining rights to farm laborers and allowing farm workers
one day of rest each week and including farm laborers within the
provisions pertaining to overtime compensation and unemployment insur-
ance; to amend the workers' compensation law, in relation to the eligi-
bility of farm laborers for workers' compensation benefits and the
provision of claim forms to farm laborers injured in the course of
employment and in relation to service as farm laborers; and to amend the
labor law, in relation to labor on a farm and regulating the employment
of certain employees whose earning capacity is affected or impaired by
youth or age

PURPOSE OR GENERAL IDEA OF BILL: To establish the Farm Fair Labor prac-
tices Act to allow certain farm workers overtime, a day of rest, disa-
bility insurance, concerted action organizing and bargaining rights
guaranteed by the NYS Constitution and other labor protections granted
to other workers in New York State.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill entitles the bill "The Farm Fair Labor Practices
Act."

Section 2 of the bill defines "farm employer" and farm employee". Farm
employers are direct farm employers or farm contractors. Farm employees
exclude members of the farm employer extended family therefore the bill
affects about eight thousand of the State's 35,000 farms. "Overtime
hours" are defined as hours worked by a farm employee of more than ten
ours in any day, sixty hours in a calendar week, or six days in a calen-
dar week. A "temporary visa worker" is defined as an alien admitted to
the United States to perform agricultural labor pursuant to 8 USC
1184(c) and 8 USC 1101(a)(15)(H) of the federal immigration and nation-
ality act if, at the time such services are rendered, they are excluded
from the definition of employment as provided in 26 USC 3306(c) of the
federal unemployment tax act.

Section 3 of the bill amends section 161 of the labor law to allow farm
workers 24 consecutive hours of rest each week and to provide for
payment of overtime for working on the day of rest. It provides that a
day at rest caused by inclement weather shall count as a weekly day of
rest.

Section 4 of the bill provides for overtime pay under certain circum-
stances for hourly, some salaried, and piece rate workers. Most workers
would be paid overtime after 60 hours in a week or for any hours in
excess of ten. This is the standard in California law. It would add
about $22 million to farm employer payroll cost, a less than 5% increase
according to NYSDOL. A worker could not refuse overtime hours without
medical al excuse except for the day of rest overtime hours.

Section 5 of the bill provides for NYS statutory disability coverage for
farm employees that are not temporary visa workers that are by law
seasonal workers.

Section 6 of the bill protects rights or organize and bargain guaranteed
all workers by the NYS Constitution and prohibits farm employer retali-
ation for the exercising of such rights.

Sections 7 and 8 of the bill apply to fewer than 300 agribusiness farms
with earning of over $5 million in a previous calendar year as calcu-
lated by USDA. These farms would be covered by the State Labor Relations
Act with a special amendment for farms that would prohibit strikes where
short season crops might rot in the field or where there was substantial
danger to farm animal s or the food

Section 9 of the bill provides that farm employers are not liable to pay
unemployment insurance contributions to fund benefits for temporary visa
workers that are ineligible to qualify for such benefits.

Section 10 of the bill repeals the youth sub-minimum wage for farm
employees

EXISTING LAW:

Section 161 of the labor law excludes farmworkers from the right to a
day of rest.

The fair labor standards act, 29 U.S.C. section 213, excludes farm work-
ers from the right to overtime pay for work in excess of 40 hours a
week.

Section 674 of the labor law allows underage farmworkers to be paid less
than the minimum wage rate.

Section 701 of the labor law excludes farmworkers from the right to
collective bargaining,

Section 201(6) (A) of the workers' compensation law excludes farmworkers
from the right to disability insurance.

JUSTIFICATION: Farmworkers perform essential services for New York's
agricultural industry which ranks near the top nationally in dairy,
apples, vegetables, grapes, floriculture and other products. Farm work
is labor intensive that involves arduous tasks, exposure to pesticides,
and long hours. Farmworkers frequently suffer physical injuries and
illnesses in the course of their employment, often beyond that suffered
by workers in other industries.

This bill is agriculture appropriate legislation that would end the
vestiges of Jim Crow labor laws that excluded farm workers from the
basic labor law protections of the Federal Labor standards Act (FLSA)
and the National Labor relations Act (NLRA). Sadly NYS labor law copied

and enshrined these Federal labor discriminatory exclusions. Some
eighty years later the stain of this discrimination still appears on our
NYS law. This quote from a Congressman during the FLSA debate tells the
story:

"(Under the FLSA) what is prescribed for one race must be prescribed for
the others, and you cannot prescribe the same wages for the black man as
for the white man." - Representative Martin Dies, (D- Texas)

This framework would end the most egregious discrimination while taking
account of the ways in which NY agriculture presents labor relations
issues that have been dealt with sensitively in other major agricultural
states. The prime argument for this bill is equality and worker dignity;
but economic arguments must be taken seriously and addressed.

The industry in NY brings in about $5 billion in revenue and employs
about one hundred thousand workers if seasonal and year round workers
are counted. However only one-quarter of New York's 35,000 farms actual-
ly hire workers. in other words, three-quarters of the state's farms
rely only on household labor, USDA, National Agricultural Statistics
Service, Table 1, Historical Highlights: 2007 anti Earlier Census Years
(New York), 72. These farms are truly "family farms" as Willie Nelson
would define them for his Farm Aid concerts and perhaps should not be
subject to the full array of labor protections.

An industry of this size and importance deserves support and understand-
ing from state government; that must be balanced against a need to offer
farm workers labor protections like those offered all other NY workers
who work in car washes, bodegas, gas stations and other physically
taxing lower wage occupations. This is not an attempt to treat farms as
factories.

This legislation would end such vestigial exclusions for farm workers
from basic labor rights such as the right to a day of rest in a week, a
subminimum wage, the right to earn overtime pay, the right to organize
and collectively bargain, and the right to coverage under the NYS Tempo-
rary Disability Law. In each case these exclusions would be eliminated
taking account of agricultural realities and industry peculiarities.
After all when talking about agriculture we are talking about the safe-
guarding of our food supply - a necessity of life.

PRIOR LEGISLATIVE HISTORY: 2009: S.2247 Reported from Labor to Codes:
A.1967 Passed Assembly. 2008: S.3884 Reported from Labor to Rules; A
7528 Advanced to 3rd Reading.

FISCAL IMPLICATIONS: None in the 2013-13 fiscal year. Some increased
enforcement costs in future years for the NYS Department of Labor and
the Workers Compensation Board estimated at less than $500,000 per year

EFFECTIVE DATE: This act shall take effect April first of the year
following enactment except that sections six, seven and eight shall take
effect 365 days after enactment.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1743--B

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  ESPAILLAT, ADAMS, ADDABBO, AVELLA, BRESLIN, DIAZ,
  DILAN, GIANARIS, HASSELL-THOMPSON, HOYLMAN, KENNEDY,  KLEIN,  KRUEGER,
  LATIMER,   MONTGOMERY,  PARKER,  PERALTA,  PERKINS,  RIVERA,  SAMPSON,
  SANDERS, SAVINO, SERRANO, SMITH, SQUADRON,  STAVISKY,  STEWART-COUSINS
  -- read twice and ordered printed, and when printed to be committed to
  the  Committee on Labor -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said  committee  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  labor  law,  in relation to granting collective
  bargaining rights to farm laborers and allowing farm workers  one  day
  of  rest  each  week and including farm laborers within the provisions
  pertaining to overtime compensation  and  unemployment  insurance;  to
  amend the workers' compensation law, in relation to the eligibility of
  farm  laborers for workers' compensation benefits and the provision of
  claim forms to farm laborers injured in the course of  employment  and
  in  relation  to service as farm laborers; and to amend the labor law,
  in relation to labor on  a  farm  and  regulating  the  employment  of
  certain  employees  whose  earning capacity is affected or impaired by
  youth or age

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

  Section  1. This act shall be known and may be cited as the "farm fair
labor practices act".
  S 2. Definitions. For the purposes of this act,  the  following  defi-
nitions shall apply:
  1.  "Farm"  shall mean an agricultural for-profit business involved in
commercial enterprise with respect to stock, dairy, poultry, fur-bearing
animal, fruit and truck farms; plantations; orchards; nurseries;  green-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00123-04-3

S. 1743--B                          2

houses and similar structures used primarily for the raising of agricul-
tural or horticultural commodities.
  2.  "Farm employment" shall mean the services performed by an employee
on a farm in the employ of the owner, farm contractor, lessee or  opera-
tor of a farm in connection with:
  (a) cultivating the soil;
  (b) raising or harvesting any agricultural or horticultural commodity,
including  the  raising  or  hatching of poultry, the raising, shearing,
feeding, caring for, training, management of livestock, bees,  fur-bear-
ing animals and wildlife;
  (c) the production or harvesting of maple syrup or maple  sugar;
  (d)  the  operation,  management, conservation, improvement or mainte-
nance of a farm and its tools and equipment;
  (e) the operation or maintenance of  ditches,  canals,  reservoirs  or
waterways used exclusively for removing, supplying and storing water for
farming purposes;
  (f)  the  handling,  planting, drying, packing, packaging, processing,
freezing, grading, storing or delivering to market or to a  carrier  for
transportation to market, of any agricultural or horticultural commodity
raised on the employer's farm.
  Farm  employment  shall not mean services performed in connection with
commercial canning, freezing, grading or other processing of  any  agri-
cultural or horticultural commodity not raised on the employer's farm.
  3.  "Farm  employer"  shall  mean any individual, partnership, associ-
ation, corporation, cooperative, business trust, legal representative or
organized group of persons  acting  as  an  employer  of  an  individual
engaged  or  permitted  to  work  on  a farm. If a farm labor contractor
recruits or supplies farm workers for work on a farm, such  farm  worker
shall be deemed to be employees of the owner, lessee or operator of such
farm.
  4.  "Farm  employee" shall mean any individual engaged or permitted by
an employer to work on a farm, except:
  (a) the parent, spouse, child or other member of the employer's  imme-
diate family related to the third degree of consanguinity or affinity;
  (b)  an individual employed by the Federal, State or municipal govern-
ment or a political subdivision thereof; and
  (c) for that part of the working time covered  by  the  provisions  of
another minimum wage order promulgated by the commissioner.
  5.  "Commissioner" means the Commissioner of Labor of the State of New
York.
  6. "Temporary visa worker" shall mean an alien admitted to the  United
States to perform agricultural labor pursuant to 8 USC 1184(c) and 8 USC
1101(a)(15)(H) of the federal immigration and nationality act if, at the
time  such  services are rendered, they are excluded from the definition
of employment as provided in 26 USC 3306(c) of the federal  unemployment
tax  act  certified  to  work  for  a farm employer pursuant to the H-2A
Program authorized under the federal Immigration and Nationality Act  of
1952, as amended.
  7. "Work hours" shall mean the hours that a farm employee is permitted
to work or is required to be available for work at the assigned place of
work,  and  shall include time spent in going from one field to another,
in waiting for baskets, pickup or breakdown of  machinery  or  equipment
where the farm employer requires the farm employee to remain at the site
of  the  breakdown  during  repairs.  Time not worked because of weather
conditions shall not be considered as  hours  worked.  An  employee  who
lives  on  the  premises of the employer, or in comparable facilities at

S. 1743--B                          3

the work site, shall not be considered to have worked or  to  have  been
available for work:
  (a)  during  normal  sleeping  hours  solely  because  the employee is
required to be on call during such hours; or
  (b) at any other time when the employee is free to leave the place  of
employment.
  8. "Overtime hours" shall mean hours worked by a farm employee of more
than  ten  hours in any day, sixty hours in a calendar week, or six days
in a calendar week.
  S 3. 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 FARM EMPLOYER SHALL BE ALLOWED AT LEAST
TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK. A
FARM EMPLOYEE MAY CONSENT IN WRITING TO WAIVE THIS RIGHT AND WORK ON THE
DAY OF REST, PROVIDED THAT HE OR SHE SHALL BE  PAID  AS  PROVIDED  UNDER
SECTION  ONE  HUNDRED  SIXTY-THREE-A OF THIS TITLE.  TWENTY-FOUR CONSEC-
UTIVE HOURS SPENT AT REST BECAUSE OF CIRCUMSTANCES, SUCH AS  WEATHER  OR
CROP CONDITIONS, SHALL BE DEEMED TO CONSTITUTE THE REST REQUIRED BY THIS
PARAGRAPH.  THE  DAY  OF  REST SHOULD BE THE SAME AS THE TRADITIONAL DAY
RESERVED BY THE FARM LABORER FOR RELIGIOUS WORSHIP,  WHENEVER  POSSIBLE.
EACH  FARM EMPLOYER SHALL NOTIFY HIS OR HER FARM LABORERS OF THE TWENTY-
FOUR CONSECUTIVE HOURS OF REST PERIOD  REQUIRED  BY  THIS  PARAGRAPH  BY
POSTING  SUCH  PARAGRAPH  IN  A  DESIGNATED  CENTRAL POSTING AREA AND BY
INCLUDING SUCH PARAGRAPH WITHIN THE WORK AGREEMENT REQUIRED PURSUANT  TO
SECTION SIX HUNDRED SEVENTY-NINE OF THIS CHAPTER.
  S  4.  Paragraphs b and d of subdivision 2 of section 161 of the labor
law, as amended by chapter 281 of the laws of 1941, are amended to  read
as follows:
  b.  Employees in [dairies, creameries,] milk condenseries, milk powder
factories, milk sugar factories,  milk  shipping  stations,  butter  and
cheese  factories,  ice  cream  manufacturing  plants  and milk bottling
plants, where not more than seven persons are employed;
  d. Employees whose duties include not more than three hours'  work  on
Sunday  in setting sponges in bakeries, [caring for live animals,] main-
taining fires, or making necessary repairs to boilers or machinery.
  S 5. The labor law is amended by adding a new section 163-a to read as
follows:
  S 163-A. FARM WORKERS RESTRICTIONS ON HOURS OF WORK. NO FARM  EMPLOYER
OPERATING  A  FARM SHALL REQUIRE ANY FARM EMPLOYEE TO WORK MORE THAN TEN
WORK HOURS IN ANY DAY, SIXTY WORK HOURS IN ANY  CALENDAR  WEEK,  OR  SIX
DAYS  IN ANY CALENDAR WEEK, UNLESS SUCH FARM LABORER IS PAID AS FOLLOWS:
1. HOURLY RATE. ANY FARM EMPLOYEE WHO IS PAID ON AN HOURLY BASIS AND WHO
IS EIGHTEEN YEARS OF AGE OR OVER, OR WHO IS SIXTEEN OR  SEVENTEEN  YEARS
OF  AGE  AND  NOT REQUIRED BY LAW TO ATTEND SCHOOL SHALL NOT BE EMPLOYED
OVERTIME HOURS UNLESS THE FARM EMPLOYER RECEIVES ONE AND ONE-HALF  TIMES
THE REGULAR RATE FOR SUCH OVERTIME WORK HOURS.
  2.  PIECE RATE. ANY FARM EMPLOYEE PAID AT A PIECE RATE WHO IS EIGHTEEN
YEARS OF AGE OR OVER, OR WHO IS SIXTEEN OR SEVENTEEN YEARS  OF  AGE  AND
NOT  REQUIRED  BY  LAW  TO  ATTEND SCHOOL SHALL NOT BE EMPLOYED OVERTIME
HOURS UNLESS THE FARM EMPLOYEE  RECEIVES  ONE  AND  ONE-HALF  TIMES  THE
PREVAILING  PIECE  RATE  SET  BY  THE  UNITED STATES DEPARTMENT OF LABOR
PURSUANT TO THE H-2A TEMPORARY VISA PROGRAM AUTHORIZED  BY  THE  FEDERAL
IMMIGRATION  AND  NATIONALITY  ACT OF 1952, AS AMENDED, FOR ALL OVERTIME
WORK HOURS.
  3. SALARIED RATE. ANY FARM EMPLOYEE PAID AT A SALARIED  RATE  AND  NOT
WORKING AS A MANAGER OR SUPERVISOR WHO IS EIGHTEEN YEARS OF AGE OR OVER,

S. 1743--B                          4

OR  WHO  IS SIXTEEN OR SEVENTEEN YEARS OF AGE AND NOT REQUIRED BY LAW TO
ATTEND SCHOOL SHALL NOT BE EMPLOYED OVERTIME HOURS  UNLESS  HE  RECEIVES
ONE  AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED DIVIDED
BY FORTY FOR ALL OVERTIME WORK HOURS.
  4.  A  CONTRACT  BETWEEN A FARM EMPLOYER AND A FARM EMPLOYEE MAY ALLOW
FOR DISCIPLINE OR DISMISSAL OF A FARM EMPLOYEE    WHO  REFUSES  TO  WORK
OVERTIME  HOURS  OTHER THAN ON THE DAY OF REST WITHOUT A MEDICAL OR SUCH
OTHER EXCUSE PERMITTED BY REGULATION OF THE COMMISSIONER.
  S 6. The opening paragraph of paragraph A of subdivision 6 of  section
201  of  the workers' compensation law, as amended by chapter 481 of the
laws of 2010, is amended to read as follows:
  "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;] SERVICE
AS  A TEMPORARY VISA WORKER AS DEFINED BY THE CHAPTER OF THE LAWS OF TWO
THOUSAND THIRTEEN THAT AMENDED THIS PARAGRAPH, casual employment and the
first forty-five days of extra employment of employees 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 attend-
ance 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 associate is directly
related to sales or other output (including the performance of services)
rather than to the number of hours worked; (b) the services performed by
the broker or sales  associate  are  performed  pursuant  to  a  written
contract  executed between such broker or sales associate and the person
for whom the services are performed within the past  twelve  to  fifteen
months; and (c) the written contract provided for in subparagraph (b) of
this  paragraph was not executed under duress and contains the following
provisions:
  S 7. The labor law is amended by adding a new section 703-a to read as
follows:
  S 703-A. FARM EMPLOYEES. 1. FARM EMPLOYEES OTHER THAN THOSE COVERED BY
PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION SEVEN HUNDRED ONE OF  THIS
ARTICLE  SHALL  HAVE  THE  RIGHT OF SELF-ORGANIZATION, TO FORM, JOIN, OR
ASSIST LABOR ORGANIZATIONS, TO BARGAIN  COLLECTIVELY  THROUGH  REPRESEN-
TATIVES  OF  THEIR  OWN CHOOSING, AND TO ENGAGE IN CONCERTED ACTIVITIES,
FOR THE  PURPOSE  OF  COLLECTIVE  BARGAINING  OR  OTHER  MUTUAL  AID  OR
PROTECTION, FREE FROM INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS,
BUT  NOTHING  CONTAINED IN THIS ARTICLE SHALL BE INTERPRETED TO PROHIBIT
EMPLOYEES FROM EXERCISING THE RIGHT TO CONFER WITH THEIR EMPLOYER AT ANY
TIME, PROVIDED THAT DURING SUCH CONFERENCE THERE IS NO  ATTEMPT  BY  THE
EMPLOYER,  DIRECTLY OR INDIRECTLY, TO INTERFERE WITH, RESTRAIN OR COERCE
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THIS SECTION.
  2. NO FARM EMPLOYER OR HIS OR HER AGENT OR  ANY  OTHER  PERSON,  SHALL
DISCHARGE,  THREATEN, PENALIZE, BLACKLIST, EVICT, OR IN ANY OTHER MANNER
DISCRIMINATE OR RETALIATE AGAINST ANY FARM EMPLOYEE BECAUSE THE EMPLOYEE

S. 1743--B                          5

HAS (A) ENGAGED IN CONCERTED ACTIVITY  FOR  THE  PURPOSE  OF  COLLECTIVE
BARGAINING  OR  MUTUAL  AID OR PROTECTION; (B) ATTEMPTED TO COLLECTIVELY
BARGAIN; (C) FORMED, JOINED,  OR  ASSISTED  A  LABOR  ORGANIZATION;  (D)
ATTEMPTED  TO  FORM,  JOIN, OR ASSIST A LABOR ORGANIZATION; (E) PLACED A
COMPLAINT WITH  ANY  GOVERNMENT  AGENCY  REGARDING  CONCERTED  PROTECTED
ACTIVITY  OR  COLLECTIVE  BARGAINING; (F) FILED OR THREATENED TO FILE AN
ACTION IN COURT TO ENFORCE THE RIGHTS CONTAINED  IN  THIS  SECTION;  (G)
PROVIDED INFORMATION OR TESTIMONY TO ANY GOVERNMENT AGENCY REGARDING THE
RIGHTS  CONTAINED IN THIS SECTION; (H) PROVIDED INFORMATION TO AN ATTOR-
NEY IN PREPARATION FOR OR AS PART OF AN ACTION IN  COURT  REGARDING  THE
RIGHTS  CONTAINED  IN  THIS  SECTION;  OR  (I) BECAUSE THE FARM EMPLOYER
BELIEVES THAT THE FARM EMPLOYEE HAS ENGAGED  IN  ANY  OF  THE  FOREGOING
ACTIVITIES.
  3.  (A)  A  FARM  EMPLOYEE  WHO  HAS  BEEN THE SUBJECT OF AN ACTION IN
VIOLATION OF THIS SECTION MAY INSTITUTE A CIVIL ACTION  IN  A  COURT  OF
COMPETENT  JURISDICTION  FOR  RELIEF AS SET FORTH IN THIS SECTION WITHIN
TWO YEARS OF THE DATE ON WHICH SUCH VIOLATION  OCCURRED  OR  WITHIN  TWO
YEARS  OF  THE  DATE  ON WHICH THE EMPLOYEE LEARNED ABOUT THE VIOLATION,
WHICHEVER IS LATER.
  (B) ANY ACTION AUTHORIZED BY THIS SECTION MAY BE BROUGHT IN THE COUNTY
IN WHICH THE VIOLATION OCCURRED, IN THE COUNTY IN  WHICH  THE  PLAINTIFF
RESIDES,  OR IN THE COUNTY IN WHICH THE EMPLOYER HAS ITS PRINCIPAL PLACE
OF BUSINESS.
  (C) AT OR BEFORE THE COMMENCEMENT OF ANY ACTION  UNDER  THIS  SECTION,
NOTICE  THEREOF SHALL BE SERVED UPON THE ATTORNEY GENERAL BY THE EMPLOY-
EE.
  (D) IN ANY ACTION BROUGHT PURSUANT TO  THIS  SECTION,  THE  COURT  MAY
ORDER   ALL   APPROPRIATE  RELIEF,  INCLUDING  ENJOINING  THE  CONTINUED
VIOLATION OF THIS SECTION; ORDERING REINSTATEMENT  OF  THE  EMPLOYEE  OR
EMPLOYEES  OR  ORDERING FRONT PAY IN LIEU OF REINSTATEMENT; AND ORDERING
PAYMENT TO THE EMPLOYEE OF LIQUIDATED DAMAGES, LOST COMPENSATION, ATTOR-
NEY'S FEES, COSTS AND DAMAGES. LIQUIDATED DAMAGES SHALL BE CALCULATED AS
AN AMOUNT NOT MORE THAN TEN THOUSAND DOLLARS, AND SHALL BE  IN  ADDITION
TO  ANY  OTHER  REMEDIES  PERMITTED BY THIS SECTION. WHERE THE VIOLATION
LEADS TO A LOSS OF LODGING FOR THE EMPLOYEE OR EMPLOYEES, DAMAGES  SHALL
ALSO INCLUDE THE COST OF OBTAINING ALTERNATE LODGING.
  4.  EVERY  FARM  EMPLOYER COVERED BY THIS SECTION SHALL POST A COPY OF
THIS SECTION IN A LOCATION WHICH IS CONSPICUOUS AND ACCESSIBLE TO HIS OR
HER EMPLOYEES. IF A FOREIGN LANGUAGE TRANSLATION OF THIS SECTION IS MADE
PUBLICLY AVAILABLE ON THE WEBSITE OF THE NEW YORK STATE  PUBLIC  EMPLOY-
MENT  RELATIONS  BOARD, THE COMMISSIONER, OR THE ATTORNEY GENERAL, EVERY
FARM EMPLOYER COVERED BY THIS SECTION SHALL POST A COPY IN THAT  FOREIGN
LANGUAGE AS WELL.
  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 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

S. 1743--B                          6

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 EMPLOYEES BY A
FARM EMPLOYER WITH SALES OF UNDER FIVE MILLION DOLLARS DURING THE PREVI-
OUS CALENDAR YEAR ACCORDING TO THE UNITED STATES DEPARTMENT OF  AGRICUL-
TURE  NATIONAL  AGRICULTURAL  STATISTICS SERVICE, or, any individual who
participates in and receives rehabilitative or therapeutic services in a
charitable non-profit rehabilitation facility or sheltered  workshop  or
any individual employed in a charitable non-profit rehabilitation facil-
ity or sheltered workshop who has received rehabilitative or therapeutic
services  and whose capacity to perform the work for which he is engaged
is substantially impaired by physical or mental deficiency or injury.
  S 9. The labor law is amended by adding a new section 704-b to read as
follows:
  S 704-B. UNFAIR LABOR PRACTICES; AGRICULTURE. 1. IT IS THE  POLICY  OF
THE  STATE  TO  PROTECT THE RIGHTS OF FARM LABORERS OR EMPLOYERS WITHOUT
CAUSING IMMEDIATE AND IRREPARABLE HARM TO FARM  EMPLOYERS  OR  THE  FOOD
SUPPLY. IN RECOGNITION OF THE NEED TO AVOID INTERRUPTION OF THE AGRICUL-
TURAL  PRODUCTION  OF CROPS WITH A SHORT PEAK HARVEST SEASON OR DEATH OR
SERIOUS INJURY TO ANIMALS INVOLVED IN COMMERCIAL FARM ACTIVITY ESSENTIAL
TO THE MAINTENANCE OF THE FOOD SUPPLY, THIS POLICY IS BEST  ACHIEVED  BY
PROVIDING  FARM  EMPLOYERS  AND  THEIR  EMPLOYEES WITH A SHORT TEMPORARY
PERIOD TO SETTLE THEIR LABOR DISPUTE WITHOUT CAUSING IMMEDIATE OR  IRRE-
PARABLE  HARM  TO  THE  EMPLOYER.  FOR  PURPOSES OF THIS SECTION, A FARM
EMPLOYER MAY PETITION THE COMMISSIONER OF THE DEPARTMENT OF  AGRICULTURE
AND  MARKETS FOR A CERTIFICATION THAT A WORK STOPPAGE CONDUCTED PURSUANT
TO THIS ARTICLE COULD CAUSE DEATH OR SERIOUS INJURY TO SUCH FARM ANIMALS
OR THE FOOD SUPPLY.
  2. DEFINITIONS. WHEN USED IN THIS SECTION THE TERMS:
  (A) "SHORT PEAK HARVEST SEASON" MEANS THE PERIOD FOR FRUITS AND  VEGE-
TABLES  THAT  HAVE  A  MAXIMUM  HARVEST PERIOD OF NO MORE THAN SIX WEEKS
DURING WHICH SUCH AGRICULTURAL PRODUCT IS HARVESTED FOR SALE, AS  DETER-
MINED BY THE DEPARTMENT OF AGRICULTURE AND MARKETS.
  (B)  "WORK STOPPAGE" MEANS ANY STRIKE, OR CONCERTED CESSATION OR SLOW-
DOWN OF WORK BY EMPLOYEES.
  (C) "LOCKOUT" MEANS A WORK STOPPAGE DURING WHICH AN EMPLOYER  PREVENTS
EMPLOYEES FROM WORKING.
  3. IN THE EVENT THAT THE BOARD AND ITS EMPLOYEES RECEIVE NOTICE THAT A
LABOR DISPUTE HAS ARISEN BETWEEN A FARM EMPLOYER THAT WILL OR MAY RESULT
IN  A  WORK  STOPPAGE  OR  LOCKOUT, THE BOARD SHALL IMMEDIATELY INITIATE
SETTLEMENT PROCEEDINGS UNDER SECTION SEVEN HUNDRED TWO-A OF  THIS  ARTI-
CLE.
  (A)  AFTER THE INITIATION OF SETTLEMENT PROCEEDINGS, ANY WORK STOPPAGE
OR LOCKOUT SHALL CEASE FOR A PERIOD OF NOT MORE THAN TWENTY-ONE DAYS  IF
BOTH OF THE FOLLOWING CIRCUMSTANCES EXIST:
  (I)  THE  WORK  STOPPAGE OR LOCKOUT OCCURS DURING A SHORT PEAK HARVEST
SEASON; AND
  (II) THE WORK STOPPAGE OR LOCKOUT WILL CAUSE IMMEDIATE AND IRREPARABLE
INJURY, LOSS OR DAMAGE TO THE EMPLOYER.
  (B) DURING SUCH TWENTY-ONE DAY PERIOD, BOTH PARTIES SHALL  ENTER  INTO
GOOD  FAITH NEGOTIATIONS TO SETTLE THE LABOR DISPUTE, WHICH PERIOD SHALL
BE REFERRED TO AS A COOLING OFF PERIOD.
  (C) THE BOARD SHALL CONDUCT AN IMMEDIATE  AND  EXPEDITED  FACT-FINDING
HEARING  TO  DETERMINE  WHETHER THE CIRCUMSTANCES UNDER PARAGRAPH (A) OF
THIS SUBDIVISION EXIST. EACH PARTY SHALL HAVE THE OPPORTUNITY TO  SUBMIT

S. 1743--B                          7

WRITTEN  AND ORAL TESTIMONY AT THE HEARING. THE BOARD SHALL NOT BE BOUND
BY TECHNICAL RULES OF EVIDENCE PREVAILING IN COURTS OF LAW OR EQUITY.
  (D)  THE  BOARD  SHALL  ISSUE  ITS  DETERMINATION  IN  WRITING  WITHIN
FORTY-EIGHT HOURS OF THE CONCLUSION OF THE HEARING, WHICH SHALL  INCLUDE
FINDINGS  OF  FACT  AND A RATIONALE FOR ITS DETERMINATION. A COPY OF THE
BOARD'S DETERMINATION SHALL BE PROVIDED TO EACH PARTY WITHIN TWENTY-FOUR
HOURS.
  (E) FOR PURPOSES OF THIS SECTION, AN EMPLOYEE WHO IS ABSENT FROM  WORK
WITHOUT  PERMISSION,  OR  WHO  ABSTAINS  WHOLLY OR IN PART FROM THE FULL
PERFORMANCE OF HIS OR HER EMPLOYMENT DUTIES WITHOUT  PERMISSION  ON  THE
DATE  WHEN  A  WORK STOPPAGE OR LOCKOUT OCCURS SHALL BE PRESUMED TO HAVE
ENGAGED IN SUCH WORK STOPPAGE OR LOCKOUT.
  4. IF EITHER PARTY IS FOUND TO BE IN VIOLATION OF THE BOARD'S DETERMI-
NATION, THE BOARD MAY FILE A PETITION WITH THE SUPREME COURT  IN  ALBANY
COUNTY  UPON  NOTICE TO ALL PARTIES FOR TEMPORARY INJUNCTIVE RELIEF. THE
BOARD SHALL NOT BE REQUIRED TO PROVIDE  ANY  UNDERTAKINGS  OR  BOND  AND
SHALL  NOT  BE  LIABLE  FOR  ANY  DAMAGES  OR  COSTS WHICH MAY HAVE BEEN
SUSTAINED BY REASON OF ANY TEMPORARY INJUNCTIVE RELIEF ORDERED.  IF  THE
BOARD  FAILS  TO  ACT WITHIN TEN DAYS, THE BOARD SHALL BE DEEMED TO HAVE
MADE A FINAL DETERMINATION NOT TO SEEK TEMPORARY INJUNCTIVE RELIEF.
  S 10. Subdivision 2 of section 564 of  the  labor  law  is  renumbered
subdivision 3 and a new subdivision 2 is added to read as follows:
  2.  EXCLUSION  FROM  COVERAGE.  THE TERM "EMPLOYMENT" DOES NOT INCLUDE
SERVICES RENDERED BY AN INDIVIDUAL WHO  IS  AN  ALIEN  ADMITTED  TO  THE
UNITED  STATES  TO  PERFORM AGRICULTURAL LABOR PURSUANT TO 8 USC 1184(C)
AND 8 USC 1101(A)(15)(H) OF THE FEDERAL IMMIGRATION AND NATIONALITY  ACT
IF,  AT  THE TIME SUCH SERVICES ARE RENDERED, THEY ARE EXCLUDED FROM THE
DEFINITION OF EMPLOYMENT AS PROVIDED IN 26 USC 3306(C)  OF  THE  FEDERAL
UNEMPLOYMENT TAX ACT.
  S 11. Subdivision 1 of section 674 of the labor law, as added by chap-
ter 552 of the laws of 1969, is amended to read as follows:
  1. The commissioner may promulgate such regulations as he deems appro-
priate  to carry out the purposes of this article and to safeguard mini-
mum wage standards. Such regulations may include, but  are  not  limited
to,  the  defining of the circumstances or conditions for the acceptance
of non-hourly rates and piece rates as equivalent to the minimum  hourly
rates  established  by  this article. Such regulations also may include,
but are not limited  to,  waiting  time  and  call-in  pay  rates;  wage
provisions  governing  guaranteed  earnings  during specified periods of
work; AND allowances for meals, lodging, and other items,  services  and
facilities  when furnished by the employer[; and the employment of indi-
viduals whose earning capacity is affected or impaired by youth or  age,
or  by  physical  or  mental deficiency or injury, under special certif-
icates issued by the commissioner, at such wages lower than the  minimum
wage  established  by  this  article  and  for  such  period as shall be
prescribed in such regulations].
  S 12. This act shall take effect on the first of April next succeeding
the date on which it shall have  become  a  law,  except  that  sections
seven,  eight  and  nine  shall take effect 365 days after it shall have
become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.