Senator Perkins interviews two farm workers from Western New York, with their translators, to ask them about the recently introduced bill known as the Farmworers Fair Labor Practice Act (S.2247)
STATE OF NEW YORK ________________________________________________________________________ 2247 2009-2010 Regular Sessions IN SENATE February 13, 2009 ___________ Introduced by Sens. ONORATO, BRESLIN, ADDABBO, SAVINO, DIAZ, DUANE, ESPADA, HASSELL-THOMPSON, HUNTLEY, C. JOHNSON, KLEIN, KRUEGER, MARCELLINO, MONSERRATE, MONTGOMERY, OPPENHEIMER, PADAVAN, PARKER, PERKINS, ROBACH, SAMPSON, SCHNEIDERMAN, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS, THOMPSON -- 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: 1 Section 1. Sections one through seventeen of this act shall be known 2 and may be cited as "The Farmworkers Fair Labor Practices Act". 3 § 2. Paragraph (a) of subdivision 3 of section 701 of the labor law, 4 as amended by chapter 43 of the laws of 1989, is amended to read as 5 follows: 6 (a) The term "employees" includes but is not restricted to any indi- 7 vidual employed by a labor organization; any individual whose employment 8 has ceased as a consequence of, or in connection with, any current labor 9 dispute or because of any unfair labor practice, and who has not 10 obtained any other regular and substantially equivalent employment; and 11 shall not be limited to the employees of a particular employer, unless 12 the article explicitly states otherwise, but shall not include any indi- 13 vidual employed by his parent or spouse or in the domestic service of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01159-01-9
S. 2247 2 1 and directly employed, controlled and paid by any person in his home, 2 any individual whose primary responsibility is the care of a minor child 3 or children and/or someone who lives in the home of a person for the 4 purpose of serving as a companion to a sick, convalescing or elderly 5 person or any individuals employed only for the duration of a labor 6 dispute, [or any individuals employed as farm laborers] or[,] any indi- 7 vidual who participates in and receives rehabilitative or therapeutic 8 services in a charitable non-profit rehabilitation facility or sheltered 9 workshop or any individual employed in a charitable non-profit rehabili- 10 tation facility or sheltered workshop who has received rehabilitative or 11 therapeutic services and whose capacity to perform the work for which he 12 is engaged is substantially impaired by physical or mental deficiency or 13 injury. 14 § 3. Subdivision 1 of section 161 of the labor law is amended by 15 adding a new undesignated paragraph to read as follows: 16 Every person employed as a farm laborer shall be allowed at least 17 twenty-four consecutive hours of rest in each and every calendar week. 18 This requirement shall not apply to the parent, child, spouse or other 19 member of the employer's immediate family. Twenty-four consecutive hours 20 spent at rest because of circumstances, such as weather or crop condi- 21 tions, shall be deemed to constitute the rest required by this para- 22 graph. No provision of this paragraph shall prohibit a farm laborer from 23 voluntarily refusing the rest required by this paragraph. The term 24 "farm labor" shall include all services performed in agricultural 25 employment in connection with cultivating the soil, or in connection 26 with raising or harvesting of agricultural commodities, including the 27 raising, shearing, caring for and management of livestock, poultry or 28 dairy. The day of rest authorized under this subdivision should, when- 29 ever possible, coincide with the traditional day reserved by the farm 30 laborer for religious worship. 31 § 4. Paragraphs b and d of subdivision 2 of section 161 of the labor 32 law, as amended by chapter 281 of the laws of 1941, are amended to read 33 as follows: 34 b. Employees in [dairies, creameries,] milk condenseries, milk powder 35 factories, milk sugar factories, milk shipping stations, butter and 36 cheese factories, ice cream manufacturing plants and milk bottling 37 plants, where not more than seven persons are employed; 38 d. Employees whose duties include not more than three hours' work on 39 Sunday in setting sponges in bakeries, [caring for live animals,] main- 40 taining fires, or making necessary repairs to boilers or machinery. 41 § 5. Subdivision 3 of section 160 of the labor law is amended to read 42 as follows: 43 3. For all other employees, except those engaged in [farm or] domestic 44 service and those affected by subdivision four of section two hundred 45 [and] twenty of this chapter, eight hours. 46 § 6. Subdivision 1 of section 220 of the labor law is amended to read 47 as follows: 48 1. Eight hours shall constitute a legal day's work for all classes of 49 employees in this state except those engaged in [farm and] domestic 50 service unless otherwise provided by law. 51 § 7. The labor law is amended by adding a new section 163-a to read as 52 follows: 53 § 163-a. Farm laborers. No person or corporation operating a farm 54 shall require any employee to work more than eight hours in any day; 55 provided, however, that overtime work performed by a farm laborer shall
S. 2247 3 1 be at a rate which is at least one and one-half times the worker's 2 normal wage rate. 3 § 8. The opening paragraph of paragraph (a) of subdivision 6 of 4 section 511 of the labor law, as amended by chapter 675 of the laws of 5 1977, is amended to read as follows: 6 The term "employment" [does not include] includes agricultural labor 7 [unless it is covered pursuant to section five hundred sixty-four]. The 8 term "agricultural labor" includes all service performed: 9 § 9. Section 564 of the labor law, as added by chapter 675 of the laws 10 of 1977, is amended to read as follows: 11 § 564. Agricultural labor crew leaders. [1. Coverage. (a) Notwith- 12 standing the provisions of section five hundred sixty of this article, 13 an employer of persons engaged in agricultural labor shall become liable 14 for contributions under this article if the employer: 15 (1) has paid cash remuneration of twenty thousand dollars or more in 16 any calendar quarter to persons employed in agricultural labor, and such 17 liability shall commence on the first day of such quarter, or 18 (2) has employed in agricultural labor ten or more persons on each of 19 twenty days during a calendar year or the preceding calendar year, each 20 day being in a different calendar week, and the liability shall in such 21 event commence on the first day of the calendar year, or 22 (3) is liable for the tax imposed under the federal unemployment tax 23 act as an employer of agricultural labor and the liability shall in such 24 event commence on the first day of the calendar quarter in such calendar 25 year when he first paid remuneration for agricultural labor in this 26 state. 27 (b) An employer who becomes liable for contributions under paragraph 28 (a) of this subdivision shall cease to be liable as of the first day of 29 a calendar quarter next following the filing of a written application 30 provided the commissioner finds that the employer: 31 (1) has not paid to persons employed in agricultural labor cash remun- 32 eration of twenty thousand dollars or more in any of the eight calendar 33 quarters preceding such day, and 34 (2) has not employed in agricultural labor ten or more persons on each 35 of twenty days during the current or the preceding calendar year, each 36 day being in a different week, and 37 (3) is not liable for the tax imposed under the federal unemployment 38 tax act as an employer of agricultural labor. 39 2. Crew leader.] Whenever a person renders services as a member of a 40 crew which is paid and furnished by the crew leader to perform services 41 in agricultural labor for another employer, such other employer shall, 42 for the purpose of this article, be deemed to be the employer of such 43 person, unless: 44 [(a)] 1. the crew leader holds a valid certificate of registration 45 under the federal farm labor contractor registration act of nineteen 46 hundred sixty-three or substantially all the members of the crew operate 47 or maintain tractors, mechanized harvesting or cropdusting machinery or 48 any other mechanized equipment which is provided by the crew leader, and 49 [(b)] 2. the crew leader is not an employee of such other employer and 50 has not entered into a written agreement with such employer under which 51 he is designated as an employee. 52 § 10. Paragraph (m) of subdivision 5 of section 225 of the public 53 health law, as amended by chapter 894 of the laws of 1958 and such 54 subdivision as renumbered by chapter 626 of the laws of 1971, is amended 55 to read as follows:
S. 2247 4 1 (m) require that application be made for a permit to operate a farm or 2 food processing labor camp as defined in the sanitary code; authorize 3 appropriate officers or agencies to issue such a permit when the appli- 4 cant is in compliance with the established regulations; prescribe stand- 5 ards for living quarters at farm and food processing labor camps, 6 including provisions for sanitary conditions; light, air, and safety; 7 protection from fire hazards; maintenance; and such other matters as may 8 be appropriate for security of life or health, provided however, that 9 the provisions of the sanitary code established pursuant to the 10 provisions hereof shall apply to all farm and food processing labor 11 camps intended to house migrant workers and which are occupied [by five 12 or more persons]. In the preparation of such regulations, the public 13 health council may request and shall receive technical assistance from 14 the board of standards and appeals of the state department of labor and 15 the state building code commission. Such regulation shall be enforced in 16 the same manner as are other provisions of the sanitary code; 17 § 11. Groups 14-a and 14-b of subdivision 1 of section 3 of the work- 18 ers' compensation law, Group 14-a as amended by chapter 233 of the laws 19 of 1961 and Group 14-b as added by chapter 646 of the laws of 1966, are 20 amended to read as follows: 21 Group 14-a. On and after January first, nineteen hundred sixty-two, 22 any other employment in a trade, business, or occupation carried on by 23 the employer for pecuniary gain in which one or more employees [other 24 than farm laborers] are employed. 25 Group 14-b. Employment as a farm laborer as provided herein. A farmer 26 shall provide coverage under this chapter for all farm laborers 27 [employed during any part of the twelve consecutive months beginning 28 April first of any calendar year preceded by a calendar year in which 29 the cash remuneration paid to all farm laborers aggregated twelve 30 hundred dollars or more]. 31 § 12. Section 51 of the workers' compensation law, as amended by 32 chapter 561 of the laws of 2003, is amended to read as follows: 33 § 51. Posting of notice regarding compensation. Every employer who has 34 complied with section fifty of this article shall post and maintain in a 35 conspicuous place or places in and about his place or places of business 36 typewritten or printed in English and Spanish notices in form prescribed 37 by the chairman, stating the fact that he has complied with all the 38 rules and regulations of the chairman and the board and that he has 39 secured the payment of compensation to his employees and their depen- 40 dents in accordance with the provisions of this chapter, but failure to 41 post such notice as herein provided shall not in any way affect the 42 exclusiveness of the remedy provided for by section eleven of this chap- 43 ter. Every employer who owns or operates automotive or horse-drawn vehi- 44 cles and has no minimum staff of regular employees required to report 45 for work at an established place of business maintained by such employer 46 and every employer who is engaged in the business of moving household 47 goods or furniture shall post such notices in each and every vehicle 48 owned or operated by him. Failure to post or maintain such notice in any 49 of said vehicles shall constitute presumptive evidence that such employ- 50 er has failed to secure the payment of compensation. The chairman may 51 require any employer to furnish a written statement at any time showing 52 the stock corporation, mutual corporation or reciprocal insurer in which 53 such employer is insured or the manner in which such employer has 54 complied with any provision of this chapter. Failure for a period of ten 55 days to furnish such written statement shall constitute presumptive 56 evidence that such employer has neglected or failed in respect of any of
S. 2247 5 1 the matters so required. Any employer who fails to comply with the 2 provisions of this section shall be required to pay to the board a fine 3 of [up to two hundred fifty] five hundred dollars for each violation, in 4 addition to any other penalties imposed by law to be deposited into the 5 uninsured employers' fund. 6 § 13. The workers' compensation law is amended by adding a new section 7 110-b to read as follows: 8 § 110-b. Reporting of injuries to employer. Every farm labor contrac- 9 tor, foreman or supervisor of farm laborers who has notice of any injury 10 to a farm laborer incurred during the course of employment shall be 11 required to inform the employer, owner or operator of a farm of any such 12 injury. 13 § 14. The first undesignated paragraph of section 120 of the workers' 14 compensation law, as amended by chapter 61 of the laws of 1989, is 15 amended to read as follows: 16 It shall be unlawful for any employer or his or her duly authorized 17 agent to discharge or in any other manner discriminate against an 18 employee as to his or her employment because such employee has claimed 19 or attempted to claim compensation from such employer, requested a claim 20 form for injuries received in the course of employment, or because he or 21 she has testified or is about to testify in a proceeding under this 22 chapter and no other valid reason is shown to exist for such action by 23 the employer. 24 § 15. The opening paragraph of paragraph A of subdivision 6 of section 25 201 of the workers' compensation law, as amended by chapter 903 of the 26 laws of 1986, is amended to read as follows: 27 "Employment" means employment in any trade, business or occupation 28 carried on by an employer, except that the following shall not be deemed 29 employment under this article: services performed for the state, a 30 municipal corporation, local governmental agency, other political subdi- 31 vision or public authority; employment subject to the federal railroad 32 unemployment insurance act; service performed on or as an officer or 33 member of the crew of a vessel on the navigable water of the United 34 States or outside the United States; [service as farm laborers;] casual 35 employment and the first forty-five days of extra employment of employ- 36 ees not regularly in employment as otherwise defined herein; service as 37 golf caddies; and service during all or any part of the school year or 38 regular vacation periods as a part-time worker of any person actually in 39 regular attendance during the day time as a student in an elementary or 40 secondary school. The term "employment" shall not include the services 41 of a licensed real estate broker or sales associate if it be proven that 42 (a) substantially all of the remuneration (whether or not paid in cash) 43 for the services performed by such broker or sales associate is directly 44 related to sales or other output (including the performance of services) 45 rather than to the number of hours worked; (b) the services performed by 46 the broker or sales associate are performed pursuant to a written 47 contract executed between such broker or sales associate and the person 48 for whom the services are performed within the past twelve to fifteen 49 months; and (c) the written contract provided for in [paragraph] subpar- 50 agraph (b) herein was not executed under duress and contains the follow- 51 ing provisions: 52 § 16. The opening paragraph of subdivision 5 of section 651 of the 53 labor law, as amended by chapter 640 of the laws of 2005, is amended to 54 read as follows: 55 "Employee" includes any individual employed or permitted to work by an 56 employer in any occupation, but shall not include any individual who is
S. 2247 6 1 employed or permitted to work: (a) in service as a part time baby sitter 2 in the home of the employer; or someone who lives in the home of an 3 employer for the purpose of serving as a companion to a sick, convalesc- 4 ing or elderly person, and whose principal duties do not include house- 5 keeping; (b) [in labor on a farm; (c)] in a bona fide executive, admin- 6 istrative, or professional capacity; [(d)] (c) as an outside salesman; 7 [(e)] (d) as a driver engaged in operating a taxicab; [(f)] (e) as a 8 volunteer, learner or apprentice by a corporation, unincorporated asso- 9 ciation, community chest, fund or foundation organized and operated 10 exclusively for religious, charitable or educational purposes, no part 11 of the net earnings of which inures to the benefit of any private share- 12 holder or individual; [(g)] (f) as a member of a religious order, or as 13 a duly ordained, commissioned or licensed minister, priest or rabbi, or 14 as a sexton, or as a christian science reader; [(h)] (g) in or for such 15 a religious or charitable institution, which work is incidental to or in 16 return for charitable aid conferred upon such individual and not under 17 any express contract of hire; [(i)] (h) in or for such a religious, 18 educational or charitable institution if such individual is a student; 19 [(j)] (i) in or for such a religious, educational or charitable institu- 20 tion if the earning capacity of such individual is impaired by age or by 21 physical or mental deficiency or injury; [(k)] (j) in or for a summer 22 camp or conference of such a religious, educational or charitable insti- 23 tution for not more than three months annually; [(l)] (k) as a staff 24 counselor in a children's camp; [(m)] (l) in or for a college or univer- 25 sity fraternity, sorority, student association or faculty association, 26 no part of the net earnings of which inures to the benefit of any 27 private shareholder or individual, and which is recognized by such 28 college or university, if such individual is a student; [(n)] (m) by a 29 federal, state or municipal government or political subdivision thereof. 30 The exclusions from the term "employee" contained in this subdivision 31 shall be as defined by regulations of the commissioner; or [(o)] (n) as 32 a volunteer at a recreational or amusement event run by a business that 33 operates such events, provided that no single such event lasts longer 34 than eight consecutive days and no more than one such event concerning 35 substantially the same subject matter occurs in any calendar year. Any 36 such volunteer shall be at least eighteen years of age. A business seek- 37 ing coverage under this paragraph shall notify every volunteer in writ- 38 ing, in language acceptable to the commissioner, that by volunteering 39 his or her services, such volunteer is waiving his or her right to 40 receive the minimum wage pursuant to this article. Such notice shall be 41 signed and dated by a representative of the business and the volunteer 42 and kept on file by the business for thirty-six months. 43 § 17. Subdivision 1 of section 674 of the labor law, as added by chap- 44 ter 552 of the laws of 1969, is amended to read as follows: 45 1. The commissioner may promulgate such regulations as he deems appro- 46 priate to carry out the purposes of this article and to safeguard mini- 47 mum wage standards. Such regulations may include, but are not limited 48 to, the defining of the circumstances or conditions for the acceptance 49 of non-hourly rates and piece rates as equivalent to the minimum hourly 50 rates established by this article. Such regulations also may include, 51 but are not limited to, waiting time and call-in pay rates; wage 52 provisions governing guaranteed earnings during specified periods of 53 work; allowances for meals, lodging, and other items, services and 54 facilities when furnished by the employer; [and the employment of indi- 55 viduals whose earning capacity is affected or impaired by youth or age,] 56 or by physical or mental deficiency or injury, under special certif-
S. 2247 7 1 icates issued by the commissioner, at such wages lower than the minimum 2 wage established by this article and for such period as shall be 3 prescribed in such regulations. 4 § 18. This act shall take effect immediately, provided that section 5 ten of this act shall take effect on the thirtieth day after it shall 6 have become a law.