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.
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 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 Farm Fair Labor practices Act to allow certain farm workers overtime, a day of rest, disability 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 calendar 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 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.
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 circumstances 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 retaliation 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 calculated 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
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 workers 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 actually 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 understanding 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 Temporary 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 safeguarding 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.
STATE OF NEW YORK ________________________________________________________________________ 1743--B 2013-2014 Regular Sessions IN SENATE (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 atS. 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 EMPLOYEES. 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 childS. 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 SUBMITS. 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.