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 a 10 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.
BILL NUMBER: S2247
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 grant farmworkers collective bargaining rights, workers' compensation, unemployment benefits, a day of rest and other labor protections provided to other workers in New York.
SUMMARY OF SPECIFIC PROVISIONS :
Section 1 of the bill entitles the bill "The Farmworkers Fair Labor Practices Act."
Section 2 of the bill amends Labor Law Section 701 to provide collective bargaining rights to farm workers.
Sections 3 and 4 of the bill amend Labor Law Section 161 to allow farm workers 24 hours of rest during each calendar week.
Sections 5-6 of the bill amend Labor Law Sections 160 & 220 respectively to establish 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 at the rate of time and one half times the worker's normal wage rate.
Sections 8 and 9 of the bill amend Labor Law Sections 511 and 564 respectively to provide unemployment insurance for farmworkers.
Section 10 of the bill amends Public Health Section 225 to expand the application of the sanitary code to farms occupied by migrant workers.
Section 11 of the bill amends Workers' Compensation law Section 3 to establish the same eligibility for farmworkers as other workers for workers' compensation.
Section 12 of the bill amends Workers' Compensation Law Section 51 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 bill amends 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 Workers' Compensation Law Section 120 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 Workers' Compensation Law Section 201 to provide farm workers disability insurance coverage.
Section 16 of the bill amends Labor Law Section 65 to include farmworkers within the Minimum Wage Act.
Section 17 of the bill amends Labor Law Section 674 to exclude the subminimum wage for underage farm workers.
Section 18 of the bill establishes the effective date.
Farmworkers perform essential services for New York's agricultural industry. Their work is labor intensive involving arduous tasks, exposure to pesticides, and long hours. Farmworkers suffer injuries and illnesses in the course of their employment. The labor protections that New York affords to other employees in the state such as workers' compensation, disability coverage, a day of rest, overtime and unemployment insurance should apply equally to farm workers. Further, providing farmworkers with the right to collective bargaining would afford them a basic right that has long existed for many other public and private employees in New York.
PRIOR LEGISLATIVE HISTORY :
2008: S.3884 Reported to Rules; 2007-2008: A.7528 Advanced to 3rd Reading
FISCAL IMPLICATIONS :
None to the state.
EFFECTIVE DATE : Immediately, but section ten of the act shall take effect on the thirtieth day after it becomes a law.
STATE OF NEW YORK ________________________________________________________________________ 2247 2009-2010 Regular Sessions IN SENATE February 13, 2009 ___________Introduced by Sens. ONORATO, BRESLIN, ADDABBO, SAVINO -- 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. Sections one through seventeen of this act shall be known and may be cited as "The Farmworkers 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 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 ofEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01159-01-9 S. 2247 2
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. Subdivision 3 of section 160 of the labor law is amended to read as follows: 3. For all other employees, except those engaged in [farm or]domestic service and those affected by subdivision four of section two hundred [and]twenty OF THIS CHAPTER, 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 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 SHALLS. 2247 3
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 10. Paragraph (m) of subdivision 5 of section 225 of the public health law, as amended by chapter 894 of the laws of 1958 and such subdivision as renumbered by chapter 626 of the laws of 1971, is amended to read as follows:S. 2247 4
(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 council may request and shall receive technical assistance from the board of standards and appeals of the state department of labor and the state building code commission. Such regulation 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 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 ofS. 2247 5
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 903 of the laws of 1986, 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 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 [paragraph]SUBPAR- AGRAPH (b) herein was not executed under duress and contains the follow- ing provisions: S 16. The opening paragraph of subdivision 5 of section 651 of the labor law, as amended by chapter 640 of the laws of 2005, is amended to read as follows: "Employee" includes any individual employed or permitted to work by an employer in any occupation, but shall not include any individual who isS. 2247 6
employed or permitted to work: (a) in service as a part time baby sitter in the home of the employer; or someone who lives in the home of an employer for the purpose of serving as a companion to a sick, convalesc- ing or elderly person, and whose principal duties do not include house- keeping; (b)
[in labor on a farm; (c)]in a bona fide executive, admin- istrative, 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 asso- ciation, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private share- holder or individual; [(g)](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 institu- tion if the earning 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 insti- tution 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 univer- sity 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 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-S. 2247 7
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.