Relates to provisions regarding domestic workers and such workers' employment regulations concerning hours of labor and wages, employment restrictions and employment contracts.
Ayes (33): Adams, Addabbo, Aubertine, Breslin, Diaz, Dilan, Duane, Espada, Foley, Hassell-Thomps, Huntley, Johnson C, Klein, Krueger, Kruger, Montgomery, Onorato, Oppenheimer, Padavan, Parker, Peralta, Perkins, Sampson, Savino, Schneiderman, Serrano, Smith, Squadron, Stachowski, Stavisky, Stewart-Cousins, Thompson, Valesky
Nays (28): Alesi, Bonacic, DeFrancisco, Farley, Flanagan, Fuschillo, Golden, Griffo, Hannon, Johnson O, Lanza, Larkin, LaValle, Leibell, Libous, Little, Marcellino, Maziarz, McDonald, Nozzolio, Ranzenhofer, Robach, Saland, Seward, Skelos, Volker, Winner, Young
Excused (1): Morahan
TITLE OF BILL:
An act to amend the labor law, the executive law and the workers' compensation law, in relation to establishing regulations regarding employment of domestic workers including hours of labor, wages and employment contracts
PURPOSE OR GENERAL IDEA OF BILL:
This bill would provide domestic workers with a Domestic Workers' Bill of Rights which would set out the responsibilities of employers and employees as well as rules for paid holidays, paid vacations and standard overtime.
SUMMARY OF SPECIFIC PROVISIONS:
The Labor law is amended by adding a new article 19-C setting out labor standards for domestic workers.
Section 696(1) of the new article 19-C would provide that a domestic worker's work day is eight hours and that overtime hours - as performed by agreement between the employee and employer - will be paid at one and a half times the worker's normal hourly rate.
Section 696(2) would provide for one day of rest every calendar week. The day off may be voluntarily waived by the worker, but the pay for that day would be at the overtime rate.
Section 696(3) would provide for the following days as paid holidays: New Year's Day, Martin Luther King Jr.'s Birthday, Independence Day, Thanksgiving, Labor Day and Christmas Day. Holiday days off may be voluntarily waived by the worker, but the pay for that day would be at the overtime rate.
Section 696(3) would also provide that full time workers (working at least forty hours per week) are entitled to at least seven paid sick days and five paid vacation days (with thirty days notice) each year. Workers working between twenty and forty hours a week are entitled to at least four paid sick days and three paid vacation days (again with thirty days notice).
Section 696(4) would provide for fourteen days written notice of termination. If the employer fails to give such adequate notice, the worker can receive back pay and the value of the cost of any benefits to which the employee would have been entitled. However, employers would not face any liability if 1) the employee was convicted of theft or destruction of property; or 2) if the employer acted upon a good faith and reasonable belief that the employee had committed assault, neglect or abuse in the workplace.
Section 697 would set out potential remedies. 697 (1) would provide that an employer who violates this article is subject to the criminal penalties set out in Labor Law sections 198-a and 663.
697 (2) would provide for civil actions; workers can sue for the underpayment of any wages and the value of benefits as well as reasonable attorney's fees. If the violation is determined to be willful, liquidated damages of 25% of the amount owed are assessed. Also, 697(2) (b) would give the Labor commissioner or the Attorney General the ability to bring such an action on behalf of a worker.
Section 3 of the bill would include domestic workers and their employers under the coverage of the New York state Human Rights Law.
Section 4 would include domestic workers under Labor Law Section 160's definition of a day's work as eight hours.
Section 5 would include employers who violate this article under Labor Law Section 218. Labor Law 218 provides that the Labor Commissioner may issue an order to violating employers and may direct payment of wages, benefits or wage supplements; if the employer acted willfully or egregiously, or if the employer had a prior violation, the commissioner's order can include a civil penalty of double the amount due. Relatedly, Section 6 would include this article under the interest and filing of an order as judgment provisions applicable to Labor Law 218.
Section 7 would include domestic workers under the definition of employee for purposes of the New York State minimum wage law (though domestic workers are already covered under the Federal minimum wage law).
Section 8 would include domestic workers in the provisions of the New York State Labor Relations Act.
Section 9 would include employers of domestic workers under the Toxic substances article of the Labor Law.
Section 10 would include domestic workers (including part-time workers) and their employers in the Disability Benefits Law.
Finally, section 11 of the bill would direct the Labor commissioner to report to the Legislature by 12/01/11 on the feasibility and practicality of domestic workers obtaining "common employment benefits." This would allow for the subsequent consideration of other potential benefits, including health insurance, severance pay, personal leave, collective bargaining and cost of living adjustments. Section 11 would also direct the Labor commissioner to form a task force (with the Workers' Compensation Chair, the superintendent of Insurance, the Health commissioner and the Executive Director of the Department of Economic Development) to address how to make educational and informational materials about this article accessible to employees and employers.
Domestic workers are among the most oppressed workers in the United States. They are often abused and mistreated and frequently work under harsh conditions. They are regularly forced by employers to work seven days a week and they receive little or no pay for their services. They are also often physically, emotionally and sexually assaulted and abused.
Many domestic workers come to the United States legally to escape poverty in their country. The main reason for their employment is to earn money to send to their families and support their children. Many domestic workers are isolated, exploited and psychologically abused by their employers, thus often creating in them the belief they will suffer serious harm if they leave their jobs. In addition, many domestic workers fall through the cracks of U.s. government. Therefore the burden of securing employer compliance becomes that of the domestic worker. Even if a worker leaves their employer, he or she is not guaranteed time to remain in the United States to seek legal redress.
The problems of domestic workers underline the need for legislation to protect the rights of male and female employees working in homes.
PRIOR LEGISLATIVE HISTORY: 2009: Similar legislation was reported from Senate Labor and Codes Committees but died in Finance; similar legislation passed the Assembly 2008: Similar legislation (A.628B) died in Assembly Labor Committee 2007: Similar legislation (A.628B) died in Assembly Labor Committee 2006: Similar legislation (S.3547/A.2804) died in Senate Labor Committee and Assembly Codes Committee 2005: Similar legislation (S.3547/A.2804) died in Senate Labor Committee and Assembly Codes Committee 2004: Similar legislation (A.10948A) died in Assembly Labor Committee
FISCAL IMPLICATIONS: Minimal.
EFFECTIVE DATE: This act shall take effect on January first next succeeding the date on which it shall have become law; provided that section two of this act shall take effect on the ninetieth day after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 2311--D Cal. No. 196 2009-2010 Regular Sessions IN SENATE February 17, 2009 ___________Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE, ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER, PADAVAN, PARKER, PERALTA, PERKINS, SAMPSON, SCHNEIDERMAN, SERRANO, SQUADRON, STACHOWSKI, STAVISKY, STEWART-COUSINS, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- reported favorably from said committee and committed to the Committee on Codes -- reported favorably from said committee and committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Labor in accord- ance with Senate Rule 6, sec. 8 -- reported favorably from said committee and committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Finance -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- again amended and ordered reprinted, retain- ing its place in the order of third reading AN ACT to amend the labor law, the executive law and the workers' compensation law, in relation to establishing regulations regarding employment of domestic workers including hours of labor, wages and employment contracts THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings and intent. Many thousands of domes- tic workers are employed in New York state as housekeepers, nannies, and companions to the elderly. The labor of domestic workers is central to the ongoing prosperity that the state enjoys, and yet, despite the value of their work, domestic workers do not receive the same protection of many state laws as do workers in other industries. Domestic workersEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00150-14-0 S. 2311--D 2
often labor under harsh conditions, work long hours for low wages with- out benefits or job security, are isolated in their workplaces, and are endangered by sexual harassment and assault, as well as verbal, emotional and psychological abuse. Moreover, many domestic workers in the state of New York are women of color who, because of race and sex discrimination, are particularly vulnerable to unfair labor practices. The legislature finds that because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the state of New York to ensure that the rights of domestic workers are respected, protected, and enforced. Domestic workers have historically been excluded from many of the traditional protections afforded by the labor law. Additionally, domes- tic workers are not afforded by law the right to organize labor unions for the purpose of collective bargaining. Given the limited legal protections historically provided to domestic workers, and bearing in mind the unique conditions and demands of this private home-based indus- try, the legislature further finds that domestic workers are entitled to industry-specific protections and labor standards. S 2. The labor law is amended by adding a new article 19-C to read as follows: ARTICLE 19-C LABOR STANDARDS FOR DOMESTIC WORKERS SECTION 695. DEFINITIONS. 696. OTHER EMPLOYMENT CONDITIONS. 697. REMEDIES. 698. SEVERABILITY. S 695. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: 1. "DOMESTIC WORKER" MEANS A PERSON EMPLOYED IN A HOME OR RESIDENCE FOR THE PURPOSE OF CARING FOR A CHILD, SERVING AS A COMPANION TO A SICK, CONVALESCING OR ELDERLY PERSON, HOUSEKEEPING, OR FOR ANY OTHER DOMESTIC SERVICE PURPOSE. "DOMESTIC WORKER" DOES NOT INCLUDE ANY INDIVIDUAL WHO IS ENGAGED IN PROVIDING COMPANIONSHIP SERVICES, AS DEFINED IN S 213(A)(15) OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHO IS EMPLOYED BY AN EMPLOYER OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD USING HIS OR HER SERVICES. "DOMESTIC WORKER" ALSO DOES NOT INCLUDE ANY INDIVIDUAL WHO IS ENGAGED AS AN AU PAIR AS IS SET OUT IN TITLE 22, SECTION 62.31 OF THE CODE OF FEDERAL REGULATIONS. 2. "PAID TIME OFF" MEANS DAYS THAT THE DOMESTIC WORKER IS ENTITLED TO TIME OFF WITH PAY CALCULATED AT EACH DOMESTIC WORKER'S REGULAR RATE OF PAY FOR HIS OR HER REGULAR HOURS WORKED ON THAT DAY. S 696. OTHER EMPLOYMENT CONDITIONS. 1. HOURS OF LABOR FOR DOMESTIC WORKERS. NO PERSON OR CORPORATION EMPLOYING A DOMESTIC WORKER AS DEFINED IN SUBDIVISION ONE OF SECTION SIX HUNDRED NINETY-FIVE OF THIS ARTICLE SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN EIGHT HOURS IN A DAY; PROVIDED HOWEVER THAT OVERTIME WORK PERFORMED BY AGREEMENT BETWEEN A DOMESTIC WORKER AND HIS OR HER EMPLOYER SHALL BE AT A RATE WHICH IS AT LEAST ONE AND ONE-HALF TIMES THE WORKER'S NORMAL HOURLY RATE. 2. DAY OF REST. (A) A DOMESTIC WORKER SHALL BE ENTITLED TO AT LEAST TWENTY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK. (B) NO DOMESTIC WORKER SHALL BE REQUIRED TO WORK ON HIS OR HER DAY OF REST. (C) IN THE EVENT THAT A DOMESTIC WORKER AGREES TO WORK ON HIS OR HER DAY OF REST, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL HOURS WORKED ON HIS OR HER DAY OF REST.S. 2311--D 3
3. PAID TIME OFF. (A) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK SHALL BE ENTITLED TO PAID TIME OFF ON THE FOLLOWING HOLIDAYS: (1) NEW YEAR'S DAY; (2) MARTIN LUTHER KING JR.'S BIRTHDAY; (3) INDEPENDENCE DAY; (4) THANKSGIVING; (5) LABOR DAY; (6) CHRISTMAS DAY. (B) NO DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOY- ER IS AT LEAST TWENTY HOURS PER WEEK SHALL BE REQUIRED TO WORK ON A HOLIDAY. (C) IN THE EVENT THAT A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK AGREES TO WORK ON A HOLIDAY, HE OR SHE WILL BE COMPENSATED AT THE OVERTIME RATE FOR ALL HOURS WORKED ON THE HOLIDAY. (D) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST FORTY HOURS A WEEK SHALL BE ENTITLED TO SEVEN DAYS OF PAID TIME OFF FOR SICK LEAVE EACH YEAR. A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK BUT LESS THAN FORTY HOURS A WEEK SHALL BE ENTITLED TO FOUR DAYS OF PAID TIME OFF FOR SICK LEAVE EACH YEAR. NOTHING IN THIS PROVISION SHALL PROHIBIT EMPLOYERS FROM PROVIDING MORE GENEROUS PAID TIME OFF FOR SICK LEAVE. (E) A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST FORTY HOURS A WEEK SHALL BE ENTITLED TO FIVE DAYS OF PAID TIME OFF FOR VACATION EACH YEAR. A DOMESTIC WORKER WHOSE REGULAR WORK SCHEDULE FOR A GIVEN EMPLOYER IS AT LEAST TWENTY HOURS A WEEK BUT LESS THAN FORTY HOURS A WEEK SHALL BE ENTITLED TO THREE DAYS OF PAID TIME OFF FOR VACATION EACH YEAR. VACATION SHALL BE AGREED UPON WITH THE EMPLOYER AT LEAST THIRTY DAYS IN ADVANCE OF THE FIRST VACATION DAY. NOTHING IN THIS PROVISION SHALL PROHIBIT EMPLOYERS FROM PROVIDING MORE GENEROUS PAID TIME OFF FOR VACATION. 4. TERMINATION AND SEVERANCE. (A) A DOMESTIC WORKER IS ENTITLED TO WRITTEN NOTICE OF TERMINATION FOURTEEN DAYS BEFORE HIS OR HER FINAL DAY OF EMPLOYMENT. AN EMPLOYER WHO FAILS TO GIVE NOTICE AS REQUIRED BY THIS ARTICLE IS LIABLE TO EACH EMPLOYEE ENTITLED TO NOTICE WHO LOST HIS OR HER EMPLOYMENT FOR: (I) BACK PAY FOR THE PERIOD IN WHICH THE EMPLOYEE WAS ENTITLED TO NOTICE AT THE AVERAGE REGULAR RATE OF COMPENSATION RECEIVED BY THE EMPLOYEE DURING THE LAST THREE YEARS OF HIS OR HER EMPLOYMENT, OR THE EMPLOYEE'S FINAL RATE OF COMPENSATION, WHICHEVER IS HIGHER. (II) THE VALUE OF THE COST OF ANY BENEFITS TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED DURING THE PERIOD IN WHICH THE EMPLOYEE WAS ENTITLED TO NOTICE. (B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, NO EMPLOYER SHALL BE LIABLE FOR FAILURE TO PROVIDE NOTICE OF TERMINATION. (I) TO AN EMPLOYEE WHO IS CONVICTED OF COMMITTING AN UNLAWFUL ACT OF THEFT OR DESTRUCTION OF PROPERTY; OR (II) WHEN THE EMPLOYER HAS A REASONABLE GOOD FAITH BELIEF THAT THE EMPLOYEE HAS COMMITTED ASSAULT, NEGLECT OR ABUSE IN THE WORKPLACE. IN SUCH A CASE, THE EMPLOYER SHALL HAVE THE BURDEN OF SHOWING SUCH AN ACT. (C) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE REMEDIES PROVIDED IN SUBDIVISION ONE OF SECTION SIX HUNDRED NINETY-SEVEN OF THIS ARTICLE SHALL NOT BE APPLICABLE TO AN EMPLOYER'S FAILURE TO PROVIDE NOTICE OF TERMINATION.S. 2311--D 4
5. BACK PAY. BACK PAY AND OTHER LIABILITY UNDER THIS SECTION IS CALCULATED FOR THE PERIOD OF THE EMPLOYER'S VIOLATION, UP TO A MAXIMUM OF SIXTY DAYS, OR ONE-HALF THE NUMBER OF DAYS THAT THE EMPLOYEE WAS EMPLOYED BY THE EMPLOYER, WHICHEVER PERIOD IS SMALLER. S 697. REMEDIES. 1. CRIMINAL PENALTIES. ANY EMPLOYER OR HIS OR HER AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, WHO PAYS OR PROVIDES OR AGREES TO PAY OR PROVIDE TO ANY DOMESTIC WORKER LESS THAN THE WAGE, OR BENEFITS APPLICABLE UNDER THIS ARTICLE SHALL BE SUBJECT TO CRIMINAL PENALTIES PURSUANT TO SECTIONS ONE HUNDRED NINETY-EIGHT-A AND ONE HUNDRED NINETY-EIGHT-C OF THIS CHAPTER. 2. CIVIL ACTIONS. (A) IF ANY DOMESTIC WORKER IS PAID OR PROVIDED BY HIS OR HER EMPLOYER LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, HE OR SHE MAY RECOVER IN A CIVIL ACTION THE AMOUNT OF ANY SUCH UNDERPAYMENTS OF WAGES AND THE VALUE OF SUCH BENEFITS COSTS AND MAY SEEK ANY OTHER REMEDY AVAILABLE TO THE COMMISSIONER UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER AND SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER. (B) ON BEHALF OF ANY DOMESTIC WORKER PAID OR PROVIDED LESS THAN THE WAGES, OR BENEFITS TO WHICH HE OR SHE IS ENTITLED UNDER THE PROVISIONS OF THIS ARTICLE, THE COMMISSIONER OR ATTORNEY GENERAL MAY BRING ANY LEGAL ACTION NECESSARY NOTWITHSTANDING ANY LAW TO THE CONTRARY TO COLLECT SUCH CLAIM AND MAY SEEK ANY OTHER REMEDY AVAILABLE TO THE COMMISSIONER UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER AND SECTION SIX HUNDRED SIXTY-THREE OF THIS CHAPTER. (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION TO RECOVER UPON A LIABILITY IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN SIX YEARS. S 698. SEVERABILITY. IF ANY PART OR PROVISION OF THIS ARTICLE, OR THE APPLICATION OF THIS ARTICLE TO ANY PERSON OR CIRCUMSTANCE, IS HELD INVALID, THE REMAINDER OF THIS ARTICLE, INCLUDING THE APPLICATION OF SUCH PART OR PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL NOT BE AFFECTED BY SUCH A HOLDING AND SHALL CONTINUE IN FULL FORCE AND EFFECT. TO THIS END, THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE. S 3. Subdivisions 5 and 6 of section 292 of the executive law, subdi- vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6 as amended by chapter 166 of the laws of 2000, are amended to read as follows: 5. The term "employer" does not include any employer with fewer than four persons in his OR HER employ. NOTWITHSTANDING THE PRECEDING SENTENCE, THE TERM "EMPLOYER" INCLUDES ANY EMPLOYER EMPLOYING ONE OR MORE DOMESTIC WORKERS, AS DEFINED BY SECTION SIX HUNDRED NINETY-FIVE OF THE LABOR LAW. 6. The term "employee" in this article does not include any individual employed by his or her parents, spouse or child
[, or in the domestic service of any person]. S 4. 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]WORK and those affected by subdivision four of section two hundred [and]twenty OF THIS CHAPTER, eight hours. S 5. The opening paragraph of subdivision 1 of section 218 of the labor law, as amended by chapter 304 of the laws of 2007, is amended to read as follows: If the commissioner determines that an employer has violated a provision of article six (payment of wages), article nineteen (minimum wage act), article nineteen-A (MINIMUM WAGE STANDARDS AND PROTECTIVES. 2311--D 5
LABOR PRACTICES FOR FARM WORKERS), ARTICLE NINETEEN-C (LABOR STANDARDS FOR DOMESTIC WORKERS), section two hundred twelve-a (MIGRANT REGISTRA- TION LAW), section two hundred twelve-b (FARM LABOR CAMP COMMISSARIES), section one hundred sixty-one (day of rest) or section one hundred sixty-two (meal periods) of this chapter, or a rule or regulation promulgated thereunder, the commissioner shall issue to the employer an order directing compliance therewith, which shall describe particularly the nature of the alleged violation. In addition to directing payment of wages, benefits or wage supplements found to be due, such order, if issued to an employer who previously has been found in violation of those provisions, rules or regulations, or to an employer whose violation is willful or egregious, shall direct payment to the commis- sioner of an additional sum as a civil penalty in an amount equal to double the total amount found to be due. In no case shall the order direct payment of an amount less than the total wages, benefits or wage supplements found by the commissioner to be due, plus the appropriate civil penalty. Where the violation is for a reason other than the employer's failure to pay wages, benefits or wage supplements found to be due, the order shall direct payment to the commissioner of a civil penalty in an amount not to exceed one thousand dollars for a first violation, two thousand dollars for a second violation or three thousand dollars for a third or subsequent violation. In assessing the amount of the penalty, the commissioner shall give due consideration to the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and, in the case of wages, benefits or supplements violations, the failure to comply with recordkeeping or other non-wage requirements. S 6. Subdivision 1 of section 219 of the labor law, as amended by chapter 417 of the laws of 1987, is amended to read as follows: 1. If the commissioner determines that an employer has failed to pay wages, benefits or wage supplements required pursuant to article six (payment of wages), article nineteen (minimum wage act)
[or], article [nineteen-a]NINETEEN-A (MINIMUM WAGE STANDARDS AND PROTECTIVE LABOR PRACTICES FOR FARM WORKERS), OR ARTICLE NINETEEN-C (LABOR STANDARDS FOR DOMESTIC WORKERS) of this chapter, or a rule or regulation promulgated thereunder, the commissioner shall issue to the employer an order directing compliance therewith, which shall describe particularly the nature of the alleged violation. Such order shall direct payment of wages or supplements found to be due, including interest at the rate of interest then in effect as prescribed by the superintendent of banks pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment. S 7. Subdivision 5 of section 651 of the labor law, as amended by chapter 640 of the laws of 2005, is amended to read as follows: 5. "Employee" includes any individual employed or permitted to work by an employer in any occupation, but shall not include any individual who is employed or permitted to work: (a) ON A CASUAL BASIS WHILE A MINOR 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, convalescing or elderly person, and whose principal duties do not include housekeeping]; (b) in labor on a farm; (c) in a bona fide executive, administrative, or professional capacity; (d) as an outside salesman; (e) as a driver engaged in operating a taxi- cab; (f) as a volunteer, learner or apprentice by a corporation, unin- corporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educationalS. 2311--D 6
purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual; (g) as a member of a religious order, or as a duly ordained, commissioned or licensed minister, priest or rabbi, or as a sexton, or as a christian science reader; (h) in or for such a religious or 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) in or for such a religious, educational or charitable institution if such individual is a student; (j) in or for such a religious, educational or charitable institution if the earning capacity of such individual is impaired by age or by phys- ical or mental deficiency or injury; (k) in or for a summer camp or conference of such a religious, educational or charitable institution for not more than three months annually; (l) as a staff counselor in a children's camp; (m) 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) 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) as a volunteer at a recreational or amusement event run by a business that operates such events, provided that no single such event lasts longer than eight consecutive days and no more than one such event concerning substantially the same subject matter occurs in any calendar year. Any such volunteer shall be at least eighteen years of age. A business seeking coverage under this paragraph shall notify every volunteer in writing, in language acceptable to the commissioner, that by volunteering his or her services, such volunteer is waiving his or her right to receive the minimum wage pursuant to this article. Such notice shall be signed and dated by a representative of the business and the volunteer and kept on file by the business for thirty-six months. "Employee" also includes any individual employed or permitted to work in any non-teaching capacity by a school district or board of cooper- ative educational services except that the provisions of sections six hundred fifty-three through six hundred fifty-nine of this article shall not be applicable in any such case. S 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 OR HER 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 individual who participates in and receives rehabilitative or therapeu- tic services in a charitable non-profit rehabilitation facility or shel-S. 2311--D 7
tered workshop or any individual employed in a charitable non-profit rehabilitation facility or sheltered workshop who has received rehabili- tative or therapeutic services and whose capacity to perform the work for which he OR SHE is engaged is substantially impaired by physical or mental deficiency or injury. S 9. Subdivisions 1 and 3 of section 875 of the labor law, as added by chapter 551 of the laws of 1980, are amended to read as follows: 1. "Employer" means any individual, partnership, corporation or asso- ciation engaged in a business who has employees including the state and its political subdivisions. The term "employer"
[does not include]INCLUDES the employment of domestic workers [or casual laborers]employed at the place of residence of his or her employer. 3. "Workplace" means any location [away from the home], permanent or temporary, where any employee performs any work-related duty in the course of his OR HER employment. S 10. The opening paragraph of subdivision 5 and the opening paragraph of paragraph A of subdivision 6 of section 201 of the workers' compen- sation law, the opening paragraph of subdivision 5 as amended by chapter 205 of the laws of 1993, the opening paragraph of paragraph A of subdi- vision 6 as amended by chapter 903 of the laws of 1986, are amended to read as follows: "Employee" means a person engaged in the service of an employer in any employment defined in subdivision six of this section, except a minor child of the employer [, except a domestic or personal worker in a private home who is employed for less than forty hours per week by any one employer,]and except a duly ordained, commissioned, or licensed minister, priest or rabbi, a sexton, a christian science reader, or member of a religious order, or an executive officer of a corporation who at all times during the period involved owns all of the issued and outstanding stock of the corporation and holds all of the offices pursu- ant to paragraph (e) of section seven hundred fifteen of the business corporation law or two executive officers of a corporation who at all times during the period involved between them own all of the issued and outstanding stock of such corporation and hold all such offices provided, however, that each officer must own at least one share of stock, except as provided in section two hundred twelve of this article, or an executive officer of an incorporated religious, charitable or educational institution, or persons engaged in a professional or teach- ing capacity in or for a religious, charitable or educational institu- tion, or volunteers in or for a religious, charitable or educational institution, or persons participating in and receiving rehabilitative services in a sheltered workshop operated by a religious, charitable or educational institution under a certificate issued by the United States department of labor, or recipients of charitable aid from a religious or charitable institution who perform work in or for the institution which is incidental to or in return for the aid conferred, and not under an express contract of hire. The terms "religious, charitable or educa- tional institution" mean a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual. "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-S. 2311--D 8
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
[paragraph]SUBPARAGRAPH (b) [herein]OF THIS PARAGRAPH was not executed under duress and contains the following provisions: S 11. The commissioner of labor shall report to the speaker of the assembly and the temporary president of the senate before December 1, 2011 on the feasibility and practicality of full- and part-time domestic workers being able to obtain common employment benefits such as vacation pay, severance pay, personal leave, or health insurance or other health coverage through collective bargaining or by law. The commissioner shall recommend measures to make these benefits affordable to employers and attainable for workers. The commissioner shall also convene an intera- gency task force to report to the speaker and majority leader before December 1, 2011, which shall include but not be limited to the chair of the workers' compensation board, the superintendent of insurance, the commissioner of health and the executive director of the department of economic development, to provide easily accessible educational and informational material for domestic employers and workers. Such material shall cover employment benefit, tax and insurance laws. S 12. This act shall take effect on January first next succeeding the date on which it shall have become a law; provided that section two of this act shall take effect on the ninetieth day after it shall have become a law.