Excludes certain seasonal fair workers from the definition of employee for purposes of the minimum wage act.
TITLE OF BILL: An act to amend the labor law, in relation to excluding certain seasonal fair workers from the definition of employee for purposes of the minimum wage act
PURPOSE OR GENERAL IDEA OF BILL: To update and amend the labor law to reflect the guidelines used in the Federal Fair Labor Standards Act regarding seasonal workers employed in the operation of county and agricultural fairs.
SUMMARY OF PROVISIONS: Section 651 of the labor law is amended by adding a new paragraph (P) to include fair workers as classified under the FLSA guidelines as exempt from the minimum wage act.
JUSTIFICATION: Seasonal county and agricultural fairs in New York State remain one of the last linkages between our agricultural heritage and today's urban based society. Since many fair and carnival jobs are concerned with operating amusement rides and focus on ride safety of patrons, and these workers travel with the business, they are not conducive to training sufficient numbers of local workers to avoid mandatory overtime costs. These jobs are very specialized and the safety of fair patrons is very much dependent upon these skilled workers. In addition, carnival companies work in surrounding states and are not required to pay time and one-half the regular pay after 40 hours.
Without some sort of relief from increasing costs, our agricultural fairs will see a decline in revenues and many will be forced to dose their doors.
PRIOR LEGISLATIVE HISTORY: 2009/2010 S.7470/A.10619, Referred to Labor
FISCAL IMPLICATIONS: None to the State.
EFFECTIVE DATE: This act shall take effect on the thirtieth day after it shall become law.
STATE OF NEW YORK ________________________________________________________________________ 2399--A 2011-2012 Regular Sessions IN SENATE January 19, 2011 ___________Introduced by Sens. MAZIARZ, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- commit- tee discharged, bill amended, ordered reprinted as amended and recom- mitted to said committee AN ACT to amend the labor law, in relation to excluding certain seasonal fair workers from the definition of employee for purposes of the mini- mum wage act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 5 of section 651 of the labor law, as amended by chapter 481 of the laws of 2010, is amended to read as follows: 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 in service as a part time baby sitter in the home of the employer; (b) in labor on a farm; (c) in a bona fide executive, administrative, or professional capacity; (d) as an outside salesman; (e) as a driver engaged in operat- ing a taxicab; (f) as a volunteer, learner or apprentice by a corpo- ration, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educa- tional 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 minis- ter, 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 indi- vidual 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 physical or mental deficiency or injury; (k) in or for aEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03568-02-1 S. 2399--A 2
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 substantial- ly the same subject matter occurs in any calendar year. Any such volun- teer shall be at least eighteen years of age. A business seeking cover- age 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 [.]; OR (P) AN EMPLOYEE OF AN AMUSEMENT OR RECREATIONAL ESTABLISHMENT PROVIDED THAT (1) SUCH ESTAB- LISHMENT ADHERES TO CURRENT STATE MINIMUM WAGE RATES FOR ALL EMPLOYEES, (2) MEETS THE BUSINESS OPERATIONS CRITERIA ESTABLISHED UNDER PARAGRAPH THREE OF SUBDIVISION A OF SECTION THIRTEEN OF THE FEDERAL FAIR LABOR STANDARDS ACT, AND (3) IS EMPLOYED IN HIS OR HER CAPACITY AS AN EMPLOYEE ON THE PREMISES OF A COUNTY OR AGRICULTURAL FAIRGROUND. "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 2. This act shall take effect on the thirtieth day after it shall have become a law.