Article 13. Industrial Homework

Section 350. Legislative purpose and definitions.

1. The employment of women and minors in industry in the state of New York under conditions resulting in wages unreasonably low and conditions injurious to their health and general welfare is a matter of grave and vital public concern. Any conditions of employment especially fostering such working conditions are therefore destructive of purposes already accepted as sound public policy by the legislature of the state and should be brought into conformity with that policy. Uncontrolled continuance of homework is such a condition; here wages are notoriously lower and working conditions endanger the health of the worker; the protection of factory industries, which must operate in competition therewith and of the women and minors employed therein and of the public interest of the community at large in their health and well-being, require strict control and gradual elimination of industrial homework. In the considered judgment of the legislature this article is constitutional.

2. Whenever used in this article: a. "Manufacture," "manufacturing," "manufactured" or "making" includes preparation, alteration, repair or finishing, in whole or in part, or handling in any way.

b. "Employer" means any person who either directly or through an employee, agent, independent contractor, or any other person, delivers or causes to be delivered to another person, any materials to be manufactured in a home, and which are thereafter to be returned to him, not for the personal use of himself or of a member of his family, or to be delivered, mailed, or shipped to others.

c. "Home" means a room or an apartment in any house.

d. "House" means any building in which one or more persons regularly sleep, and shall include outbuildings upon premises which include such building; but where only a person or persons or the family of a person or persons engaged in the service of the building, sleep in such building, the term "house" shall apply only to the separate room or rooms or to the apartment or apartments in which one or more of such persons sleep.

e. "Industrial homework" means the manufacturing in a home, in whole or in part, with or of material which has been furnished by an employer, of any article or articles to be returned to the said employer, or to be delivered, mailed, or shipped to others.

f. "Industrial homeworker" means any person who manufactures in a home, in whole or in part, with or out of material furnished by an employer for industrial homework, any article or articles to be returned to such employer directly or indirectly, or to be delivered, mailed or shipped to others.

g. "Person" includes a corporation, a copartnership or a joint stock association.

h. "Homework contractor or distributor" means any person who for the account or benefit of an employer delivers to a homeworker or any other person not engaged by such employer articles or materials to be manufactured in a home and thereafter to be returned to said person or otherwise disposed of in accordance with his direction.

Section 351. Powers of the industrial commissioner and exceptions.

1. The industrial commissioner shall, after proper study and consideration, determine within what industries conditions may permit of industrial homework as hereinbefore defined without unduly jeopardizing the factory workers in such industries as to both wages and working conditions and without unduly injuring the health and welfare of the industrial homeworker himself. The commissioner may then restrict the granting of permits and licenses for industrial homework as herein defined to such industries and may further issue rules and regulations designed to control and regulate industrial homework in the said permitted industries. In all other industries industrial homework is forbidden unless expressly permitted in writing by the industrial commissioner.

2. a. Exception to this article shall be made by the industrial commissioner in respect of clerical work done in a home. "Clerical work" shall mean typing, stenciling, transcribing, copying, bookkeeping and stenographic work. Clerical work shall not mean inserting, collating, labeling, nesting, sorting, stamping or similar work.

b. Exception to this article may be made by the industrial commissioner in respect of such other provisions consonant with the general purpose of this article as the commissioner may on study determine to be warranted by conditions.

Section 352. Permits required.

1. An employer shall secure an employer's permit from the commissioner before delivering or causing to be delivered to another person any materials for manufacture by industrial homework, and shall not deliver or cause to be delivered any materials for industrial homework to a person who has not a certificate issued pursuant to this article or to be worked on in a home which is not licensed under this article.

2. A fee of one hundred dollars shall be paid annually to the commissioner for issuing or extending an employer's permit. An annual fee of twenty-five dollars shall be paid by the employer for each homeworker certificate issued.

Section 353. Fees.

All fees and other monies derived from the operation of this article shall be paid into the state treasury to the credit of the general fund.

Section 354. Conditions of manufacture.

1. No person other than a person resident therein shall carry on industrial homework on any article in a home except as otherwise provided for under section three hundred fifty-one, subdivision two, paragraph b.

2. No person shall carry on industrial homework except in accordance with this article.

3. No child shall be employed in manufacture in a home except in accordance with articles four and five of this chapter.

4. No employer having an employer's permit shall deliver or cause to be delivered or received any articles for or as a result of homework manufacture unless he shall keep in such form and forward to the commissioner at such intervals as he may by regulation prescribe and on such blanks as he may provide, a complete and accurate list of all persons engaged in industrial homework on materials furnished or distributed by him, of all places where such persons work, of all materials furnished and distributed to such persons described as the commissioner may require, of all goods which such persons have manufactured and of the wages paid to each industrial homeworker, and unless he shall attach to all materials delivered for homework manufacture a label bearing his name and address or place of business legibly written or printed in English.

5. No person shall do industrial homework, except in a home in which he resides, and unless his name is on a homeworker's certificate issued by the commissioner and permitting industrial homework to be done in such home, and unless such certificate is exposed clearly in the home in which industrial homework is being done.

6. No article of food, no dolls or dolls' clothing and no stuffed animals or other stuffed toys used in the same way as dolls shall be manufactured for a factory, either directly or through a contractor or for an employer, in a home.

Section 354-a. Distribution of homework to employees by employer.

The employer shall, wherever homework is permitted, distribute directly to his homeworkers all material and articles of homework. No employer shall give out any material or articles for homework through any homework contractors or distributors. No homework contractors or distributors shall receive or distribute any materials or articles for or as a result of industrial homework.

This prohibition shall be deemed absolute; anything in this article to the contrary notwithstanding, and shall not be subject to the powers of the industrial commissioner under section three hundred fifty-one.

Section 355. Periodic inspection.

1. The commissioner shall inspect every house in which industrial homework is permitted, and the materials issued to the industrial homeworker.

2. If the commissioner finds that any home in which homework is being done is not clean, he shall order the tenant at once to clean it.

3. If the commissioner finds that a house or any home in which homework is being done is in an unsanitary condition, or that there is an infectious or communicable disease therein, he shall at once notify the commissioner of health, or the chief health officer of the district in which such house or home is situated.

Section 356. Notice of unlawful manufacture.

If the commissioner discovers any manufacture in a house contrary to the provisions of this article, he shall serve notice of such unlawful manufacture upon the employer.

Section 357. Unlawfully manufactured articles.

The commissioner shall conspicuously affix to each or all articles unlawfully manufactured in a house a tag not less than four inches in length bearing in small pica capital letters the words "unlawfully made," or shall seize and hold such article until claimed by the owner thereof. Unless the person entitled to the possession of an article so seized shall claim it within thirty days thereafter the said article may be destroyed or otherwise disposed of. No person except the commissioner shall interfere with, remove or deface such tag.

Section 358. Revocation or suspension of permits and certificates.

The commissioner may revoke or suspend the permit of any employer or any homeworker's certificate for a violation by such employer or by any person named in such certificate, of the terms of such permit or certificate, or of any provision of this chapter or of any regulation made by the commissioner, or for non-compliance with an order issued by the commissioner, within the time specified in such order.

Section 358-a. Action and injunction.

1. The industrial commissioner may maintain an action upon his own information or upon the complaint of a private person against any person, partnership, corporation or association, and any employee, agent, director or officer thereof who commits any act or engages in any conduct prohibited by this article. In any such action, the final judgment in favor of the plaintiff shall perpetually restrain the defendant from the commission or continuance of the act complained of. A temporary restraining order to restrain the commission or continuance thereof may be granted upon proof, by affidavit, that the defendant has violated any of the provisions of this article. The provisions of statute or rule relating generally to injunctions as provisional remedies in actions apply to such a temporary restraining order and the proceedings thereupon.

2. If the industrial commissioner fails to maintain an action pursuant to subdivision one hereof within fifteen days of being notified by certified mail of such an alleged violation, any industrial homeworker or any other person, partnership, corporation or association making such mailing who is aggrieved by such alleged violation may commence such an action and seek an injunction pursuant to the provisions of statute or rule relating generally to injunctions as provisional remedies.

Section 359. Inspection of health records.

The commissioner may inspect such records of any department of health or of any health officer or any county board of health as will aid him in carrying out his duties under this article. Any health officer or officer of any such department or county board shall, at the commissioner's request, aid him in such inspection.

Section 360. Notice and hearing.

No permit or certificate shall be refused, revoked or suspended unless the holder previously have reasonable notice, and an opportunity to be heard.

Section 361. Summary proceedings; when may be instituted.

The carrying on of manufacture in a home or of industrial homework contrary to the provisions of this article shall be cause for dispossessing its occupants by summary proceedings to recover possession of real property. Upon receipt from the commissioner of a notice showing such manufacture or such industrial homework in a home, the owner or his agent shall cause such manufacture or industrial homework to cease within ten days and, if unable to do so, shall institute within fifteen days and faithfully prosecute proceedings to dispossess the occupants.

Section 361-a. Employment status of industrial homeworkers.

All industrial homeworkers shall be presumed to be employees of their employer and not independent contractors.

Section 361-b. Civil penalties.

1. If after investigation the commissioner finds that an employer has violated any provision of this article, the commissioner, shall by an order which shall describe particularly the nature of the alleged violation, assess the employer a civil penalty of not more than three thousand dollars for each 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 the failure to comply with record keeping or other requirements.

2. Any order issued under subdivision one of this section shall be deemed a final order of the commissioner and not subject to review by any court or agency unless within thirty days following service of the order the employer files a petition with the industrial board of appeals for a review of the order, pursuant to section one hundred one of this chapter.

3. Provided that no proceeding for administrative or judicial review as provided in this chapter shall then be pending and the time for initiation of such proceeding shall have expired, the commissioner may file with the county clerk of the county where the employer resides or has a place of business the order of the commissioner, or the decision of the industrial board of appeals containing the amount of the civil penalty. The filing of such order or decision shall have the full force and effect of a judgment duly docketed in the office of such clerk. The order or decision may be enforced by and in the name of the commissioner in the same manner, and with like effect, as that prescribed by the civil practice law and rules for the enforcement of a money judgment.

4. The civil penalty provided for in this section shall be in addition to and may be imposed concurrently with any other remedy or penalty provided for in this chapter.

Section 362. Rules and regulations.

Rules and regulations necessary to carry out the provisions of this article shall be made by the commissioner.

Section 363. Construction.

If any provision of this article or the application thereof to any person or circumstance is held invalid, the remainder of the article and the application of such provision to other persons or circumstances shall not be affected thereby.