N.Y.
Workers' Compensation Law Section 2
Definitions
2.
“Department” means the department of labor of the state of New York; “Chairman” means the chairman of the workers’ compensation board of the state of New York; “Commissioner” means the industrial commissioner of the state of New York; “Board” means the workers’ compensation board of the state of New York; “Commissioners” means the commissioners of the state insurance fund of the department of labor of the state of New York.3.
“Employer,” except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, having one or more persons in employment, including the state, a municipal corporation, fire district or other political subdivision of the state, and every authority or commission heretofore or hereafter continued or created by the public authorities law. For the purposes of this chapter only “employer” shall also mean a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation who delivers or causes to be delivered newspapers or periodicals for delivering or selling and delivering by a newspaper carrier under the age of eighteen years as defined in Education Law § 3228 (Newspaper carrier)section thirty-two hundred twenty-eight of the education law, but shall not include delivering newspapers or shopping news to the consumer (including any services directly related to such trade or business) by a person who is not performing commercial goods transportation services for a commercial goods transportation contractor within the meaning of article twenty-five-C of the labor law. For the purpose of this chapter only, “employer” shall also mean a person, partnership, association, or corporation who leases or otherwise contracts with an operator or lessee for the purpose of driving, operating or leasing a taxicab as so defined in Vehicle & Traffic Law § 148-A (Taxicab)section one hundred forty-eight-a of the vehicle and traffic law, except where such person is an owner-operator of such taxicab who personally regularly operates such vehicle an average of forty or more hours per week and leases such taxicab for some portion of the remaining time, and except if the taxicab is a livery subject to § 18-C (Independent livery bases)section eighteen-c of this chapter, in which case the livery driver’s employer shall only be such employer as is defined in that section. For the purposes of this section only, such an owner-operator shall be deemed to be an employer if he controls, directs, supervises, or has the power to hire or terminate such other person who leases the vehicle. Notwithstanding any other provision of this chapter and for purposes of this chapter only, “employer” shall mean, with respect to a jockey, apprentice jockey or exercise person licensed under article two or four of the racing, pari-mutuel wagering and breeding law, and at the election of the New York Jockey Injury Compensation Fund, Inc., with the approval of the New York state gaming commission, employees of licensed trainers or owners, performing services for an owner or trainer in connection with the training or racing of a horse at a facility of a racing association or corporation subject to article two or four of the racing, pari-mutuel wagering and breeding law and subject to the jurisdiction of the New York state gaming commission, The New York Jockey Injury Compensation Fund, Inc. and all owners and trainers who are licensed or required to be licensed under article two or four of the racing, pari-mutuel wagering and breeding law at the time of any occurrence for which benefits are payable pursuant to this chapter in respect to the injury or death of such jockey, apprentice jockey, exercise person or, if approved by the New York state gaming commission, employee of a licensed trainer or owner. Notwithstanding any other provision of this chapter, and for purposes of this chapter only, the employer of a black car operator, as defined in article six-F of the executive law, shall, on and after the fund liability date, as defined in such article, be the New York black car operators’ injury compensation fund, inc. created pursuant to such article. For the purpose of this chapter only, whether a livery base operating in any locality where liveries must register with a local taxi and limousine commission shall be deemed the “employer” of any livery driver engaging in covered services shall be determined in accordance with § 18-C (Independent livery bases)section eighteen-c of this chapter.4.
“Employee” means a person engaged in one of the occupations enumerated in § 3 (Application)section three of this article or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his or her employment away from the plant of his or her employer; “employee” shall also mean for the purposes of this chapter any individual performing services in construction for a contractor who does not overcome the presumption of employment as provided under Labor Law § 861-C (Presumption of employment in the construction industry)section eight hundred sixty-one-c of the labor law; “employee” shall also mean for the purposes of this chapter any individual performing services in the commercial goods transportation industry for a commercial goods transportation contractor who does not overcome the presumption of employment as provided under Labor Law § 862-B (Presumption of employment in the commercial goods transportation industry)section eight hundred sixty-two-b of the labor law; “employee” shall also mean for the purposes of this chapter civil defense volunteers who are personnel of volunteer agencies sponsored or authorized by a local office under regulations of the civil defense commission, to the extent of the provisions of groups seventeen and nineteen; “employee” shall at the election of a municipal corporation made pursuant to local law duly enacted also mean a member of an auxiliary police organization authorized by local law; and for the purposes of this chapter only a newspaper carrier under the age of eighteen years as defined in Education Law § 3228 (Newspaper carrier)section thirty-two hundred twenty-eight of the education law, but shall not include delivery of newspapers or shopping news to the consumer (including any services directly related to such trade or business) by a person who is not performing commercial goods transportation services for a commercial goods transportation contractor within the meaning of article twenty-five-C of the labor law, and shall not include domestic servants except as provided in § 3 (Application)section three of this chapter, and except where the employer has elected to bring such employees under the law by securing compensation in accordance with the terms of § 50 (Security for payment of compensation)section fifty of this chapter. The term “employee” shall not include persons who are members of a supervised amateur athletic activity operated on a non-profit basis, provided that said members are not also otherwise engaged or employed by any person, firm or corporation participating in said athletic activity, nor shall it include the spouse or minor child of an employer who is a farmer unless the services of such spouse or minor child shall be engaged by said employer under an express contract of hire nor shall it include 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 pursuant to paragraph (e) of Business Corporation Law § 715 (Officers)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 except as provided in subdivision six of § 54 (The insurance contract)section fifty-four of this chapter provided, however, that where there are two executive officers of a corporation each officer must own at least one share of stock, nor shall it include a self-employed person or a partner of a partnership as defined in Partnership Law § 10 (Partnership defined)section ten of the partnership law who is not covered under a compensation insurance contract or a certificate of self-insurance as provided in subdivision eight of § 54 (The insurance contract)section fifty-four of this chapter, nor shall it include farm laborers except as provided in group fourteen-b of § 3 (Application)section three of this chapter. If a farm labor contractor recruits or supplies farm laborers for work on a farm, such farm laborers shall for the purposes of this chapter be deemed to be employees of the owner or lessee of such farm. The term “employee” shall not include baby sitters as defined in subdivision three of section one hundred thirty-one and subdivision three of section one hundred thirty-two of the labor law or minors fourteen years of age or over engaged in casual employment consisting of yard work and household chores in and about a one family owner-occupied residence or the premises of a non-profit, non-commercial organization, not involving the use of power-driven machinery. The term “employee” shall not include persons engaged by the owner in casual employment consisting of yard work, household chores and making repairs to or painting in and about a one-family owner-occupied residence. The term “employee” 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 (b) of this subdivision was not executed under duress and contains the following provisions:(i)
that the broker or sales associate is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twelve-A of the real property law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding, unemployment insurance and workers’ compensation;(ii)
that the broker or sales associate (A) shall be paid a commission on his or her gross sales, if any, without deduction for taxes, which commission shall be directly related to sales or other output; (B) shall not receive any remuneration related to the number of hours worked; and (C) shall not be treated as an employee with respect to such services for federal and state tax purposes;(iii)
that the broker or sales associate shall be permitted to work any hours he or she chooses;(iv)
that the broker or sales associate shall be permitted to work out of his or her own home or the office of the person for whom services are performed;(v)
that the broker or sales associate shall be free to engage in outside employment;(vi)
that the person for whom the services are performed may provide office facilities and supplies for the use of the broker or sales associate, but the broker or sales associate shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;(vii)
that the person for whom the services are performed and the broker or sales associate shall comply with the requirements of article twelve-A of the real property law and the regulations pertaining thereto, but such compliance shall not affect the broker or sales associate’s status as an independent contractor nor should it be construed as an indication that the broker or sales associate is an employee of the person for whom the services are performed for any purpose whatsoever;(viii)
that the contract and the association created thereby may be terminated by either party thereto at any time upon notice given to the other. “Employee” shall also mean, for purposes of this chapter, an infant rendering services for the public good as prescribed in sections seven hundred fifty-eight-a and 353.6 of the family court act. For the purpose of this chapter only, “employee” shall also mean a driver, operator or lessee who contracts with an owner, operator or lessor for the purpose of operating a taxicab as so defined in Vehicle & Traffic Law § 148-A (Taxicab)section one hundred forty-eight-a of the vehicle and traffic law, except where such person leases the taxicab from a person who personally, regularly operates such vehicle an average of forty or more hours per week, and except if the taxicab is a livery subject to § 18-C (Independent livery bases)section eighteen-c of this chapter, in which case the livery driver’s employer shall only be such employer as is defined in that section. For the purposes of this section only, such person shall be deemed to be an employee of the owner-operator if the owner-operator controls, directs, supervises, or has the power to hire or terminate such person. “Employee” shall also mean, for purposes of this chapter, a professional musician or a person otherwise engaged in the performing arts who performs services as such for a television or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter. “Engaged in the performing arts” shall mean performing service in connection with the production of or performance in any artistic endeavor which requires artistic or technical skill or expertise. Notwithstanding any other provision of this chapter, and for purposes of this chapter only, a jockey, apprentice jockey or exercise person licensed under article two or four of the racing, pari-mutuel wagering and breeding law, and at the election of the New York Jockey Injury Compensation Fund, Inc., with the approval of the New York state gaming commission, employees of licensed trainers or owners, performing services for an owner or trainer in connection with the training or racing of a horse at a facility of a racing association or corporation subject to article two or four of the racing, pari-mutuel wagering and breeding law and subject to the jurisdiction of the New York state gaming commission shall be regarded as the “employee” not solely of such owner or trainer, but shall instead be conclusively presumed to be the “employee” of The New York Jockey Injury Compensation Fund, Inc. and also of all owners and trainers who are licensed or required to be licensed under article two or four of the racing, pari-mutuel wagering and breeding law at the time of any occurrence for which benefits are payable pursuant to this chapter in respect of the injury or death of such jockey, apprentice jockey, exercise person or, if approved by the New York state gaming commission, employee of a licensed trainer or owner. “Employee” shall also mean, for purposes of this chapter, a professional model, who:(a)
performs modeling services for; or(b)
consents in writing to the transfer of his or her exclusive legal right to the use of his or her name, portrait, picture or image, for advertising purposes or for the purposes of trade, directly to a retail store, a manufacturer, an advertising agency, a photographer, a publishing company or any other such person or entity, which dictates such professional model’s assignments, hours of work or performance locations and which compensates such professional model in return for a waiver of such professional model’s privacy rights enumerated above, unless such services are performed pursuant to a written contract wherein it is stated that such professional model is the employee of another employer covered by this chapter. For the purposes of this paragraph, the term “professional model” means a person who, in the course of his or her trade, occupation or profession, performs modeling services. For purposes of this paragraph, the term “modeling services” means the appearance by a professional model in photographic sessions or the engagement of such model in live, filmed or taped modeling performances for remuneration. Notwithstanding any other provision of this chapter, and for purposes of this chapter only, a black car operator, as defined in article six-F of the executive law, shall, on and after the fund liability date, as defined in such article, be an “employee” of the New York black car operators’ injury compensation fund, inc. created pursuant to such article. “Employee” shall not include, for the purposes of this chapter, the services of a licensed insurance agent or broker if it be proven that (a) substantially all of the remuneration (whether or not paid in cash) for the services performed by such agent or broker is directly related to sales or other output (including the performance of services) rather than to the number of hours worked;(b)
such agent is not a life insurance agent receiving a training allowance subsidy described in paragraph three of subsection (e) of Insurance Law § 4228 (Life insurance and annuity business)section four thousand two hundred twenty-eight of the insurance law;(c)
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; and(d)
the written contract provided for in clause (c) of this paragraph was not executed under duress and contains the following provisions:(i)
that the agent or broker is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twenty-one of the insurance law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), unemployment insurance and workers’ compensation;(ii)
that the agent or broker (1) shall be paid a commission on his or her gross sales, if any, without deduction for taxes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), which commission shall be directly related to sales or other output; (2) shall not receive any remuneration related to the number of hours worked; and (3) shall not be treated as an employee with respect to such services for federal and state tax purposes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code);(iii)
that the agent or broker shall be permitted to work any hours he or she chooses;(iv)
that the agent or broker shall be permitted to work out of his or her own office or home or the office of the person for whom services are performed;(v)
that the person for whom the services are performed may provide office facilities, clerical support, and supplies for the use of the agent or broker, but the agent or broker shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;(vi)
that the person for whom the services are performed and the agent or broker shall comply with the requirements of article twenty-one of the insurance law and the regulations pertaining thereto, but such compliance shall not affect the agent’s or broker’s status as an independent contractor nor should it be construed as an indication that the agent or broker is an employee of the person for whom the services are performed for any purpose whatsoever;(vii)
that the contract and the association created thereby may be terminated by either party thereto at any time with notice given to the other. “Employee” shall not include a media sales representative if it be proven that (a) substantially all of the compensation for the services performed by such media sales representative is directly related to sales or other productivity rather than to the number of hours worked;(b)
the media sales representative must be incorporated under the laws of this state in order to be considered an independent contractor and shall be solely responsible for the payment of workers’ compensation premiums;(c)
the services performed by the media sales representative are performed pursuant to a written contract executed between such media sales representative and the person for whom the services are performed; and(d)
the written contract provided for in subparagraph (c) of this paragraph was not executed under duress and contains the following provisions:(i)
that the media sales representative is engaged as an independent contractor associated with the person for whom services are performed and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholdings, and workers’ compensation;(ii)
that the media sales representative (A) shall be paid a commission based on a fixed fee rate outlined in the written contract, if any, without deduction for taxes, which commission shall be directly related to sales pursuant to price guidelines or other productivity within the sales area; (B) shall not receive any compensation related to the number of hours worked; and (C) shall not be treated as an employee with respect to such services for federal and state tax purposes;(iii)
that the media sales representative shall be permitted to work any hours he or she chooses subject to the restrictions in General Business Law § 399-P (Telemarketing)section three hundred ninety-nine-p of the general business law;(iv)
that the media sales representative may work at any site other than on the premises of the person for whom services are performed;(v)
that the person for whom the services are performed shall not be responsible for any reimbursement expenses other than those outlined in the written contract;(vi)
that the person for whom the services are performed and the media sales representative shall comply with all articles of the labor law that apply to such work other than article eighteen of the labor law, but such compliance shall not affect the media sales representative’s status as an independent contractor nor shall it be construed as an indication that the media sales representative is an employee of the person for whom the services are performed for any purpose whatsoever; and(vii)
that the contract and the association created thereby may be terminated by the media sales representative thereto at any time with two weeks notice given to the person for whom the services are performed. For the purposes of this subdivision, “media sales representative” shall include any contractor engaged in the sale or renewal of magazine subscriptions or the sale or renewal of magazine advertising space who (i) receives no direction or control on the methods by which they perform services other than training on product characteristics, (ii) are solely in control of their work schedule, and(iii)
may refuse any work assignment. For the purpose of this chapter only, whether a livery driver dispatched by an independent livery base, as those terms are defined in article six-G of the executive law, is an “employee” shall be determined in accordance with § 18-C (Independent livery bases)section eighteen-c of this chapter.5.
“Employment” includes employment in a trade, business or occupation carried on by the employer for pecuniary gain, or in connection therewith, except where the employer elects to bring his or her employees within the provisions of this chapter as provided in § 3 (Application)section three of this article, and except employment as a domestic worker as provided in § 3 (Application)section three of this article, and except where a town elects to have the provisions of this chapter apply to the town superintendent of highways. “Employment” shall also include, in connection with the civil defense effort and for purposes of this chapter the service of a civil defense volunteer in authorized activities of a volunteer agency sponsored or authorized by a local office as defined in a state defense emergency act. “Employment” shall also include participation with an auxiliary police effort made within a municipal corporation which elected to include auxiliary police officers within the definition of “employee” as authorized by subdivision four of this section and for purposes of this chapter, the services of members or volunteers in activities authorized by local law. The service of a civil defense volunteer who is also an employee recompensed by an employer for service to such employer, shall not be deemed to be in employment of a local office when he or she is performing civil defense service in his or her employment or in relation thereto. For the purposes of this chapter only “employment” shall also include the delivery or sale and delivery of newspapers or periodicals by a newspaper carrier as defined in Education Law § 3228 (Newspaper carrier)section thirty-two hundred twenty-eight of the education law, but shall not include delivery of newspapers or shopping news to the consumer (including any services directly related to such trade or business) by a person who is not performing commercial goods transportation services for a commercial goods transportation contractor within the meaning of article twenty-five-C of the labor law. 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 (b) herein was not executed under duress and contains the following provisions:(i)
that the broker or sales associate is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twelve-A of the real property law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding, unemployment insurance and workers’ compensation;(ii)
that the broker or sales associate (A) shall be paid a commission on his or her gross sales, if any, without deduction for taxes, which commission shall be directly related to sales or other output; (B) shall not receive any remuneration related to the number of hours worked; and (C) shall not be treated as an employee with respect to such services for federal and state tax purposes;(iii)
that the broker or sales associate shall be permitted to work any hours he or she chooses;(iv)
that the broker or sales associate shall be permitted to work out of his or her own home or the office of the person for whom services are performed;(v)
that the broker or sales associate shall be free to engage in outside employment;(vi)
that the person for whom the services are performed may provide office facilities and supplies for the use of the broker or sales associate, but the broker or sales associate shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;(vii)
that the person for whom the services are performed and the broker or sales associate shall comply with the requirements of article twelve-A of the real property law and the regulations pertaining thereto, but such compliance shall not affect the broker or sales associate’s status as an independent contractor nor should it be construed as an indication that the broker or sales associate is an employee of the person for whom the services are performed for any purpose whatsoever;(viii)
that the contract and the association created thereby may be terminated by either party thereto at any time upon notice given to the other. For the purpose of this chapter only, “employment” shall also include the service of a driver, operator or lessee of a taxicab as so defined in Vehicle & Traffic Law § 148-A (Taxicab)section one hundred forty-eight-a of the vehicle and traffic law, except where a person leases a taxicab from an owner-operator of a taxicab who, regularly operates the vehicle an average of forty or more hours per week. Such a lessee shall be deemed to be in employment if the lessor controls, directs, supervises, or has the power to hire or terminate the lessee. Notwithstanding any other provision of this chapter, and for purposes of this chapter only, a jockey, apprentice jockey or exercise person licensed under article two or four of the racing, pari-mutuel wagering and breeding law, and at the election of the New York Jockey Injury Compensation Fund, Inc., with the approval of the New York state gaming commission, employees of licensed trainers or owners, performing services for an owner or trainer in connection with the training or racing of a horse at a facility of a racing association or corporation subject to article two or four of the racing, pari-mutuel wagering and breeding law and subject to the jurisdiction of the New York state gaming commission shall be regarded as in the “employment” not solely of such owner and trainer, but shall instead be conclusively presumed to be in the “employment” of The New York Jockey Injury Compensation Fund, Inc. and of all owners and trainers who are licensed or required to be licensed under article two or four of the racing, pari-mutuel wagering and breeding law, at the time of any occurrence for which benefits are payable pursuant to this chapter in respect of the injury or death of such jockey, apprentice jockey, exercise person or, if approved by the New York state gaming commission, employee of a licensed trainer or owner. For the purpose of this chapter only, whether a livery driver’s performance of covered services, as those terms are defined in article six-G of the executive law, constitutes “employment” shall be determined in accordance with § 18-C (Independent livery bases)section eighteen-c of this chapter. Notwithstanding any other provision of this chapter, and for purposes of this chapter only, a black car operator, as that term is defined in article six-F of the executive law, shall, on and after the fund liability date, as that term is defined in such article, be regarded as in the “employment” of the New York black car operators’ injury compensation fund, inc. created pursuant to such article. “Employment” shall not include, for the purposes of this chapter, the services of a licensed insurance agent or broker if it be proven that (a) substantially all of the remuneration (whether or not paid in cash) for the services performed by such agent or broker is directly related to sales or other output (including the performance of services) rather than to the number of hours worked;(b)
such agent is not a life insurance agent receiving a training allowance subsidy described in paragraph three of subsection (e) of Insurance Law § 4228 (Life insurance and annuity business)section four thousand two hundred twenty-eight of the insurance law;(c)
the services performed by the agent or broker are performed pursuant to a written contract executed between such agent or broker and the person for whom the services are performed; and(d)
the written contract provided for in clause (c) of this paragraph was not executed under duress and contains the following provisions:(i)
that the agent or broker is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twenty-one of the insurance law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), unemployment insurance and workers’ compensation;(ii)
that the agent or broker (1) shall be paid a commission on his or her gross sales, if any, without deduction for taxes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), which commission shall be directly related to sales or other output; (2) shall not receive any remuneration related to the number of hours worked; and (3) shall not be treated as an employee with respect to such services for federal and state tax purposes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code);(iii)
that the agent or broker shall be permitted to work any hours he or she chooses;(iv)
that the agent or broker shall be permitted to work out of his or her own office or home or the office of the person for whom services are performed;(v)
that the person for whom the services are performed may provide office facilities, clerical support, and supplies for the use of the agent or broker, but the agent or broker shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;(vi)
that the person for whom the services are performed and the agent or broker shall comply with the requirements of article twenty-one of the insurance law and the regulations pertaining thereto, but such compliance shall not affect the agent’s or broker’s status as an independent contractor nor should it be construed as an indication that the agent or broker is an employee of the person for whom the services are performed for any purpose whatsoever;(vii)
that the contract and the association created thereby may be terminated by either party thereto at any time with notice given to the other. “Employment” shall not include the services of a media sales representative if it be proven that (A) substantially all of the compensation for the services performed by such media sales representative is directly related to sales or other productivity rather than to the number of hours worked; (B) the media sales representative must be incorporated under the laws of this state in order to be considered an independent contractor and shall be solely responsible for the payment of workers’ compensation premiums; (C) the services performed by the media sales representative are performed pursuant to a written contract executed between such media sales representative and the person for whom the services are performed; and (D) the written contract provided for in subparagraph (C) of this paragraph was not executed under duress and contains the following provisions:(i)
that the media sales representative is engaged as an independent contractor associated with the person for whom services are performed and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholdings, and workers’ compensation;(ii)
that the media sales representative (A) shall be paid a commission, based on a fixed fee rate outlined in the written contract, if any, without deduction for taxes, which commission shall be directly related to sales pursuant to price guidelines or other productivity within the sales area; (B) shall not receive any compensation related to the number of hours worked; and (C) shall not be treated as an employee with respect to such services for federal and state tax purposes;(iii)
that the media sales representative shall be permitted to work any hours he or she chooses subject to the restrictions in General Business Law § 399-P (Telemarketing)section three hundred ninety-nine-p of the general business law;(iv)
that the media sales representative may work at any site other than on the premises of the person for whom services are performed;(v)
that the person for whom the services are performed shall not be responsible for any reimbursement expenses other than those outlined in the written contract;(vi)
that the person for whom the services are performed and the media sales representative shall comply with all articles of the labor law that apply to such work other than article eighteen of the labor law, but such compliance shall not affect the media sales representative’s status as an independent contractor nor shall it be construed as an indication that the media sales representative is an employee of the person for whom the services are performed for any purpose whatsoever; and(vii)
that the contract and the association created thereby may be terminated by the media sales representative thereto at any time with two weeks notice given to the person for whom the services are performed. For the purposes of this subdivision, “media sales representative” shall include any contractor engaged in the sale or renewal of magazine subscriptions or the sale or renewal of magazine advertising space who (i) receives no direction or control on the methods by which they perform services other than training on product characteristics, (ii) are solely in control of their work schedule, and(iii)
may refuse any work assignment.6.
“Compensation” means the money allowance payable to an employee or to his dependents as provided for in this chapter, and includes funeral benefits provided therein.7.
“Injury” and “personal injury” mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. The terms “injury” and “personal injury” shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.8.
“Death” when mentioned as a basis for the right to compensation means only death resulting from such injury.9.
“Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer, or in the case of (a) a civil defense volunteer, (b) a volunteer worker in a state department as provided in group sixteen of subdivision one of § 3 (Application)section three of this chapter, (c) a volunteer worker for a social services district as provided in group seventeen of subdivision one of § 3 (Application)section three of this chapter, (d) a county fire coordinator, a deputy county fire coordinator or a comparable county official to whom the provisions of group fifteen-a of subdivision one of § 3 (Application)section three of this chapter are applicable, who is also a volunteer firefighter or ambulance worker, (e) a fire district officer whether elective or appointive and whether or not he or she is compensated for his or her services or a paid fire or ambulance district employee, (f) a state fire instructor whose compensation is paid in whole or in part by the state, (g) an enrolled member of a fire company who, is not a volunteer firefighter, receives compensation for his or her services and is not a full-time firefighter, known as a “call firefighter”, (h) persons who are performing services for a public or not-for-profit corporation, association, institution or agency organized as an unincorporated association or duly incorporated under the laws of this state in fulfillment of a sentence of probation or of conditional discharge, or persons performing such services pursuant to the provisions of section 170.55 or 170.56 of the criminal procedure law, (i) an auxiliary police officer in a municipal corporation which elected to include such persons within the definition of “employee” as authorized by subdivision four of this section, or(j)
a duly appointed member of a regional hazardous materials incidents team recognized under General Municipal Law § 209-Y (Establishment of hazardous materials emergency response teams)section two hundred nine-y of the general municipal law, such money rate applying in his or her regular vocation or the amount of the regular earnings of such volunteer, coordinator, instructor, or comparable officer, fire or ambulance district officer or employee or call firefighter, or team member as the case may be, in his or her regular vocation, plus any amount earned as such a coordinator, instructor or comparable officer, or as such a fire or ambulance district officer or employee or call firefighter or team member, provided, however, that in no event shall the average weekly wage be fixed at less than thirty dollars regardless of whether or not such volunteer, coordinator, instructor or comparable officer or fire or ambulance district officer or employee or call firefighter or team member had gainful employment elsewhere at the time of the injury. The wages of a livery driver, as defined in article six-G of the executive law, shall be calculated in accordance with this paragraph. The chair shall promulgate regulations, in consultation with the independent livery driver benefit fund, and all local taxi and limousine commissions, as defined in article six-G of the executive law, establishing amounts that livery drivers are presumptively deemed to receive in annual wages, and may vary such presumptive wage by such geographic region or political subdivision of the state as the chair may set. Such regulations may establish other factors or criteria for determining the presumptive wage. The presumptive wage shall be set based on the chair’s findings as to the amount earned by livery drivers, and their expenses. A livery driver or the livery driver’s employer, including the independent livery driver benefit fund, may rebut the presumptive wage by competent evidence that the driver’s actual wages for covered services, as defined in article six-G of the executive law, were different. The chair shall promulgate such other rules as are necessary to compute livery driver wages in accordance with this paragraph.10.
“State fund” means the state insurance fund provided for in article 5 (County Self-insurance Plan)article five of this chapter.11.
“Child” shall include a posthumous child, a child legally adopted prior to the injury of the employee; and a step-child or child born out of wedlock dependent upon the deceased.12.
“Insurance carrier” shall include the state fund, stock corporations, mutual corporations or reciprocal insurers with which employers have insured, and employers permitted to pay compensation directly under the provisions of subdivisions three, three-a or four of § 50 (Security for payment of compensation)section fifty of this chapter. For purposes of this chapter, a nonprofit property/casualty insurance company which is licensed pursuant to subsection (b) of Insurance Law § 6704 (Licensing of nonprofit property/casualty insurance companies)section six thousand seven hundred four of the insurance law shall be deemed a stock corporation and a nonprofit property/casualty insurance company which is licensed as a reciprocal insurer pursuant to subsection (c) of Insurance Law § 6704 (Licensing of nonprofit property/casualty insurance companies)section six thousand seven hundred four of the insurance law shall be deemed a reciprocal insurer.13.
“Manufacture,” “construction,” “operation” and “installation” shall include “repair,” “demolition,” “fabrication” and “alteration” and shall include all work done in connection with the repair of plants, buildings, grounds and approaches of all places where any of the hazardous employments are being carried on, operated or conducted.14.
“Minor” means a person who has not attained the age of eighteen years.15.
“Occupational disease” means a disease resulting from the nature of employment and contracted therein.16.
“New York state average weekly wage” shall mean the average weekly wage of the state of New York for the previous calendar year as reported by the commissioner of labor to the superintendent of financial services on March thirty-first.17.
A “substantially owned affiliated entity” of any person means the parent company of the person, any subsidiary of the person, or any entity in which the parent of the person owns more than fifty percent of the voting stock, or an entity in which one or more of the top five shareholders of the person individually or collectively also owns a controlling share of the voting stock, or an entity which exhibits any other indicia of control over the person or over which the person exhibits control, regardless of whether or not the controlling party or parties have any identifiable or documented ownership interest. Such indicia shall include: power or responsibility over employment decisions; access to and/or use of the relevant entity’s assets or equipment; power or responsibility over contracts of the person; responsibility for maintenance or submission of certified payroll records; and influence over the business decisions of the relevant entity.19.
A “claim for reimbursement” from the special disability fund means an application to the board under paragraph (f) of subdivision eight of § 15 (Schedule in case of disability)section fifteen of this chapter for a determination that the special disability fund is liable in the first instance for any reimbursement to the insurance carrier, self-insured employer or state insurance fund.20.
A “request for reimbursement” from the special disability fund means an application to the special disability fund for reimbursement for specific costs, subsequent to a determination by the board that the special disability fund is liable to provide reimbursement on the claim.21.
The “workers’ compensation rating board” or the “New York workers’ compensation rating board” shall mean the compensation insurance rating board until February first, two thousand eight, and thereafter the superintendent of financial services or other entity designated by the superintendent of financial services for collection and analysis of data or such other purposes as set forth in this chapter.22.
“Cost of compensation” means the amount that an employer must pay to secure compensation as calculated in accordance with regulation of the board or, in the absence of such regulation, based on average market rates for a comparable employer.23.
“Special disability fund advisory committee” shall mean an advisory committee to the workers’ compensation board, acting by a majority thereof, solely with respect to the special fund entitled the special disability fund, composed of the director of the budget, the commissioner of labor, the commissioner of taxation and finance, the chair of the workers’ compensation board, and the superintendent of financial services.24.
“Employees of licensed trainers or owners” means assistant trainers, foremen, watchmen and stable employees, including grooms and hot-walkers, employed by a trainer or owner licensed pursuant to article two or four of the racing, pari-mutuel wagering and breeding law.
Source:
Section 2 — Definitions, https://www.nysenate.gov/legislation/laws/WKC/2 (updated Feb. 25, 2022; accessed Apr. 13, 2024).
