2006 New York Code - Definitions.

 
    § 201. Definitions. As used in this article:
    1.  "Board"  means the workmen's compensation board created under this
  chapter.
    2. "Chairman" means the chairman of the workmen's  compensation  board
  of the state of New York.
    3.  "State  fund" means the state insurance fund created under article
  six of this chapter.
    4. "Employer," except when otherwise expressly stated, means a person,
  partnership,  association,  corporation,  legal  representative   of   a
  deceased  employer, or the receiver or trustee of a person, partnership,
  association or corporation, who has persons in employment as defined  in
  subdivision  six  of  this  section,  but  does not include the state, a
  municipal  corporation,  local  governmental  agency,  other   political
  subdivisions or public authority.
    5.  "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
  pursuant 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  teaching capacity in or for a religious, charitable or
  educational institution, 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   educational   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.
    "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.
    "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.
    6. "Employment."  A.  "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  subdivision  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 employees not regularly in employment as
  otherwise defined herein; service as golf caddies;  and  service  during
  all  or  any  part  of  the school year or regular vacation periods as a
  part-time worker of any person actually in regular attendance during the
  day time as a student in an elementary or  secondary  school.  The  term
  "employment"  shall  not  include the services of a licensed real estate
  broker or sales associate if it be proven that (a) substantially all  of
  the  remuneration  (whether  or  not  paid  in  cash)  for  the services
  performed by such broker or sales associate is directly related to sales
  or other output (including the performance of services) rather  than  to
  the  number of hours worked; (b) the services performed by the broker or
  sales associate are performed pursuant to a  written  contract  executed
  between  such  broker  or  sales  associate  and the person for whom the
  services are performed within the past twelve to fifteen months; and (c)
  the written contract provided  for  in  paragraph  (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 (1) 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; (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;
    (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.
    "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 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.;
    B.  The  term  "employment"  includes  an  employee's  entire  service
  performed within or both within and without this state if the service is
  localized in this state. Service is deemed localized within the state if
  it  is  performed  entirely within the state or is performed both within
  and without the state but that performed without the state is incidental
  to the employee's service within the state or is temporary or transitory
  in nature or consists of isolated transactions.
    C.  The  term  "employment"  includes  an  employee's  entire  service
  performed  both  within  and  without  this  state  provided  it  is not
  localized in any state but some of the  service  is  performed  in  this
  state, and (1) the employee's base of operations is in this state; or
    (2)  if there is no base of operations in any state in which some part
  of the service is performed,  the  place  from  which  such  service  is
  directed or controlled is in this state; or
    (3)  if  the  base  of  operations or place from which such service is
  directed or controlled is not in any state in which  some  part  of  the
  service is performed, the employee's residence is in this state.
    7.  "Termination  of  employment".  Employment with a covered employer
  terminates on the last day on which an employee  performs  work  in  the
  service  of  such employer; provided, however, that employment shall not
  terminate on such day if the employee by agreement  with  the  employer,
  then  commences,  for a specified period, a leave of absence with pay or
  vacation with pay, at the conclusion of which the employee  will  return
  to  work  with  the same employer. If notwithstanding such agreement the
  employee does not so return, his employment  shall  be  deemed  to  have
  terminated  on  the last day of the period of such paid leave of absence
  or such paid vacation.
    8. "Injury" and "sickness" mean accidental injury, disease,  infection
  or  illness  or  incapacitation as a result of being an organ donor in a
  transplant operation.
    9. A.  "Disability"  during  employment  means  the  inability  of  an
  employee,  as  a  result of injury or sickness not arising out of and in
  the course of an employment,  to  perform  the  regular  duties  of  his
  employment  or the duties of any other employment which his employer may
  offer him at his regular wages and which his injury or sickness does not
  prevent him from performing. "Disability" during unemployment means  the
  inability  of an employee, as a result of injury or sickness not arising
  out of and in the course of an employment, to perform the duties of  any
  employment  for  which  he  is  reasonably  qualified  by  training  and
  experience.
    B. "Disability" also includes disability caused by  or  in  connection
  with a pregnancy.
    10. "Benefits" means the money allowances during disability payable to
  an  employee  who  is  eligible to receive such benefits, as provided in
  this article.
    11. "Carrier" shall  include:  the  state  fund,  stock  corporations,
  mutual  corporations and reciprocal insurers which insure the payment of
  benefits  provided  pursuant  to  this  article;   and   employers   and
  associations  of  employers  or  of employees and trustees authorized or
  permitted  to  pay  benefits  under  the provisions of this article. For
  purposes  of  this  chapter,  a  nonprofit  property/casualty  insurance
  company  which  is  licensed  pursuant  to subsection (b) of 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  section
  six  thousand  seven hundred four of the insurance law shall be deemed a
  reciprocal insurer.
    12. "Wages" means the money rate at which employment  with  a  covered
  employer  is  recompensed  under the contract of hiring with the covered
  employer and shall include the reasonable value of board, rent, housing,
  lodging, or similar advantage received under the contract of hiring.
    13. "Average weekly wage." For the purpose of computing the amount  of
  disability  benefits  of  an  employee  during any period of disability,
  "average weekly wage" shall be the amount determined by dividing  either
  the  total  wages of such employee in the employment of his last covered
  employer for the eight weeks or portion thereof that the employee was in
  such employment immediately preceding and including his last day  worked
  prior to commencement of such disability, or the total wages of the last
  eight  weeks  or portion thereof immediately preceding and excluding the
  week in which the disability began, whichever is the higher  amount,  by
  the  number of weeks or portion thereof of such employment. The chairman
  may by regulation prescribe reasonable procedures to  determine  average
  weekly   wage,  including  procedures  in  lieu  of  the  foregoing  for
  determination of the average weekly  wage  of  a  class  or  classes  of
  employees,   and  may  authorize  reasonable  deviations  to  facilitate
  administration in the determination of average weekly wage of a class or
  classes of the employees of a covered employer.
    In the event the employee was  not  in  the  employment  of  his  last
  covered  employer  during  all  of  such  eight  weeks  and if the above
  determination results in an average weekly wage which  does  not  fairly
  represent  the  normal earnings of such employee in all employments with
  covered  employers  during  such   eight   weeks,   there   may   be   a
  redetermination  of  average  weekly wage to reflect wages received from
  all covered employers during such eight week period. The chairman may by
  regulation prescribe reasonable procedures for such redetermination.
    14. "A day of disability" means any day  on  which  the  employee  was
  prevented  from  performing  work because of disability and for which he
  has not received his regular remuneration.