There is a newer version of the New York Consolidated Laws
2010 New York Code
WKC - Workers' Compensation
Article 1 - (1 - 4) SHORT TITLE; DEFINITIONS; APPLICATION
2 - Definitions.
§ 2. Definitions. As used in this chapter, 1. "Hazardous employment"
means a work or occupation described in section three of this chapter.
2. "Department" means the department of labor of the state of New
York;
"Chairman" means the chairman of the workmen's compensation board of
the state of New York;
"Commissioner" means the industrial commissioner of the state of New
York;
"Board" means the workmen's 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 section thirty-two hundred twenty-eight of the education 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 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 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 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 racing and
wagering board, 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 or exercise person.
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
section eighteen-c of this chapter.
4. * "Employee" means a person engaged in one of the occupations
enumerated in section three 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 employment away from the plant of his employer; "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 section
thirty-two hundred twenty-eight of the education law, and shall not
include domestic servants except as provided in 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 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 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 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 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 section fifty-four of this chapter, nor shall it include farm
laborers except as provided in group fourteen-b of 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) herein was not
executed under duress and contains the following provisions:
* NB Effective until October 26, 2010
* "Employee" means a person engaged in one of the occupations
enumerated in 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
section eight hundred sixty-one-c 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 section
thirty-two hundred twenty-eight of the education law, and shall not
include domestic servants except as provided in 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 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 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 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 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 section fifty-four of this chapter, nor shall it include farm
laborers except as provided in group fourteen-b of 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:
* NB Effective October 26, 2010
(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 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 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 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 racing and wagering board 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 or exercise person.
"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 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 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 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 employees
within the provisions of this chapter as provided in section three, and
except employment as a domestic worker as provided in section three, 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 policemen
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 is performing civil defense service
in his 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 section thirty-two hundred twenty-eight of the education 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 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 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 racing and wagering board 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 or exercise person. 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 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 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 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 section
three of this chapter, (c) a volunteer worker for a social services
district as provided in group seventeen of subdivision one of 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 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 is compensated for his 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 services and is not a full-time fireman, known as a "call fireman",
(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 policeman 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 section two
hundred nine-y of the general municipal law, such money rate applying in
his 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 fireman, or team member
as the case may be, in his 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 fireman 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 fireman 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 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
section fifty of this chapter. 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.
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 insurance 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.
18. The "special funds conservation committee" means the entity
organized for the purpose of conserving assets of the special funds
created under subdivision eight of section fifteen and section
twenty-five-a of this chapter.
19. A "claim for reimbursement" from the special disability fund means
an application to the board under paragraph (f) of subdivision eight of
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 insurance or other entity designated by the
superintendent of insurance 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
insurance.
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