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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