2013 New York Consolidated Laws
WKC - Workers' Compensation
Article 1 - (1 - 4) SHORT TITLE; DEFINITIONS; APPLICATION
2 - Definitions.


NY Work Comp L § 2 (2012) What's This?
 
    §  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 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:
    (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 financial services
  on March thirty-first.
    17.  A "substantially owned affiliated entity" of any person means the
  parent company of the person, any  subsidiary  of  the  person,  or  any
  entity in which the parent of the person owns more than fifty percent of
  the  voting  stock,  or  an  entity in which one or more of the top five
  shareholders of the person individually  or  collectively  also  owns  a
  controlling  share  of the voting stock, or an entity which exhibits any
  other indicia of control over  the  person  or  over  which  the  person
  exhibits  control, regardless of whether or not the controlling party or
  parties have any identifiable or  documented  ownership  interest.  Such
  indicia   shall   include:   power  or  responsibility  over  employment
  decisions; access to and/or use  of  the  relevant  entity's  assets  or
  equipment;  power  or  responsibility  over  contracts  of  the  person;
  responsibility  for  maintenance  or  submission  of  certified  payroll
  records;  and  influence  over  the  business  decisions of the relevant
  entity.
    19. A "claim for reimbursement" from the special disability fund means
  an application to the board under paragraph (f) of subdivision eight  of
  section  fifteen  of  this  chapter for a determination that the special
  disability fund is liable in the first instance for any reimbursement to
  the insurance carrier, self-insured employer or state insurance fund.
    20. A "request for reimbursement" from  the  special  disability  fund
  means  an  application  to the special disability fund for reimbursement
  for specific costs, subsequent to a determination by the board that  the
  special disability fund is liable to provide reimbursement on the claim.
    21. The "workers' compensation rating board" or the "New York workers'
  compensation  rating board" shall mean the compensation insurance rating
  board until February first,  two  thousand  eight,  and  thereafter  the
  superintendent  of  financial services or other entity designated by the
  superintendent of financial services for collection and analysis of data
  or such other purposes as set forth in this chapter.
    22. "Cost of compensation" means the amount that an employer must  pay
  to  secure  compensation  as calculated in accordance with regulation of
  the board or, in the absence of such regulation, based on average market
  rates for a comparable employer.
    23.  "Special  disability  fund  advisory  committee"  shall  mean  an
  advisory  committee  to  the  workers'  compensation  board, acting by a
  majority thereof, solely with respect to the special fund  entitled  the
  special  disability  fund,  composed  of the director of the budget, the
  commissioner of labor, the commissioner of  taxation  and  finance,  the
  chair  of  the  workers'  compensation  board, and the superintendent of
  financial services.

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