Amd §§511, 160 & 651, Lab L; amd §201, Work Comp L
Relates to the employee status of an individual; establishes criteria for determining whether labor or services performed for remuneration qualify as employment.
STATE OF NEW YORK
________________________________________________________________________
2052
2023-2024 Regular Sessions
IN SENATE
January 18, 2023
___________
Introduced by Sens. JACKSON, BRISPORT, HOYLMAN-SIGAL, MAY -- read twice
and ordered printed, and when printed to be committed to the Committee
on Labor
AN ACT to amend the labor law and the workers' compensation law, in
relation to the employee status of an individual
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs (a) and (b) of subdivision 1 of section 511 of
2 the labor law, as amended by chapter 607 of the laws of 1971, subpara-
3 graph 1-a of paragraph (b) as added by chapter 903 of the laws of 1986,
4 subparagraph 1-b of paragraph (b) as added by chapter 418 of the laws of
5 2010, subparagraph 1-c of paragraph (b) as added by chapter 558 of the
6 laws of 2013, and subparagraph 3 of paragraph (b) as added by chapter
7 668 of the laws of 1992, are amended to read as follows:
8 (a) any service under any contract of employment for hire, express or
9 implied, written, or oral; and
10 (b) (1) any service by a person providing labor or services for remun-
11 eration unless the hiring entity demonstrates that all of the following
12 conditions are satisfied:
13 (i) the person is free from the control and direction of the hiring
14 entity in connection with the performance of the work, both under the
15 contract for the performance of the work and in fact; and
16 (ii) the person performs work that is outside the usual course of the
17 hiring entity's business; and
18 (iii) the person is customarily engaged in an independently estab-
19 lished trade, occupation, or business of the same nature as that
20 involved in the work performed.
21 (2) for the purposes of this section, any person providing labor or
22 services for remuneration pursuant to subparagraph one of this paragraph
23 shall be considered an employee rather than an independent contractor;
24 and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02984-01-3
S. 2052 2
1 (c) any service by a person for an employer:
2 (1) as an agent-driver or commission-driver engaged in distributing
3 meat, vegetable, fruit, or bakery products; beverages other than milk;
4 or laundry or dry-cleaning services; or
5 (1-a) as a professional musician or a person otherwise engaged in the
6 performing arts, and performing services as such for a television or
7 radio station or network, a film production, a theatre, hotel, restau-
8 rant, night club or similar establishment unless, by written contract,
9 such musician or person is stipulated to be an employee of another
10 employer covered by this chapter. "Engaged in the performing arts" shall
11 mean performing services in connection with the production of or
12 performance in any artistic endeavor which requires artistic or techni-
13 cal skill or expertise; or
14 (1-b) as an employee in the construction industry unless the presump-
15 tion of employment can be overcome, as provided under section eight
16 hundred sixty-one-c of this chapter; or
17 (1-c) as an employee in the commercial goods transportation industry
18 unless the presumption of employment can be overcome, as provided under
19 section eight hundred sixty-two-b of this chapter; or
20 (2) as a traveling or city salesman engaged on a full-time basis in
21 soliciting orders for merchandise for resale or supplies for use in the
22 purchaser's business operations if the contract of service contemplates
23 that substantially all of such services are to be performed personally
24 by such person; such person does not have a substantial investment in
25 facilities used in connection with the performance of such services,
26 excepting facilities for transportation; and the services are not in the
27 nature of a single transaction which is not part of a continuing
28 relationship with the employer.
29 (3) as a professional model, where:
30 (i) the professional model performs modeling services for; or
31 (ii) consents in writing to the transfer of his or her exclusive legal
32 right to the use of his or her name, portrait, picture or image, for
33 advertising purposes or for the purposes of trade, directly to a retail
34 store, a manufacturer, an advertising agency, a photographer, a publish-
35 ing company or any other such person or entity, which dictates such
36 professional model's assignments, hours of work or performance locations
37 and which compensates such professional model in return for a waiver of
38 his or her privacy rights enumerated above, unless such services are
39 performed pursuant to a written contract wherein it is stated that the
40 professional model is the employee of another employer covered by this
41 chapter. For purposes of this subparagraph, the term "professional
42 model" means a person who, in the course of his or her trade, occupation
43 or profession, performs modeling services. For purposes of this subpara-
44 graph, the term "modeling services" means the appearance by a profes-
45 sional model in photographic sessions or the engagement of such model in
46 live, filmed or taped modeling performances for remuneration.
47 § 2. Subdivision 3 of section 160 of the labor law, the opening para-
48 graph of such subdivision as amended by chapter 481 of the laws of 2010,
49 is amended to read as follows:
50 3. a. For all other employees, except those engaged in farm work and
51 those affected by subdivision four of section two hundred twenty of this
52 chapter, eight hours.
53 b. For the purposes of this subdivision, an individual providing labor
54 or services for remuneration has the status of an employee rather than
55 an independent contractor unless the hiring entity demonstrates all of
56 the following conditions:
S. 2052 3
1 (i) The individual is free from the control and direction of the
2 hiring entity in connection with the performance of the work, both under
3 the contract for the performance of the work and in fact.
4 (ii) The individual performs work that is outside the usual course of
5 the hiring entity's business.
6 (iii) The individual is customarily engaged in an independently estab-
7 lished trade, occupation, or business of the same nature as that
8 involved in the work performed.
9 c. This subdivision shall not prevent an agreement for overwork at an
10 increased compensation, except upon work by or for the state or a munic-
11 ipal corporation, or by contractors or subcontractors therewith, and
12 except as otherwise provided in this chapter.
13 § 3. Subdivision 5 of section 651 of the labor law is amended by
14 adding a new closing paragraph to read as follows:
15 Unless otherwise excluded by the provisions of this subdivision or by
16 regulations promulgated by the commissioner, an individual providing
17 labor or services for remuneration has the status of an employee rather
18 than an independent contractor unless the hiring entity demonstrates all
19 of the following conditions:
20 (a) The individual is free from the control and direction of the
21 hiring entity in connection with the performance of the work, both under
22 the contract for the performance of the work and in fact.
23 (b) The individual performs work that is outside the usual course of
24 the hiring entity's business.
25 (c) The individual is customarily engaged in an independently estab-
26 lished trade, occupation, or business of the same nature as that
27 involved in the work performed.
28 § 4. Subdivision 6 of section 201 of the workers' compensation law is
29 amended by adding a new paragraph E to read as follows:
30 E. (A) The term "employment" includes, unless specifically excluded by
31 a provision of this subdivision, any service by a person providing labor
32 or services for remuneration unless the hiring entity demonstrates that
33 all of the following conditions are satisfied:
34 (i) the person is free from the control and direction of the hiring
35 entity in connection with the performance of the work, both under the
36 contract for the performance of the work and in fact; and
37 (ii) the person performs work that is outside the usual course of the
38 hiring entity's business; and
39 (iii) the person is customarily engaged in an independently estab-
40 lished trade, occupation, or business of the same nature as that
41 involved in the work performed.
42 (B) For the purposes of this section, any person providing labor or
43 services for remuneration pursuant to subparagraph (A) of this paragraph
44 shall be considered an employee rather than an independent contractor.
45 § 5. This act shall take effect immediately.
