New York Labor Codes 2 3

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 3228 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 148-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. 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 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 2 or 4 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 2 or 4 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 6-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.

4. "Employee" means a person engaged in one of the occupations enumerated in section 3 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 17 and 19; "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 3228 of the education law, and shall not include domestic servants except as provided in section 3 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 50 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 715 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 6 of section 54 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 10 of the partnership law who is not covered under a compensation insurance contract or a certificate of self-insurance as provided in subdivision 8 of section 54 of this chapter, nor shall it include farm laborers except as provided in group 14-b of section 3 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 3 of section 131 and subdivision 3 of section 132 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:

(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 12-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 12-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 758-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 148-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. 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 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 2 or 4 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 2 or 4 of the racing, parimutuel 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 6-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.

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 3, and except employment as a domestic worker as provided in section 3, 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 4 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 3228 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 12-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 12-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 148-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 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 2 or 4 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.

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 6-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.

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 16 of subdivision 1 of section 3 of this chapter, (c) a volunteer worker for a social services district as provided in group 17 of subdivision 1 of section 3 of this chapter, (d) a county fire coordinator, a deputy county fire coordinator or a comparable county official to whom the provisions of group 15-a of subdivision 1 of section 3 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 4 of this section, or j) a duly appointed member of a regional hazardous materials incidents team recognized under section 290 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.

10. "State fund" means the state insurance fund provided for in article 5 of this chapter.

11. "Child" shall include a posthumous child, a child legally adopted prior to the injury of the employee; and a stepchild 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 3, 3-a or 4 of section 50 of this chapter.

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.

History:

Add, L 1913, ch 816; amd, L 1922, ch 615, eff July 1, 1922. Substance transferred from § 3 and substance of former § 2 transferred to § 3. Sub 2 amd, L 1938, ch 585, L 1945, ch 74, L 1946, ch 113, eff Mar 14, 1946. Sub 3, amd, L 1947, ch 794, L 1953, ch 575, § 3, L 1954, ch 496, § 2, L 1956, ch 699, § 9, L 1957, ch 418, L 1961, ch 233, L 1963, ch 369, L 1973, ch 49, eff March 6, 1973. Sub 4, amd, L 1939, ch 271, L 1941, ch 639, L 1941, ch 875, L 1943, ch 309, L 1946, ch 311, L 1947, ch 794, L 1951, ch 788, L 1953, ch 575, § 5, L 1956, ch 699, § 10, L 1957, ch 967, § 1, L 1959, ch 642, L 1962, ch 456, L 1964, ch 539, § 1, L 1966, ch 646, L 1973, ch 49, eff March 6, 1973, L 1974, ch 934, eff Sept 1, 1974. Sub 4, last par, add, L 1976, ch 882, § 6, eff Apr 1, 1977. Sub 5, amd, L 1939, ch 271, L 1940, ch 225, L 1941, ch 639, L 1946, ch 311, L 1947, ch 794, L 1951, ch 788, L 1953, ch 575, § 6, L 1956, ch 67, L 1956, ch 699, § 11, L 1956, ch 700, L 1963, ch 369, L 1973, ch 49, eff March 6, 1973. Sub 9, amd, L 1951, ch 788, L 1956, ch 699, § 12, L 1966, ch 391, § 2, L 1966, ch 972, L 1969, ch 1048, L 1971, ch 500, eff June 17, 1971, L 1974, ch 1053, § 4, eff April 1, 1975. (The effective date of ch 1053 was changed from Sept 1, 1974, to April 1, 1975, by ch 1054.). Sub 11, amd, L 1981, ch 67, § 5, eff Apr 8, 1981. Sub 12 amd, L 1946, ch 605, L 1966, ch 895, eff Aug 1, 1966, L 1966, ch 896, eff Aug 1, 1966. Sub 14, add, L 1974, ch 934, eff Sept 1, 1974. Sub 3, amd, L 1986, ch 903, § 3, eff Oct 4, 1986. Sub 3, second undesignated par, add, L 1990, ch 346, § 4, eff Jan 1, 1991. Sub 3, closing par, add, L 1999, ch 49, § 1, eff June 24, 1999. Sub 4, amd, L 1982, ch 396, § 1, eff June 28, 1982, L 1983, ch 147, § 1, eff May 23, 1983, L 1985, ch 858, § 1, eff Oct 31, 1985, L 1982, ch 920, § 55, eff July 1, 1983, L 1986, ch 446, § 1, eff Jan 1, 1987, L 1986, ch 470, § 1, eff Sept 19, 1986, L 1986, ch 903, § 4, eff Oct 4, 1986. Sub 4, opening par, amd, L 1993, ch 205, § 1, eff Jan 1, 1994. Sub 4, fifth undesignated par, add, L 1990, ch 346, § 5, eff Jan 1, 1991. Sub 4, sixth undesignated par, add, L 1992, ch 668, § 2, eff Aug 30, 1992 (see 1992 note below). Sub 4, seventh undesignated par, add L 1999, ch 49, § 2, eff June 24, 1999. Sub 4, closing par, add, L 2002, ch 574, § 2, eff Nov 23, 2002. Sub 5, amd, L 1986, ch 470, § 1, eff Sept 19, 1986, L 1986, ch 903, § 5, eff Oct 4, 1986. Sub 5, subpars (i)-(viii), add, L 1986, ch 903, § 5, eff Oct 4, 1986. Sub 5, third undesignated par, add, L 1990, ch 346, § 6, eff Jan 1, 1991. Sub 5, fourth undesignted par, add L 1999, ch 49, § 3, eff June 24, 1999. Sub 5, closing par, add, L 2002, ch 574, § 3, eff Nov 23, 2002. Sub 7, amd, L 1990, ch 924, § 1, eff July 31, 1990 (see 1990 note below). Sub 9, amd, L 1983, ch 38, § 1, eff Sept 1, 1983, L 1983, ch 438, § 1, eff Jan 1, 1984, L 1984, ch 489, § 1, eff Jan 1, 1985, applicable to all persons upon whom a sentence of probation or of conditional discharge is imposed on or after Jan 1, 1985, L 1986, ch 470, § 1, eff Sept 19, 1986, L 1986, ch 760, § 1, eff Oct 1, 1986, L 1987, ch 827, § 6, eff Aug 7, 1987 (see 1987 note below), L 1988, ch 24, § 19, eff Jan 1, 1989. The 1988 act deleted at fig 1 "an enrolled member of a voluntary ambulance service which is incorporated or an unincorporated association, non-affiliated with a fire company, as provided in group nineteen of subdivision one of section three of this chapter, (g)", at fig 2 "(h)", at fig 3 "(i)", at fig 4 "(j)", and at fig 5 "(k)".Sub 11, amd, L 1983, ch 113, § 1, eff May 17, 1983. The 1983 act deleted at fig 1 "acknowledged"Sub 12, amd, L 2000, ch 598, § 10, eff Dec 20, 2000. Sub 15, add, L 1984, ch 659, § 1, eff Jan 1, 1985 and applies to all disablements or deaths occurring on and after Jan 1, 1985.