Bill Text: NY A08721 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to the employee status of an individual; establishes criteria for determining whether labor or services performed for remuneration qualify as employment.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Introduced - Dead) 2020-01-08 - referred to labor [A08721 Detail]
Download: New_York-2019-A08721-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8721--A 2019-2020 Regular Sessions IN ASSEMBLY October 25, 2019 ___________ Introduced by M. of A. GLICK, DINOWITZ, MOSLEY, COLTON, ORTIZ, MAGNAREL- LI -- read once and referred to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13746-03-9A. 8721--A 2 1 shall be considered an employee rather than an independent contractor; 2 and 3 (c) any service by a person for an employer: 4 (1) as an agent-driver or commission-driver engaged in distributing 5 meat, vegetable, fruit, or bakery products; beverages other than milk; 6 or laundry or dry-cleaning services; or 7 (1-a) as a professional musician or a person otherwise engaged in the 8 performing arts, and performing services as such for a television or 9 radio station or network, a film production, a theatre, hotel, restau- 10 rant, night club or similar establishment unless, by written contract, 11 such musician or person is stipulated to be an employee of another 12 employer covered by this chapter. "Engaged in the performing arts" shall 13 mean performing services in connection with the production of or 14 performance in any artistic endeavor which requires artistic or techni- 15 cal skill or expertise; or 16 (1-b) as an employee in the construction industry unless the presump- 17 tion of employment can be overcome, as provided under section eight 18 hundred sixty-one-c of this chapter; or 19 (1-c) as an employee in the commercial goods transportation industry 20 unless the presumption of employment can be overcome, as provided under 21 section eight hundred sixty-two-b of this chapter; or 22 (2) as a traveling or city salesman engaged on a full-time basis in 23 soliciting orders for merchandise for resale or supplies for use in the 24 purchaser's business operations if the contract of service contemplates 25 that substantially all of such services are to be performed personally 26 by such person; such person does not have a substantial investment in 27 facilities used in connection with the performance of such services, 28 excepting facilities for transportation; and the services are not in the 29 nature of a single transaction which is not part of a continuing 30 relationship with the employer. 31 (3) as a professional model, where: 32 (i) the professional model performs modeling services for; or 33 (ii) consents in writing to the transfer of his or her exclusive legal 34 right to the use of his or her name, portrait, picture or image, for 35 advertising purposes or for the purposes of trade, directly to a retail 36 store, a manufacturer, an advertising agency, a photographer, a publish- 37 ing company or any other such person or entity, which dictates such 38 professional model's assignments, hours of work or performance locations 39 and which compensates such professional model in return for a waiver of 40 his or her privacy rights enumerated above, unless such services are 41 performed pursuant to a written contract wherein it is stated that the 42 professional model is the employee of another employer covered by this 43 chapter. For purposes of this subparagraph, the term "professional 44 model" means a person who, in the course of his or her trade, occupation 45 or profession, performs modeling services. For purposes of this subpara- 46 graph, the term "modeling services" means the appearance by a profes- 47 sional model in photographic sessions or the engagement of such model in 48 live, filmed or taped modeling performances for remuneration. 49 § 2. Subdivision 3 of section 160 of the labor law, the opening para- 50 graph of such subdivision as amended by chapter 481 of the laws of 2010, 51 is amended to read as follows: 52 3. a. For all other employees, except those engaged in farm work and 53 those affected by subdivision four of section two hundred twenty of this 54 chapter, eight hours. 55 b. For the purposes of this subdivision, an individual providing labor 56 or services for remuneration has the status of an employee rather thanA. 8721--A 3 1 an independent contractor unless the hiring entity demonstrates all of 2 the following conditions: 3 (i) The individual is free from the control and direction of the 4 hiring entity in connection with the performance of the work, both under 5 the contract for the performance of the work and in fact. 6 (ii) The individual performs work that is outside the usual course of 7 the hiring entity's business. 8 (iii) The individual is customarily engaged in an independently estab- 9 lished trade, occupation, or business of the same nature as that 10 involved in the work performed. 11 c. This subdivision shall not prevent an agreement for overwork at an 12 increased compensation, except upon work by or for the state or a munic- 13 ipal corporation, or by contractors or subcontractors therewith, and 14 except as otherwise provided in this chapter. 15 § 3. Subdivision 5 of section 651 of the labor law is amended by 16 adding a new closing paragraph to read as follows: 17 Unless otherwise excluded by the provisions of this subdivision or by 18 regulations promulgated by the commissioner, an individual providing 19 labor or services for remuneration has the status of an employee rather 20 than an independent contractor unless the hiring entity demonstrates all 21 of the following conditions: 22 (a) The individual is free from the control and direction of the 23 hiring entity in connection with the performance of the work, both under 24 the contract for the performance of the work and in fact. 25 (b) The individual performs work that is outside the usual course of 26 the hiring entity's business. 27 (c) The individual is customarily engaged in an independently estab- 28 lished trade, occupation, or business of the same nature as that 29 involved in the work performed. 30 § 4. Subdivision 6 of section 201 of the workers' compensation law is 31 amended by adding a new paragraph E to read as follows: 32 E. (A) The term "employment" includes, unless specifically excluded by 33 a provision of this subdivision, any service by a person providing labor 34 or services for remuneration unless the hiring entity demonstrates that 35 all of the following conditions are satisfied: 36 (i) the person is free from the control and direction of the hiring 37 entity in connection with the performance of the work, both under the 38 contract for the performance of the work and in fact; and 39 (ii) the person performs work that is outside the usual course of the 40 hiring entity's business; and 41 (iii) the person is customarily engaged in an independently estab- 42 lished trade, occupation, or business of the same nature as that 43 involved in the work performed. 44 (B) For the purposes of this section, any person providing labor or 45 services for remuneration pursuant to subparagraph (A) of this paragraph 46 shall be considered an employee rather than an independent contractor. 47 § 5. This act shall take effect immediately.