Bill Text: NY S04355 | 2011-2012 | General Assembly | Introduced

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Bill Title: Excludes from the definition of employee such services rendered by a harness race driver, only a groom or caretaker of a temporary designated trainer of a harness race horse, a shipper or transporter of a harness race horse, a farrier of a harness race horse, or a veterinarian to a harness race horse.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2012-01-04 - REFERRED TO LABOR [S04355 Detail]

Download: New_York-2011-S04355-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4355
                              2011-2012 Regular Sessions
                                   I N  S E N A T E
                                    March 31, 2011
                                      ___________
       Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
         printed to be committed to the Committee on Labor
       AN ACT to amend the workers' compensation law, in relation to the  defi-
         nition of employee
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 4 of section 2 of the workers' compensation law
    2  is amended by  adding  five  new  undesignated  paragraphs  to  read  as
    3  follows:
    4    NOTWITHSTANDING  ANY OTHER PROVISION OF THIS CHAPTER, "EMPLOYEE" SHALL
    5  NOT INCLUDE THE SERVICES OF A HARNESS RACE DRIVER IF IT BE  PROVEN  THAT
    6  (A)  SUBSTANTIALLY ALL OF THE COMPENSATION (WHETHER OR NOT PAID IN CASH)
    7  FOR THE SERVICES PERFORMED BY SUCH HARNESS RACE DRIVER IS RELATED TO HIS
    8  OR HER PERFORMANCE IN THE HARNESS RACE RATHER THAN THE NUMBER  OF  HOURS
    9  WORKED;  (B) THE HARNESS RACE DRIVER IS FREE TO ACCEPT OR TO DECLINE ANY
   10  REQUEST TO DRIVE HORSES; (C) THE HARNESS RACE DRIVER IS  FREE  TO  DRIVE
   11  HORSES  FOR  OWNERS  AND/OR  TRAINERS  OF  HIS OR HER CHOOSING AND/OR TO
   12  ENGAGE IN OTHER EMPLOYMENT; (D) THE HARNESS RACE DRIVER MAY UNILATERALLY
   13  DETERMINE WHEN AND WHERE HE OR SHE WILL WORK; (E) THE HARNESS RACE DRIV-
   14  ER IS RESPONSIBLE FOR HIS OR HER OWN  EXPENSES;  (F)  THE  HARNESS  RACE
   15  DRIVER  IS  RESPONSIBLE FOR FURNISHING HIS OR HER OWN VEST, HELMET, WHIP
   16  AND SULKY; (G) THE HARNESS RACE DRIVER IS FREE TO TERMINATE HIS  OR  HER
   17  SERVICES  AT  ANY  TIME;  AND  (H) THE PERSON OR ENTITY THAT RETAINS THE
   18  HARNESS RACE DRIVER TO PROVIDE SERVICES IS NOT TREATED BY SUCH PERSON OR
   19  ENTITY AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR FEDERAL OR STATE
   20  TAX PURPOSES.
   21    NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER,  A  GROOM  AND/OR
   22  CARETAKER OF A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A
   23  DESIGNATED  TRAINER  AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE
   24  IF IT BE PROVEN THAT (A) THE COMPENSATION (WHETHER OR NOT PAID IN  CASH)
   25  FOR  THE  SERVICES  PERFORMED BY SUCH GROOM AND/OR CARETAKER RELATING TO
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05804-01-1
       S. 4355                             2
    1  THE HARNESS RACE HORSE IS NOT PAID  BY  THE  DESIGNATED  TRAINER  AND/OR
    2  SUBSTITUTE TRAINER OF SUCH HARNESS RACE HORSE; (B) THE DESIGNATED TRAIN-
    3  ER  AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE DOES NOT CONTROL
    4  THE  WORKING  HOURS  OF THE GROOM AND/OR CARETAKER; (C) THE GROOM AND/OR
    5  CARETAKER PROVIDING SERVICES TO THE DESIGNATED TRAINER AND/OR SUBSTITUTE
    6  TRAINER OF THE HARNESS RACE HORSE IS FREE TO PROVIDE HIS OR HER SERVICES
    7  TO OTHER TRAINERS (INCLUDING OTHER DESIGNATED TRAINERS AND/OR SUBSTITUTE
    8  TRAINERS) OF HARNESS RACE HORSES;  (D)  THE  DESIGNATED  TRAINER  AND/OR
    9  SUBSTITUTE  TRAINER  OF  THE HARNESS RACE HORSE PROVIDES NO EQUIPMENT OR
   10  SUPPLIES TO THE GROOM AND/OR CARETAKER PROVIDING SERVICES TO SUCH DESIG-
   11  NATED TRAINER AND/OR SUBSTITUTE  TRAINER;  (E)  THE  DESIGNATED  TRAINER
   12  AND/OR  SUBSTITUTE  TRAINER OF THE HARNESS RACE HORSE IS NOT RESPONSIBLE
   13  AND DOES NOT REIMBURSE  THE  GROOM  AND/OR  CARETAKER  FOR  HIS  OR  HER
   14  EXPENSES;  AND  (F) THE GROOM AND/OR CARETAKER PROVIDING SERVICES TO THE
   15  DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS  RACE  HORSE
   16  IS  NOT TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR FEDERAL
   17  OR STATE TAX PURPOSES BY THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAIN-
   18  ER.
   19    NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, "EMPLOYEE"  SHALL
   20  NOT  INCLUDE  THE SERVICES OF A SHIPPER OR TRANSPORTER OF A HARNESS RACE
   21  HORSE IF IT BE PROVEN THAT (A) SUBSTANTIALLY  ALL  OF  THE  COMPENSATION
   22  (WHETHER  OR NOT PAID IN CASH) FOR THE SERVICES PERFORMED BY THE SHIPPER
   23  OR TRANSPORTER OF THE HARNESS RACE HORSE IS DIRECTLY RELATED TO  MILEAGE
   24  OR  SOME  OTHER  TYPE  OF AGREED UPON RATE THAT IS NOT RELATED TO ACTUAL
   25  HOURS WORKED; (B) THE SHIPPER OR TRANSPORTER OF THE HARNESS  RACE  HORSE
   26  IS  FREE  TO PROVIDE SERVICES TO CUSTOMERS OF HIS OR HER CHOOSING AND/OR
   27  TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS; (C) THE SHIPPER OR  TRANS-
   28  PORTER  OF  THE  HARNESS  RACE HORSE MAY UNILATERALLY DETERMINE WHEN AND
   29  WHERE HE OR SHE WILL WORK; (D) THE SHIPPER OR TRANSPORTER OF THE HARNESS
   30  RACE HORSE IS RESPONSIBLE FOR HIS OR HER OWN EXPENSES; (E)  THE  SHIPPER
   31  OR  TRANSPORTER  OF THE HARNESS RACE HORSE IS RESPONSIBLE FOR FURNISHING
   32  HIS OR HER OWN EQUIPMENT AND/OR VEHICLE; (F) THE SHIPPER OR  TRANSPORTER
   33  OF  THE  HARNESS  RACE HORSE IS FREE TO TERMINATE HIS OR HER SERVICES AT
   34  ANY TIME; AND (G) THE PARTY THAT RETAINS  THE  SERVICES  OF  SHIPPER  OR
   35  TRANSPORTER  OF  THE  HARNESS  RACE HORSE DOES NOT TREAT SUCH SHIPPER OR
   36  TRANSPORTER AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICE FOR FEDERAL  AND
   37  STATE TAX PURPOSES.
   38    NOTWITHSTANDING  ANY OTHER PROVISION OF THIS CHAPTER, "EMPLOYEE" SHALL
   39  NOT INCLUDE THE SERVICES OF A FARRIER WHOSE SERVICES ARE RENDERED  TO  A
   40  HARNESS  RACE  HORSE,  IF IT IS PROVEN THAT (A) SUBSTANTIALLY ALL OF THE
   41  COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES RENDERED  BY
   42  THE  FARRIER TO THE HARNESS RACE HORSE IS RELATED TO A NEGOTIATED FEE OR
   43  ONE SET BY THE FARRIER AND IS NOT RELATED TO ACTUAL  HOURS  WORKED;  (B)
   44  THE  FARRIER  RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE IS
   45  FREE TO PROVIDE SERVICES TO CUSTOMERS OF HIS OR HER CHOOSING,  INCLUDING
   46  PROVIDING  FARRIER  SERVICES  TO  ANY OTHER HARNESS RACE HORSE AND/OR TO
   47  ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS; (C) THE FARRIER  RETAINED  TO
   48  PROVIDE  SERVICES  FOR THE HARNESS RACE HORSE MAY UNILATERALLY DETERMINE
   49  WHERE AND WHEN HE OR SHE WILL WORK; (D) THE FARRIER RETAINED TO  PROVIDE
   50  SERVICES  FOR  THE  HARNESS  RACE  HORSE  IS  RESPONSIBLE FOR HIS OR HER
   51  EXPENSES; (E) THE FARRIER RETAINED TO PROVIDE SERVICES FOR  THE  HARNESS
   52  RACE  HORSE  IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN EQUIPMENT; (F)
   53  THE FARRIER RETAINED TO PROVIDE SERVICES TO THE HARNESS  RACE  HORSE  IS
   54  FREE TO TERMINATE OR DECLINE TO PROVIDE HIS OR HER SERVICES AT ANY TIME;
   55  AND  (G)  THE  PARTY  THAT  RETAINS THE SERVICES OF THE FARRIER DOES NOT
       S. 4355                             3
    1  TREAT HIM OR HER AS AN EMPLOYEE FOR FEDERAL AND STATE TAX PURPOSES  WITH
    2  RESPECT TO HIS OR HER SERVICES PROVIDED TO THE HARNESS RACE HORSE.
    3    NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE TERM "EMPLOY-
    4  EE" SHALL NOT INCLUDE THE SERVICES OF A VETERINARIAN RETAINED TO TREAT A
    5  HARNESS  RACE  HORSE  IF  IT BE PROVEN THAT (A) SUBSTANTIALLY ALL OF THE
    6  COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES RENDERED  BY
    7  THE  VETERINARIAN  TO THE HARNESS RACE HORSE IS RELATED TO A FEE NEGOTI-
    8  ATED OR SOME OTHER TYPE OF AGREED UPON RATE AND NOT  RELATED  TO  ACTUAL
    9  HOURS  WORKED;  (B) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE
   10  HARNESS RACE HORSE IS FREE TO PROVIDE HIS OR HER SERVICES  TO  CUSTOMERS
   11  OF HIS OR HER CHOOSING, INCLUDING PROVIDING VETERINARIAN SERVICES TO ANY
   12  OTHER HARNESS RACE HORSE AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATION-
   13  SHIPS; (C) THE VETERINARIAN RETAINED TO PROVIDE SERVICES FOR THE HARNESS
   14  RACE  HORSE  MAY  UNILATERALLY  DETERMINE  WHERE AND WHEN HE OR SHE WILL
   15  WORK; (D) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO  THE  HARNESS
   16  RACE  HORSE IS RESPONSIBLE FOR HIS OR HER EXPENSES; (E) THE VETERINARIAN
   17  RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE  HORSE  IS  RESPONSIBLE
   18  FOR  FURNISHING HIS OR HER OWN EQUIPMENT; (F) THE VETERINARIAN PROVIDING
   19  SERVICES TO THE HARNESS RACE HORSE IS FREE TO TERMINATE PROVIDING HIS OR
   20  HER SERVICES AT ANY TIME; AND (G) THE PARTY THAT RETAINS THE SERVICES OF
   21  THE VETERINARIAN DOES NOT TREAT HIM OR HER AS AN  EMPLOYEE  FOR  FEDERAL
   22  AND  STATE  TAX PURPOSES WITH RESPECT TO HIS OR HER SERVICES PROVIDED TO
   23  THE HARNESS RACE HORSE.
   24    S 2. This act shall take effect immediately.