Bill Text: NY S05867 | 2013-2014 | General Assembly | Introduced


Bill Title: Enacts the "New York State Commercial Goods Transportation Industry Fair Play Act"; redefines the definition of "employee".

Spectrum: Slight Partisan Bill (Democrat 8-3)

Status: (Passed) 2014-01-10 - APPROVAL MEMO.20 [S05867 Detail]

Download: New_York-2013-S05867-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5867
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                     June 18, 2013
                                      ___________
       Introduced  by  Sens.  SAVINO,  ADDABBO,  AVELLA,  BOYLE, DILAN, GOLDEN,
         HASSELL-THOMPSON, KRUEGER, LATIMER, MARTINS, PERALTA -- read twice and
         ordered printed, and when printed to be committed to the Committee  on
         Rules
       AN  ACT  to  amend  the labor law, in relation to enacting the "New York
         state commercial goods transportation industry fair play act"; and  to
         amend  the workers' compensation law, in relation to the definition of
         employee
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  The  labor law is amended by adding a new article 25-C to
    2  read as follows:
    3                                 ARTICLE 25-C
    4         THE NEW YORK STATE COMMERCIAL GOODS TRANSPORTATION INDUSTRY
    5                                FAIR PLAY ACT
    6  SECTION 862. SHORT TITLE.
    7          862-A. DEFINITIONS.
    8          862-B. PRESUMPTION OF EMPLOYMENT IN THE COMMERCIAL GOODS  TRANS-
    9                 PORTATION INDUSTRY.
   10          862-C. NOTICE  TO PERSONS RECEIVING REMUNERATION FROM COMMERCIAL
   11                 GOODS TRANSPORTATION  CONTRACTORS  AND  COMMERCIAL  GOODS
   12                 TRANSPORTATION SUBCONTRACTORS.
   13          862-D. VIOLATIONS AND PENALTIES.
   14          862-E. RETALIATION.
   15    S  862.  SHORT  TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
   16  THE "NEW YORK STATE COMMERCIAL GOODS TRANSPORTATION INDUSTRY  FAIR  PLAY
   17  ACT".
   18    S 862-A. DEFINITIONS. AS USED IN THIS ARTICLE:
   19    1. "COMMERCIAL GOODS TRANSPORTATION CONTRACTOR" MEANS ANY SOLE PROPRI-
   20  ETOR, PARTNERSHIP, FIRM, CORPORATION, LIMITED LIABILITY COMPANY, ASSOCI-
   21  ATION  OR  OTHER LEGAL ENTITY PERMITTED BY LAW TO DO BUSINESS WITHIN THE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00724-06-3
       S. 5867                             2
    1  STATE WHO COMPENSATES COMMERCIAL VEHICLE DRIVERS WHO POSSESSES A  STATE-
    2  ISSUED  COMMERCIAL  DRIVER'S  LICENSE TO TRANSPORT GOODS IN THE STATE OF
    3  NEW YORK.
    4    2.  "COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR" INCLUDES A GENERAL
    5  COMMERCIAL GOODS TRANSPORTATION CONTRACTOR OR A COMMERCIAL GOODS  TRANS-
    6  PORTATION SUBCONTRACTOR.
    7    3. "COMMERCIAL GOODS TRANSPORTATION SERVICES" MEANS THE TRANSPORTATION
    8  OF GOODS FOR COMPENSATION BY A COMMERCIAL VEHICLE DRIVER WHO POSSESSES A
    9  STATE-ISSUED  COMMERCIAL  DRIVER'S  LICENSE  AND TRANSPORTS GOODS IN THE
   10  STATE OF NEW YORK.
   11    4. "DEPARTMENT" MEANS THE DEPARTMENT OF LABOR.
   12    5. "COMMISSIONER" MEANS THE COMMISSIONER OF LABOR.
   13    6. "EMPLOYER" MEANS ANY  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR
   14  WHICH  COMPENSATES COMMERCIAL VEHICLE DRIVERS WHO POSSESS A STATE-ISSUED
   15  COMMERCIAL DRIVER'S LICENSE TO TRANSPORT GOODS IN THE STATE OF NEW YORK.
   16    S 862-B. PRESUMPTION OF EMPLOYMENT IN THE COMMERCIAL GOODS TRANSPORTA-
   17  TION INDUSTRY.  1. ANY PERSON PERFORMING COMMERCIAL GOODS TRANSPORTATION
   18  SERVICES FOR A COMMERCIAL GOODS TRANSPORTATION CONTRACTOR SHALL BE CLAS-
   19  SIFIED AS AN EMPLOYEE UNLESS THE PERSON IS A  SEPARATE  BUSINESS  ENTITY
   20  UNDER  SUBDIVISION  TWO OF THIS SECTION OR ALL OF THE FOLLOWING CRITERIA
   21  ARE MET, IN WHICH CASE THE PERSON SHALL BE AN INDEPENDENT CONTRACTOR:
   22    (A) THE INDIVIDUAL IS FREE FROM CONTROL AND  DIRECTION  IN  PERFORMING
   23  THE JOB, BOTH UNDER HIS OR HER CONTRACT AND IN FACT;
   24    (B) THE SERVICE MUST BE PERFORMED OUTSIDE THE USUAL COURSE OF BUSINESS
   25  FOR WHICH THE SERVICE IS PERFORMED; AND
   26    (C)  THE  INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
   27  LISHED TRADE, OCCUPATION, PROFESSION, OR BUSINESS THAT IS SIMILAR TO THE
   28  SERVICE AT ISSUE.
   29    2. A BUSINESS ENTITY,  INCLUDING  ANY  SOLE  PROPRIETOR,  PARTNERSHIP,
   30  CORPORATION  OR  ENTITY  THAT  MAY  BE A COMMERCIAL GOODS TRANSPORTATION
   31  CONTRACTOR UNDER THIS SECTION SHALL BE CONSIDERED  A  SEPARATE  BUSINESS
   32  ENTITY FROM THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR WHERE ALL THE
   33  FOLLOWING CRITERIA ARE MET:
   34    (A) THE BUSINESS ENTITY IS PERFORMING THE SERVICE FREE FROM THE DIREC-
   35  TION  OR  CONTROL  OVER  THE  MEANS AND MANNER OF PROVIDING THE SERVICE,
   36  SUBJECT ONLY  TO  THE  RIGHT  OF  THE  COMMERCIAL  GOODS  TRANSPORTATION
   37  CONTRACTOR  FOR  WHOM  THE  SERVICE  IS  PROVIDED TO SPECIFY THE DESIRED
   38  RESULT OR FEDERAL RULE OR REGULATION;
   39    (B) THE BUSINESS ENTITY IS NOT SUBJECT TO CANCELLATION OR  DESTRUCTION
   40  UPON SEVERANCE OF THE RELATIONSHIP WITH THE COMMERCIAL GOODS TRANSPORTA-
   41  TION CONTRACTOR;
   42    (C) THE BUSINESS ENTITY HAS A SUBSTANTIAL INVESTMENT OF CAPITAL IN THE
   43  BUSINESS  ENTITY, INCLUDING BUT NOT LIMITED TO ORDINARY TOOLS AND EQUIP-
   44  MENT;
   45    (D) THE BUSINESS ENTITY OWNS OR LEASES THE CAPITAL GOODS AND GAINS THE
   46  PROFITS AND BEARS THE LOSSES OF THE BUSINESS ENTITY;
   47    (E) THE BUSINESS ENTITY HAS AN OPTION TO MAKE ITS  SERVICES  AVAILABLE
   48  TO THE GENERAL PUBLIC OR THE BUSINESS COMMUNITY ON A CONTINUING BASIS;
   49    (F) THE BUSINESS ENTITY INCLUDES SERVICES RENDERED ON A FEDERAL INCOME
   50  TAX SCHEDULE AS AN INDEPENDENT BUSINESS OR PROFESSION;
   51    (G)  THE  BUSINESS  ENTITY  PERFORMS SERVICES FOR THE COMMERCIAL GOODS
   52  TRANSPORTATION CONTRACTOR PURSUANT TO  A  WRITTEN  CONTRACT,  UNDER  THE
   53  BUSINESS ENTITY'S NAME, SPECIFYING THEIR RELATIONSHIP TO BE AS INDEPEND-
   54  ENT CONTRACTORS OR SEPARATE BUSINESS ENTITIES;
   55    (H)  WHEN THE SERVICES BEING PROVIDED REQUIRE A LICENSE OR PERMIT, THE
   56  BUSINESS ENTITY PAYS FOR THE LICENSE OR PERMIT IN THE BUSINESS  ENTITY'S
       S. 5867                             3
    1  NAME  OR, WHERE PERMITTED BY LAW, PAYS FOR REASONABLE USE OF THE COMMER-
    2  CIAL GOODS TRANSPORTATION CONTRACTOR'S LICENSE OR PERMIT;
    3    (I) IF NECESSARY, THE BUSINESS ENTITY HIRES ITS OWN EMPLOYEES, SUBJECT
    4  TO APPLICABLE QUALIFICATION REQUIREMENTS OR FEDERAL OR STATE LAWS, RULES
    5  OR  REGULATIONS,  PAYS  THE  EMPLOYEES  WITHOUT  REIMBURSEMENT  FROM THE
    6  COMMERCIAL GOOD TRANSPORTATION CONTRACTOR  AND  REPORTS  THE  EMPLOYEES'
    7  INCOME TO THE INTERNAL REVENUE SERVICE;
    8    (J)  THE  COMMERCIAL  GOODS TRANSPORTATION CONTRACTOR DOES NOT REQUIRE
    9  THAT THE BUSINESS ENTITY BE REPRESENTED AS AN EMPLOYEE OF THE COMMERCIAL
   10  GOODS TRANSPORTATION CONTRACTOR TO ITS CUSTOMERS; AND
   11    (K) THE BUSINESS ENTITY HAS THE RIGHT TO PERFORM SIMILAR SERVICES  FOR
   12  OTHERS ON WHATEVER BASIS AND WHENEVER IT CHOOSES.
   13    3.  THE  FAILURE  TO  WITHHOLD FEDERAL OR STATE INCOME TAXES OR TO PAY
   14  UNEMPLOYMENT COMPENSATION CONTRIBUTIONS OR WORKERS' COMPENSATION  PREMI-
   15  UMS  WITH  RESPECT  TO  AN INDIVIDUAL'S WAGES SHALL NOT BE CONSIDERED IN
   16  MAKING A DETERMINATION UNDER THIS SECTION, EXCEPT AS SET FORTH IN  PARA-
   17  GRAPH (F) OF SUBDIVISION TWO OF THIS SECTION.
   18    4.  AN  INDIVIDUAL'S  ACT  OF SECURING WORKERS' COMPENSATION INSURANCE
   19  WITH A CARRIER AS A SOLE PROPRIETOR, PARTNERSHIP OR OTHERWISE SHALL  NOT
   20  BE BINDING ON ANY DETERMINATION UNDER THIS SECTION.
   21    5.  WHEN A BUSINESS ENTITY MEETS THE DEFINITION OF A SEPARATE BUSINESS
   22  ENTITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE  SEPARATE  BUSI-
   23  NESS  ENTITY  WILL  BE  CONSIDERED  A  COMMERCIAL  GOODS  TRANSPORTATION
   24  CONTRACTOR SUBJECT TO ALL THE PROVISIONS OF THIS ARTICLE  IN  REGARD  TO
   25  THE CLASSIFICATION OF INDIVIDUALS PERFORMING SERVICES FOR IT.
   26    S  862-C.  NOTICE  TO  PERSONS  RECEIVING REMUNERATION FROM COMMERCIAL
   27  GOODS TRANSPORTATION CONTRACTORS  AND  COMMERCIAL  GOODS  TRANSPORTATION
   28  SUBCONTRACTORS.  1.  EVERY  COMMERCIAL  GOODS  TRANSPORTATION CONTRACTOR
   29  SHALL POST IN A PROMINENT AND ACCESSIBLE PLACE ON THE SITE WHERE COMMER-
   30  CIAL GOODS TRANSPORTATION ACTIVITY IS  CONDUCTED  A  LEGIBLE  STATEMENT,
   31  PROVIDED BY THE COMMISSIONER, THAT DESCRIBES THE RESPONSIBILITY OF INDE-
   32  PENDENT  CONTRACTORS TO PAY TAXES REQUIRED BY STATE AND FEDERAL LAW, THE
   33  RIGHTS OF EMPLOYEES TO  WORKERS'  COMPENSATION,  UNEMPLOYMENT  BENEFITS,
   34  MINIMUM   WAGE,   OVERTIME   AND   OTHER  FEDERAL  AND  STATE  WORKPLACE
   35  PROTECTIONS, AND THE PROTECTIONS AGAINST RETALIATION AND  THE  PENALTIES
   36  IN THIS ARTICLE IF THE CONTRACTOR FAILS TO PROPERLY CLASSIFY AN INDIVID-
   37  UAL  AS  AN EMPLOYEE. THIS NOTICE SHALL ALSO CONTAIN CONTACT INFORMATION
   38  FOR INDIVIDUALS TO FILE COMPLAINTS  OR  INQUIRE  WITH  THE  COMMISSIONER
   39  ABOUT  EMPLOYMENT  CLASSIFICATION  STATUS.    THIS  INFORMATION SHALL BE
   40  PROVIDED IN ENGLISH, SPANISH OR OTHER LANGUAGES REQUIRED BY THE  COMMIS-
   41  SIONER.  THE  POSTED STATEMENT SHALL BE CONSTRUCTED OF MATERIALS CAPABLE
   42  OF WITHSTANDING ADVERSE WEATHER CONDITIONS.
   43    2. WITHIN THIRTY DAYS OF THE  EFFECTIVE  DATE  OF  THIS  ARTICLE,  THE
   44  COMMISSIONER  SHALL  CREATE  THE  NOTICE DESCRIBED IN SUBDIVISION ONE OF
   45  THIS SECTION AND POST THE NOTICE ON THE DEPARTMENT'S WEBSITE  FOR  DOWN-
   46  LOADING BY COMMERCIAL GOODS TRANSPORTATION CONTRACTORS.
   47    3.    COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTORS  WHO VIOLATE THIS
   48  SECTION SHALL BE SUBJECT TO A CIVIL PENALTY OF UP TO ONE  THOUSAND  FIVE
   49  HUNDRED  DOLLARS  FOR A FIRST VIOLATION, AND UP TO FIVE THOUSAND DOLLARS
   50  FOR A SUBSEQUENT VIOLATION WITHIN A FIVE YEAR PERIOD.
   51    S 862-D. VIOLATIONS AND PENALTIES. 1. ANY COMMERCIAL GOODS TRANSPORTA-
   52  TION CONTRACTOR WHO WILLFULLY FAILS TO PROPERLY CLASSIFY  AN  INDIVIDUAL
   53  AS  AN  EMPLOYEE  AS PROVIDED UNDER SECTION EIGHT HUNDRED SIXTY-TWO-B OF
   54  THIS ARTICLE SHALL BE  SUBJECT  TO  THE  CIVIL  AND  CRIMINAL  PENALTIES
   55  PROVIDED  UNDER  THIS  SECTION.  THE  CIVIL  PENALTIES SET FORTH IN THIS
   56  SECTION SHALL BE IMPOSED AS FOLLOWS:  BY  THE  COMMISSIONER  WHERE  SUCH
       S. 5867                             4
    1  PENALTY  IS  BASED  ON  A VIOLATION OF THIS CHAPTER; BY THE CHAIR OF THE
    2  WORKERS' COMPENSATION BOARD WHERE SUCH PENALTY IS BASED ON  A  VIOLATION
    3  OF  THE  WORKERS'  COMPENSATION LAW; AND BY THE COMMISSIONER OF TAXATION
    4  AND  FINANCE  WHEN  SUCH PENALTY IS BASED ON A VIOLATION OF THE TAX LAW,
    5  PROVIDED THAT NO MORE THAN ONE CIVIL PENALTY UNDER THIS SECTION  MAY  BE
    6  IMPOSED PER EMPLOYEE PER INCIDENT OF MISCLASSIFICATION.
    7    (A)  THE WORKERS' COMPENSATION BOARD SHALL PROVIDE A COPY OF ANY ORDER
    8  RELATING TO THE MISCLASSIFICATION OF AN EMPLOYEE,  THE  INTENTIONAL  AND
    9  MATERIAL  UNDERPAYMENT  OR  CONCEALMENT  OF  PAYROLL,  OR THE FAILURE TO
   10  SECURE WORKERS' COMPENSATION  IN  THE  COMMERCIAL  GOODS  TRANSPORTATION
   11  INDUSTRY TO THE COMMISSIONER AND COMMISSIONER OF TAXATION AND FINANCE NO
   12  LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ORDER.
   13    (B)  NOTWITHSTANDING  THE  SECRECY  PROVISIONS  CONTAINED  IN ARTICLES
   14  NINE-A AND TWENTY-TWO OF THE TAX LAW, THE  DEPARTMENT  OF  TAXATION  AND
   15  FINANCE  SHALL PROVIDE A COPY OF ANY ASSESSMENT FOR FAILURE TO PAY BUSI-
   16  NESS, CORPORATE OR PERSONAL INCOME TAX BY AN EMPLOYER IN THE  COMMERCIAL
   17  GOODS TRANSPORTATION INDUSTRY ARISING OUT OF THE MISCLASSIFICATION OF AN
   18  EMPLOYEE  TO  THE  COMMISSIONER  AND  CHAIR OF THE WORKERS' COMPENSATION
   19  BOARD NO LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ASSESSMENT.
   20    (C) UPON THE ISSUANCE OF AN ORDER OR DETERMINATION BY THE COMMISSIONER
   21  FOR A VIOLATION AND PENALTIES UNDER THIS ARTICLE, THE COMMISSIONER SHALL
   22  PROVIDE A COPY OF THE ORDER TO THE CHAIR OF  THE  WORKERS'  COMPENSATION
   23  BOARD  AND  THE COMMISSIONER OF TAXATION AND FINANCE NO LATER THAN SEVEN
   24  DAYS AFTER THE ISSUANCE OF THE ORDER.
   25    2. FOR THE PURPOSES OF THIS SECTION,  THE  TERM  "WILLFULLY  VIOLATES"
   26  MEANS  A  COMMERCIAL GOODS TRANSPORTATION CONTRACTOR KNEW OR SHOULD HAVE
   27  KNOWN THAT HIS OR HER CONDUCT WAS PROHIBITED BY THIS SECTION.
   28    3.  ANY  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR  WHO  WILLFULLY
   29  VIOLATES  SECTION  EIGHT  HUNDRED  SIXTY-TWO-B  OF THIS ARTICLE SHALL BE
   30  SUBJECT TO A CIVIL PENALTY OF UP TO TWENTY-FIVE HUNDRED DOLLARS FOR  THE
   31  FIRST  VIOLATION PER MISCLASSIFIED EMPLOYEE AND TO A CIVIL PENALTY OF UP
   32  TO FIVE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION PER MISCLASSIFIED
   33  EMPLOYEE WITHIN A FIVE YEAR PERIOD.
   34    4. IN ADDITION TO CIVIL PENALTIES, THE CRIMINAL PENALTIES IMPOSED ON A
   35  COMMERCIAL GOODS TRANSPORTATION CONTRACTOR WHO  WILLFULLY  VIOLATES  THE
   36  PROVISIONS  OF  THIS  ARTICLE SHALL BE A MISDEMEANOR AND UPON CONVICTION
   37  SHALL BE PUNISHED FOR A FIRST OFFENSE BY IMPRISONMENT FOR NOT MORE  THAN
   38  THIRTY DAYS OR A FINE NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS AND FOR
   39  A  SUBSEQUENT OFFENSE BY IMPRISONMENT FOR NOT  MORE THAN SIXTY DAYS OR A
   40  FINE NOT TO EXCEED FIFTY THOUSAND DOLLARS.
   41    5. IF THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR IS A CORPORATION,
   42  ANY OFFICER OF SUCH CORPORATION OR SHAREHOLDER WHO OWNS OR  CONTROLS  AT
   43  LEAST TEN PERCENT OF THE OUTSTANDING STOCK OF SUCH CORPORATION WHO KNOW-
   44  INGLY  PERMITS  THE  CORPORATION  TO WILLFULLY VIOLATE THE PROVISIONS OF
   45  THIS ARTICLE SHALL ALSO BE IN VIOLATION OF THIS ARTICLE  AND  THE  CIVIL
   46  AND  CRIMINAL  PENALTIES  HEREIN  SHALL  ATTACH  TO  SUCH  OFFICER  UPON
   47  CONVICTION.
   48    6. ANY COMMERCIAL GOODS TRANSPORTATION  CONTRACTOR  SUBJECT  TO  CIVIL
   49  PENALTIES UNDER THIS ARTICLE SHALL ALSO BE SUBJECT TO ANY OTHER APPLICA-
   50  BLE  PENALTIES  OR REMEDIES PROVIDED BY LAW FOR FAILURE TO PAY ANY OTHER
   51  STATUTORY PAYMENT OR COVERAGE OBLIGATIONS, INCLUDING BUT NOT LIMITED TO,
   52  UNEMPLOYMENT INSURANCE, WORKERS' COMPENSATION  INSURANCE,  OR  BUSINESS,
   53  CORPORATE OR PERSONAL INCOME TAX, AS FOLLOWS:
   54    (A)  FOR  FAILURE  TO  PAY  UNEMPLOYMENT  INSURANCE TAX, THE PENALTIES
   55  IMPOSED BY SECTION FIVE HUNDRED SEVENTY OF THIS CHAPTER.
       S. 5867                             5
    1    (B) FOR INTENTIONAL AND  MATERIAL  UNDERSTATEMENT  OR  CONCEALMENT  OF
    2  PAYROLL OR FAILURE TO SECURE WORKERS' COMPENSATION INSURANCE, THE PENAL-
    3  TIES IMPOSED BY PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION FIFTY-TWO OF
    4  THE  WORKERS' COMPENSATION LAW, AND FOR FAILURE TO KEEP A TRUE AND ACCU-
    5  RATE  RECORD  PURSUANT TO SECTION ONE HUNDRED THIRTY-ONE OF THE WORKERS'
    6  COMPENSATION LAW, THE PENALTIES OF SECTION ONE HUNDRED THIRTY-ONE OF THE
    7  WORKERS' COMPENSATION LAW.
    8    (C) FOR FAILURE TO PAY BUSINESS, CORPORATE OR PERSONAL INCOME TAX, THE
    9  PENALTIES IMPOSED BY SECTION SIX HUNDRED EIGHTY-FIVE  AND  ONE  THOUSAND
   10  EIGHTY-FIVE OF THE TAX LAW.
   11    7.  ANY  COMMERCIAL  GOODS TRANSPORTATION CONTRACTOR OR ANY OFFICER OR
   12  SHAREHOLDER WHO OWNS OR CONTROLS AT LEAST TEN PERCENT OF THE OUTSTANDING
   13  STOCK OF SUCH CORPORATION THAT HAS BEEN CONVICTED OF A MISDEMEANOR SHALL
   14  BE SUBJECT TO DEBARMENT AND BE INELIGIBLE TO  SUBMIT  A  BID  ON  OR  BE
   15  AWARDED  ANY  PUBLIC WORKS CONTRACT WITH THE STATE, ANY MUNICIPAL CORPO-
   16  RATION, PUBLIC BENEFIT CORPORATION, PUBLIC AUTHORITY OR PUBLIC BODY  FOR
   17  A  PERIOD  OF  UP  TO ONE YEAR FROM THE DATE OF SUCH CONVICTION OR FINAL
   18  DETERMINATION, OR UP TO FIVE  YEARS  IN  THE  EVENT  OF  ANY  SUBSEQUENT
   19  VIOLATION.
   20    8.  ANY  SUBSTANTIALLY  OWNED  AFFILIATED ENTITY OF A COMMERCIAL GOODS
   21  TRANSPORTATION CONTRACTOR, AS DEFINED BY PARAGRAPH G OF SUBDIVISION FIVE
   22  OF SECTION TWO HUNDRED TWENTY OF THIS CHAPTER, SHALL BE SUBJECT  TO  THE
   23  SAME  CIVIL  PENALTY PROVIDED UNDER THIS ARTICLE FOR A VIOLATION OF SUCH
   24  PROVISION.
   25    9. ANY PENALTIES IMPOSED UNDER THIS SECTION BY THE COMMISSIONER  SHALL
   26  BE  APPEALED TO THE INDUSTRIAL BOARD OF APPEALS IN ACCORDANCE WITH ARTI-
   27  CLE THREE OF THIS CHAPTER. ANY PENALTIES IMPOSED UNDER THIS  SECTION  BY
   28  THE  WORKERS' COMPENSATION BOARD OR COMMISSIONER OF TAXATION AND FINANCE
   29  SHALL BE APPEALED IN THE SAME MANNER AS THE UNDERLYING VIOLATION.
   30    10. NOTHING IN THIS SECTION SHALL  LIMIT  THE  AVAILABILITY  OF  OTHER
   31  REMEDIES AT LAW OR IN EQUITY FOR A VIOLATION OF THIS ARTICLE.
   32    11.  ANY FEE OR PENALTY ASSESSED FOR A VIOLATION OF THIS ARTICLE SHALL
   33  BE DEPOSITED INTO THE DEPARTMENT'S FEE AND PENALTY ACCOUNT.
   34    S 862-E. RETALIATION. 1. IT IS A VIOLATION  OF  THIS  ARTICLE  FOR  AN
   35  EMPLOYER OR ANY AGENT OF ANY EMPLOYER, TO RETALIATE THROUGH DISCHARGE OR
   36  IN ANY OTHER MANNER AGAINST ANY PERSON IN THE TERMS OF CONDITIONS OF HIS
   37  OR  HER  EMPLOYMENT FOR EXERCISING ANY RIGHTS GRANTED UNDER THIS ARTICLE
   38  FOR:
   39    (A) MAKING, OR THREATENING  TO  MAKE,  A  COMPLAINT  TO  AN  EMPLOYER,
   40  CO-WORKER  OR TO A PUBLIC BODY THAT RIGHTS GUARANTEED UNDER THIS ARTICLE
   41  HAVE BEEN VIOLATED;
   42    (B) CAUSING TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED  TO  THIS
   43  ARTICLE; OR
   44    (C)  PROVIDING  INFORMATION  TO, OR TESTIFYING BEFORE, ANY PUBLIC BODY
   45  CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY INTO ANY SUCH  VIOLATION
   46  OF  A  LAW, RULE OR REGULATION BY SUCH EMPLOYER. NOTHING IN THIS SECTION
   47  SHALL LIMIT THE  COMMISSIONER'S  AUTHORITY  UNDER  SECTION  TWO  HUNDRED
   48  FIFTEEN OF THIS CHAPTER, OR ANY OTHER STATUTE.
   49    2. ANY ACT OF RETALIATION UNDER THIS SECTION SHALL SUBJECT AN EMPLOYER
   50  TO  THE  CIVIL PENALTIES UNDER SECTION EIGHT HUNDRED SIXTY-TWO-D OF THIS
   51  ARTICLE, OR TO A PRIVATE CAUSE OF ACTION, OR BOTH.
   52    S 2. Paragraph (b) of subdivision 1 of section 511 of the labor law is
   53  amended by adding a new subparagraph 1-c to read as follows:
   54    (1-C) AS AN EMPLOYEE IN THE COMMERCIAL GOODS  TRANSPORTATION  INDUSTRY
   55  UNLESS  THE PRESUMPTION OF EMPLOYMENT CAN BE OVERCOME, AS PROVIDED UNDER
   56  SECTION EIGHT HUNDRED SIXTY-TWO-B OF THIS CHAPTER; OR
       S. 5867                             6
    1    S 3. The opening paragraph of subdivision 4 of section 2 of the  work-
    2  ers' compensation law, as amended by chapter 418 of the laws of 2010, is
    3  amended to read as follows:
    4    "Employee" means a person engaged in one of the occupations enumerated
    5  in section three of this article or who is in the service of an employer
    6  whose  principal business is that of carrying on or conducting a hazard-
    7  ous employment upon the premises or at the plant, or in  the  course  of
    8  his  or  her  employment  away  from  the  plant of his or her employer;
    9  "employee" shall also mean for the purposes of this chapter any individ-
   10  ual performing services in construction for a contractor  who  does  not
   11  overcome  the  presumption of employment as provided under section eight
   12  hundred sixty-one-c of the labor law; "EMPLOYEE" SHALL ALSO MEAN FOR THE
   13  PURPOSES OF THIS CHAPTER  ANY  INDIVIDUAL  PERFORMING  SERVICES  IN  THE
   14  COMMERCIAL  GOODS  TRANSPORTATION INDUSTRY FOR A COMMERCIAL GOODS TRANS-
   15  PORTATION CONTRACTOR WHO DOES NOT OVERCOME THE PRESUMPTION OF EMPLOYMENT
   16  AS PROVIDED UNDER SECTION EIGHT HUNDRED SIXTY-TWO-B OF  THE  LABOR  LAW;
   17  "employee"  shall  also  mean  for  the  purposes  of this chapter civil
   18  defense volunteers who are personnel of volunteer agencies sponsored  or
   19  authorized  by  a  local  office  under regulations of the civil defense
   20  commission, to the extent of the  provisions  of  groups  seventeen  and
   21  nineteen;  "employee"  shall  at the election of a municipal corporation
   22  made pursuant to local law duly enacted also mean a member of an  auxil-
   23  iary  police  organization authorized by local law; and for the purposes
   24  of this chapter only a newspaper carrier under the age of eighteen years
   25  as defined in section thirty-two hundred twenty-eight of  the  education
   26  law,  and  shall  not  include  domestic  servants except as provided in
   27  section three of this chapter, and except where the employer has elected
   28  to bring such employees  under  the  law  by  securing  compensation  in
   29  accordance  with  the  terms  of section fifty of this chapter. The term
   30  "employee" shall not include persons who are  members  of  a  supervised
   31  amateur  athletic activity operated on a non-profit basis, provided that
   32  said members are not also otherwise engaged or employed by  any  person,
   33  firm  or  corporation participating in said athletic activity, nor shall
   34  it include the spouse or minor child of an  employer  who  is  a  farmer
   35  unless  the  services  of such spouse or minor child shall be engaged by
   36  said employer under an express contract of hire nor shall it include  an
   37  executive  officer  of  a corporation who at all times during the period
   38  involved owns all of the issued and outstanding stock of the corporation
   39  and holds all of the offices pursuant to paragraph (e) of section  seven
   40  hundred  fifteen  of the business corporation law or two executive offi-
   41  cers of a corporation who  at  all  times  during  the  period  involved
   42  between  them own all of the issued and outstanding stock of such corpo-
   43  ration and hold all such offices except as provided in  subdivision  six
   44  of  section  fifty-four  of  this  chapter provided, however, that where
   45  there are two executive officers of a corporation each officer must  own
   46  at least one share of stock, nor shall it include a self-employed person
   47  or  a partner of a partnership as defined in section ten of the partner-
   48  ship law who is not covered under a compensation insurance contract or a
   49  certificate of  self-insurance  as  provided  in  subdivision  eight  of
   50  section  fifty-four  of this chapter, nor shall it include farm laborers
   51  except as provided in group fourteen-b of section three of this chapter.
   52  If a farm labor contractor recruits or supplies farm laborers  for  work
   53  on  a farm, such farm laborers shall for the purposes of this chapter be
   54  deemed to be employees of the owner or lessee of such farm.    The  term
   55  "employee"  shall  not  include  baby  sitters as defined in subdivision
   56  three of section one hundred thirty-one and subdivision three of section
       S. 5867                             7
    1  one hundred thirty-two of the labor law or minors fourteen years of  age
    2  or  over engaged in casual employment consisting of yard work and house-
    3  hold chores in and about a one family owner-occupied  residence  or  the
    4  premises of a non-profit, non-commercial organization, not involving the
    5  use  of  power-driven  machinery.  The term "employee" shall not include
    6  persons engaged by the owner in casual  employment  consisting  of  yard
    7  work,  household chores and making repairs to or painting in and about a
    8  one-family owner-occupied  residence.  The  term  "employee"  shall  not
    9  include the services of a licensed real estate broker or sales associate
   10  if  it be proven that (a) substantially all of the remuneration (whether
   11  or not paid in cash) for the services performed by such broker or  sales
   12  associate  is  directly  related to sales or other output (including the
   13  performance of services) rather than to the number of hours worked;  (b)
   14  the  services  performed  by the broker or sales associate are performed
   15  pursuant to a written contract executed between  such  broker  or  sales
   16  associate  and the person for whom the services are performed within the
   17  past twelve to fifteen months; and (c) the written contract provided for
   18  in paragraph (b) of this subdivision was not executed under  duress  and
   19  contains the following provisions:
   20    S  4.  Notwithstanding any other provision of law to the contrary, the
   21  provisions of section 862-b of the labor law, as added by section one of
   22  this act, shall apply to and be utilized for  all  determinations  of  a
   23  commercial  goods transportation industry individual's employment status
   24  under the labor law and the workers' compensation law, but not  the  tax
   25  law.
   26    S  5.  This  act  shall take effect on the sixtieth day after it shall
   27  have become a law.
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