Bill Text: NY A08721 | 2019-2020 | General Assembly | Amended

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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

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                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.
                                                                   LBD13746-03-9
        A. 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 than
        A. 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.