assembly Bill A5237

Amended

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

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Sponsor

WRIGHT

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 21 / Feb / 2013
    • REFERRED TO LABOR
  • 12 / Jun / 2013
    • REPORTED REFERRED TO CODES
  • 17 / Jun / 2013
    • REPORTED REFERRED TO WAYS AND MEANS
  • 17 / Jun / 2013
    • AMEND AND RECOMMIT TO WAYS AND MEANS
  • 17 / Jun / 2013
    • PRINT NUMBER 5237A
  • 18 / Jun / 2013
    • AMEND AND RECOMMIT TO WAYS AND MEANS
  • 18 / Jun / 2013
    • PRINT NUMBER 5237B
  • 20 / Jun / 2013
    • REPORTED REFERRED TO RULES
  • 20 / Jun / 2013
    • REPORTED
  • 20 / Jun / 2013
    • RULES REPORT CAL.627
  • 20 / Jun / 2013
    • ORDERED TO THIRD READING RULES CAL.627
  • 21 / Jun / 2013
    • SUBSTITUTED BY S5867

Summary

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

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Bill Details

See Senate Version of this Bill:
S4589
Versions:
A5237
A5237A
A5237B
Legislative Cycle:
2013-2014
Law Section:
Labor Law
Laws Affected:
Add Art 25-C §§862 - 862-e, amd §511, Lab L; amd §2, Work Comp L
Versions Introduced in 2011-2012 Legislative Cycle:
A8997, S6267
view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5237

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 21, 2013
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Labor

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:

  Section  1.  The  labor law is amended by adding a new article 25-C to
read as follows:
                               ARTICLE 25-C
       THE NEW YORK STATE COMMERCIAL GOODS TRANSPORTATION INDUSTRY
                              FAIR PLAY ACT
SECTION 862. SHORT TITLE.
        862-A. DEFINITIONS.
        862-B. PRESUMPTION OF EMPLOYMENT IN THE COMMERCIAL GOODS  TRANS-
               PORTATION INDUSTRY.
        862-C. NOTICE  TO PERSONS RECEIVING REMUNERATION FROM COMMERCIAL
               GOODS TRANSPORTATION  CONTRACTORS  AND  COMMERCIAL  GOODS
               TRANSPORTATION SUBCONTRACTORS.
        862-D. VIOLATIONS AND PENALTIES.
        862-E. RETALIATION.
  S  862.  SHORT  TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "NEW YORK STATE COMMERCIAL GOODS TRANSPORTATION INDUSTRY  FAIR  PLAY
ACT".
  S 862-A. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "COMMERCIAL GOODS TRANSPORTATION CONTRACTOR" MEANS ANY SOLE PROPRI-
ETOR, PARTNERSHIP, FIRM, CORPORATION, LIMITED LIABILITY COMPANY, ASSOCI-
ATION  OR  OTHER LEGAL ENTITY PERMITTED BY LAW TO DO BUSINESS WITHIN THE
STATE WHO COMPENSATES COMMERCIAL VEHICLE DRIVERS WHO POSSESSES A  STATE-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00724-01-3

A. 5237                             2

ISSUED  COMMERCIAL  DRIVER'S  LICENSE TO TRANSPORT GOODS IN THE STATE OF
NEW YORK.
  2.  "COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR" INCLUDES A GENERAL
COMMERCIAL GOODS TRANSPORTATION CONTRACTOR OR A COMMERCIAL GOODS  TRANS-
PORTATION SUBCONTRACTOR.
  3. "COMMERCIAL GOODS TRANSPORTATION SERVICES" MEANS THE TRANSPORTATION
OF GOODS FOR COMPENSATION BY A COMMERCIAL VEHICLE DRIVER WHO POSSESSES A
STATE-ISSUED  COMMERCIAL  DRIVER'S  LICENSE  AND TRANSPORTS GOODS IN THE
STATE OF NEW YORK.
  4. "DEPARTMENT" MEANS THE DEPARTMENT OF LABOR.
  5. "COMMISSIONER" MEANS THE COMMISSIONER OF LABOR.
  6. "EMPLOYER" MEANS ANY  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR
WHICH  COMPENSATES COMMERCIAL VEHICLE DRIVERS WHO POSSESS A STATE-ISSUED
COMMERCIAL DRIVER'S LICENSE TO TRANSPORT GOODS IN THE STATE OF NEW YORK.
  S 862-B. PRESUMPTION OF EMPLOYMENT IN THE COMMERCIAL GOODS TRANSPORTA-
TION INDUSTRY.  1. ANY PERSON PERFORMING COMMERCIAL GOODS TRANSPORTATION
SERVICES FOR A COMMERCIAL GOODS TRANSPORTATION CONTRACTOR SHALL BE CLAS-
SIFIED AS AN EMPLOYEE UNLESS THE PERSON IS A  SEPARATE  BUSINESS  ENTITY
UNDER  SUBDIVISION  TWO OF THIS SECTION OR ALL OF THE FOLLOWING CRITERIA
ARE MET, IN WHICH CASE THE PERSON SHALL BE AN INDEPENDENT CONTRACTOR:
  (A) THE INDIVIDUAL IS FREE FROM CONTROL AND  DIRECTION  IN  PERFORMING
THE JOB, BOTH UNDER HIS OR HER CONTRACT AND IN FACT;
  (B) THE SERVICE MUST BE PERFORMED OUTSIDE THE USUAL COURSE OF BUSINESS
FOR WHICH THE SERVICE IS PERFORMED; AND
  (C)  THE  INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
LISHED TRADE, OCCUPATION, PROFESSION, OR BUSINESS THAT IS SIMILAR TO THE
SERVICE AT ISSUE.
  2. A BUSINESS ENTITY,  INCLUDING  ANY  SOLE  PROPRIETOR,  PARTNERSHIP,
CORPORATION  OR  ENTITY  THAT  MAY  BE A COMMERCIAL GOODS TRANSPORTATION
CONTRACTOR UNDER THIS SECTION SHALL BE CONSIDERED  A  SEPARATE  BUSINESS
ENTITY FROM THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR WHERE ALL THE
FOLLOWING CRITERIA ARE MET:
  (A) THE BUSINESS ENTITY IS PERFORMING THE SERVICE FREE FROM THE DIREC-
TION  OR  CONTROL  OVER  THE  MEANS AND MANNER OF PROVIDING THE SERVICE,
SUBJECT ONLY  TO  THE  RIGHT  OF  THE  COMMERCIAL  GOODS  TRANSPORTATION
CONTRACTOR  FOR  WHOM  THE  SERVICE  IS  PROVIDED TO SPECIFY THE DESIRED
RESULT;
  (B) THE BUSINESS ENTITY IS NOT SUBJECT TO CANCELLATION OR  DESTRUCTION
UPON SEVERANCE OF THE RELATIONSHIP WITH THE COMMERCIAL GOODS TRANSPORTA-
TION CONTRACTOR;
  (C) THE BUSINESS ENTITY HAS A SUBSTANTIAL INVESTMENT OF CAPITAL IN THE
BUSINESS ENTITY BEYOND ORDINARY TOOLS AND EQUIPMENT AND A PERSONAL VEHI-
CLE;
  (D)  THE  BUSINESS ENTITY OWNS THE CAPITAL GOODS AND GAINS THE PROFITS
AND BEARS THE LOSSES OF THE BUSINESS ENTITY;
  (E) THE BUSINESS ENTITY MAKES ITS SERVICES AVAILABLE  TO  THE  GENERAL
PUBLIC OR THE BUSINESS COMMUNITY ON A CONTINUING BASIS;
  (F) THE BUSINESS ENTITY INCLUDES SERVICES RENDERED ON A FEDERAL INCOME
TAX SCHEDULE AS AN INDEPENDENT BUSINESS OR PROFESSION;
  (G)  THE  BUSINESS  ENTITY  PERFORMS SERVICES FOR THE COMMERCIAL GOODS
TRANSPORTATION CONTRACTOR UNDER THE BUSINESS ENTITY'S NAME;
  (H) WHEN THE SERVICES BEING PROVIDED REQUIRE A LICENSE OR PERMIT,  THE
BUSINESS  ENTITY OBTAINS AND PAYS FOR THE LICENSE OR PERMIT IN THE BUSI-
NESS ENTITY'S NAME;
  (I) THE BUSINESS ENTITY FURNISHES THE TOOLS AND EQUIPMENT NECESSARY TO
PROVIDE THE SERVICE;

A. 5237                             3

  (J) IF NECESSARY, THE BUSINESS ENTITY HIRES ITS OWN EMPLOYEES  WITHOUT
THE  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR'S  APPROVAL, PAYS THE
EMPLOYEES WITHOUT REIMBURSEMENT FROM THE COMMERCIAL GOODS TRANSPORTATION
CONTRACTOR AND REPORTS THE EMPLOYEES' INCOME  TO  THE  INTERNAL  REVENUE
SERVICE;
  (K)  THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR DOES NOT REPRESENT
THE BUSINESS ENTITY AS AN EMPLOYEE OF THE COMMERCIAL  GOODS  TRANSPORTA-
TION CONTRACTOR TO ITS CUSTOMERS; AND
  (L)  THE BUSINESS ENTITY HAS THE RIGHT TO PERFORM SIMILAR SERVICES FOR
OTHERS ON WHATEVER BASIS AND WHENEVER IT CHOOSES.
  3. THE FAILURE TO WITHHOLD FEDERAL OR STATE INCOME  TAXES  OR  TO  PAY
UNEMPLOYMENT  COMPENSATION CONTRIBUTIONS OR WORKERS' COMPENSATION PREMI-
UMS WITH RESPECT TO AN INDIVIDUAL'S WAGES SHALL  NOT  BE  CONSIDERED  IN
MAKING  A DETERMINATION UNDER THIS SECTION, EXCEPT AS SET FORTH IN PARA-
GRAPH (F) OF SUBDIVISION TWO OF THIS SECTION.
  4. AN INDIVIDUAL'S ACT OF  SECURING  WORKERS'  COMPENSATION  INSURANCE
WITH  A CARRIER AS A SOLE PROPRIETOR, PARTNERSHIP OR OTHERWISE SHALL NOT
BE BINDING ON ANY DETERMINATION UNDER THIS SECTION.
  5. WHEN A BUSINESS ENTITY MEETS THE DEFINITION OF A SEPARATE  BUSINESS
ENTITY  PURSUANT  TO SUBDIVISION TWO OF THIS SECTION, THE SEPARATE BUSI-
NESS  ENTITY  WILL  BE  CONSIDERED  A  COMMERCIAL  GOODS  TRANSPORTATION
CONTRACTOR  SUBJECT  TO  ALL THE PROVISIONS OF THIS ARTICLE IN REGARD TO
THE CLASSIFICATION OF INDIVIDUALS PERFORMING SERVICES FOR IT.
  S 862-C. NOTICE TO  PERSONS  RECEIVING  REMUNERATION  FROM  COMMERCIAL
GOODS  TRANSPORTATION  CONTRACTORS  AND  COMMERCIAL GOODS TRANSPORTATION
SUBCONTRACTORS. 1.  EVERY  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR
SHALL POST IN A PROMINENT AND ACCESSIBLE PLACE ON THE SITE WHERE COMMER-
CIAL  GOODS  TRANSPORTATION  ACTIVITY  IS CONDUCTED A LEGIBLE STATEMENT,
PROVIDED BY THE COMMISSIONER, THAT DESCRIBES THE RESPONSIBILITY OF INDE-
PENDENT CONTRACTORS TO PAY TAXES REQUIRED BY STATE AND FEDERAL LAW,  THE
RIGHTS  OF  EMPLOYEES  TO  WORKERS' COMPENSATION, UNEMPLOYMENT BENEFITS,
MINIMUM  WAGE,  OVERTIME  AND  OTHER   FEDERAL   AND   STATE   WORKPLACE
PROTECTIONS,  AND  THE PROTECTIONS AGAINST RETALIATION AND THE PENALTIES
IN THIS ARTICLE IF THE CONTRACTOR FAILS TO PROPERLY CLASSIFY AN INDIVID-
UAL AS AN EMPLOYEE. THIS NOTICE SHALL ALSO CONTAIN  CONTACT  INFORMATION
FOR  INDIVIDUALS  TO  FILE  COMPLAINTS  OR INQUIRE WITH THE COMMISSIONER
ABOUT EMPLOYMENT CLASSIFICATION  STATUS.    THIS  INFORMATION  SHALL  BE
PROVIDED  IN ENGLISH, SPANISH OR OTHER LANGUAGES REQUIRED BY THE COMMIS-
SIONER. THE POSTED STATEMENT SHALL BE CONSTRUCTED OF  MATERIALS  CAPABLE
OF WITHSTANDING ADVERSE WEATHER CONDITIONS.
  2.  WITHIN  THIRTY  DAYS  OF  THE  EFFECTIVE DATE OF THIS ARTICLE, THE
COMMISSIONER SHALL CREATE THE NOTICE DESCRIBED  IN  SUBDIVISION  ONE  OF
THIS  SECTION  AND POST THE NOTICE ON THE DEPARTMENT'S WEBSITE FOR DOWN-
LOADING BY COMMERCIAL GOODS TRANSPORTATION CONTRACTORS.
  3.   COMMERCIAL GOODS  TRANSPORTATION  CONTRACTORS  WHO  VIOLATE  THIS
SECTION  SHALL  BE SUBJECT TO A CIVIL PENALTY OF UP TO ONE THOUSAND FIVE
HUNDRED DOLLARS FOR A FIRST VIOLATION, AND UP TO FIVE  THOUSAND  DOLLARS
FOR A SUBSEQUENT VIOLATION WITHIN A FIVE YEAR PERIOD.
  S 862-D. VIOLATIONS AND PENALTIES. 1. ANY COMMERCIAL GOODS TRANSPORTA-
TION  CONTRACTOR  WHO WILLFULLY FAILS TO PROPERLY CLASSIFY AN INDIVIDUAL
AS AN EMPLOYEE AS PROVIDED UNDER SECTION EIGHT  HUNDRED  SIXTY-TWO-B  OF
THIS  ARTICLE  SHALL  BE  SUBJECT  TO  THE  CIVIL AND CRIMINAL PENALTIES
PROVIDED UNDER THIS SECTION. THE  CIVIL  PENALTIES  SET  FORTH  IN  THIS
SECTION  SHALL  BE  IMPOSED  AS  FOLLOWS: BY THE COMMISSIONER WHERE SUCH
PENALTY IS BASED ON A VIOLATION OF THIS CHAPTER; BY  THE  CHAIR  OF  THE
WORKERS'  COMPENSATION  BOARD WHERE SUCH PENALTY IS BASED ON A VIOLATION

A. 5237                             4

OF THE WORKERS' COMPENSATION LAW; AND BY THE  COMMISSIONER  OF  TAXATION
AND  FINANCE  WHEN  SUCH PENALTY IS BASED ON A VIOLATION OF THE TAX LAW,
PROVIDED THAT NO MORE THAN ONE CIVIL PENALTY UNDER THIS SECTION  MAY  BE
IMPOSED PER EMPLOYEE PER INCIDENT OF MISCLASSIFICATION.
  (A)  THE WORKERS' COMPENSATION BOARD SHALL PROVIDE A COPY OF ANY ORDER
RELATING TO THE MISCLASSIFICATION OF AN EMPLOYEE,  THE  INTENTIONAL  AND
MATERIAL  UNDERPAYMENT  OR  CONCEALMENT  OF  PAYROLL,  OR THE FAILURE TO
SECURE WORKERS' COMPENSATION  IN  THE  COMMERCIAL  GOODS  TRANSPORTATION
INDUSTRY TO THE COMMISSIONER AND COMMISSIONER OF TAXATION AND FINANCE NO
LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ORDER.
  (B)  NOTWITHSTANDING  THE  SECRECY  PROVISIONS  CONTAINED  IN ARTICLES
NINE-A AND TWENTY-TWO OF THE TAX LAW, THE  DEPARTMENT  OF  TAXATION  AND
FINANCE  SHALL PROVIDE A COPY OF ANY ASSESSMENT FOR FAILURE TO PAY BUSI-
NESS, CORPORATE OR PERSONAL INCOME TAX BY AN EMPLOYER IN THE  COMMERCIAL
GOODS TRANSPORTATION INDUSTRY ARISING OUT OF THE MISCLASSIFICATION OF AN
EMPLOYEE  TO  THE  COMMISSIONER  AND  CHAIR OF THE WORKERS' COMPENSATION
BOARD NO LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ASSESSMENT.
  (C) UPON THE ISSUANCE OF AN ORDER OR DETERMINATION BY THE COMMISSIONER
FOR A VIOLATION AND PENALTIES UNDER THIS ARTICLE, THE COMMISSIONER SHALL
PROVIDE A COPY OF THE ORDER TO THE CHAIR OF  THE  WORKERS'  COMPENSATION
BOARD  AND  THE COMMISSIONER OF TAXATION AND FINANCE NO LATER THAN SEVEN
DAYS AFTER THE ISSUANCE OF THE ORDER.
  2. FOR THE PURPOSES OF THIS SECTION,  THE  TERM  "WILLFULLY  VIOLATES"
MEANS  A  COMMERCIAL GOODS TRANSPORTATION CONTRACTOR KNEW OR SHOULD HAVE
KNOWN THAT HIS OR HER CONDUCT WAS PROHIBITED BY THIS SECTION.
  3.  ANY  COMMERCIAL  GOODS  TRANSPORTATION  CONTRACTOR  WHO  WILLFULLY
VIOLATES  SECTION  EIGHT  HUNDRED  SIXTY-TWO-B  OF THIS ARTICLE SHALL BE
SUBJECT TO A CIVIL PENALTY OF UP TO TWENTY-FIVE HUNDRED DOLLARS FOR  THE
FIRST  VIOLATION PER MISCLASSIFIED EMPLOYEE AND TO A CIVIL PENALTY OF UP
TO FIVE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION PER MISCLASSIFIED
EMPLOYEE WITHIN A FIVE YEAR PERIOD.
  4. IN ADDITION TO CIVIL PENALTIES, THE CRIMINAL PENALTIES IMPOSED ON A
COMMERCIAL GOODS TRANSPORTATION CONTRACTOR WHO  WILLFULLY  VIOLATES  THE
PROVISIONS  OF  THIS  ARTICLE SHALL BE A MISDEMEANOR AND UPON CONVICTION
SHALL BE PUNISHED FOR A FIRST OFFENSE BY IMPRISONMENT FOR NOT MORE  THAN
THIRTY DAYS OR A FINE NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS AND FOR
A  SUBSEQUENT OFFENSE BY IMPRISONMENT FOR NOT  MORE THAN SIXTY DAYS OR A
FINE NOT TO EXCEED FIFTY THOUSAND DOLLARS.
  5. IF THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR IS A CORPORATION,
ANY OFFICER OF SUCH CORPORATION OR SHAREHOLDER WHO OWNS OR  CONTROLS  AT
LEAST TEN PERCENT OF THE OUTSTANDING STOCK OF SUCH CORPORATION WHO KNOW-
INGLY  PERMITS  THE  CORPORATION  TO WILLFULLY VIOLATE THE PROVISIONS OF
THIS ARTICLE SHALL ALSO BE IN VIOLATION OF THIS ARTICLE  AND  THE  CIVIL
AND  CRIMINAL  PENALTIES  HEREIN  SHALL  ATTACH  TO  SUCH  OFFICER  UPON
CONVICTION.
  6. ANY COMMERCIAL GOODS TRANSPORTATION  CONTRACTOR  SUBJECT  TO  CIVIL
PENALTIES UNDER THIS ARTICLE SHALL ALSO BE SUBJECT TO ANY OTHER APPLICA-
BLE  PENALTIES  OR REMEDIES PROVIDED BY LAW FOR FAILURE TO PAY ANY OTHER
STATUTORY PAYMENT OR COVERAGE OBLIGATIONS, INCLUDING BUT NOT LIMITED TO,
UNEMPLOYMENT INSURANCE, WORKERS' COMPENSATION  INSURANCE,  OR  BUSINESS,
CORPORATE OR PERSONAL INCOME TAX, AS FOLLOWS:
  (A)  FOR  FAILURE  TO  PAY  UNEMPLOYMENT  INSURANCE TAX, THE PENALTIES
IMPOSED BY SECTION FIVE HUNDRED SEVENTY OF THIS CHAPTER.
  (B) FOR INTENTIONAL AND  MATERIAL  UNDERSTATEMENT  OR  CONCEALMENT  OF
PAYROLL OR FAILURE TO SECURE WORKERS' COMPENSATION INSURANCE, THE PENAL-
TIES IMPOSED BY PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION FIFTY-TWO OF

A. 5237                             5

THE  WORKERS' COMPENSATION LAW, AND FOR FAILURE TO KEEP A TRUE AND ACCU-
RATE RECORD PURSUANT TO SECTION ONE HUNDRED THIRTY-ONE OF  THE  WORKERS'
COMPENSATION LAW, THE PENALTIES OF SECTION ONE HUNDRED THIRTY-ONE OF THE
WORKERS' COMPENSATION LAW.
  (C) FOR FAILURE TO PAY BUSINESS, CORPORATE OR PERSONAL INCOME TAX, THE
PENALTIES  IMPOSED  BY  SECTION SIX HUNDRED EIGHTY-FIVE AND ONE THOUSAND
EIGHTY-FIVE OF THE TAX LAW.
  7. ANY COMMERCIAL GOODS TRANSPORTATION CONTRACTOR OR  ANY  OFFICER  OR
SHAREHOLDER WHO OWNS OR CONTROLS AT LEAST TEN PERCENT OF THE OUTSTANDING
STOCK OF SUCH CORPORATION THAT HAS BEEN CONVICTED OF A MISDEMEANOR SHALL
BE  SUBJECT  TO  DEBARMENT  AND  BE  INELIGIBLE TO SUBMIT A BID ON OR BE
AWARDED ANY PUBLIC WORKS CONTRACT WITH THE STATE, ANY  MUNICIPAL  CORPO-
RATION,  PUBLIC BENEFIT CORPORATION, PUBLIC AUTHORITY OR PUBLIC BODY FOR
A PERIOD OF UP TO ONE YEAR FROM THE DATE OF  SUCH  CONVICTION  OR  FINAL
DETERMINATION,  OR  UP  TO  FIVE  YEARS  IN  THE EVENT OF ANY SUBSEQUENT
VIOLATION.
  8. ANY SUBSTANTIALLY OWNED AFFILIATED ENTITY  OF  A  COMMERCIAL  GOODS
TRANSPORTATION CONTRACTOR, AS DEFINED BY PARAGRAPH G OF SUBDIVISION FIVE
OF  SECTION  TWO HUNDRED TWENTY OF THIS CHAPTER, SHALL BE SUBJECT TO THE
SAME CIVIL PENALTY PROVIDED UNDER THIS ARTICLE FOR A VIOLATION  OF  SUCH
PROVISION.
  9.  ANY PENALTIES IMPOSED UNDER THIS SECTION BY THE COMMISSIONER SHALL
BE APPEALED TO THE INDUSTRIAL BOARD OF APPEALS IN ACCORDANCE WITH  ARTI-
CLE  THREE  OF THIS CHAPTER. ANY PENALTIES IMPOSED UNDER THIS SECTION BY
THE WORKERS' COMPENSATION BOARD OR COMMISSIONER OF TAXATION AND  FINANCE
SHALL BE APPEALED IN THE SAME MANNER AS THE UNDERLYING VIOLATION.
  10.  NOTHING  IN  THIS  SECTION  SHALL LIMIT THE AVAILABILITY OF OTHER
REMEDIES AT LAW OR IN EQUITY FOR A VIOLATION OF THIS ARTICLE.
  11. ANY FEE OR PENALTY ASSESSED FOR A VIOLATION OF THIS ARTICLE  SHALL
BE DEPOSITED INTO THE DEPARTMENT'S FEE AND PENALTY ACCOUNT.
  S  862-E.  RETALIATION.  1.  IT  IS A VIOLATION OF THIS ARTICLE FOR AN
EMPLOYER OR ANY AGENT OF ANY EMPLOYER, TO RETALIATE THROUGH DISCHARGE OR
IN ANY OTHER MANNER AGAINST ANY PERSON IN THE TERMS OF CONDITIONS OF HIS
OR HER EMPLOYMENT FOR EXERCISING ANY RIGHTS GRANTED UNDER  THIS  ARTICLE
FOR:
  (A)  MAKING,  OR  THREATENING  TO  MAKE,  A  COMPLAINT TO AN EMPLOYER,
CO-WORKER OR TO A PUBLIC BODY THAT RIGHTS GUARANTEED UNDER THIS  ARTICLE
HAVE BEEN VIOLATED;
  (B)  CAUSING  TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THIS
ARTICLE; OR
  (C) PROVIDING INFORMATION TO, OR TESTIFYING BEFORE,  ANY  PUBLIC  BODY
CONDUCTING  AN INVESTIGATION, HEARING OR INQUIRY INTO ANY SUCH VIOLATION
OF A LAW, RULE OR REGULATION BY SUCH EMPLOYER. NOTHING IN  THIS  SECTION
SHALL  LIMIT  THE  COMMISSIONER'S  AUTHORITY  UNDER  SECTION TWO HUNDRED
FIFTEEN OF THIS CHAPTER, OR ANY OTHER STATUTE.
  2. ANY ACT OF RETALIATION UNDER THIS SECTION SHALL SUBJECT AN EMPLOYER
TO THE CIVIL PENALTIES UNDER SECTION EIGHT HUNDRED SIXTY-TWO-D  OF  THIS
ARTICLE, OR TO A PRIVATE CAUSE OF ACTION, OR BOTH.
  S 2. Paragraph (b) of subdivision 1 of section 511 of the labor law is
amended by adding a new subparagraph 1-c to read as follows:
  (1-C)  AS  AN EMPLOYEE IN THE COMMERCIAL GOODS TRANSPORTATION INDUSTRY
UNLESS THE PRESUMPTION OF EMPLOYMENT CAN BE OVERCOME, AS PROVIDED  UNDER
SECTION EIGHT HUNDRED SIXTY-TWO-B OF THIS CHAPTER; OR
  S  3. The opening paragraph of subdivision 4 of section 2 of the work-
ers' compensation law, as amended by chapter 418 of the laws of 2010, is
amended to read as follows:

A. 5237                             6

  "Employee" means a person engaged in one of the occupations enumerated
in section three of this article or who is in the service of an employer
whose principal business is that of carrying on or conducting a  hazard-
ous  employment  upon  the premises or at the plant, or in the course of
his  or  her  employment  away  from  the  plant of his or her employer;
"employee" shall also mean for the purposes of this chapter any individ-
ual performing services in construction for a contractor  who  does  not
overcome  the  presumption of employment as provided under section eight
hundred sixty-one-c of the labor law; "EMPLOYEE" SHALL ALSO MEAN FOR THE
PURPOSES OF THIS CHAPTER  ANY  INDIVIDUAL  PERFORMING  SERVICES  IN  THE
COMMERCIAL  GOODS  TRANSPORTATION INDUSTRY FOR A COMMERCIAL GOODS TRANS-
PORTATION CONTRACTOR WHO DOES NOT OVERCOME THE PRESUMPTION OF EMPLOYMENT
AS PROVIDED UNDER SECTION EIGHT HUNDRED SIXTY-TWO-B OF  THE  LABOR  LAW;
"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  seventeen  and
nineteen;  "employee"  shall  at the election of a municipal corporation
made pursuant to local law duly enacted also mean a member of an  auxil-
iary  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 thirty-two hundred twenty-eight of  the  education
law,  and  shall  not  include  domestic  servants except as provided in
section three 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 fifty 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  seven
hundred  fifteen  of the business corporation law or two executive offi-
cers of a corporation who  at  all  times  during  the  period  involved
between  them own all of the issued and outstanding stock of such corpo-
ration and hold all such offices except as provided in  subdivision  six
of  section  fifty-four  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 ten of the partner-
ship law who is not covered under a compensation insurance contract or a
certificate of  self-insurance  as  provided  in  subdivision  eight  of
section  fifty-four  of this chapter, nor shall it include farm laborers
except as provided in group fourteen-b of section three 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
three of section one hundred thirty-one and subdivision three of section
one hundred thirty-two of the labor law or minors fourteen years of  age
or  over engaged in casual employment consisting of yard work and house-
hold chores in and about a one family owner-occupied  residence  or  the

A. 5237                             7

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) of this subdivision was not executed under  duress  and
contains the following provisions:
  S  4.  Notwithstanding any other provision of law to the contrary, the
provisions of section 862-b of the labor law, as added by section one of
this act, shall apply to and be utilized for  all  determinations  of  a
commercial  goods transportation industry individual's employment status
under the labor law and the workers' compensation law, but not  the  tax
law.
  S 5. This act shall take effect immediately.

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