senate Bill S6336

Amended

Makes technical corrections to the New York state commercial goods transportation fair play act

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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

  • 15 / Jan / 2014
    • REFERRED TO RULES
  • 23 / Jan / 2014
    • COMMITTEE DISCHARGED AND COMMITTED TO LABOR
  • 27 / Jan / 2014
    • 1ST REPORT CAL.58
  • 28 / Jan / 2014
    • AMENDED 6336A
  • 28 / Jan / 2014
    • 2ND REPORT CAL.
  • 03 / Feb / 2014
    • ADVANCED TO THIRD READING
  • 26 / Feb / 2014
    • SUBSTITUTED BY A8451

Summary

Makes technical corrections to the New York state commercial goods transportation fair play act.

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Bill Details

Versions:
S6336
S6336A
Legislative Cycle:
2013-2014
Law Section:
Labor Law
Laws Affected:
Amd §§862-a, 862-b & 862-c, Lab L; amd §5, Chap 558 of 2013

Votes

14
0
14
Aye
0
Nay
2
aye with reservations
0
absent
0
excused
0
abstained
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Sponsor Memo

BILL NUMBER:S6336

TITLE OF BILL: An act to amend the labor law, in relation to making
technical corrections to the "New York state commercial goods
transportation industry fair play act"; and to amend chapter 558 of
the laws of 2013 amending the labor law relating to enacting the "New
York state commercial goods transportation industry fair play act", in
relation to the effectiveness thereof

PURPOSE OR GENERAL IDEA OF BILL:

To prevent misclassification of commercial goods transportation
services employees.

SUMMARY OF SPECIFIC PROVISIONS:

Section 862-a (1) (3) and 6 changes definition to remove references to
commercial vehicle drivers and commercial driver's license and
replaces with a driver who possesses a state issues driver's license
who transports goods in New York State and operates a commercial motor
vehicle as defined in subdivision four-a of section two of the
transportation law.

Section 862-b (1) - provides for the classification of an employee of
the commercial goods transportation contractor unless payment for such
services is reported on a Federal Income Tax for 1099 if required by
law as one of the criteria for being deemed an independent contractor.

Section 862-b(2) - adds firm, limited liability company, association
and other legal entity to conform with definition to in Section 862-a
of the law.

Section 862-b 2 (e) - adds language clarifying that an independent
contractor may make their services available to the general public or
to parties not subject to the contract referenced in paragraph (g) of
this subdivision.

Section 862-b 2 (1) - again provides for the reporting of services on
a Federal Income Tax for 1099 as a determining factor of whether a
person is and employee or independent contractor.

Section 862-b 2 (i) - provides that an independent contractor can hire
its own employees with approval of the commercial goods transportation
contractor.

Section 862-c - maintains the posting of the responsibility of the
independent contractor but removed that this posting be constructed of
materials capable of withstanding adverse weather conditions.

Effective date is changes from sixty to ninety days.

JUSTIFICATION:

From Governor Cuomo's Approval Memo 1120:

"This bill establishes a statutory test for determining whether
individuals in the trucking industry are classified as employees or


independent contractors. Both business and labor have long sought
changes to New.York's existing independent contractor test, which has
resulted in inconsistent standards, causing confusion for all affected
parties.

The mayor stakeholders representing both the trucking industry and
labor have urged me to sign this bill in order to bring clarity to
this area of law. Nevertheless, I was concerned that certain technical
issues with the legislation resulted in a test that did not address
the independent contractor issue in the trucking industry in a fair
and consistent manner. Therefore, I have come to an agreement with the
legislature on an amendment to this bill that will address these
issues and will result in a law that more comprehensively encompasses
the trucking industry's workforce.

I believe that New York should have an independent contractor test
that is uniform across all industries in order to ensure that both
employers and workers are protected by the law. This bill is a step
towards establishing such a test."

LEGISLATIVE HISTORY:

Chapter amendment to Chapter 558 of the Laws of 2013

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

This act shall take effect on the ninetieth day after it shall have
become law. This act shall take effect immediately and shall be deemed
to have been in full force and effect on the same day as chapter 558
of the laws of 2013 took effect.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6336

                            I N  S E N A T E

                            January 15, 2014
                               ___________

Introduced  by  Sen.  SAVINO -- 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  making  technical
  corrections  to  the  "New  York state commercial goods transportation
  industry fair play act"; and to amend chapter 558 of the laws of  2013
  amending  the  labor  law  relating  to  enacting  the "New York state
  commercial goods transportation industry fair play act",  in  relation
  to the effectiveness thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Sections 862-a, 862-b and 862-c of the labor law, as  added
by chapter 558 of the laws of 2013, are amended to read as follows:
  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] THAT compensates [commercial vehicle drivers]  A  DRIVER  who
possesses  a  state-issued [commercial] driver's license [to transport],
TRANSPORTS goods in the state of New  York  AND  OPERATES  A  COMMERCIAL
MOTOR  VEHICLE  AS  DEFINED  IN SUBDIVISION FOUR-A OF SECTION TWO OF THE
TRANSPORTATION LAW.
  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,  AND  OPERATES  A COMMERCIAL MOTOR VEHICLE AS
DEFINED IN SUBDIVISION FOUR-A OF SECTION TWO OF THE TRANSPORTATION LAW.
  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]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00724-08-4

S. 6336                             2

A   PERSON  CLASSIFIED  AS  AN  EMPLOYEE  UNDER  SECTION  EIGHT  HUNDRED
SIXTY-TWO-B OF THIS ARTICLE.
  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 OF THE COMMERCIAL GOODS TRANSPORTATION CONTRACTOR
unless PAYMENT FOR SUCH SERVICES IS REPORTED ON  A  FEDERAL  INCOME  TAX
FORM  1099  IF REQUIRED BY LAW AND EITHER the person is a separate busi-
ness entity under subdivision two of this section or all of the  follow-
ing  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,
FIRM, corporation, LIMITED LIABILITY COMPANY, ASSOCIATION or OTHER LEGAL
entity  that  may  ALSO  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 or federal rule or regulation;
  (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, including but not limited to ordinary tools and  equip-
ment;
  (d) the business entity owns or leases the capital goods and gains the
profits and bears the losses of the business entity;
  (e)  the  business  entity  [has  an  option to] MAY make its services
available to the general public or OTHERS NOT A PARTY  TO  THE  BUSINESS
ENTITY'S  WRITTEN  CONTRACT REFERENCED IN PARAGRAPH (G) OF THIS SUBDIVI-
SION IN the business community on a continuing basis;
  (f)  the  business  entity  [includes]  PROVIDES  services  [rendered]
REPORTED on a Federal Income Tax [Schedule as an independent business or
profession] FORM 1099, IF REQUIRED BY LAW;
  (g)  the  business  entity  performs services for the commercial goods
transportation contractor pursuant to  a  written  contract,  under  the
business entity's name, specifying their relationship to be as independ-
ent contractors or separate business entities;
  (h)  when the services being provided require a license or permit, the
business entity pays for the license or permit in the business  entity's
name  or, where permitted by law, pays for reasonable use of the commer-
cial goods transportation contractor's license or permit;
  (i) if necessary, the business entity hires its own employees  WITHOUT
THE  COMMERCIAL  GOODS  TRANSPORTATION CONTRACTOR'S APPROVAL, subject to
applicable qualification requirements or federal or state laws, rules or
regulations, AND pays  the  employees  without  reimbursement  from  the

S. 6336                             3

commercial  [good]  GOODS  transportation  contractor  [and  reports the
employees' income to the Internal Revenue Service];
  (j)  the  commercial  goods transportation contractor does not require
that the business entity be represented as an employee of the commercial
goods transportation contractor to its customers; and
  (k) 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 2. Section 5 of chapter 558 of the laws of 2013 amending  the  labor
law  relating to enacting the "New York state commercial goods transpor-
tation industry fair play act", is amended to read as follows:
  S 5. This act shall take effect on the [sixtieth] NINETIETH day  after
it shall have become a law.
  S  3.  This  act  shall take effect immediately and shall be deemed to
have been in full force and effect on the same date as  chapter  558  of
the laws of 2013 took effect.

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