senate Bill S6336A

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

download pdf

Sponsor

Bill Status


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

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.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A8451
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

Sponsor Memo

BILL NUMBER:S6336A

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 (f) - 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 without 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 #20:

"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 major 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 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--A
    Cal. No. 58

                            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  --  committee
  discharged  and  said  bill  committed  to  the  Committee on Labor --
  reported favorably from  said  committee,  ordered  to  first  report,
  amended  on  first  report,  ordered  to  a  second report and ordered
  reprinted, retaining its place in the order of second report

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00724-10-4

S. 6336--A                          2

  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]
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;

S. 6336--A                          3

  (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
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. 6336--A                          4

  S 3. This act shall take effect immediately; provided,  that  sections
one  and  two  of this act shall take effect on the same date and in the
same manner as chapter 558 of the laws of 2013, takes effect.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.