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

                                  9916

                          I N  A S S E M B L Y

                            February 11, 2010
                               ___________

Introduced  by  M.  of  A.  WEISENBERG  -- read once and referred to the
  Committee on Governmental Employees

AN ACT to amend the retirement and social security law, in  relation  to
  professional services providers

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

  Section 1. The retirement and social security law is amended by adding
a new article 22 to read as follows:
                               ARTICLE 22
                     PROFESSIONAL SERVICES PROVIDERS
SECTION 1200. DEFINITIONS.
        1201. CHARGING FOR PROFESSIONAL SERVICES.
        1202. ENFORCEMENT.
        1203. REPORTS REGARDING PROFESSIONAL SERVICES PROVIDERS.
        1204. NON-EXCLUSIVITY OF RIGHTS OR REMEDIES.
  S 1200. DEFINITIONS. 1. AS USED IN THIS ARTICLE, THE  TERM  "EMPLOYER"
SHALL  MEAN  THE  STATE, A PARTICIPATING EMPLOYER, AND ANY OTHER UNIT OF
GOVERNMENT OR ORGANIZATION OBLIGATED OR AGREEING TO  MAKE  CONTRIBUTIONS
TO  THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM OR THE NEW
YORK STATE AND LOCAL POLICE AND FIRE RETIREMENT SYSTEM ON BEHALF OF  ITS
EMPLOYEES.
  2.  THE  TERM  "EMPLOYEE" SHALL MEAN AN INDIVIDUAL PERFORMING SERVICES
FOR THE EMPLOYER FOR WHICH THE EMPLOYER HAS THE  RIGHT  TO  CONTROL  THE
MEANS  AND  METHODS  OF  WHAT WORK WILL BE DONE AND HOW THE WORK WILL BE
DONE.
  3. THE TERM "PROFESSIONAL SERVICES PROVIDER" SHALL MEAN  ANYONE  WHOSE
SERVICE  HAS  BEEN  ENGAGED  BY AN EMPLOYER IN THE CAPACITY OF ATTORNEY,
PHYSICIAN, ENGINEER, ARCHITECT, ACCOUNTANT OR AUDITOR AND WHO IS ALSO  A
PARTNER,  ASSOCIATE,  INCLUDING AN ATTORNEY OF AN "OF COUNSEL" RELATION-
SHIP, OR EMPLOYEE OF ANOTHER ORGANIZATION OR ENTITY THAT HAS A CONTRACT,
RETAINER OR OTHER AGREEMENT TO  PROVIDE  PROFESSIONAL  SERVICES  TO  THE
PARTICIPATING EMPLOYER.
  S 1201. CHARGING FOR PROFESSIONAL SERVICES. 1. A PROFESSIONAL SERVICES
PROVIDER  SHALL  NOT  SIMULTANEOUSLY BE AN INDEPENDENT CONTRACTOR AND AN

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

                                                           LBD14826-02-0

A. 9916                             2

EMPLOYEE OF AN  EMPLOYER  FOR  THE  PURPOSE  OF  PROVIDING  PROFESSIONAL
SERVICES TO SUCH EMPLOYER.
  2.  A  PROFESSIONAL  SERVICES  PROVIDER  WHO  IS NOT AN EMPLOYEE OF AN
EMPLOYER SHALL NOT SEEK TO BE OR BE CONSIDERED,  TREATED,  OR  OTHERWISE
REPORTED  BY THE EMPLOYER AS AN EMPLOYEE THEREOF FOR PURPOSES OF COMPEN-
SATION, REMUNERATION, HEALTH INSURANCE, PENSION AND  ALL  EMPLOYMENT-RE-
LATED BENEFITS AND EMOLUMENTS ASSOCIATED THEREWITH.
  S  1202.  ENFORCEMENT.    1.  ANY  PROFESSIONAL  SERVICES PROVIDER WHO
VIOLATES SECTION TWELVE HUNDRED ONE OF THIS ARTICLE SHALL BE LIABLE  FOR
A  CIVIL  PENALTY  NOT  TO  EXCEED  THREE TIMES THE CHARGES AND FEES FOR
CONTRACTED SERVICES OR SALARY  RECEIVED  BY  THE  PROFESSIONAL  SERVICES
PROVIDER  AND  PAID  BY  SUCH EMPLOYER, AND IN ADDITION, MAY BE ENJOINED
FROM CONTINUING SUCH VIOLATION. CIVIL PENALTIES  AND  INJUNCTIVE  RELIEF
PROVIDED  IN  THIS  SECTION SHALL BE RECOVERABLE IN AN ACTION BROUGHT BY
THE ATTORNEY GENERAL.
  2. ANY PERSON WHO SHALL KNOWINGLY:
  (A) VIOLATE SUBDIVISION TWO OF SECTION  TWELVE  HUNDRED  ONE  OF  THIS
ARTICLE;
  (B) MAKE A FALSE STATEMENT OF MATERIAL FACT; OR
  (C) FALSIFY OR PERMIT TO BE FALSIFIED ANY RECORD OR RECORDS OF THE NEW
YORK  STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM OR THE NEW YORK STATE
AND LOCAL POLICE AND FIRE RETIREMENT SYSTEM IN  AN  ATTEMPT  TO  DEFRAUD
SUCH  RETIREMENT  SYSTEM  AS  A  RESULT  OF  SUCH ACT FOR THE PURPOSE OF
OBTAINING A CREDIT TOWARD PENSION BENEFITS, OR A BENEFIT OR  PAYMENT  IN
EXCESS OF ONE THOUSAND DOLLARS FROM SUCH RETIREMENT SYSTEM FOR A PROFES-
SIONAL  SERVICES  PROVIDER  TO WHICH SUCH PROFESSIONAL SERVICES PROVIDER
WOULD NOT BE ENTITLED, SHALL BE GUILTY OF A CLASS E FELONY.
  S 1203.  REPORTS  REGARDING  PROFESSIONAL  SERVICES  PROVIDERS.  EVERY
EMPLOYER  SHALL, ON OR BEFORE THE FORTY-FIFTH DAY AFTER THE COMMENCEMENT
OF ITS FISCAL YEAR, FILE WITH THE COMPTROLLER AND THE ATTORNEY GENERAL A
REPORT SPECIFYING:
  1.  ALL  PROFESSIONAL  SERVICES  PROVIDERS  WHO  PROVIDE  PROFESSIONAL
SERVICES TO SUCH EMPLOYER;
  2. WHETHER SUCH EMPLOYER HIRED SUCH PROFESSIONAL SERVICES PROVIDERS AS
EMPLOYEES; AND
  3. ALL REMUNERATION AND COMPENSATION PAID FOR PROFESSIONAL SERVICES.
  S 1204. NON-EXCLUSIVITY OF RIGHTS OR REMEDIES. NOTHING IN THIS ARTICLE
SHALL  BE  CONSTRUED  TO  LIMIT,  IN  ANY MATTER, ANY RIGHTS OR REMEDIES
OTHERWISE AVAILABLE UNDER LAW AGAINST ANY PARTY  OR  TO  ANY  PERSON  OR
ENTITY, INCLUDING, BUT NOT LIMITED TO, THE ATTORNEY GENERAL OR THE COMP-
TROLLER OF THE STATE OF NEW YORK.
  S  2.  This  act shall take effect on the thirtieth day after it shall
have become a law.
  FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
  This bill would require the state of New York  and  the  participating
employers  in  the New York State and Local Employees' Retirement System
and the New York State and Local Police and Fire  Retirement  System  to
annually file a report to the Comptroller and the Attorney General spec-
ifying  all who provided professional services to such employer, whether
they were hired as employees, and all remuneration and compensation paid
for such professional services.
  If this bill is enacted, we anticipate that there  would  be  a  small
annual  administrative  cost  to the New York State and Local Employees'
Retirement System and the New York  State  and  Local  Police  and  Fire
Retirement System.

A. 9916                             3

  This estimate, dated January 4, 2010, and intended for use only during
the 2010 Legislative Session, is Fiscal Note No. 2010-3, prepared by the
Actuary  for  the  New York State and Local Employees' Retirement System
and the New York State and Local Police and Fire Retirement System.