S T A T E O F N E W Y O R K
________________________________________________________________________
5847--E
Cal. No. 782
2009-2010 Regular Sessions
I N S E N A T E
June 11, 2009
___________
Introduced by Sens. ONORATO, FOLEY, ADDABBO, BRESLIN, KRUEGER, LARKIN,
SAVINO, SCHNEIDERMAN, STACHOWSKI -- read twice and ordered printed,
and when printed to be committed to the Committee on Rules -- recom-
mitted to the Committee on Labor in accordance with Senate Rule 6,
sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- reported favorably from
said committee and committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee and
committed to the Committee on Finance -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading -- again
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the labor law, in relation to enacting the "New York
state construction 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-B to
read as follows:
ARTICLE 25-B
THE NEW YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT
SECTION 861. SHORT TITLE.
861-A. LEGISLATIVE FINDINGS AND INTENT.
861-B. DEFINITIONS.
861-C. PRESUMPTION OF EMPLOYMENT IN THE CONSTRUCTION INDUSTRY.
861-D. NOTICE TO PERSONS RECEIVING REMUNERATION FROM CONTRACTORS
AND SUBCONTRACTORS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11756-19-0
S. 5847--E 2
861-E. VIOLATIONS AND PENALTIES.
861-F. RETALIATION.
S 861. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
"THE NEW YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT".
S 861-A. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS
AND DECLARES THAT NEW YORK STATE'S CONSTRUCTION INDUSTRY IS EXPERIENCING
DANGEROUS LEVELS OF EMPLOYEE MISCLASSIFICATION FRAUD. UNSCRUPULOUS
EMPLOYERS ARE INTENTIONALLY REPORTING EMPLOYEES AS INDEPENDENT CONTRAC-
TORS TO STATE AND FEDERAL AUTHORITIES OR WORKERS' COMPENSATION CARRIERS
IN RECORD NUMBERS. IN ADDITION, THERE HAS BEEN AN EXPLOSION OF EMPLOYERS
WHO OPERATE IN THE UNDERGROUND ECONOMY AND FAIL TO REPORT ALL OR A SIZA-
BLE PORTION OF THEIR WORKERS.
THE LEGISLATURE HEREBY FINDS AND DECLARES THAT RECENT STUDIES OF NEW
YORK CITY'S CONSTRUCTION INDUSTRY ALONE SUGGESTS THAT AS MANY AS FIFTY
THOUSAND NEW YORK CITY CONSTRUCTION WORKERS -- NEARLY ONE IN FOUR -- ARE
EITHER MISCLASSIFIED AS INDEPENDENT CONTRACTORS OR ARE EMPLOYED BY
CONSTRUCTION CONTRACTORS COMPLETELY OFF THE BOOKS. CONSTRUCTION INDUSTRY
FRAUD REDUCES GOVERNMENT REVENUE, SHIFTS TAX AND WORKERS' COMPENSATION
INSURANCE COSTS TO LAW-ABIDING EMPLOYEES, LOWERS WORKING CONDITIONS AND
STEALS JOBS FROM LEGITIMATE EMPLOYERS AND THEIR EMPLOYEES.
THEREFORE, THE LEGISLATURE HEREBY FINDS AND DECLARES THAT GOVERNMENT
HAS AN OBLIGATION TO CURB THIS UNDERGROUND ECONOMY, ENFORCE LONG-STAND-
ING EMPLOYMENT LAWS, ENSURE COMPLIANCE WITH ESSENTIAL SOCIAL INSURANCE
PROTECTIONS AND ELIMINATE THE UNFAIR COMPETITIVE ADVANTAGE FROM CONTRAC-
TORS IN THE UNDERGROUND ECONOMY BY AND THROUGH THE ENACTMENT OF THE NEW
YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT.
S 861-B. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "CONSTRUCTION" MEANS CONSTRUCTING, RECONSTRUCTING, ALTERING, MAIN-
TAINING, MOVING, REHABILITATING, REPAIRING, RENOVATING OR DEMOLITION OF
ANY BUILDING, STRUCTURE, OR IMPROVEMENT, OR RELATING TO THE EXCAVATION
OF OR OTHER DEVELOPMENT OR IMPROVEMENT TO LAND.
2. "CONTRACTOR" MEANS ANY SOLE PROPRIETOR, PARTNERSHIP, FIRM, CORPO-
RATION, LIMITED LIABILITY COMPANY, ASSOCIATION OR OTHER LEGAL ENTITY
PERMITTED BY LAW TO DO BUSINESS WITHIN THE STATE WHO ENGAGES IN
CONSTRUCTION AS DEFINED IN THIS ARTICLE.
3. "CONTRACTOR" INCLUDES A GENERAL CONTRACTOR AND A SUBCONTRACTOR.
4. "DEPARTMENT" MEANS THE DEPARTMENT OF LABOR.
5. "COMMISSIONER" MEANS THE COMMISSIONER OF LABOR.
6. "EMPLOYER" MEANS ANY CONTRACTOR THAT EMPLOYS INDIVIDUALS DEEMED
EMPLOYEES UNDER THIS ARTICLE.
S 861-C. PRESUMPTION OF EMPLOYMENT IN THE CONSTRUCTION INDUSTRY. 1.
ANY PERSON PERFORMING SERVICES FOR A CONTRACTOR SHALL BE CLASSIFIED AS
AN EMPLOYEE UNLESS THE PERSON IS A SEPARATE BUSINESS ENTITY UNDER SUBDI-
VISION 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 SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION MAY BE CONSIDERED A
SEPARATE BUSINESS ENTITY FROM THE CONTRACTOR WHERE ALL OF THE FOLLOWING
CRITERIA ARE MET:
S. 5847--E 3
(A) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION IS PERFORMING THE
SERVICE FREE FROM THE DIRECTION OR CONTROL OVER THE MEANS AND MANNER OF
PROVIDING THE SERVICE, SUBJECT ONLY TO THE RIGHT OF THE CONTRACTOR FOR
WHOM THE SERVICE IS PROVIDED TO SPECIFY THE DESIRED RESULT;
(B) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION IS NOT SUBJECT TO
CANCELLATION OR DESTRUCTION UPON SEVERANCE OF THE RELATIONSHIP WITH THE
CONTRACTOR;
(C) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION HAS A SUBSTANTIAL
INVESTMENT OF CAPITAL IN THE SOLE PROPRIETORSHIP OR PARTNERSHIP BEYOND
ORDINARY TOOLS AND EQUIPMENT AND A PERSONAL VEHICLE;
(D) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION OWNS THE CAPITAL
GOODS AND GAINS THE PROFITS AND BEARS THE LOSSES OF THE SOLE PROPRIETOR-
SHIP OR PARTNERSHIP;
(E) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION MAKES ITS SERVICES
AVAILABLE TO THE GENERAL PUBLIC OR THE BUSINESS COMMUNITY ON A CONTINU-
ING BASIS;
(F) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION INCLUDES SERVICES
RENDERED ON A FEDERAL INCOME TAX SCHEDULE AS AN INDEPENDENT BUSINESS OR
PROFESSION;
(G) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION PERFORMS SERVICES
FOR THE CONTRACTOR UNDER THE SOLE PROPRIETORSHIP'S, PARTNERSHIP'S OR
CORPORATION'S NAME;
(H) WHEN THE SERVICES BEING PROVIDED REQUIRE A LICENSE OR PERMIT, THE
SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION OBTAINS AND PAYS FOR THE
LICENSE OR PERMIT IN THE SOLE PROPRIETORSHIP'S, PARTNERSHIP'S OR CORPO-
RATION'S NAME;
(I) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION FURNISHES THE
TOOLS AND EQUIPMENT NECESSARY TO PROVIDE THE SERVICE;
(J) IF NECESSARY, THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION
HIRES ITS OWN EMPLOYEES WITHOUT CONTRACTOR APPROVAL, PAYS THE EMPLOYEES
WITHOUT REIMBURSEMENT FROM THE CONTRACTOR AND REPORTS THE EMPLOYEES'
INCOME TO THE INTERNAL REVENUE SERVICE;
(K) THE CONTRACTOR DOES NOT REPRESENT THE SOLE PROPRIETORSHIP, PART-
NERSHIP OR CORPORATION AS AN EMPLOYEE OF THE CONTRACTOR TO ITS CUSTOM-
ERS; AND
(L) THE SOLE PROPRIETOR, PARTNERSHIP OR CORPORATION 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.
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.
S 861-D. NOTICE TO PERSONS RECEIVING REMUNERATION FROM CONTRACTORS AND
SUBCONTRACTORS. 1. EVERY CONTRACTOR SHALL POST IN A PROMINENT AND ACCES-
SIBLE PLACE ON THE SITE WHERE THE CONSTRUCTION IS PERFORMED A LEGIBLE
STATEMENT, PROVIDED BY THE COMMISSIONER, THAT DESCRIBES THE RESPONSIBIL-
ITY OF INDEPENDENT CONTRACTORS TO PAY TAXES REQUIRED BY STATE AND FEDER-
AL 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
S. 5847--E 4
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 CONTRACTORS.
3. 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 861-E. VIOLATIONS AND PENALTIES. 1. ANY CONTRACTOR WHO FAILS TO
PROPERLY CLASSIFY AN INDIVIDUAL AS AN EMPLOYEE AS PROVIDED UNDER SECTION
EIGHT HUNDRED SIXTY-ONE-C OF THIS ARTICLE SHALL BE SUBJECT TO THE CIVIL
AND CRIMINAL PENALTIES PROVIDED UNDER THIS SECTION.
(A) PRIOR TO THE COMMISSIONER IMPOSING A CIVIL PENALTY FOR A VIOLATION
ARISING UNDER THE WORKERS' COMPENSATION LAW, THE CHAIR OF THE WORKERS'
COMPENSATION BOARD MUST HAVE ISSUED AN ORDER FINDING SUCH A VIOLATION TO
HAVE OCCURRED. THE WORKERS' COMPENSATION BOARD SHALL REFER 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 CONSTRUCTION INDUSTRY TO THE DEPART-
MENT NO LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ORDER.
(B) PRIOR TO THE COMMISSIONER IMPOSING A CIVIL PENALTY FOR FAILURE TO
PAY BUSINESS, CORPORATE OR PERSONAL INCOME TAX, THE COMMISSIONER OF THE
DEPARTMENT OF TAXATION AND FINANCE MUST HAVE ISSUED AN ORDER FINDING A
VIOLATION UNDER PART FIVE OF ARTICLE TWENTY-TWO OR ARTICLE TWENTY-SEVEN
OF THE TAX LAW. THE DEPARTMENT OF TAXATION AND FINANCE SHALL REFER SUCH
ORDER TO THE COMMISSIONER NO LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF
THE ORDER.
(C) UPON THE ISSUANCE OF AN ORDER 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 CONTRACTOR KNEW OR SHOULD HAVE KNOWN THAT HIS OR HER CONDUCT WAS
PROHIBITED BY THIS SECTION.
3. ANY CONTRACTOR WHO WILLFULLY VIOLATES SECTION EIGHT HUNDRED SIXTY-
ONE-C OF THIS ARTICLE SHALL BE SUBJECT TO A CIVIL PENALTY OF UP TO TWEN-
TY-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 PERI-
OD.
4. IN ADDITION TO CIVIL PENALTIES, THE CRIMINAL PENALTIES IMPOSED ON A
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 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 KNOWINGLY PERMITS THE CORPO-
RATION TO WILLFULLY VIOLATE THE PROVISIONS OF THIS ARTICLE SHALL ALSO BE
S. 5847--E 5
IN VIOLATION OF THIS ARTICLE AND THE CIVIL AND CRIMINAL PENALTIES HEREIN
SHALL ATTACH TO SUCH OFFICER UPON CONVICTION.
6. ANY CONTRACTOR THAT WILLFULLY VIOLATES THE PROVISIONS OF THIS ARTI-
CLE AND SUCH VIOLATION RESULTS IN A FAILURE TO PAY ANY OTHER STATUTORY
PAYMENT OR COVERAGE OBLIGATIONS, INCLUDING BUT NOT LIMITED TO, UNEMPLOY-
MENT INSURANCE, WORKERS' COMPENSATION INSURANCE, OR BUSINESS, CORPORATE
OR PERSONAL INCOME TAX SHALL BE SUBJECT, AT THE DISCRETION OF THE
COMMISSIONER, TO ADDITIONAL CIVIL PENALTIES 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
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 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 UNDER THIS ARTICLE 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 CORPORATION, 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. IF THE CONTRACTOR IS A CORPORATION, ANY SUBSTANTIALLY OWNED AFFIL-
IATED ENTITY, 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 SHALL BE APPEALED TO THE
INDUSTRIAL BOARD OF APPEALS IN ACCORDANCE WITH ARTICLE THREE OF THIS
CHAPTER.
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 861-F. 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.
2. ANY ACT OF RETALIATION UNDER THIS SECTION SHALL SUBJECT AN EMPLOYER
TO THE CIVIL PENALTIES UNDER SECTION EIGHT HUNDRED SIXTY-ONE-E OF THIS
ARTICLE, OR TO A PRIVATE CAUSE OF ACTION, OR BOTH.
S. 5847--E 6
S 2. Paragraph (b) of subdivision 1 of section 511 of the labor law is
amended by adding a new subparagraph 1-b to read as follows:
(1-B) AS AN EMPLOYEE IN THE CONSTRUCTION INDUSTRY UNLESS THE PRESUMP-
TION OF EMPLOYMENT CAN BE OVERCOME, AS PROVIDED UNDER SECTION EIGHT
HUNDRED SIXTY-ONE-C 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 205 of the laws of 1993, is
amended to read as follows:
"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 civil defense volunteers who are personnel of
volunteer agencies sponsored or authorized by a local office under regu-
lations 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 auxiliary 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 secur-
ing 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 pursu-
ant to paragraph (e) of section seven hundred fifteen of the business
corporation law or two executive officers of a corporation who at all
times during the period involved between them own all of the issued and
outstanding stock of such corporation 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 partnership 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
S. 5847--E 7
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 household chores in and about a one family
owner-occupied residence or the 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) [herein] OF THIS
SUBDIVISION was not executed under duress and contains the following
provisions:
S 4. Notwithstanding any other provision of the law to the contrary,
the provisions of section 861-c of the labor law, as added by section
one of this act, shall apply to and be utilized for all determinations
of a construction industry individual's employment status under the
labor law and the workers' compensation law.
S 5. This act shall take effect on the sixtieth day after it shall
have become a law.
