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

                                  8451

                          I N  A S S E M B L Y

                            January 16, 2014
                               ___________

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  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.
              

                                                           LBD00724-09-4

A. 8451                             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

A. 8451                             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; 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.