senate Bill S2715

2013-2014 Legislative Session

Excludes from the definition of employee certain harness race drivers

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Archive: Last Bill Status - In Committee


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

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 23, 2013 referred to labor

S2715 - Bill Details

Current Committee:
Senate Labor
Law Section:
Workers' Compensation Law
Laws Affected:
Amd ยง2, Work Comp L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S3701
2009-2010: S7072

S2715 - Bill Texts

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Excludes from the definition of employee such services rendered by a harness race driver, only a groom or caretaker of a temporary designated trainer of a harness race horse, a shipper or transporter of a harness race horse, a farrier of a harness race horse, or a veterinarian to a harness race horse.

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BILL NUMBER:S2715

TITLE OF BILL: An act to amend the workers' compensation law, in
relation to exclusions to the definition of employee for workers'
compensation purposes

PURPOSE: Excludes from the definition of employee certain harness race
drivers.

SUMMARY OF PROVISIONS:

Section 1 subdivision 4 of section 2 of the workers' compensation law is
amended by adding five new undesignated paragraphs focusing on the
employment status of harness race drivers; the legal relationship
between grooms and/or caretakers and designated and/or substituted
trainers; and the independent contractor status of shippers, farriors
and veterinarians that provide services to harness race horses.

JUSTIFICATION: The legal determination of whether an employer/employee
relationship exists focuses on the issue of control. In general, under
New York law an employee is a person who contracts to work for an
employer and is under the employer's control with respect to "the
results produced...or the means use to achieve the results". The princi-
pal consideration is the employers control over the individual's work.
In the case of the employee, that control is present. In the case of the
independent contractor, it is absent. This bill is being introduced in
response to concerns throughout the industry about the escalating costs
of Workers' Compensation insurance, the lack of uniformity in the audit
practice. The proposal seeks to provide critical guidance and clarity in
an area of increasing uncertainty, bringing uniformity and certainty to
these particular employment relationships based on time-honored law.

EXISTING LAW: 2010: S.7072 Held in Labor

LEGISLATIVE HISTORY: S.3701 03/02/11 - Referred to Labor S.3701
01/04/12 - Referred to Labor

FISCAL IMPLICATIONS: To be determined.

LOCAL FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This act shall a take effect immediately.

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

                                  2715

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 23, 2013
                               ___________

Introduced  by  Sen.  ADAMS  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the workers' compensation law, in relation to exclusions
  to the definition of employee for workers' compensation purposes

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

  Section 1. Subdivision 4 of section 2 of the workers' compensation law
is  amended  by  adding  five  new  undesignated  paragraphs  to read as
follows:
  NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE TERM "EMPLOY-
EE" SHALL NOT INCLUDE THE SERVICES OF A HARNESS RACE  DRIVER  IF  IT  BE
PROVEN THAT:
  (A)  SUBSTANTIALLY  ALL  OF  THE  COMPENSATION (WHETHER OR NOT PAID IN
CASH) FOR THE SERVICES PERFORMED BY SUCH HARNESS RACE DRIVER IS  RELATED
TO  HIS OR HER PERFORMANCE IN THE HARNESS RACE RATHER THAN THE NUMBER OF
HOURS WORKED;
  (B) THE HARNESS RACE DRIVER IS FREE TO ACCEPT OR DECLINE  ANY  REQUEST
TO DRIVE HORSES;
  (C)  THE  HARNESS  RACE  DRIVER  IS FREE TO DRIVE HORSES FOR THE OWNER
AND/OR TRAINERS OF HIS OR HER CHOOSING AND/OR ENGAGE  IN  OTHER  EMPLOY-
MENT;
  (D)  THE HARNESS RACE DRIVER MAY UNILATERALLY DETERMINE WHEN AND WHERE
HE OR SHE WILL WORK;
  (E) THE HARNESS  RACE  DRIVER  IS  RESPONSIBLE  FOR  HIS  OR  HER  OWN
EXPENSES;
  (F)  THE  HARNESS RACE DRIVER IS RESPONSIBLE FOR FURNISHING HIS OR HER
OWN VEST, HELMET AND WHIP;
  (G) THE HARNESS RACE DRIVER IS FREE TO TERMINATE HIS OR  HER  SERVICES
AT ANY TIME; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06037-01-3

S. 2715                             2

  (H)  THE  PERSON  OR  ENTITY  THAT  RETAINS THE HARNESS RACE DRIVER TO
PROVIDE SERVICES IS NOT TREATED BY SUCH PERSON OR ENTITY AS AN  EMPLOYEE
WITH RESPECT TO SUCH SERVICES FOR FEDERAL OR STATE TAX PURPOSES.
  NOTWITHSTANDING  ANY  OTHER  PROVISION OF THIS CHAPTER, A GROOM AND/OR
CARETAKER OF A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A
DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS  RACE  HORSE
IF IT BE PROVEN THAT:
  (A)  THE  COMPENSATION  (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES
PERFORMED BY SUCH GROOM AND/OR CARETAKER RELATING TO  THE  HARNESS  RACE
HORSE IS NOT PAID BY THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF
SUCH HARNESS RACE HORSE;
  (B)  THE  DESIGNATED  TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS
RACE HORSE DOES NOT CONTROL THE WORKING HOURS OF THE GROOM AND/OR  CARE-
TAKER;
  (C)  THE  GROOM  AND/OR CARETAKER PROVIDING SERVICES TO THE DESIGNATED
TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IS  FREE  TO
PROVIDE  HIS  OR  HER SERVICES TO OTHER TRAINERS (INCLUDING OTHER DESIG-
NATED TRAINERS AND/OR SUBSTITUTE TRAINERS) OF HARNESS RACE HORSES;
  (D) THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER  OF  THE  HARNESS
RACE  HORSE  PROVIDES NO EQUIPMENT OR SUPPLIES TO THE GROOM AND/OR CARE-
TAKER PROVIDING SERVICES TO THAT DESIGNATED  TRAINER  AND/OR  SUBSTITUTE
TRAINER;
  (E)  THE  DESIGNATED  TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS
RACE HORSE IS NOT RESPONSIBLE AND DOES NOT REIMBURSE  THE  GROOM  AND/OR
CARETAKER FOR HIS OR HER EXPENSES; AND
  (F)  THE  GROOM  AND/OR CARETAKER PROVIDING SERVICES TO THE DESIGNATED
TRAINER AND/OR SUBSTITUTE TRAINER OF  THE  HARNESS  RACE  HORSE  IS  NOT
TREATED  AS  AN  EMPLOYEE  WITH  RESPECT TO SUCH SERVICES FOR FEDERAL OR
STATE TAX PURPOSES BY THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER.
  NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A
SHIPPER OR TRANSPORTER OF A HARNESS RACE HORSE SHALL NOT  BE  DEEMED  AN
"EMPLOYEE"  OF  A  DESIGNATED  TRAINER  AND/OR SUBSTITUTE TRAINER OF THE
HARNESS RACE HORSE IF IT BE PROVEN THAT:
  (A) SUBSTANTIALLY ALL OF COMPENSATION (WHETHER OR NOT  PAID  IN  CASH)
FOR  THE SERVICES PERFORMED BY THE SHIPPER OR TRANSPORTER OF THE HARNESS
RACE HORSE IS DIRECTLY RELATED TO MILEAGE OR SOME OTHER TYPE OF  AGREED-
UPON RATE THAT IS NOT RELATED TO ACTUAL HOURS WORKED;
  (B)  THE  SHIPPER  OR TRANSPORTER OF THE HARNESS RACE HORSE IS FREE TO
PROVIDE SERVICES TO CUSTOMERS OF ITS CHOOSING AND/OR TO ENTER INTO OTHER
EMPLOYMENT RELATIONSHIPS;
  (C) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE MAY UNILATER-
ALLY DETERMINE WHEN AND WHERE IT WILL WORK;
  (D) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS  RESPONSI-
BLE FOR ITS OWN EXPENSES;
  (E)  THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS RESPONSI-
BLE FOR FURNISHING ITS OWN EQUIPMENT AND/OR VEHICLE;
  (F) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE  IS  FREE  TO
TERMINATE ITS SERVICES AT ANY TIME; AND
  (G)  THE PARTY THAT RETAINS THE SERVICES OF THE SHIPPER OR TRANSPORTER
OF THE HARNESS RACE HORSE DOES NOT TREAT SUCH SHIPPER OR TRANSPORTER  AS
AN  EMPLOYEE  WITH  RESPECT  TO  SUCH  SERVICE FOR FEDERAL AND STATE TAX
PURPOSES.
  NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A
FARRIER WHOSE SERVICES ARE RENDERED TO A HARNESS RACE HORSE SHALL NOT BE
DEEMED AN "EMPLOYEE" OF A DESIGNATED TRAINER AND/OR  SUBSTITUTE  TRAINER
OF THE HARNESS RACE HORSE IF IT BE PROVEN THAT:

S. 2715                             3

  (A)  SUBSTANTIALLY  ALL  OF COMPENSATION (WHETHER OR NOT PAID IN CASH)
FOR THE SERVICES RENDERED BY THE FARRIER TO THE HARNESS  RACE  HORSE  IS
RELATED TO A NEGOTIATED FEE OR ONE SET BY THE FARRIER AND IS NOT RELATED
TO ACTUAL HOURS WORKED;
  (B)  THE  FARRIER  RETAINED  TO  PROVIDE SERVICES FOR THE HARNESS RACE
HORSE IF FREE TO PROVIDE HIS OR HER SERVICES TO CUSTOMERS OF HIS OR  HER
CHOOSING, INCLUDING PROVIDING FARRIER SERVICES TO ANY OTHER HARNESS RACE
HORSE AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS;
  (C)  THE  FARRIER  RETAINED  TO  PROVIDE SERVICES FOR THE HARNESS RACE
HORSE MAY UNILATERALLY DETERMINE WHERE AND WHEN HE OR SHE WILL WORK;
  (D) THE FARRIER RETAINED TO PROVIDE  SERVICES  FOR  THE  HARNESS  RACE
HORSE IS RESPONSIBLE FOR HIS OR HER EXPENSES;
  (E)  THE  FARRIER  RETAINED  TO  PROVIDE SERVICES FOR THE HARNESS RACE
HORSE IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN EQUIPMENT;
  (F) THE FARRIER RETAINED TO PROVIDE  SERVICES  FOR  THE  HARNESS  RACE
HORSE  IS FREE TO TERMINATE OR DECLINE TO PROVIDE HIS OR HER SERVICES AT
ANY TIME; AND
  (G) THE PARTY THAT RETAINS THE SERVICES OF THE FARRIER DOES NOT  TREAT
HIM  OR  HER  AS  AN  EMPLOYEE  FOR  FEDERAL AND STATE TAX PURPOSES WITH
RESPECT TO HIS OR HER SERVICES PROVIDED TO THE HARNESS RACE HORSE.
  NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A
VETERINARIAN RETAINED TO TREAT A HARNESS RACE HORSE SHALL NOT BE  DEEMED
AN  "EMPLOYEE"  OF A DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE
HARNESS RACE HORSE IF IT BE PROVEN THAT:
  (A) SUBSTANTIALLY ALL OF COMPENSATION (WHETHER OR NOT  PAID  IN  CASH)
FOR  THE SERVICES RENDERED BY THE VETERINARIAN TO THE HARNESS RACE HORSE
IS RELATED TO A FEE NEGOTIATED OR SOME OTHER TYPE  OF  AGREED-UPON  RATE
AND IS NOT RELATED TO ACTUAL HOURS WORKED;
  (B)  THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE
HORSE IS FREE TO PROVIDE HIS OR HER SERVICES TO CUSTOMERS OF HIS OR  HER
CHOOSING, INCLUDING PROVIDING VETERINARIAN SERVICES TO ANY OTHER HARNESS
RACE HORSE AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS;
  (C) THE VETERINARIAN RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE
HORSE MAY UNILATERALLY DETERMINE WHERE AND WHEN HE OR SHE WILL WORK;
  (D)  THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE
HORSE IS RESPONSIBLE FOR HIS OR HER EXPENSES;
  (E) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS  RACE
HORSE IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN EQUIPMENT;
  (F)  THE  VETERINARIAN PROVIDING SERVICES TO THE HARNESS RACE HORSE IS
FREE TO TERMINATE PROVIDING HIS OR HER SERVICES AT ANY TIME; AND
  (G) THE PARTY THAT RETAINS THE SERVICES OF THE VETERINARIAN  DOES  NOT
TREAT  HIM OR HER AS AN EMPLOYEE FOR FEDERAL AND STATE TAX PURPOSES WITH
RESPECT TO HIS OR HER SERVICES PROVIDED TO THE HARNESS RACE HORSE.
  S 2. This act shall take effect immediately.

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