S T A T E O F N E W Y O R K
________________________________________________________________________
8721--A
2019-2020 Regular Sessions
I N A S S E M B L Y
October 25, 2019
___________
Introduced by M. of A. GLICK, DINOWITZ, MOSLEY, COLTON, ORTIZ, MAGNAREL-
LI -- read once and referred to the Committee on Labor -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the labor law and the workers' compensation law, in
relation to the employee status of an individual
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a) and (b) of subdivision 1 of section 511 of
the labor law, as amended by chapter 607 of the laws of 1971, subpara-
graph 1-a of paragraph (b) as added by chapter 903 of the laws of 1986,
subparagraph 1-b of paragraph (b) as added by chapter 418 of the laws of
2010, subparagraph 1-c of paragraph (b) as added by chapter 558 of the
laws of 2013, and subparagraph 3 of paragraph (b) as added by chapter
668 of the laws of 1992, are amended to read as follows:
(a) any service under any contract of employment for hire, express or
implied, written, or oral; and
(b) (1) ANY SERVICE BY A PERSON PROVIDING LABOR OR SERVICES FOR REMUN-
ERATION UNLESS THE HIRING ENTITY DEMONSTRATES THAT ALL OF THE FOLLOWING
CONDITIONS ARE SATISFIED:
(I) THE PERSON IS FREE FROM THE CONTROL AND DIRECTION OF THE HIRING
ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER THE
CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT; AND
(II) THE PERSON PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF THE
HIRING ENTITY'S BUSINESS; AND
(III) THE PERSON IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
LISHED TRADE, OCCUPATION, OR BUSINESS OF THE SAME NATURE AS THAT
INVOLVED IN THE WORK PERFORMED.
(2) FOR THE PURPOSES OF THIS SECTION, ANY PERSON PROVIDING LABOR OR
SERVICES FOR REMUNERATION PURSUANT TO SUBPARAGRAPH ONE OF THIS PARAGRAPH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13746-03-9
A. 8721--A 2
SHALL BE CONSIDERED AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR;
AND
(C) any service by a person for an employer:
(1) as an agent-driver or commission-driver engaged in distributing
meat, vegetable, fruit, or bakery products; beverages other than milk;
or laundry or dry-cleaning services; or
(1-a) as a professional musician or a person otherwise engaged in the
performing arts, and performing services as such for a television or
radio station or network, a film production, a theatre, hotel, restau-
rant, night club or similar establishment unless, by written contract,
such musician or person is stipulated to be an employee of another
employer covered by this chapter. "Engaged in the performing arts" shall
mean performing services in connection with the production of or
performance in any artistic endeavor which requires artistic or techni-
cal skill or expertise; or
(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
(1-c) as an employee in the commercial goods transportation industry
unless the presumption of employment can be overcome, as provided under
section eight hundred sixty-two-b of this chapter; or
(2) as a traveling or city salesman engaged on a full-time basis in
soliciting orders for merchandise for resale or supplies for use in the
purchaser's business operations if the contract of service contemplates
that substantially all of such services are to be performed personally
by such person; such person does not have a substantial investment in
facilities used in connection with the performance of such services,
excepting facilities for transportation; and the services are not in the
nature of a single transaction which is not part of a continuing
relationship with the employer.
(3) as a professional model, where:
(i) the professional model performs modeling services for; or
(ii) consents in writing to the transfer of his or her exclusive legal
right to the use of his or her name, portrait, picture or image, for
advertising purposes or for the purposes of trade, directly to a retail
store, a manufacturer, an advertising agency, a photographer, a publish-
ing company or any other such person or entity, which dictates such
professional model's assignments, hours of work or performance locations
and which compensates such professional model in return for a waiver of
his or her privacy rights enumerated above, unless such services are
performed pursuant to a written contract wherein it is stated that the
professional model is the employee of another employer covered by this
chapter. For purposes of this subparagraph, the term "professional
model" means a person who, in the course of his or her trade, occupation
or profession, performs modeling services. For purposes of this subpara-
graph, the term "modeling services" means the appearance by a profes-
sional model in photographic sessions or the engagement of such model in
live, filmed or taped modeling performances for remuneration.
§ 2. Subdivision 3 of section 160 of the labor law, the opening para-
graph of such subdivision as amended by chapter 481 of the laws of 2010,
is amended to read as follows:
3. A. For all other employees, except those engaged in farm work and
those affected by subdivision four of section two hundred twenty of this
chapter, eight hours.
B. FOR THE PURPOSES OF THIS SUBDIVISION, AN INDIVIDUAL PROVIDING LABOR
OR SERVICES FOR REMUNERATION HAS THE STATUS OF AN EMPLOYEE RATHER THAN
A. 8721--A 3
AN INDEPENDENT CONTRACTOR UNLESS THE HIRING ENTITY DEMONSTRATES ALL OF
THE FOLLOWING CONDITIONS:
(I) THE INDIVIDUAL IS FREE FROM THE CONTROL AND DIRECTION OF THE
HIRING ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER
THE CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT.
(II) THE INDIVIDUAL PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF
THE HIRING ENTITY'S BUSINESS.
(III) THE INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
LISHED TRADE, OCCUPATION, OR BUSINESS OF THE SAME NATURE AS THAT
INVOLVED IN THE WORK PERFORMED.
C. This subdivision shall not prevent an agreement for overwork at an
increased compensation, except upon work by or for the state or a munic-
ipal corporation, or by contractors or subcontractors therewith, and
except as otherwise provided in this chapter.
§ 3. Subdivision 5 of section 651 of the labor law is amended by
adding a new closing paragraph to read as follows:
UNLESS OTHERWISE EXCLUDED BY THE PROVISIONS OF THIS SUBDIVISION OR BY
REGULATIONS PROMULGATED BY THE COMMISSIONER, AN INDIVIDUAL PROVIDING
LABOR OR SERVICES FOR REMUNERATION HAS THE STATUS OF AN EMPLOYEE RATHER
THAN AN INDEPENDENT CONTRACTOR UNLESS THE HIRING ENTITY DEMONSTRATES ALL
OF THE FOLLOWING CONDITIONS:
(A) THE INDIVIDUAL IS FREE FROM THE CONTROL AND DIRECTION OF THE
HIRING ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER
THE CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT.
(B) THE INDIVIDUAL PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF
THE HIRING ENTITY'S BUSINESS.
(C) THE INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
LISHED TRADE, OCCUPATION, OR BUSINESS OF THE SAME NATURE AS THAT
INVOLVED IN THE WORK PERFORMED.
§ 4. Subdivision 6 of section 201 of the workers' compensation law is
amended by adding a new paragraph E to read as follows:
E. (A) THE TERM "EMPLOYMENT" INCLUDES, UNLESS SPECIFICALLY EXCLUDED BY
A PROVISION OF THIS SUBDIVISION, ANY SERVICE BY A PERSON PROVIDING LABOR
OR SERVICES FOR REMUNERATION UNLESS THE HIRING ENTITY DEMONSTRATES THAT
ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED:
(I) THE PERSON IS FREE FROM THE CONTROL AND DIRECTION OF THE HIRING
ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER THE
CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT; AND
(II) THE PERSON PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF THE
HIRING ENTITY'S BUSINESS; AND
(III) THE PERSON IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
LISHED TRADE, OCCUPATION, OR BUSINESS OF THE SAME NATURE AS THAT
INVOLVED IN THE WORK PERFORMED.
(B) FOR THE PURPOSES OF THIS SECTION, ANY PERSON PROVIDING LABOR OR
SERVICES FOR REMUNERATION PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH
SHALL BE CONSIDERED AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR.
§ 5. This act shall take effect immediately.