Senate Bill S342

                                
 
BILL NUMBER: S342

SPONSOR: AKSHAR
 
TITLE OF BILL:  An act to amend the labor law, in relation to the
presumption of employment in the construction industry

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide technical amendments to the New York State Construction
Industry Fair Play Act to ensure that requirements for providing a
service prescribed by the owner in a written contract or the timeframe
for completion of a construction do not constitute direction and control
over the means and manner of providing a service. It also specifically
permits a contractor with written agreement to collaborate with another
contractor in providing services.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends Section paragraph a of subdivision 2 of section 861-C
of the labor law to provide that performance of a service by the
contractor is free from direction and control where the owner provides
              

in a written contract with the contractor any requirements as to the
means and manner of the service. In the case where there is a time frame
provided for completion of the service, it does not constitute direction
and control over the means and manner of providing service. It also
makes it clear that where contractors who perform the same type of work
may collaborate on performance of service subject to a written agree-
ment.

Section 2 of the bill states the effective date.

 
JUSTIFICATION:

This bill makes technical amendments to the New York State Construction
Industry Fair Play Act to delineate specific situations where a contrac-
tor is performing a service free from direction or control over the
means and manner of providing the service. Auditors from the Department
of Labor reviewing construction jobs to determine if the tests providing
guidance on the presumption of employment should have specific guidance
on recurring situations to provide uniformity in the application of the
statue.

If an owner in his contract with the contractor provides for specifics
as to the means and manner of providing a service, this should not be
equivalent to a contractor directing a sub-contractor to use certain
means and manner as it is a contractual obligation. The contractor is
legally obligated to comply with the provisions of the contract. Upon
audit the Labor Department can review the contract with the owner to
confirm such requirements. The contractor should not be subject to a
violation for compliance with a contract.

The specification by the contractor to a sub-contractor of time for
completion of a specific construction work should not be interpreted as
a control over the means and manner of providing the service. It simply
amounts to a completion date requirement, which is not directed at means
and manner of services. Rather, the contractor is managing duty does not
spill over to direction and control of the means and manner of services.
A completion date is a standard construction requirement with no bearing

on determining whether a worker is an independent contractor or employ-
ee.

A contractor or sub-contractor performing services sometimes find that
they do not have a sufficient workforce available to comply with the
completion of particular services. To meet the workforce shortage a
contractor will engage another independent contractor to provide assist-
ance in meeting the timeline for completion of services. This situation
often arises in construction jobs, particularly where the contractor is
involved in multiple projects. This bill would permit contractors to
collaborate on the performance of services provided that there is writ-
ten agreement with the other contractor. The auditor from the Department
of Labor would be able to verify the collaboration through the written
agreement and an examination as to whether the contractor was otherwise
independent, even though the collaborating contractor provided similar
services. Allowing for collaboration is particularly helpful for small
contractors. The Fair Ply Act should not discourage such legitimate
arrangements.

 
PRIOR LEGISLATIVE HISTORY:

S8799 of 2018: Referred to Labor

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
Immediately.