The New York State Senate

                    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.