S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5772
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 24, 2021
                                ___________
 
 Introduced  by  M.  of  A. GLICK, DINOWITZ, COLTON, MAGNARELLI, SIMON --
   read once and referred to the Committee on Labor
 
 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
 SHALL  BE  CONSIDERED AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR;
 AND
   (C) any service by a person for an employer:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02344-01-1

 A. 5772                             2
 
   (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
 AN INDEPENDENT CONTRACTOR UNLESS THE HIRING ENTITY DEMONSTRATES  ALL  OF
 THE FOLLOWING CONDITIONS:

 A. 5772                             3
 
   (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.