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SECTION 201
Definitions
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 9
§ 201. Definitions. As used in this article:

1. "Board" means the workmen's compensation board created under this
chapter.

2. "Chairman" means the chairman of the workmen's compensation board
of the state of New York.

3. "State fund" means the state insurance fund created under article
six of this chapter.

4. "Employer," except when otherwise expressly stated, means a person,
partnership, association, corporation, legal representative of a
deceased employer, or the receiver or trustee of a person, partnership,
association or corporation, who has persons in employment as defined in
subdivision six of this section, but does not include the state, a
municipal corporation, local governmental agency, other political
subdivisions or public authority.

5. "Employee" means a person engaged in the service of an employer in
any employment defined in subdivision six of this section, except a
minor child of the employer, except a duly ordained, commissioned, or
licensed minister, priest or rabbi, a sexton, a christian science
reader, or member of a religious order, or an executive officer of a
corporation who at all times during the period involved owns all of the
issued and outstanding stock of the corporation and holds all of the
offices pursuant to paragraph (e) of section seven hundred fifteen of
the business corporation law or two executive officers of a corporation
who at all times during the period involved between them own all of the
issued and outstanding stock of such corporation and hold all such
offices provided, however, that each officer must own at least one share
of stock, except as provided in section two hundred twelve of this
article, or an executive officer of an incorporated religious,
charitable or educational institution, or persons engaged in a
professional or teaching capacity in or for a religious, charitable or
educational institution, or volunteers in or for a religious, charitable
or educational institution, or persons participating in and receiving
rehabilitative services in a sheltered workshop operated by a religious,
charitable or educational institution under a certificate issued by the
United States department of labor, or recipients of charitable aid from
a religious or charitable institution who perform work in or for the
institution which is incidental to or in return for the aid conferred,
and not under an express contract of hire. The terms "religious,
charitable or educational institution" mean a corporation,
unincorporated association, community chest, fund or foundation
organized and operated exclusively for religious, charitable or
educational purposes, no part of the net earnings of which inure to the
benefit of any private shareholder or individual.

"Employee" shall also mean, for purposes of this chapter, a
professional musician or a person otherwise engaged in the performing
arts who performs services as such for a television or radio station or
network, a film production, a theatre, hotel, restaurant, 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
service in connection with the production of or performance in any
artistic endeavor which requires artistic or technical skill or
expertise.

"Employee" shall also mean, for purposes of this chapter, a
professional model, who:

(a) performs modeling services for; or

(b) 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 publishing 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 such professional model's privacy rights enumerated above,
unless such services are performed pursuant to a written contract
wherein it is stated that such professional model is the employee of
another employer covered by this chapter. For the purposes of this
paragraph, 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 paragraph, the term "modeling services"
means the appearance by a professional model in photographic sessions or
the engagement of such model in live, filmed or taped modeling
performances for remuneration.

6. "Employment." A. "Employment" means employment in any trade,
business or occupation carried on by an employer, except that the
following shall not be deemed employment under this article: services
performed for the state, a municipal corporation, local governmental
agency, other political subdivision or public authority; employment
subject to the federal railroad unemployment insurance act; service
performed on or as an officer or member of the crew of a vessel on the
navigable water of the United States or outside the United States;
casual employment and the first forty-five days of extra employment of
employees not regularly in employment as otherwise defined herein;
service as golf caddies; and service during all or any part of the
school year or regular vacation periods as a part-time worker of any
person actually in regular attendance during the day time as a student
in an elementary or secondary school. The term "employment" shall
include domestic or personal work in a private home. The term
"employment" shall not include the services of a licensed real estate
broker or sales associate if it be proven that (a) substantially all of
the remuneration (whether or not paid in cash) for the services
performed by such broker or sales associate is directly related to sales
or other output (including the performance of services) rather than to
the number of hours worked; (b) the services performed by the broker or
sales associate are performed pursuant to a written contract executed
between such broker or sales associate and the person for whom the
services are performed within the past twelve to fifteen months; and (c)
the written contract provided for in subparagraph (b) of this paragraph
was not executed under duress and contains the following provisions:

(i) that the broker or sales associate is engaged as an independent
contractor associated with the person for whom services are performed
pursuant to article twelve-A of the real property law and shall be
treated as such for all purposes, including but not limited to federal
and state taxation, withholding, unemployment insurance and workers'
compensation;

(ii) that the broker or sales associate (1) shall be paid a commission
on his or her gross sales, if any, without deduction for taxes, which
commission shall be directly related to sales or other output; (2) shall
not receive any remuneration related to the number of hours worked; and
(3) shall not be treated as an employee with respect to such services
for federal and state tax purposes;

(iii) that the broker or sales associate shall be permitted to work
any hours he or she chooses;

(iv) that the broker or sales associate shall be permitted to work out
of his or her own home or the office of the person for whom services are
performed;

(v) that the broker or sales associate shall be free to engage in
outside employment;

(vi) that the person for whom the services are performed may provide
office facilities and supplies for the use of the broker or sales
associate, but the broker or sales associate shall otherwise bear his or
her own expenses, including but not limited to automobile, travel, and
entertainment expenses;

(vii) that the person for whom the services are performed and the
broker or sales associate shall comply with the requirements of article
twelve-A of the real property law and the regulations pertaining
thereto, but such compliance shall not affect the broker or sales
associate's status as an independent contractor nor should it be
construed as an indication that the broker or sales associate is an
employee of the person for whom the services are performed for any
purpose whatsoever;

(viii) that the contract and the association created thereby may be
terminated by either party thereto at any time upon notice given to the
other.

"Employment" shall not include, for the purposes of this chapter, the
services of a licensed insurance agent or broker if it be proven that
(a) substantially all of the remuneration (whether or not paid in cash)
for the services performed by such agent or broker is directly related
to sales or other output (including the performance of services) rather
than to the number of hours worked; (b) such agent is not a life
insurance agent receiving a training allowance subsidy described in
paragraph three of subsection (e) of section four thousand two hundred
twenty-eight of the insurance law; (c) the services performed by the
agent or broker are performed pursuant to a written contract executed
between such agent or broker and the person for whom the services are
performed; and (d) the written contract provided for in clause (c) of
this paragraph was not executed under duress and contains the following
provisions:

(i) that the agent or broker is engaged as an independent contractor
associated with the person for whom services are performed pursuant to
article twenty-one of the insurance law and shall be treated as such for
all purposes, including but not limited to federal and state taxation,
withholding (other than federal insurance contributions act (FICA) taxes
required for full time life insurance agents pursuant to section
3121(d)(3) of the federal internal revenue code), unemployment insurance
and workers' compensation;

(ii) that the agent or broker (1) shall be paid a commission on his or
her gross sales, if any, without deduction for taxes (other than federal
insurance contributions act (FICA) taxes required for full time life
insurance agents pursuant to section 3121(d)(3) of the federal internal
revenue code), which commission shall be directly related to sales or
other output; (2) shall not receive any remuneration related to the
number of hours worked; and (3) shall not be treated as an employee with
respect to such services for federal and state tax purposes (other than
federal insurance contributions act (FICA) taxes required for full time
life insurance agents pursuant to section 3121(d)(3) of the federal
internal revenue code);

(iii) that the agent or broker shall be permitted to work any hours he
or she chooses;

(iv) that the agent or broker shall be permitted to work out of his or
her own office or home or the office of the person for whom services are
performed;

(v) that the person for whom the services are performed may provide
office facilities, clerical support, and supplies for the use of the
agent or broker, but the agent or broker shall otherwise bear his or her
own expenses, including but not limited to automobile, travel, and
entertainment expenses;

(vi) that the person for whom the services are performed and the agent
or broker shall comply with the requirements of article twenty-one of
the insurance law and the regulations pertaining thereto, but such
compliance shall not affect the agent's or broker's status as an
independent contractor nor should it be construed as an indication that
the agent or broker is an employee of the person for whom the services
are performed for any purpose whatsoever;

(vii) that the contract and the association created thereby may be
terminated by either party thereto at any time with notice given to the
other.

B. The term "employment" includes an employee's entire service
performed within or both within and without this state if the service is
localized in this state. Service is deemed localized within the state if
it is performed entirely within the state or is performed both within
and without the state but that performed without the state is incidental
to the employee's service within the state or is temporary or transitory
in nature or consists of isolated transactions.

C. The term "employment" includes an employee's entire service
performed both within and without this state provided it is not
localized in any state but some of the service is performed in this
state, and

(1) the employee's base of operations is in this state; or

(2) if there is no base of operations in any state in which some part
of the service is performed, the place from which such service is
directed or controlled is in this state; or

(3) if the base of operations or place from which such service is
directed or controlled is not in any state in which some part of the
service is performed, the employee's residence is in this state.

D. "Employment" shall not include the services of a media sales
representative if it be proven that (A) substantially all of the
compensation for the services performed by such media sales
representative is directly related to sales or other productivity rather
than to the number of hours worked; (B) the media sales representative
must be incorporated under the laws of this state in order to be
considered an independent contractor and shall be solely responsible for
the payment of workers' compensation premiums; (C) the services
performed by the media sales representative are performed pursuant to a
written contract executed between such media sales representative and
the person for whom the services are performed; and (D) the written
contract provided for in subparagraph (C) of this paragraph was not
executed under duress and contains the following provisions:

(i) that the media sales representative is engaged as an independent
contractor associated with the person for whom services are performed
and shall be treated as such for all purposes, including but not limited
to federal and state taxation, withholdings, and workers' compensation;

(ii) that the media sales representative (1) shall be paid a
commission based on a fixed fee rate outlined in the written contract,
if any, without deduction for taxes, which commission shall be directly
related to sales pursuant to price guidelines or other productivity
within the sales area; (2) shall not receive any compensation related to
the number of hours worked; and (3) shall not be treated as an employee
with respect to such services for federal and state tax purposes;

(iii) that the media sales representative shall be permitted to work
any hours he or she chooses subject to the restrictions in section three
hundred ninety-nine-p of the general business law;

(iv) that the media sales representative may work at any site other
than on the premises of the person for whom services are performed;

(v) that the person for whom the services are performed shall not be
responsible for any reimbursement expenses other than those outlined in
the written contract;

(vi) that the person for whom the services are performed and the media
sales representative shall comply with all articles of the labor law
that apply to such work other than article eighteen of the labor law,
but such compliance shall not affect the media sales representative's
status as an independent contractor nor should it be construed as an
indication that the media sales representative is an employee of the
person for whom the services are performed for any purpose whatsoever;

(vii) that the contract and the association created thereby may be
terminated by the media sales representative thereto at any time with
two weeks notice given to the person for whom the services are
performed.

For the purposes of this paragraph, "media sales representative" shall
include any contractor engaged in the sale or renewal of magazine
subscriptions or the sale or renewal of magazine advertising space who
(i) receives no direction or control on the methods by which they
perform services other than training on product characteristics, (ii)
are solely in control of their work schedule, and (iii) may refuse any
work assignment.

7. "Termination of employment". Employment with a covered employer
terminates on the last day on which an employee performs work in the
service of such employer; provided, however, that employment shall not
terminate on such day if the employee by agreement with the employer,
then commences, for a specified period, a leave of absence with pay or
vacation with pay, at the conclusion of which the employee will return
to work with the same employer. If notwithstanding such agreement the
employee does not so return, his employment shall be deemed to have
terminated on the last day of the period of such paid leave of absence
or such paid vacation.

8. "Injury" and "sickness" mean accidental injury, disease, infection
or illness or incapacitation as a result of being an organ donor in a
transplant operation.

9. A. "Disability" during employment means the inability of an
employee, as a result of injury or sickness not arising out of and in
the course of an employment, to perform the regular duties of his
employment or the duties of any other employment which his employer may
offer him at his regular wages and which his injury or sickness does not
prevent him from performing. "Disability" during unemployment means the
inability of an employee, as a result of injury or sickness not arising
out of and in the course of an employment, to perform the duties of any
employment for which he is reasonably qualified by training and
experience.

B. "Disability" also includes disability caused by or in connection
with a pregnancy.

10. "Benefits" means the money allowances during disability payable to
an employee who is eligible to receive such benefits, as provided in
this article.

11. "Carrier" shall include: the state fund, stock corporations,
mutual corporations and reciprocal insurers which insure the payment of
benefits provided pursuant to this article; and employers and
associations of employers or of employees and trustees authorized or
permitted to pay benefits under the provisions of this article. For
purposes of this chapter, a nonprofit property/casualty insurance
company which is licensed pursuant to subsection (b) of section six
thousand seven hundred four of the insurance law shall be deemed a stock
corporation and a nonprofit property/casualty insurance company which is
licensed as a reciprocal insurer pursuant to subsection (c) of section
six thousand seven hundred four of the insurance law shall be deemed a
reciprocal insurer.

12. "Wages" means the money rate at which employment with a covered
employer is recompensed under the contract of hiring with the covered
employer and shall include the reasonable value of board, rent, housing,
lodging, or similar advantage received under the contract of hiring.

13. "Average weekly wage." For the purpose of computing the amount of
disability benefits of an employee during any period of disability,
"average weekly wage" shall be the amount determined by dividing either
the total wages of such employee in the employment of his last covered
employer for the eight weeks or portion thereof that the employee was in
such employment immediately preceding and including his last day worked
prior to commencement of such disability, or the total wages of the last
eight weeks or portion thereof immediately preceding and excluding the
week in which the disability began, whichever is the higher amount, by
the number of weeks or portion thereof of such employment. The chairman
may by regulation prescribe reasonable procedures to determine average
weekly wage, including procedures in lieu of the foregoing for
determination of the average weekly wage of a class or classes of
employees, and may authorize reasonable deviations to facilitate
administration in the determination of average weekly wage of a class or
classes of the employees of a covered employer.

In the event the employee was not in the employment of his last
covered employer during all of such eight weeks and if the above
determination results in an average weekly wage which does not fairly
represent the normal earnings of such employee in all employments with
covered employers during such eight weeks, there may be a
redetermination of average weekly wage to reflect wages received from
all covered employers during such eight week period. The chairman may by
regulation prescribe reasonable procedures for such redetermination.

14. "A day of disability" means any day on which the employee was
prevented from performing work because of disability, including any day
which the employee uses for family leave, and for which the employee has
not received his or her regular remuneration.

15. "Family leave" shall mean any leave taken by an employee from
work: (a) to participate in providing care, including physical or
psychological care, for a family member of the employee made necessary
by a serious health condition of the family member; or (b) to bond with
the employee's child during the first twelve months after the child's
birth, or the first twelve months after the placement of the child for
adoption or foster care with the employee; or (c) because of any
qualifying exigency as interpreted under the family and medical leave
act, 29 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8),
arising out of the fact that the spouse, domestic partner, child, or
parent of the employee is on active duty (or has been notified of an
impending call or order to active duty) in the armed forces of the
United States.

16. "Child" means a biological, adopted, or foster son or daughter, a
stepson or stepdaughter, a legal ward, a son or daughter of a domestic
partner, or the person to whom the employee stands in loco parentis.

17. "Domestic partner" has the same meaning as set forth in section
four of this chapter.

18. "Serious health condition" means an illness, injury, impairment,
or physical or mental condition, including transplantation preparation
and recovery from surgery related to organ or tissue donation, that
involves inpatient care in a hospital, hospice, or residential health
care facility, continuing treatment or continuing supervision by a
health care provider. Continuing supervision by a health care provider
includes a period of incapacity which is permanent or long term due to a
condition for which treatment may not be effective where the family
member is under the continuing supervision of, but need not be receiving
active treatment by, a health care provider.

19. "Parent" means a biological, foster, or adoptive parent, a
parent-in-law, a stepparent, a legal guardian, or other person who stood
in loco parentis to the employee when the employee was a child.

20. "Family member" means a child, parent, grandparent, grandchild,
spouse, or domestic partner as defined in this section.

21. "Grandchild" means a child of the employee's child.

22. "Health care provider" shall mean for the purpose of family leave,
a person licensed under article one hundred thirty-one, one hundred
thirty-one-B, one hundred thirty-two, one hundred thirty-three, one
hundred thirty-six, one hundred thirty-nine, one hundred forty-one, one
hundred forty-three, one hundred forty-four, one hundred fifty-three,
one hundred fifty-four, one hundred fifty-six or one hundred fifty-nine
of the education law or a person licensed under the public health law,
article one hundred forty of the education law or article one hundred
sixty-three of the education law.

23. "Grandparent" means a parent of the employee's parent.