STATE OF NEW YORK ________________________________________________________________________ 2085 2023-2024 Regular Sessions IN ASSEMBLY January 23, 2023 ___________ Introduced by M. of A. GLICK, DINOWITZ, COLTON, MAGNARELLI, SIMON, REYES, GONZALEZ-ROJAS, BURDICK, GALLAGHER, MAMDANI, RIVERA, MITAYNES -- 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: 1 Section 1. Paragraphs (a) and (b) of subdivision 1 of section 511 of 2 the labor law, as amended by chapter 607 of the laws of 1971, subpara- 3 graph 1-a of paragraph (b) as added by chapter 903 of the laws of 1986, 4 subparagraph 1-b of paragraph (b) as added by chapter 418 of the laws of 5 2010, subparagraph 1-c of paragraph (b) as added by chapter 558 of the 6 laws of 2013, and subparagraph 3 of paragraph (b) as added by chapter 7 668 of the laws of 1992, are amended to read as follows: 8 (a) any service under any contract of employment for hire, express or 9 implied, written, or oral; and 10 (b) (1) any service by a person providing labor or services for remun- 11 eration unless the hiring entity demonstrates that all of the following 12 conditions are satisfied: 13 (i) the person is free from the control and direction of the hiring 14 entity in connection with the performance of the work, both under the 15 contract for the performance of the work and in fact; and 16 (ii) the person performs work that is outside the usual course of the 17 hiring entity's business; and 18 (iii) the person is customarily engaged in an independently estab- 19 lished trade, occupation, or business of the same nature as that 20 involved in the work performed. 21 (2) for the purposes of this section, any person providing labor or 22 services for remuneration pursuant to subparagraph one of this paragraph 23 shall be considered an employee rather than an independent contractor; 24 and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02984-01-3
A. 2085 2 1 (c) any service by a person for an employer: 2 (1) as an agent-driver or commission-driver engaged in distributing 3 meat, vegetable, fruit, or bakery products; beverages other than milk; 4 or laundry or dry-cleaning services; or 5 (1-a) as a professional musician or a person otherwise engaged in the 6 performing arts, and performing services as such for a television or 7 radio station or network, a film production, a theatre, hotel, restau- 8 rant, night club or similar establishment unless, by written contract, 9 such musician or person is stipulated to be an employee of another 10 employer covered by this chapter. "Engaged in the performing arts" shall 11 mean performing services in connection with the production of or 12 performance in any artistic endeavor which requires artistic or techni- 13 cal skill or expertise; or 14 (1-b) as an employee in the construction industry unless the presump- 15 tion of employment can be overcome, as provided under section eight 16 hundred sixty-one-c of this chapter; or 17 (1-c) as an employee in the commercial goods transportation industry 18 unless the presumption of employment can be overcome, as provided under 19 section eight hundred sixty-two-b of this chapter; or 20 (2) as a traveling or city salesman engaged on a full-time basis in 21 soliciting orders for merchandise for resale or supplies for use in the 22 purchaser's business operations if the contract of service contemplates 23 that substantially all of such services are to be performed personally 24 by such person; such person does not have a substantial investment in 25 facilities used in connection with the performance of such services, 26 excepting facilities for transportation; and the services are not in the 27 nature of a single transaction which is not part of a continuing 28 relationship with the employer. 29 (3) as a professional model, where: 30 (i) the professional model performs modeling services for; or 31 (ii) consents in writing to the transfer of his or her exclusive legal 32 right to the use of his or her name, portrait, picture or image, for 33 advertising purposes or for the purposes of trade, directly to a retail 34 store, a manufacturer, an advertising agency, a photographer, a publish- 35 ing company or any other such person or entity, which dictates such 36 professional model's assignments, hours of work or performance locations 37 and which compensates such professional model in return for a waiver of 38 his or her privacy rights enumerated above, unless such services are 39 performed pursuant to a written contract wherein it is stated that the 40 professional model is the employee of another employer covered by this 41 chapter. For purposes of this subparagraph, the term "professional 42 model" means a person who, in the course of his or her trade, occupation 43 or profession, performs modeling services. For purposes of this subpara- 44 graph, the term "modeling services" means the appearance by a profes- 45 sional model in photographic sessions or the engagement of such model in 46 live, filmed or taped modeling performances for remuneration. 47 § 2. Subdivision 3 of section 160 of the labor law, the opening para- 48 graph of such subdivision as amended by chapter 481 of the laws of 2010, 49 is amended to read as follows: 50 3. a. For all other employees, except those engaged in farm work and 51 those affected by subdivision four of section two hundred twenty of this 52 chapter, eight hours. 53 b. For the purposes of this subdivision, an individual providing labor 54 or services for remuneration has the status of an employee rather than 55 an independent contractor unless the hiring entity demonstrates all of 56 the following conditions:
A. 2085 3 1 (i) The individual is free from the control and direction of the 2 hiring entity in connection with the performance of the work, both under 3 the contract for the performance of the work and in fact. 4 (ii) The individual performs work that is outside the usual course of 5 the hiring entity's business. 6 (iii) The individual is customarily engaged in an independently estab- 7 lished trade, occupation, or business of the same nature as that 8 involved in the work performed. 9 c. This subdivision shall not prevent an agreement for overwork at an 10 increased compensation, except upon work by or for the state or a munic- 11 ipal corporation, or by contractors or subcontractors therewith, and 12 except as otherwise provided in this chapter. 13 § 3. Subdivision 5 of section 651 of the labor law is amended by 14 adding a new closing paragraph to read as follows: 15 Unless otherwise excluded by the provisions of this subdivision or by 16 regulations promulgated by the commissioner, an individual providing 17 labor or services for remuneration has the status of an employee rather 18 than an independent contractor unless the hiring entity demonstrates all 19 of the following conditions: 20 (a) The individual is free from the control and direction of the 21 hiring entity in connection with the performance of the work, both under 22 the contract for the performance of the work and in fact. 23 (b) The individual performs work that is outside the usual course of 24 the hiring entity's business. 25 (c) The individual is customarily engaged in an independently estab- 26 lished trade, occupation, or business of the same nature as that 27 involved in the work performed. 28 § 4. Subdivision 6 of section 201 of the workers' compensation law is 29 amended by adding a new paragraph E to read as follows: 30 E. (A) The term "employment" includes, unless specifically excluded by 31 a provision of this subdivision, any service by a person providing labor 32 or services for remuneration unless the hiring entity demonstrates that 33 all of the following conditions are satisfied: 34 (i) the person is free from the control and direction of the hiring 35 entity in connection with the performance of the work, both under the 36 contract for the performance of the work and in fact; and 37 (ii) the person performs work that is outside the usual course of the 38 hiring entity's business; and 39 (iii) the person is customarily engaged in an independently estab- 40 lished trade, occupation, or business of the same nature as that 41 involved in the work performed. 42 (B) For the purposes of this section, any person providing labor or 43 services for remuneration pursuant to subparagraph (A) of this paragraph 44 shall be considered an employee rather than an independent contractor. 45 § 5. This act shall take effect immediately.