N.Y. LAB Law § 862-B — New York Code / Act LAB / Article 25-C / Section 862-B
Presumption of employment in the commercial goods transportation industry
Status: in_force

§ 862-b. Presumption of employment in the commercial goods\ntransportation industry. 1. Any person performing commercial goods\ntransportation services for a commercial goods transportation contractor\nshall be classified as an employee of the commercial goods\ntransportation contractor unless payment for such services is reported\non a Federal Income Tax form 1099 if required by law and either the\nperson is a separate business entity under subdivision two of this\nsection or all of the following criteria are met, in which case the\nperson shall be an independent contractor:\n  (a) the individual is free from control and direction in performing\nthe job, both under his or her contract and in fact;\n  (b) the service must be performed outside the usual course of business\nfor which the service is performed; and\n  (c) the individual is customarily engaged in an independently\nestablished trade, occupation, profession, or business that is similar\nto the service at issue.\n  2. A business entity, including any sole proprietor, partnership,\nfirm, corporation, limited liability company, association or other legal\nentity that may also be a commercial goods transportation contractor\nunder this section shall be considered a separate business entity from\nthe commercial goods transportation contractor where all the following\ncriteria are met:\n  (a) the business entity is performing the service free from the\ndirection or control over the means and manner of providing the service,\nsubject only to the right of the commercial goods transportation\ncontractor for whom the service is provided to specify the desired\nresult or federal rule or regulation;\n  (b) the business entity is not subject to cancellation or destruction\nupon severance of the relationship with the commercial goods\ntransportation contractor;\n  (c) the business entity has a substantial investment of capital in the\nbusiness entity, including but not limited to ordinary tools and\nequipment;\n  (d) the business entity owns or leases the capital goods and gains the\nprofits and bears the losses of the business entity;\n  (e) the business entity may make its services available to the general\npublic or others not a party to the business entity's written contract\nreferenced in paragraph (g) of this subdivision in the business\ncommunity on a continuing basis;\n  (f) the business entity provides services reported on a Federal Income\nTax form 1099, if required by law;\n  (g) the business entity performs services for the commercial goods\ntransportation contractor pursuant to a written contract, under the\nbusiness entity's name, specifying their relationship to be as\nindependent contractors or separate business entities;\n  (h) when the services being provided require a license or permit, the\nbusiness entity pays for the license or permit in the business entity's\nname or, where permitted by law, pays for reasonable use of the\ncommercial goods transportation contractor's license or permit;\n  (i) if necessary, the business entity hires its own employees without\nthe commercial goods transportation contractor's approval, subject to\napplicable qualification requirements or federal or state laws, rules or\nregulations, and pays the employees without reimbursement from the\ncommercial goods transportation contractor;\n  (j) the commercial goods transportation contractor does not require\nthat the business entity be represented as an employee of the commercial\ngoods transportation contractor to its customers; and\n  (k) the business entity has the right to perform similar services for\nothers on whatever basis and whenever it chooses.\n  3. The failure to withhold federal or state income taxes or to pay\nunemployment compensation contributions or workers' compensation\npremiums with respect to an individual's wages shall not be considered\nin making a determination under this section, except as set forth in\nparagraph (f) of subdivision two of this section.\n  4. An individual's act of securing workers' compensation insurance\nwith a carrier as a sole proprietor, partnership or otherwise shall not\nbe binding on any determination under this section.\n  5. When a business entity meets the definition of a separate business\nentity pursuant to subdivision two of this section, the separate\nbusiness entity will be considered a commercial goods transportation\ncontractor subject to all the provisions of this article in regard to\nthe classification of individuals performing services for it.\n