NY Work Comp L § 2 (2021)
2021 New York Laws WKC - Workers' Compensation Article 1 - Short Title; Definitions; Application 2 - Definitions.

§  2.  Definitions. As used in this chapter, 1. "Hazardous employment" means a work or occupation described in section three of this chapter.   2. "Department" means the department of labor  of  the  state  of  New York;   "Chairman"  means  the chairman of the workmen's compensation board of the state of New York;   "Commissioner" means the industrial commissioner of the state  of  New York;   "Board"  means  the  workmen's  compensation board of the state of New York;   "Commissioners" means the commissioners of the state insurance fund of the department of labor of the state of New York.   3. "Employer," except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives  of a   deceased   employer,  or  the  receiver  or  trustee  of  a  person, partnership, association or corporation, having one or more  persons  in employment,  including the state, a municipal corporation, fire district or other political subdivision of the  state,  and  every  authority  or commission  heretofore  or  hereafter continued or created by the public authorities law. For the purposes of this chapter only "employer"  shall also mean a person, partnership, association, corporation, and the legal representatives  of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation who delivers  or  causes to  be delivered newspapers or periodicals for delivering or selling and delivering by a newspaper carrier under the age  of  eighteen  years  as defined in section thirty-two hundred twenty-eight of the education law, but  shall  not  include  delivering  newspapers or shopping news to the consumer (including any services  directly  related  to  such  trade  or business)   by   a   person  who  is  not  performing  commercial  goods transportation services for a commercial goods transportation contractor within the meaning of article twenty-five-C of the labor  law.  For  the purpose  of  this  chapter  only,  "employer"  shall also mean a person, partnership,  association,  or  corporation  who  leases  or   otherwise contracts  with  an  operator  or  lessee  for  the  purpose of driving, operating or leasing a taxicab as so  defined  in  section  one  hundred forty-eight-a  of  the vehicle and traffic law, except where such person is an owner-operator of such taxicab who personally  regularly  operates such  vehicle an average of forty or more hours per week and leases such taxicab for some portion of  the  remaining  time,  and  except  if  the taxicab  is  a  livery subject to section eighteen-c of this chapter, in which case the livery driver's employer shall only be such  employer  as is  defined in that section. For the purposes of this section only, such an owner-operator shall be deemed to be  an  employer  if  he  controls, directs,  supervises,  or  has the power to hire or terminate such other person who leases the vehicle.   Notwithstanding any other provision of this chapter and  for  purposes of  this  chapter only, "employer" shall mean, with respect to a jockey, apprentice jockey or exercise person licensed under article two or  four of  the  racing,  pari-mutuel  wagering  and  breeding  law,  and at the election of the New York Jockey Injury Compensation Fund, Inc., with the approval of the New York state gaming commission, employees of  licensed trainers  or  owners,  performing  services  for  an owner or trainer in connection with the training or racing of a horse at  a  facility  of  a racing  association or corporation subject to article two or four of the racing, pari-mutuel  wagering  and  breeding  law  and  subject  to  the jurisdiction  of  the  New  York  state  gaming commission, The New York Jockey Injury Compensation Fund, Inc. and all owners  and  trainers  who are licensed or required to be licensed under article two or four of the  racing,  pari-mutuel  wagering  and  breeding  law  at  the  time of any occurrence for which benefits are payable pursuant to  this  chapter  in respect  to  the  injury  or  death  of  such jockey, apprentice jockey, exercise person or, if approved by the New York state gaming commission, employee of a licensed trainer or owner.   Notwithstanding  any other provision of this chapter, and for purposes of this chapter only, the employer of a black car operator,  as  defined in  article  six-F  of  the  executive law, shall, on and after the fund liability date, as defined in such article, be the New  York  black  car operators'  injury  compensation  fund,  inc.  created  pursuant to such article.   For the purpose of this chapter only, whether a livery base  operating in  any  locality  where  liveries  must  register with a local taxi and limousine commission shall be deemed the "employer" of any livery driver engaging in covered services shall  be  determined  in  accordance  with section eighteen-c of this chapter.   4.  "Employee"  means  a  person  engaged  in  one  of the occupations enumerated in section three of this article or who is in the service  of an  employer  whose  principal  business  is  that  of  carrying  on  or conducting a hazardous employment upon the premises or at the plant,  or in the course of his or her employment away from the plant of his or her employer;  "employee"  shall  also mean for the purposes of this chapter any individual performing services in construction for a contractor  who does  not  overcome  the  presumption  of  employment  as provided under section eight hundred sixty-one-c of the  labor  law;  "employee"  shall also  mean  for  the  purposes of this chapter any individual performing services  in  the  commercial  goods  transportation  industry   for   a commercial  goods  transportation  contractor  who does not overcome the presumption of  employment  as  provided  under  section  eight  hundred sixty-two-b  of  the  labor  law;  "employee"  shall  also  mean for the purposes of this chapter civil defense volunteers who are  personnel  of volunteer  agencies  sponsored  or  authorized  by  a local office under regulations of the civil  defense  commission,  to  the  extent  of  the provisions  of  groups  seventeen  and nineteen; "employee" shall at the election of a municipal corporation made  pursuant  to  local  law  duly enacted   also  mean  a  member  of  an  auxiliary  police  organization authorized by local law; and for the purposes of  this  chapter  only  a newspaper  carrier under the age of eighteen years as defined in section thirty-two hundred twenty-eight of the  education  law,  but  shall  not include  delivery  of  newspapers  or  shopping  news  to  the  consumer (including any services directly related to such trade or business) by a person who is not performing commercial  goods  transportation  services for  a  commercial goods transportation contractor within the meaning of article twenty-five-C of the labor law, and shall not  include  domestic servants except as provided in section three of this chapter, and except where  the employer has elected to bring such employees under the law by securing compensation in accordance with the terms of section  fifty  of this  chapter.  The  term  "employee"  shall not include persons who are members  of  a  supervised  amateur  athletic  activity  operated  on  a non-profit  basis,  provided  that  said  members are not also otherwise engaged or employed by any person, firm or corporation participating  in said  athletic  activity, nor shall it include the spouse or minor child of an employer who is a farmer unless the services  of  such  spouse  or minor  child shall be engaged by said employer under an express contract of hire nor shall it include 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  except  as provided in subdivision six of section fifty-four of this chapter provided, however,  that  where  there  are  two  executive officers  of  a  corporation each officer must own at least one share of stock, nor shall it include a self-employed person or  a  partner  of  a partnership  as defined in section ten of the partnership law who is not covered under a compensation insurance  contract  or  a  certificate  of self-insurance as provided in subdivision eight of section fifty-four of this  chapter,  nor shall it include farm laborers except as provided in group fourteen-b of section three of  this  chapter.  If  a  farm  labor contractor  recruits  or supplies farm laborers for work on a farm, such farm laborers shall for the purposes of this chapter  be  deemed  to  be employees  of  the  owner  or lessee of such farm.   The term "employee" shall not include baby  sitters  as  defined  in  subdivision  three  of section  one  hundred  thirty-one  and  subdivision three of section one hundred thirty-two of the labor law or minors fourteen years of  age  or over  engaged in casual employment consisting of yard work and household chores in and  about  a  one  family  owner-occupied  residence  or  the premises of a non-profit, non-commercial organization, not involving the use  of  power-driven  machinery.  The term "employee" shall not include persons engaged by the owner in casual  employment  consisting  of  yard work,  household chores and making repairs to or painting in and about a one-family owner-occupied  residence.  The  term  "employee"  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 paragraph (b) of this subdivision 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 (A) 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; (B) shall not  receive any remuneration related to the number of hours worked; and (C) 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.   "Employee" shall also mean, for purposes of this  chapter,  an  infant rendering  services  for the public good as prescribed in sections seven hundred fifty-eight-a and 353.6 of the family court act.   For the purpose of this chapter only, "employee"  shall  also  mean  a driver,  operator  or  lessee  who  contracts with an owner, operator or lessor for the purpose of operating a taxicab as so defined  in  section one  hundred  forty-eight-a of the vehicle and traffic law, except where such person leases the taxicab from a person who  personally,  regularly operates  such  vehicle  an average of forty or more hours per week, and except if the taxicab is a livery subject to section eighteen-c of  this chapter,  in  which case the livery driver's employer shall only be such employer as is defined in that section. For the purposes of this section only,  such  person  shall  be  deemed  to  be  an   employee   of   the owner-operator  if  the owner-operator controls, directs, supervises, or has the power to hire or terminate such person.   "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.   Notwithstanding  any other provision of this chapter, and for purposes of this chapter only, a jockey, apprentice  jockey  or  exercise  person licensed  under  article two or four of the racing, pari-mutuel wagering and breeding law, and at the election of  the  New  York  Jockey  Injury Compensation  Fund, Inc., with the approval of the New York state gaming commission,  employees  of  licensed  trainers  or  owners,   performing services  for  an  owner  or  trainer in connection with the training or racing of a horse at a facility of a racing association  or  corporation subject  to  article two or four of the racing, pari-mutuel wagering and breeding law and subject to the  jurisdiction  of  the  New  York  state gaming commission shall be regarded as the "employee" not solely of such owner  or  trainer, but shall instead be conclusively presumed to be the "employee" of The New York Jockey Injury  Compensation  Fund,  Inc.  and also  of  all  owners  and  trainers  who are licensed or required to be licensed under article two or four of the racing,  pari-mutuel  wagering and  breeding  law  at the time of any occurrence for which benefits are payable pursuant to this chapter in respect of the injury  or  death  of such  jockey,  apprentice jockey, exercise person or, if approved by the New York state gaming commission, employee  of  a  licensed  trainer  or owner.    "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.   Notwithstanding any other provision of this chapter, and for  purposes of  this chapter only, a black car operator, as defined in article six-F of the executive law, shall, on and after the fund  liability  date,  as defined  in  such  article,  be  an "employee" of the New York black car operators' injury compensation  fund,  inc.  created  pursuant  to  such article.   "Employee"  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 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; 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.   "Employee"  shall  not  include  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  (A)  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; (B) shall not receive any compensation related to the  number of hours worked; and (C) 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 shall 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; and  (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  subdivision,  "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.   For the  purpose  of  this  chapter  only,  whether  a  livery  driver dispatched  by an independent livery base, as those terms are defined in article six-G of the executive law, is an "employee" shall be determined in accordance with section eighteen-c of this chapter.   5. "Employment" includes employment in a trade, business or occupation carried on  by  the  employer  for  pecuniary  gain,  or  in  connection therewith,  except  where  the  employer  elects  to  bring  his  or her employees within the provisions of this chapter as provided  in  section three  of  this  article,  and except employment as a domestic worker as provided in section three of this  article,  and  except  where  a  town elects  to  have  the  provisions  of  this  chapter  apply  to the town superintendent  of  highways.  "Employment"  shall  also   include,   in connection  with  the  civil  defense  effort  and  for purposes of this chapter  the  service  of  a  civil  defense  volunteer  in   authorized activities  of  a  volunteer  agency  sponsored or authorized by a local office as defined in a state defense emergency act.  "Employment"  shall also include participation with an auxiliary police effort made within a municipal corporation which elected to include auxiliary police officers within the definition of "employee" as authorized by subdivision four of this  section  and for purposes of this chapter, the services of members or volunteers in activities authorized by local law. The  service  of  a civil  defense  volunteer  who  is  also  an  employee recompensed by an employer for service to such employer, shall not  be  deemed  to  be  in employment  of a local office when he or she is performing civil defense service in his or  her  employment  or  in  relation  thereto.  For  the purposes  of  this  chapter  only  "employment"  shall  also include the delivery or  sale  and  delivery  of  newspapers  or  periodicals  by  a newspaper  carrier as defined in section thirty-two hundred twenty-eight of the education law, but shall not include delivery  of  newspapers  or shopping  news  to the consumer (including any services directly related to such trade or business) by a person who is not performing  commercial goods  transportation  services  for  a  commercial goods transportation contractor within the meaning of article twenty-five-C of the labor law. 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  paragraph  (b) herein 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 (A) 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; (B) shall not  receive any remuneration related to the number of hours worked; and (C) 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.   For  the purpose of this chapter only, "employment" shall also include the service of a driver, operator or lessee of a taxicab as  so  defined in  section  one  hundred  forty-eight-a of the vehicle and traffic law, except where a person leases a  taxicab  from  an  owner-operator  of  a taxicab  who, regularly operates the vehicle an average of forty or more hours per week. Such a lessee shall be deemed to be in employment if the lessor controls, directs, supervises,  or  has  the  power  to  hire  or terminate the lessee.   Notwithstanding  any other provision of this chapter, and for purposes of this chapter only, a jockey, apprentice  jockey  or  exercise  person licensed  under  article two or four of the racing, pari-mutuel wagering and breeding law, and at the election of  the  New  York  Jockey  Injury Compensation  Fund, Inc., with the approval of the New York state gaming commission,  employees  of  licensed  trainers  or  owners,   performing services  for  an  owner  or  trainer in connection with the training or racing of a horse at a facility of a racing association  or  corporation subject  to  article two or four of the racing, pari-mutuel wagering and breeding law and subject to the  jurisdiction  of  the  New  York  state gaming commission shall be regarded as in the "employment" not solely of such owner and trainer, but shall instead be conclusively presumed to be in  the  "employment"  of  The New York Jockey Injury Compensation Fund,  Inc. and of all owners and trainers who are licensed or required  to  be licensed  under  article two or four of the racing, pari-mutuel wagering and breeding law, at the time of any occurrence for which  benefits  are payable  pursuant  to  this chapter in respect of the injury or death of such jockey, apprentice jockey, exercise person or, if approved  by  the New  York  state  gaming  commission,  employee of a licensed trainer or owner. For the purpose of this chapter only, whether a  livery  driver's performance  of  covered services, as those terms are defined in article six-G of the executive law, constitutes "employment" shall be determined in accordance with section eighteen-c of this chapter.   Notwithstanding any other provision of this chapter, and for  purposes of  this  chapter only, a black car operator, as that term is defined in article six-F of the  executive  law,  shall,  on  and  after  the  fund liability  date, as that term is defined in such article, be regarded as in the  "employment"  of  the  New  York  black  car  operators'  injury compensation fund, inc. created pursuant to such article.   "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.   "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  (A)  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; (B) shall not receive any compensation related to the number of hours worked; and (C) 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 shall  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; and  (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  subdivision,  "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.   6. "Compensation" means the money allowance payable to an employee  or to  his dependents as provided for in this chapter, and includes funeral benefits provided therein.   7. "Injury"  and  "personal  injury"  mean  only  accidental  injuries arising  out  of  and  in  the  course of employment and such disease or infection as may naturally and unavoidably result therefrom.  The  terms "injury"  and  "personal  injury"  shall  not include an injury which is solely mental and is based on workrelated stress if such  mental  injury is  a  direct  consequence  of  a  lawful personnel decision involving a disciplinary  action,  work  evaluation,  job  transfer,  demotion,   or termination taken in good faith by the employer.   8.  "Death"  when  mentioned  as a basis for the right to compensation means only death resulting from such injury.   9. "Wages" means the money rate  at  which  the  service  rendered  is recompensed  under  the  contract  of hiring in force at the time of the accident, including  the  reasonable  value  of  board,  rent,  housing, lodging  or similar advantage received from the employer, or in the case of (a) a civil defense volunteer, (b) a  volunteer  worker  in  a  state department  as  provided  in group sixteen of subdivision one of section three of this chapter, (c) a volunteer  worker  for  a  social  services district  as  provided  in group seventeen of subdivision one of section three of this chapter, (d) a county fire coordinator,  a  deputy  county fire  coordinator or a comparable county official to whom the provisions of group fifteen-a of subdivision one of section three of  this  chapter are applicable, who is also a volunteer firefighter or ambulance worker, (e)  a  fire district officer whether elective or appointive and whether or not he or she is compensated for his or her services or a  paid  fire or  ambulance  district  employee,  (f)  a  state  fire instructor whose compensation is paid in whole or in part by the state, (g)  an  enrolled member  of  a fire company who, is not a volunteer firefighter, receives compensation for his or her services and is not a full-time firefighter, known as a "call firefighter", (h) persons who are  performing  services for  a public or not-for-profit corporation, association, institution or agency organized as an unincorporated association or  duly  incorporated under  the  laws of this state in fulfillment of a sentence of probation or  of  conditional  discharge,  or  persons  performing  such  services pursuant  to  the provisions of section 170.55 or 170.56 of the criminal procedure  law,  (i)  an  auxiliary  police  officer  in   a   municipal corporation  which elected to include such persons within the definition of "employee" as authorized by subdivision four of this section, or  (j) a duly appointed member of a regional hazardous materials incidents team recognized  under  section  two  hundred nine-y of the general municipal law, such money rate applying in his or  her  regular  vocation  or  the amount   of   the  regular  earnings  of  such  volunteer,  coordinator, instructor, or comparable officer, fire or ambulance district officer or employee or call firefighter, or team member as the case may be, in  his or  her  regular vocation, plus any amount earned as such a coordinator, instructor or comparable  officer,  or  as  such  a  fire  or  ambulance district  officer  or  employee  or  call  firefighter  or  team member, provided, however, that in no event shall the  average  weekly  wage  be fixed  at  less  than  thirty  dollars regardless of whether or not such volunteer, coordinator, instructor or  comparable  officer  or  fire  or  ambulance  district  officer  or  employee  or  call firefighter or team member had gainful employment elsewhere at the time of the injury.   The  wages  of  a  livery  driver,  as defined in article six-G of the executive law, shall be calculated in accordance  with  this  paragraph. The  chair  shall  promulgate  regulations,  in  consultation  with  the independent livery driver benefit fund, and all local taxi and limousine commissions,  as  defined  in  article  six-G  of  the  executive   law, establishing  amounts  that  livery  drivers are presumptively deemed to receive in annual wages, and may vary  such  presumptive  wage  by  such geographic region or political subdivision of the state as the chair may set.  Such  regulations  may  establish  other  factors  or criteria for determining the presumptive wage. The  presumptive  wage  shall  be  set based on the chair's findings as to the amount earned by livery drivers, and  their  expenses.  A  livery driver or the livery driver's employer, including the independent livery driver  benefit  fund,  may  rebut  the presumptive  wage  by  competent evidence that the driver's actual wages for covered services, as defined in article six-G of the executive  law, were  different.  The  chair  shall  promulgate  such other rules as are necessary to  compute  livery  driver  wages  in  accordance  with  this paragraph.   10.  "State  fund"  means  the  state  insurance  fund provided for in article five of this chapter.   11. "Child" shall include a posthumous child, a child legally  adopted prior  to the injury of the employee; and a step-child or child born out of wedlock dependent upon the deceased.   12.  "Insurance  carrier"  shall  include  the   state   fund,   stock corporations,  mutual  corporations  or  reciprocal  insurers with which employers have insured, and  employers  permitted  to  pay  compensation directly  under the provisions of subdivisions three, three-a or four of section fifty of this chapter. 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.   13.  "Manufacture,"  "construction,"  "operation"  and  "installation" shall include "repair," "demolition," "fabrication" and "alteration" and shall  include  all  work  done in connection with the repair of plants, buildings, grounds and  approaches  of  all  places  where  any  of  the hazardous employments are being carried on, operated or conducted.   14.  "Minor"  means  a person who has not attained the age of eighteen years.   15. "Occupational disease" means a disease resulting from  the  nature of employment and contracted therein.   16. "New York state average weekly wage" shall mean the average weekly wage of the state of New York for the previous calendar year as reported by the commissioner of labor to the superintendent of financial services on March thirty-first.   17.  A "substantially owned affiliated entity" of any person means the parent company of the person, any  subsidiary  of  the  person,  or  any entity in which the parent of the person owns more than fifty percent of the  voting  stock,  or  an  entity in which one or more of the top five shareholders of the person individually  or  collectively  also  owns  a controlling  share  of the voting stock, or an entity which exhibits any other indicia of control over  the  person  or  over  which  the  person exhibits  control, regardless of whether or not the controlling party or parties have any identifiable or  documented  ownership  interest.  Such  indicia   shall   include:   power  or  responsibility  over  employment decisions; access to and/or use  of  the  relevant  entity's  assets  or equipment;  power  or  responsibility  over  contracts  of  the  person; responsibility  for  maintenance  or  submission  of  certified  payroll records; and influence over  the  business  decisions  of  the  relevant entity.   19. A "claim for reimbursement" from the special disability fund means an  application to the board under paragraph (f) of subdivision eight of section fifteen of this chapter for a  determination  that  the  special disability fund is liable in the first instance for any reimbursement to the insurance carrier, self-insured employer or state insurance fund.   20.  A  "request  for  reimbursement" from the special disability fund means an application to the special disability  fund  for  reimbursement for  specific costs, subsequent to a determination by the board that the special disability fund is liable to provide reimbursement on the claim.   21. The "workers' compensation rating board" or the "New York workers' compensation rating board" shall mean the compensation insurance  rating board  until  February  first,  two  thousand  eight, and thereafter the superintendent of financial services or other entity designated  by  the superintendent of financial services for collection and analysis of data or such other purposes as set forth in this chapter.   22.  "Cost of compensation" means the amount that an employer must pay to secure compensation as calculated in accordance  with  regulation  of the board or, in the absence of such regulation, based on average market rates for a comparable employer.   23.  "Special  disability  fund  advisory  committee"  shall  mean  an advisory committee to the  workers'  compensation  board,  acting  by  a majority  thereof,  solely with respect to the special fund entitled the special disability fund, composed of the director  of  the  budget,  the commissioner  of  labor,  the  commissioner of taxation and finance, the chair of the workers' compensation  board,  and  the  superintendent  of financial services.   24.  "Employees  of  licensed  trainers  or  owners"  means  assistant trainers, foremen, watchmen and stable employees, including  grooms  and hot-walkers, employed by a trainer or owner licensed pursuant to article two or four of the racing, pari-mutuel wagering and breeding law.