NY Lab L § 861-C (2021)
2021 New York Laws LAB - Labor Article 25-B - The New York State Construction Industry Fair Play Act 861-C - Presumption of Employment in the Construction Industry.

§  861-c.  Presumption  of employment in the construction industry. 1. Any person performing services for a contractor shall be  classified  as an  employee  unless  the  person  is  a  separate business entity under subdivision two of this section or all of  the  following  criteria  are met, in which case the person shall be an independent contractor:  (a)  the  individual  is free from control and direction in performing the job, both under his or her contract and in fact;  (b) the service must be performed outside the usual course of business for which the service is performed; and  (c)  the  individual  is  customarily  engaged  in  an   independently established  trade,  occupation, profession, or business that is similar to the service at issue.   2. A business entity,  including  any  sole  proprietor,  partnership, corporation  or entity that may be a contractor under this section shall be considered a separate business entity from the contractor  where  all the following criteria are met:  (a)  the  business  entity  is  performing  the  service free from the direction or control over the means and manner of providing the service, subject only to the right of the contractor  for  whom  the  service  is provided to specify the desired result;  (b)  the business entity is not subject to cancellation or destruction upon severance of the relationship with the contractor;  (c) the business entity has a substantial investment of capital in the business entity beyond ordinary  tools  and  equipment  and  a  personal vehicle;  (d)  the  business entity owns the capital goods and gains the profits and bears the losses of the business entity;  (e) the business entity makes its services available  to  the  general public or the business community on a continuing basis;  (f) the business entity includes services rendered on a Federal Income Tax Schedule as an independent business or profession;  (g) the business entity performs services for the contractor under the business entity's name;  (h)  when the services being provided require a license or permit, the business entity obtains and pays  for  the  license  or  permit  in  the business entity's name;  (i) the business entity furnishes the tools and equipment necessary to provide the service;  (j)  if necessary, the business entity hires its own employees without contractor approval, pays the employees without reimbursement  from  the contractor  and  reports  the  employees' income to the Internal Revenue Service;  (k) the contractor does  not  represent  the  business  entity  as  an employee of the contractor to its customers; and  (l)  the business entity has the right to perform similar services for others on whatever basis and whenever it chooses.   3. The failure to withhold federal or state income  taxes  or  to  pay unemployment   compensation   contributions   or  workers'  compensation premiums with respect to an individual's wages shall not  be  considered in  making  a  determination  under this section, except as set forth in paragraph (f) of subdivision two of this section.   4. An individual's act of  securing  workers'  compensation  insurance with  a carrier as a sole proprietor, partnership or otherwise shall not be binding on any determination under this section.   5. When a business entity meets the definition of a separate  business entity  pursuant  to  subdivision  two  of  this  section,  the separate business entity will be considered  a  contractor  subject  to  all  the  provisions   of   this  article  in  regard  to  the  classification  of individuals performing services for it.