NY Lab L § 862-B (2021)
2021 New York Laws LAB - Labor Article 25-C - The New York State Commercial Goods Transportation Industry Fair Play Act 862-B - Presumption of Employment in the Commercial Goods Transportation Industry.

§   862-b.   Presumption   of   employment  in  the  commercial  goods transportation industry.  1.  Any  person  performing  commercial  goods transportation services for a commercial goods transportation contractor shall   be   classified   as   an   employee  of  the  commercial  goods transportation contractor unless payment for such services  is  reported on  a  Federal  Income  Tax  form 1099 if required by law and either 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, firm, corporation, limited liability company, association or other legal entity that may also be a  commercial  goods  transportation  contractor under  this  section shall be considered a separate business entity from the commercial goods transportation 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  commercial  goods  transportation contractor  for  whom  the  service  is  provided to specify the desired result or federal rule or regulation;  (b) the business entity is not subject to cancellation or  destruction upon   severance   of   the   relationship  with  the  commercial  goods transportation contractor;  (c) the business entity has a substantial investment of capital in the business entity,  including  but  not  limited  to  ordinary  tools  and equipment;  (d) the business entity owns or leases the capital goods and gains the profits and bears the losses of the business entity;  (e) the business entity may make its services available to the general public  or  others not a party to the business entity's written contract referenced  in  paragraph  (g)  of  this  subdivision  in  the  business community on a continuing basis;  (f) the business entity provides services reported on a Federal Income Tax form 1099, if required by law;  (g)  the  business  entity  performs services for the commercial goods transportation contractor pursuant to  a  written  contract,  under  the business   entity's   name,  specifying  their  relationship  to  be  as independent contractors or separate business entities;  (h) when the services being provided require a license or permit,  the business  entity pays for the license or permit in the business entity's name or, where  permitted  by  law,  pays  for  reasonable  use  of  the commercial goods transportation contractor's license or permit;  (i)  if necessary, the business entity hires its own employees without the commercial goods transportation contractor's  approval,  subject  to applicable qualification requirements or federal or state laws, rules or regulations,  and  pays  the  employees  without  reimbursement from the commercial goods transportation contractor;  (j) the commercial goods transportation contractor  does  not  require that the business entity be represented as an employee of the commercial goods transportation contractor to its customers; and  (k)  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 commercial goods transportation contractor subject to all the provisions of this article  in  regard  to the classification of individuals performing services for it.