NY Lab L § 511 (2021)
2021 New York Laws LAB - Labor Article 18 - Unemployment Insurance Law Title 2 - Definitions 511 - Employment.

§  511.  Employment. 1. General definition. "Employment" means (a) any service under any contract of employment for hire, express  or  implied, written, or oral and  (b) any service by a person for an employer  (1)  as  an  agent-driver or commission-driver engaged in distributing meat, vegetable, fruit, or bakery products; beverages other  than  milk; or laundry or dry-cleaning services; or  (1-a)  as a professional musician or a person otherwise engaged in the performing arts, and performing 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 services in connection with the production of or performance in any artistic endeavor which  requires  artistic  or technical skill or expertise; or  (1-b)   as  an  employee  in  the  construction  industry  unless  the presumption of employment can be overcome,  as  provided  under  section eight hundred sixty-one-c of this chapter; or  (1-c)  as  an employee in the commercial goods transportation industry unless the presumption of employment can be overcome, as provided  under section eight hundred sixty-two-b of this chapter; or  (2)  as  a  traveling or city salesman engaged on a full-time basis in soliciting orders for merchandise for resale or supplies for use in  the purchaser's  business operations if the contract of service contemplates that substantially all of such services are to be  performed  personally by  such  person;  such person does not have a substantial investment in facilities used in connection with the  performance  of  such  services, excepting facilities for transportation; and the services are not in the nature  of  a  single  transaction  which  is  not  part of a continuing relationship with the employer.  (3) as a professional model, where:  (i) the professional model performs modeling services for; or  (ii) 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 his or  her  privacy  rights  enumerated  above,  unless  such services  are  performed  pursuant  to  a written contract wherein it is stated that the professional model is the employee of  another  employer covered  by  this  chapter.  For purposes of this subparagraph, 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 subparagraph, 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.   2.  Work localized in state. The term "employment" includes a person's entire service performed within or both within and without this state if the service is localized in this  state.  Service  is  deemed  localized within  the  state  if  it  is performed entirely within the state or is performed both within and without the state but that  performed  without the  state  is  incidental to the person's service within the state, for example, is temporary or transitory in nature or  consists  of  isolated transactions.    3. Work within and without the state. The term "employment" includes a person's  entire  service  performed  both within and without this state provided it is not localized in any state but some  of  the  service  is performed in this state, and  (a) the person's base of operations is in this state; or  (b)  if there is no base of operations in any state in which some part of the service is performed,  the  place  from  which  such  service  is directed or controlled is in this state; or  (c)  if  the  base  of  operations or place from which such service is directed or controlled is not in any state in which  some  part  of  the service is performed, the person's residence is in this state.   The  term  "employment"  shall  not include services performed without this state in any calendar year during which no  service  was  performed within  this  state  if  contributions with respect to such services are required under the unemployment compensation law of any other  state  or of the federal government.   4. Other included work.   The term "employment" shall include  (a)  Service,  wherever performed within the United States, the Virgin Islands, or Canada, if  (1) contributions are not required with respect to such service  under an unemployment compensation law of any other state, the Virgin Islands, or Canada, and  (2)  the place from which such service is directed or controlled is in this state;  (b) Service performed within  this  state  not  otherwise  within  the purview of the foregoing provisions of this section if contributions are not required with respect to such service under corresponding provisions of an unemployment compensation law of any other state.   5.  Work  without  the  state  or  in  a  foreign country. (a) Service performed entirely without the state, with respect to no part  of  which contributions are required under an unemployment compensation law of any other  state  or of the federal government, is employment if an election with respect to the person's service has been made and approved pursuant to the provisions of section five hundred sixty-one of this article.  (b) The term "employment" includes service by a citizen of the  United States  performed  for  an  American employer outside the United States, except Canada or the Virgin  Islands,  provided  contributions  are  not required  with  respect  to such service under an unemployment insurance law of any other state pursuant to criteria which correspond to those of subdivisions two and three of this section, if  (1) the employer's principal place of business in the United States is in this state, or  (2) the employer has no place of business in the United States but is  (i) an individual person who is a resident of this state, or  (ii) a corporation which is organized under the laws of this state, or  (iii) a partnership or a trust and the number of partners or  trustees who  are  residents  of  this  state  is greater than the number who are residents of any one other state, or  (3) none of the criteria of subparagraphs (1) and (2) are met but  the employer  has  elected  coverage  of  the  service in this state or, the employer having  failed  to  elect  such  coverage  in  any  state,  the individual  performing  the service has filed a claim for benefits under this article on the basis of such service.  (c) For purposes of this subdivision, "American employer" means  (1) an individual who is a resident of the United States; or  (2) a partnership if two-thirds or more of the partners are  residents of the United States; or  (3) a trust if all of the trustees are residents of the United States; or  (4) a corporation organized under the laws of the United States or any state.   6. Agricultural labor. (a) The term "employment" includes agricultural labor. The term "agricultural labor" includes all service performed:  (1)  on  a  farm,  in  the  employ  of  any person, in connection with cultivating the soil, or in connection with raising  or  harvesting  any agricultural   or   horticultural   commodity,  including  the  raising, shearing, feeding, caring for, training, and  management  of  livestock, bees, poultry, and fur-bearing animals, and wildlife;  (2)  in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by  a  hurricane, if the major part of such service is performed on a farm;  (3)  in  handling,  planting,  drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or  to a   carrier   for   transportation   to   market,  any  agricultural  or horticultural commodity; but only if such service is  performed  in  the employ of an operator of a farm (i) as an incident to farming operations or,  (ii)  in  the  case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The  provisions  of this  paragraph  shall not apply to service performed in connection with commercial canning or commercial freezing  or  in  connection  with  any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.  (b)  As  used  in  this  subdivision,  the term "farm" includes stock, dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations, nurseries, greenhouses or other similar structures, used  primarily  for the raising of agricultural or horticultural commodities, and orchards.   7. Spouse or child. The term "employment" does not include service for an employer by his spouse or child under the age of twenty-one.   8.  Golf  caddy.  The  term "employment" does not include service as a golf caddy.   9. Day student. The term "employment" does not include service  during all  or  any  part  of  the school year or regular vacation periods as a part-time worker of any person actually in regular attendance during the day time as a student in an elementary or secondary school.   10. Employment under the federal railroad unemployment insurance  act. The term "employment" does not include employment subject to the federal railroad unemployment insurance act.   11.   Maritime   services   under   reciprocal  agreements.  The  term "employment" includes a person's entire  service,  if  such  service  is deemed  performed  in  this  state  by  virtue  of reciprocal agreements pursuant to the provisions  of  paragraph  (c)  of  subdivision  two  of section five hundred thirty-six of this article and does not include any service  which  by  virtue  of  such  agreements  is deemed performed in another state.   12. Baby sitter. The term "employment" does not include service  as  a baby sitter at the home of the employer by a minor.   13.  Persons  under the age of twenty-one engaged in casual labor. The term "employment" does not include services of a person under the age of twenty-one engaged in casual labor consisting of yard work and household chores in and about  a  residence  or  the  premises  of  a  non-profit, non-commercial  organization,  not  involving  the  use  of power-driven machinery.    14. The term "employment" does not include service by  a  child  under the age of fourteen years.   15.  Students  and  students' spouses at educational institutions. The term "employment" does not include services rendered for an  educational institution  by a person who is enrolled and is in regular attendance as a student in such an institution, or the spouse of such student employed by that institution if such spouse is advised at the beginning  of  such services  that  the  employment is provided under a program of financial assistance to such student and will not be covered under  this  article. For  the  purposes  of this article, the term "employment" shall include services rendered for a health care facility, including academic medical centers, by fellow, resident and intern physicians.   16. Non-applicability  of  exclusions.  The  exclusions  described  in subdivisions  eight, nine, twelve, thirteen and fourteen of this section shall not apply to services performed for a  nonprofit  organization  as defined in section five hundred sixty-three or for a governmental entity as  defined in section five hundred sixty-five or for an Indian tribe as defined  in  section  five  hundred  sixty-six  of  this  article.   The exclusions  described  in subdivision twenty-three of this section shall not apply to commercial goods transportation services  performed  for  a commercial goods transportation contractor within the meaning of article twenty-five-C of this chapter.   17.  Certain  college students. The term "employment" does not include service performed by an individual, regardless of age, who  is  enrolled at   a  nonprofit  or  public  educational  institution  which  normally maintains a regular faculty and curriculum and normally has a  regularly organized  body  of  students  in  attendance  at  the  place  where its educational activities are carried  on  as  a  student  in  a  full-time program  taken  for  credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so  certified  to  the  employer, except  that  this subdivision shall not apply to service performed in a program established for  or  on  behalf  of  an  employer  or  group  of employers.   18.  Freelance  shorthand  reporter.  The  term  "employment" does not include the services of a freelance shorthand reporter rendered pursuant to any agreement, contract, or mutual understanding, either  written  or oral, with another freelance shorthand reporter or a freelance shorthand reporting  service.  For  the  purposes of this subdivision, a freelance shorthand reporter is a person who records verbatim any  oral  statement or  series  of  oral statements made over a definite period of time by a written system of shorthand and whose sole compensation for making  such a  record  is an agreed upon fee per page of record produced. Additional payment of a set dollar charge as a minimum fee or attendance fee  shall not  affect  the above definition of a freelance shorthand reporter. For the purposes  of  this  subdivision,  a  freelance  shorthand  reporting service  means any business which provides freelance shorthand reporters through subcontracts or by any other means.   19. Qualified real estate  agent.  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.   20.  The  term  "employment" shall not include services performed by a full-time student in the employ of an organized camp:  (a) if such camp:  (1) did not operate for more than seven months in  the  calendar  year and did not operate for more than seven months in the preceding calendar year; or  (2)  had  average  gross  receipts for any six months in the preceding calendar year which  were  not  more  than  thirty-three  and  one-third percent  of  its  average gross receipts for the other six months in the preceding calendar year; and  (b) if such full-time student performs services in the employ of  such camp for less than thirteen calendar weeks in any such year.   20-a.  Full-time  student.  (a)  For purposes of subdivision twenty of this section, an individual shall be treated as a full-time student  for any period:  (1)  during which the individual is enrolled as a full-time student at an educational institution; or  (2) which is between academic years or terms if:  (i)  the  individual  was  enrolled  as  a  full-time  student  at  an educational  institution  for the immediately preceding academic year or term; and  (ii) there is a reasonable assurance that the individual  will  be  so enrolled  for the immediately succeeding academic year or term after the period described in clause (i) of this subparagraph.  (b) For purposes of this subdivision, the term educational institution shall mean any educational institution of secondary, higher educational, professional  or  vocational  educational  training,  as those terms are defined in the education law.   20-b. Camp. For purposes of subdivision twenty of  this  section,  the term camp shall mean "children's overnight camp" as that term is defined in  subdivision one of section thirteen hundred ninety-two of the public health law, and any "summer  day  camp"  as  that  term  is  defined  in subdivision  two  of  section  thirteen hundred ninety-two of the public health law, and any "traveling summer day camp" as that term is  defined in  subdivision  three  of  section  thirteen  hundred ninety-two of the public health law.   21. Qualified insurance agent or broker. The term  "employment"  shall not  include  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 paragraph (c) of this subdivision 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 (A) 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; (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 (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.   22.  Recreational  bowling.  The  term  "employment" shall not include recreational bowling, such as bowling in a league  where  an  individual may occasionally win prize money.   23.  Newspaper  delivery  persons.  The  term  "employment"  shall not include service performed by any person if:  (a) such person is engaged in the trade or business of the  delivering or  distribution  of newspapers or shopping news (including any services directly related to such trade or business);  (b) substantially all the remuneration (whether or not paid  in  cash) for  the  performance of the services described in paragraph (a) of this subdivision is directly related to sales or other output (including  the performance of services) rather than to the number of hours worked; and  (c)  the  services performed by the person are performed pursuant to a written contract between  such  person  and  the  person  for  whom  the services  are performed, and such contract provides that person will not be treated as an employee with respect to such services for federal  tax purposes.