2023 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.