2023 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 workers' compensation board of
the state of New York;
"Commissioner" means the industrial commissioner of the state  of  New
York;
"Board"  means  the  workers'  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.