2023 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.