2023 New York Laws › LAB - Labor › Article 25-B - The New York State Construction Industry Fair Play Act › 861-C - Presumption of Employment in the Construction Industry.

§  861-c.  Presumption  of employment in the construction industry. 1.
Any person performing services for a contractor shall be  classified  as
an  employee  unless  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,
corporation  or entity that may be a contractor under this section shall
be considered a separate business entity from the 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 contractor  for  whom  the  service  is
provided to specify the desired result;
(b)  the business entity is not subject to cancellation or destruction
upon severance of the relationship with the contractor;
(c) the business entity has a substantial investment of capital in the
business entity beyond ordinary  tools  and  equipment  and  a  personal
vehicle;
(d)  the  business entity owns the capital goods and gains the profits
and bears the losses of the business entity;
(e) the business entity makes its services available  to  the  general
public or the business community on a continuing basis;
(f) the business entity includes services rendered on a Federal Income
Tax Schedule as an independent business or profession;
(g) the business entity performs services for the contractor under the
business entity's name;
(h)  when the services being provided require a license or permit, the
business entity obtains and pays  for  the  license  or  permit  in  the
business entity's name;
(i) the business entity furnishes the tools and equipment necessary to
provide the service;
(j)  if necessary, the business entity hires its own employees without
contractor approval, pays the employees without reimbursement  from  the
contractor  and  reports  the  employees' income to the Internal Revenue
Service;
(k) the contractor does  not  represent  the  business  entity  as  an
employee of the contractor to its customers; and
(l)  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  contractor  subject  to  all  the

provisions   of   this  article  in  regard  to  the  classification  of
individuals performing services for it.