§ 511 — Employment

New York § 511

• Jurisdiction: New York
• Law LAB: Labor
• Title 2: Definitions
• Art. 18: Unemployment Insurance Law

Text

§ 511. Employment. 1. General definition. "Employment" means (a) any\nservice under any contract of employment for hire, express or implied,\nwritten, or oral and\n (b) any service by a person for an employer\n (1) as an agent-driver or commission-driver engaged in distributing\nmeat, vegetable, fruit, or bakery products; beverages other than milk;\nor laundry or dry-cleaning services; or\n (1-a) as a professional musician or a person otherwise engaged in the\nperforming arts, and performing services as such for a television or\nradio station or network, a film production, a theatre, hotel,\nrestaurant, night club or similar establishment unless, by written\ncontract, such musician or person is stipulated to be an employee of\nanother employer covered by this chapter. "Engaged in the performing\narts" shall mean performing services in connection with the production\nof or performance in any artistic endeavor which requires artistic or\ntechnical skill or expertise; or\n (1-b) as an employee in the construction industry unless the\npresumption of employment can be overcome, as provided under section\neight hundred sixty-one-c of this chapter; or\n (1-c) as an employee in the commercial goods transportation industry\nunless the presumption of employment can be overcome, as provided under\nsection eight hundred sixty-two-b of this chapter; or\n (2) as a traveling or city salesman engaged on a full-time basis in\nsoliciting orders for merchandise for resale or supplies for use in the\npurchaser's business operations if the contract of service contemplates\nthat substantially all of such services are to be performed personally\nby such person; such person does not have a substantial investment in\nfacilities used in connection with the performance of such services,\nexcepting facilities for transportation; and the services are not in the\nnature of a single transaction which is not part of a continuing\nrelationship with the employer.\n (3) as a professional model, where:\n (i) the professional model performs modeling services for; or\n (ii) consents in writing to the transfer of his or her exclusive legal\nright to the use of his or her name, portrait, picture or image, for\nadvertising purposes or for the purposes of trade, directly to\n a retail store, a manufacturer, an advertising agency, a photographer,\na publishing company or any other such person or entity, which dictates\nsuch professional model's assignments, hours of work or performance\nlocations and which compensates such professional model in return for a\nwaiver of his or her privacy rights enumerated above, unless such\nservices are performed pursuant to a written contract wherein it is\nstated that the professional model is the employee of another employer\ncovered by this chapter. For purposes of this subparagraph, the term\n"professional model" means a person who, in the course of his or her\ntrade, occupation or profession, performs modeling services. For\npurposes of this subparagraph, the term "modeling services" means the\nappearance by a professional model in photographic sessions or the\nengagement of such model in live, filmed or taped modeling performances\nfor remuneration.\n 2. Work localized in state. The term "employment" includes a person's\nentire service performed within or both within and without this state if\nthe service is localized in this state. Service is deemed localized\nwithin the state if it is performed entirely within the state or is\nperformed both within and without the state but that performed without\nthe state is incidental to the person's service within the state, for\nexample, is temporary or transitory in nature or consists of isolated\ntransactions.\n 3. Work within and without the state. The term "employment" includes a\nperson's entire service performed both within and without this state\nprovided it is not localized in any state but some of the service is\nperformed in this state, and\n (a) the person's base of operations is in this state; or\n (b) if there is no base of operations in any state in which some part\nof the service is performed, the place from which such service is\ndirected or controlled is in this state; or\n (c) if the base of operations or place from which such service is\ndirected or controlled is not in any state in which some part of the\nservice is performed, the person's residence is in this state.\n The term "employment" shall not include services performed without\nthis state in any calendar year during which no service was performed\nwithin this state if contributions with respect to such services are\nrequired under the unemployment compensation law of any other state or\nof the federal government.\n 4. Other included work.\n The term "employment" shall include\n (a) Service, wherever performed within the United States, the Virgin\nIslands, or Canada, if\n (1) contributions are not required with respect to such service under\nan unemployment compensation law of any other state, the Virgin Islands,\nor Canada, and\n (2) the place from which such service is directed or controlled is in\nthis state;\n (b) Service performed within this state not otherwise within the\npurview of the foregoing provisions of this section if contributions are\nnot required with respect to such service under corresponding provisions\nof an unemployment compensation law of any other state.\n 5. Work without the state or in a foreign country. (a) Service\nperformed entirely without the state, with respect to no part of which\ncontributions are required under an unemployment compensation law of any\nother state or of the federal government, is employment if an election\nwith respect to the person's service has been made and approved pursuant\nto the provisions of section five hundred sixty-one of this article.\n (b) The term "employment" includes service by a citizen of the United\nStates performed for an American employer outside the United States,\nexcept Canada or the Virgin Islands, provided contributions are not\nrequired with respect to such service under an unemployment insurance\nlaw of any other state pursuant to criteria which correspond to those of\nsubdivisions two and three of this section, if\n (1) the employer's principal place of business in the United States is\nin this state, or\n (2) the employer has no place of business in the United States but is\n (i) an individual person who is a resident of this state, or\n (ii) a corporation which is organized under the laws of this state, or\n (iii) a partnership or a trust and the number of partners or trustees\nwho are residents of this state is greater than the number who are\nresidents of any one other state, or\n (3) none of the criteria of subparagraphs (1) and (2) are met but the\nemployer has elected coverage of the service in this state or, the\nemployer having failed to elect such coverage in any state, the\nindividual performing the service has filed a claim for benefits under\nthis article on the basis of such service.\n (c) For purposes of this subdivision, "American employer" means\n (1) an individual who is a resident of the United States; or\n (2) a partnership if two-thirds or more of the partners are residents\nof the United States; or\n (3) a trust if all of the trustees are residents of the United States;\nor\n (4) a corporation organized under the laws of the United States or any\nstate.\n 6. Agricultural labor. (a) The term "employment" includes agricultural\nlabor. The term "agricultural labor" includes all service performed:\n (1) on a farm, in the employ of any person, in connection with\ncultivating the soil, or in connection with raising or harvesting any\nagricultural or horticultural commodity, including the raising,\nshearing, feeding, caring for, training, and management of livestock,\nbees, poultry, and fur-bearing animals, and wildlife;\n (2) in the employ of the owner or tenant or other operator of a farm,\nin connection with the operation, management, conservation, improvement,\nor maintenance of such farm and its tools and equipment, or in salvaging\ntimber or clearing land of brush and other debris left by a hurricane,\nif the major part of such service is performed on a farm;\n (3) in handling, planting, drying, packing, packaging, processing,\nfreezing, grading, storing, or delivering to storage or to market or to\na carrier for transportation to market, any agricultural or\nhorticultural commodity; but only if such service is performed in the\nemploy of an operator of a farm (i) as an incident to farming operations\nor, (ii) in the case of fruits and vegetables, as an incident to the\npreparation of such fruits or vegetables for market. The provisions of\nthis paragraph shall not apply to service performed in connection with\ncommercial canning or commercial freezing or in connection with any\nagricultural or horticultural commodity after its delivery to a terminal\nmarket for distribution for consumption.\n (b) As used in this subdivision, the term "farm" includes stock,\ndairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,\nnurseries, greenhouses or other similar structures, used primarily for\nthe raising of agricultural or horticultural commodities, and orchards.\n 7. Spouse or child. The term "employment" does not include service for\nan employer by his spouse or child under the age of twenty-one.\n 8. Golf caddy. The term "employment" does not include service as a\ngolf caddy.\n 9. Day student. The term "employment" does not include service during\nall or any part of the school year or regular vacation periods as a\npart-time worker of any person actually in regular attendance during the\nday time as a student in an elementary or secondary school.\n 10. Employment under the federal railroad unemployment insurance act.\nThe term "employment" does not include employment subject to the federal\nrailroad unemployment insurance act.\n 11. Maritime services under reciprocal agreements. The term\n"employment" includes a person's entire service, if such service is\ndeemed performed in this state by virtue of reciprocal agreements\npursuant to the provisions of paragraph (c) of subdivision two of\nsection five hundred thirty-six of this article and does not include any\nservice which by virtue of such agreements is deemed performed in\nanother state.\n 12. Baby sitter. The term "employment" does not include service as a\nbaby sitter at the home of the employer by a minor.\n 13. Persons under the age of twenty-one engaged in casual labor. The\nterm "employment" does not include services of a person under the age of\ntwenty-one engaged in casual labor consisting of yard work and household\nchores in and about a residence or the premises of a non-profit,\nnon-commercial organization, not involving the use of power-driven\nmachinery.\n 14. The term "employment" does not include service by a child under\nthe age of fourteen years.\n 15. Students and students' spouses at educational institutions. The\nterm "employment" does not include services rendered for an educational\ninstitution by a person who is enrolled and is in regular attendance as\na student in such an institution, or the spouse of such student employed\nby that institution if such spouse is advised at the beginning of such\nservices that the employment is provided under a program of financial\nassistance to such student and will not be covered under this article.\nFor the purposes of this article, the term "employment" shall include\nservices rendered for a health care facility, including academic medical\ncenters, by fellow, resident and intern physicians.\n 16. Non-applicability of exclusions. The exclusions described in\nsubdivisions eight, nine, twelve, thirteen and fourteen of this section\nshall not apply to services performed for a nonprofit organization as\ndefined in section five hundred sixty-three or for a governmental entity\nas defined in section five hundred sixty-five or for an Indian tribe as\ndefined in section five hundred sixty-six of this article. The\nexclusions described in subdivision twenty-three of this section shall\nnot apply to commercial goods transportation services performed for a\ncommercial goods transportation contractor within the meaning of article\ntwenty-five-C of this chapter.\n 17. Certain college students. The term "employment" does not include\nservice performed by an individual, regardless of age, who is enrolled\nat a nonprofit or public educational institution which normally\nmaintains a regular faculty and curriculum and normally has a regularly\norganized body of students in attendance at the place where its\neducational activities are carried on as a student in a full-time\nprogram taken for credit at such institution, which combines academic\ninstruction with work experience, if such service is an integral part of\nsuch program, and such institution has so certified to the employer,\nexcept that this subdivision shall not apply to service performed in a\nprogram established for or on behalf of an employer or group of\nemployers.\n 18. Freelance shorthand reporter. The term "employment" does not\ninclude the services of a freelance shorthand reporter rendered pursuant\nto any agreement, contract, or mutual understanding, either written or\noral, with another freelance shorthand reporter or a freelance shorthand\nreporting service. For the purposes of this subdivision, a freelance\nshorthand reporter is a person who records verbatim any oral statement\nor series of oral statements made over a definite period of time by a\nwritten system of shorthand and whose sole compensation for making such\na record is an agreed upon fee per page of record produced. Additional\npayment of a set dollar charge as a minimum fee or attendance fee shall\nnot affect the above definition of a freelance shorthand reporter. For\nthe purposes of this subdivision, a freelance shorthand reporting\nservice means any business which provides freelance shorthand reporters\nthrough subcontracts or by any other means.\n 19. Qualified real estate agent. The term "employment" shall not\ninclude the services of a licensed real estate broker or sales associate\nif it be proven that (a) substantially all of the remuneration (whether\nor not paid in cash) for the services performed by such broker or sales\nassociate is directly related to sales or other output (including the\nperformance of services) rather than to the number of hours worked; (b)\nthe services performed by the broker or sales associate are performed\npursuant to a written contract executed between such broker or sales\nassociate and the person for whom the services are performed within the\npast twelve to fifteen months; and (c) the written contract provided for\nin paragraph (b) herein was not executed under duress and contains the\nfollowing provisions:\n (i) that the broker or sales associate is engaged as an independent\ncontractor associated with the person for whom services are performed\npursuant to article twelve-A of the real property law and shall be\ntreated as such for all purposes, including but not limited to federal\nand state taxation, withholding, unemployment insurance and workers'\ncompensation;\n (ii) that the broker or sales associate (A) shall be paid a commission\non his or her gross sales, if any, without deduction for taxes, which\ncommission shall be directly related to sales or other output; (B) shall\nnot receive any remuneration related to the number of hours worked; and\n(C) shall not be treated as an employee with respect to such services\nfor federal and state tax purposes;\n (iii) that the broker or sales associate shall be permitted to work\nany hours he or she chooses;\n (iv) that the broker or sales associate shall be permitted to work out\nof his or her own home or the office of the person for whom services are\nperformed;\n (v) that the broker or sales associate shall be free to engage in\noutside employment;\n (vi) that the person for whom the services are performed may provide\noffice facilities and supplies for the use of the broker or sales\nassociate, but the broker or sales associate shall otherwise bear his or\nher own expenses, including but not limited to automobile, travel, and\nentertainment expenses;\n (vii) that the person for whom the services are performed and the\nbroker or sales associate shall comply with the requirements of article\ntwelve-A of the real property law and the regulations pertaining\nthereto, but such compliance shall not affect the broker or sales\nassociate's status as an independent contractor nor should it be\nconstrued as an indication that the broker or sales associate is an\nemployee of the person for whom the services are performed for any\npurpose whatsoever;\n (viii) that the contract and the association created thereby may be\nterminated by either party thereto at any time upon notice given to the\nother.\n 20. The term "employment" shall not include services performed by a\nfull-time student in the employ of an organized camp:\n (a) if such camp:\n (1) did not operate for more than seven months in the calendar year\nand did not operate for more than seven months in the preceding calendar\nyear; or\n (2) had average gross receipts for any six months in the preceding\ncalendar year which were not more than thirty-three and one-third\npercent of its average gross receipts for the other six months in the\npreceding calendar year; and\n (b) if such full-time student performs services in the employ of such\ncamp for less than thirteen calendar weeks in any such year.\n 20-a. Full-time student. (a) For purposes of subdivision twenty of\nthis section, an individual shall be treated as a full-time student for\nany period:\n (1) during which the individual is enrolled as a full-time student at\nan educational institution; or\n (2) which is between academic years or terms if:\n (i) the individual was enrolled as a full-time student at an\neducational institution for the immediately preceding academic year or\nterm; and\n (ii) there is a reasonable assurance that the individual will be so\nenrolled for the immediately succeeding academic year or term after the\nperiod described in clause (i) of this subparagraph.\n (b) For purposes of this subdivision, the term educational institution\nshall mean any educational institution of secondary, higher educational,\nprofessional or vocational educational training, as those terms are\ndefined in the education law.\n 20-b. Camp. For purposes of subdivision twenty of this section, the\nterm camp shall mean "children's overnight camp" as that term is defined\nin subdivision one of section thirteen hundred ninety-two of the public\nhealth law, and any "summer day camp" as that term is defined in\nsubdivision two of section thirteen hundred ninety-two of the public\nhealth law, and any "traveling summer day camp" as that term is defined\nin subdivision three of section thirteen hundred ninety-two of the\npublic health law.\n 21. Qualified insurance agent or broker. The term "employment" shall\nnot include the services of a licensed insurance agent or broker if it\nbe proven that (a) substantially all of the remuneration (whether or not\npaid in cash) for the services performed by such agent or broker is\ndirectly related to sales or other output (including the performance of\nservices) rather than to the number of hours worked; (b) such agent is\nnot a life insurance agent receiving a training allowance subsidy\ndescribed in paragraph three of subsection (e) of section four thousand\ntwo hundred twenty-eight of the insurance law; (c) the services\nperformed by the agent or broker are performed pursuant to a written\ncontract executed between such agent or broker and the person for whom\nthe services are performed; and (d) the written contract provided for in\nparagraph (c) of this subdivision was not executed under duress and\ncontains the following provisions:\n (i) that the agent or broker is engaged as an independent contractor\nassociated with the person for whom services are performed pursuant to\narticle twenty-one of the insurance law and shall be treated as such for\nall purposes, including but not limited to federal and state taxation,\nwithholding (other than federal insurance contributions act (FICA) taxes\nrequired for full time life insurance agents pursuant to section\n3121(d)(3) of the federal internal revenue code), unemployment insurance\nand workers' compensation;\n (ii) that the agent or broker (A) shall be paid a commission on his or\nher gross sales, if any, without deduction for taxes (other than federal\ninsurance contributions act (FICA) taxes required for full time life\ninsurance agents pursuant to section 3121(d)(3) of the federal internal\nrevenue code), which commission shall be directly related to sales or\nother output; (B) shall not receive any remuneration related to the\nnumber of hours worked; and (C) shall not be treated as an employee with\nrespect to such services for federal and state tax purposes (other than\nfederal insurance contributions act (FICA) taxes required for full time\nlife insurance agents pursuant to section 3121(d)(3) of the federal\ninternal revenue code);\n (iii) that the agent or broker shall be permitted to work any hours he\nor she chooses;\n (iv) that the agent or broker shall be permitted to work out of his or\nher own office or home or the office of the person for whom services are\nperformed;\n (v) that the person for whom the services are performed may provide\noffice facilities, clerical support, and supplies for the use of the\nagent or broker, but the agent or broker shall otherwise bear his or her\nown expenses, including but not limited to automobile, travel, and\nentertainment expenses;\n (vi) that the person for whom the services are performed and the agent\nor broker shall comply with the requirements of article twenty-one of\nthe insurance law and the regulations pertaining thereto, but such\ncompliance shall not affect the agent's or broker's status as an\nindependent contractor nor should it be construed as an indication that\nthe agent or broker is an employee of the person for whom the services\nare performed for any purpose whatsoever;\n (vii) that the contract and the association created thereby may be\nterminated by either party thereto at any time with notice given to the\nother.\n 22. Recreational bowling. The term "employment" shall not include\nrecreational bowling, such as bowling in a league where an individual\nmay occasionally win prize money.\n 23. Newspaper delivery persons. The term "employment" shall not\ninclude service performed by any person if:\n (a) such person is engaged in the trade or business of the delivering\nor distribution of newspapers or shopping news (including any services\ndirectly related to such trade or business);\n (b) substantially all the remuneration (whether or not paid in cash)\nfor the performance of the services described in paragraph (a) of this\nsubdivision is directly related to sales or other output (including the\nperformance of services) rather than to the number of hours worked; and\n (c) the services performed by the person are performed pursuant to a\nwritten contract between such person and the person for whom the\nservices are performed, and such contract provides that person will not\nbe treated as an employee with respect to such services for federal tax\npurposes.\n