§ 2 — Definitions

New York § 2

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 1: Short Title; Definitions; Application

Text

§ 2. Definitions. As used in this chapter, 1. "Hazardous employment"\nmeans a work or occupation described in section three of this chapter.\n 2. "Department" means the department of labor of the state of New\nYork;\n "Chairman" means the chairman of the workers' compensation board of\nthe state of New York;\n "Commissioner" means the industrial commissioner of the state of New\nYork;\n "Board" means the workers' compensation board of the state of New\nYork;\n "Commissioners" means the commissioners of the state insurance fund of\nthe department of labor of the state of New York.\n 3. "Employer," except when otherwise expressly stated, means a person,\npartnership, association, corporation, and the legal representatives of\na deceased employer, or the receiver or trustee of a person,\npartnership, association or corporation, having one or more persons in\nemployment, including the state, a municipal corporation, fire district\nor other political subdivision of the state, and every authority or\ncommission heretofore or hereafter continued or created by the public\nauthorities law. For the purposes of this chapter only "employer" shall\nalso mean a person, partnership, association, corporation, and the legal\nrepresentatives of a deceased employer, or the receiver or trustee of a\nperson, partnership, association or corporation who delivers or causes\nto be delivered newspapers or periodicals for delivering or selling and\ndelivering by a newspaper carrier under the age of eighteen years as\ndefined in section thirty-two hundred twenty-eight of the education law,\nbut shall not include delivering newspapers or shopping news to the\nconsumer (including any services directly related to such trade or\nbusiness) by a person who is not performing commercial goods\ntransportation services for a commercial goods transportation contractor\nwithin the meaning of article twenty-five-C of the labor law. For the\npurpose of this chapter only, "employer" shall also mean a person,\npartnership, association, or corporation who leases or otherwise\ncontracts with an operator or lessee for the purpose of driving,\noperating or leasing a taxicab as so defined in section one hundred\nforty-eight-a of the vehicle and traffic law, except where such person\nis an owner-operator of such taxicab who personally regularly operates\nsuch vehicle an average of forty or more hours per week and leases such\ntaxicab for some portion of the remaining time, and except if the\ntaxicab is a livery subject to section eighteen-c of this chapter, in\nwhich case the livery driver's employer shall only be such employer as\nis defined in that section. For the purposes of this section only, such\nan owner-operator shall be deemed to be an employer if he controls,\ndirects, supervises, or has the power to hire or terminate such other\nperson who leases the vehicle.\n Notwithstanding any other provision of this chapter and for purposes\nof this chapter only, "employer" shall mean, with respect to a jockey,\napprentice jockey or exercise person licensed under article two or four\nof the racing, pari-mutuel wagering and breeding law, and at the\nelection of the New York Jockey Injury Compensation Fund, Inc., with the\napproval of the New York state gaming commission, employees of licensed\ntrainers or owners, performing services for an owner or trainer in\nconnection with the training or racing of a horse at a facility of a\nracing association or corporation subject to article two or four of the\nracing, pari-mutuel wagering and breeding law and subject to the\njurisdiction of the New York state gaming commission, The New York\nJockey Injury Compensation Fund, Inc. and all owners and trainers who\nare licensed or required to be licensed under article two or four of the\nracing, pari-mutuel wagering and breeding law at the time of any\noccurrence for which benefits are payable pursuant to this chapter in\nrespect to the injury or death of such jockey, apprentice jockey,\nexercise person or, if approved by the New York state gaming commission,\nemployee of a licensed trainer or owner.\n Notwithstanding any other provision of this chapter, and for purposes\nof this chapter only, the employer of a black car operator, as defined\nin article six-F of the executive law, shall, on and after the fund\nliability date, as defined in such article, be the New York black car\noperators' injury compensation fund, inc. created pursuant to such\narticle.\n For the purpose of this chapter only, whether a livery base operating\nin any locality where liveries must register with a local taxi and\nlimousine commission shall be deemed the "employer" of any livery driver\nengaging in covered services shall be determined in accordance with\nsection eighteen-c of this chapter.\n 4. "Employee" means a person engaged in one of the occupations\nenumerated in section three of this article or who is in the service of\nan employer whose principal business is that of carrying on or\nconducting a hazardous employment upon the premises or at the plant, or\nin the course of his or her employment away from the plant of his or her\nemployer; "employee" shall also mean for the purposes of this chapter\nany individual performing services in construction for a contractor who\ndoes not overcome the presumption of employment as provided under\nsection eight hundred sixty-one-c of the labor law; "employee" shall\nalso mean for the purposes of this chapter any individual performing\nservices in the commercial goods transportation industry for a\ncommercial goods transportation contractor who does not overcome the\npresumption of employment as provided under section eight hundred\nsixty-two-b of the labor law; "employee" shall also mean for the\npurposes of this chapter civil defense volunteers who are personnel of\nvolunteer agencies sponsored or authorized by a local office under\nregulations of the civil defense commission, to the extent of the\nprovisions of groups seventeen and nineteen; "employee" shall at the\nelection of a municipal corporation made pursuant to local law duly\nenacted also mean a member of an auxiliary police organization\nauthorized by local law; and for the purposes of this chapter only a\nnewspaper carrier under the age of eighteen years as defined in section\nthirty-two hundred twenty-eight of the education law, but shall not\ninclude delivery of newspapers or shopping news to the consumer\n(including any services directly related to such trade or business) by a\nperson who is not performing commercial goods transportation services\nfor a commercial goods transportation contractor within the meaning of\narticle twenty-five-C of the labor law, and shall not include domestic\nservants except as provided in section three of this chapter, and except\nwhere the employer has elected to bring such employees under the law by\nsecuring compensation in accordance with the terms of section fifty of\nthis chapter. The term "employee" shall not include persons who are\nmembers of a supervised amateur athletic activity operated on a\nnon-profit basis, provided that said members are not also otherwise\nengaged or employed by any person, firm or corporation participating in\nsaid athletic activity, nor shall it include the spouse or minor child\nof an employer who is a farmer unless the services of such spouse or\nminor child shall be engaged by said employer under an express contract\nof hire nor shall it include an executive officer of a corporation who\nat all times during the period involved owns all of the issued and\noutstanding stock of the corporation and holds all of the offices\npursuant to paragraph (e) of section seven hundred fifteen of the\nbusiness corporation law or two executive officers of a corporation who\nat all times during the period involved between them own all of the\nissued and outstanding stock of such corporation and hold all such\noffices except as provided in subdivision six of section fifty-four of\nthis chapter provided, however, that where there are two executive\nofficers of a corporation each officer must own at least one share of\nstock, nor shall it include a self-employed person or a partner of a\npartnership as defined in section ten of the partnership law who is not\ncovered under a compensation insurance contract or a certificate of\nself-insurance as provided in subdivision eight of section fifty-four of\nthis chapter, nor shall it include farm laborers except as provided in\ngroup fourteen-b of section three of this chapter. If a farm labor\ncontractor recruits or supplies farm laborers for work on a farm, such\nfarm laborers shall for the purposes of this chapter be deemed to be\nemployees of the owner or lessee of such farm. The term "employee" shall\nnot include baby sitters as defined in subdivision three of section one\nhundred thirty-one and subdivision three of section one hundred\nthirty-two of the labor law or minors fourteen years of age or over\nengaged in casual employment consisting of yard work and household\nchores in and about a one family owner-occupied residence or the\npremises of a non-profit, non-commercial organization, not involving the\nuse of power-driven machinery. The term "employee" shall not include\npersons engaged by the owner in casual employment consisting of yard\nwork, household chores and making repairs to or painting in and about a\none-family owner-occupied residence. The term "employee" 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) of this subdivision was not executed under duress and\ncontains the following 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 "Employee" shall also mean, for purposes of this chapter, an infant\nrendering services for the public good as prescribed in sections seven\nhundred fifty-eight-a and 353.6 of the family court act.\n For the purpose of this chapter only, "employee" shall also mean a\ndriver, operator or lessee who contracts with an owner, operator or\nlessor for the purpose of operating a taxicab as so defined in section\none hundred forty-eight-a of the vehicle and traffic law, except where\nsuch person leases the taxicab from a person who personally, regularly\noperates such vehicle an average of forty or more hours per week, and\nexcept if the taxicab is a livery subject to section eighteen-c of this\nchapter, in which case the livery driver's employer shall only be such\nemployer as is defined in that section. For the purposes of this section\nonly, such person shall be deemed to be an employee of the\nowner-operator if the owner-operator controls, directs, supervises, or\nhas the power to hire or terminate such person.\n "Employee" shall also mean, for purposes of this chapter, a\nprofessional musician or a person otherwise engaged in the performing\narts who performs services as such for a television or radio station or\nnetwork, a film production, a theatre, hotel, restaurant, night club or\nsimilar establishment unless, by written contract, such musician or\nperson is stipulated to be an employee of another employer covered by\nthis chapter. "Engaged in the performing arts" shall mean performing\nservice in connection with the production of or performance in any\nartistic endeavor which requires artistic or technical skill or\nexpertise.\n Notwithstanding any other provision of this chapter, and for purposes\nof this chapter only, a jockey, apprentice jockey or exercise person\nlicensed under article two or four of the racing, pari-mutuel wagering\nand breeding law, and at the election of the New York Jockey Injury\nCompensation Fund, Inc., with the approval of the New York state gaming\ncommission, employees of licensed trainers or owners, performing\nservices for an owner or trainer in connection with the training or\nracing of a horse at a facility of a racing association or corporation\nsubject to article two or four of the racing, pari-mutuel wagering and\nbreeding law and subject to the jurisdiction of the New York state\ngaming commission shall be regarded as the "employee" not solely of such\nowner or trainer, but shall instead be conclusively presumed to be the\n"employee" of The New York Jockey Injury Compensation Fund, Inc. and\nalso of all owners and trainers who are licensed or required to be\nlicensed under article two or four of the racing, pari-mutuel wagering\nand breeding law at the time of any occurrence for which benefits are\npayable pursuant to this chapter in respect of the injury or death of\nsuch jockey, apprentice jockey, exercise person or, if approved by the\nNew York state gaming commission, employee of a licensed trainer or\nowner.\n "Employee" shall also mean, for purposes of this chapter, a\nprofessional model, who:\n (a) performs modeling services for; or\n (b) 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 such professional model's privacy rights enumerated above,\nunless such services are performed pursuant to a written contract\nwherein it is stated that such professional model is the employee of\nanother employer covered by this chapter. For the purposes of this\nparagraph, the term "professional model" means a person who, in the\ncourse of his or her trade, occupation or profession, performs modeling\nservices. For purposes of this paragraph, the term "modeling services"\nmeans the appearance by a professional model in photographic sessions or\nthe engagement of such model in live, filmed or taped modeling\nperformances for remuneration.\n Notwithstanding any other provision of this chapter, and for purposes\nof this chapter only, a black car operator, as defined in article six-F\nof the executive law, shall, on and after the fund liability date, as\ndefined in such article, be an "employee" of the New York black car\noperators' injury compensation fund, inc. created pursuant to such\narticle.\n "Employee" shall not include, for the purposes of this chapter, the\nservices of a licensed insurance agent or broker if it be proven that\n(a) substantially all of the remuneration (whether or not paid in cash)\nfor the services performed by such agent or broker is directly related\nto sales or other output (including the performance of services) rather\nthan to the number of hours worked; (b) such agent is not a life\ninsurance agent receiving a training allowance subsidy described in\nparagraph three of subsection (e) of section four thousand two hundred\ntwenty-eight of the insurance law; (c) the services performed by the\nbroker or sales associate are performed pursuant to a written contract\nexecuted between such broker or sales associate and the person for whom\nthe services are performed; and (d) the written contract provided for in\nclause (c) of this paragraph was not executed under duress and contains\nthe 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 (1) 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; (2) shall not receive any remuneration related to the\nnumber of hours worked; and (3) 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 "Employee" shall not include a media sales representative if it be\nproven that (a) substantially all of the compensation for the services\nperformed by such media sales representative is directly related to\nsales or other productivity rather than to the number of hours worked;\n(b) the media sales representative must be incorporated under the laws\nof this state in order to be considered an independent contractor and\nshall be solely responsible for the payment of workers' compensation\npremiums; (c) the services performed by the media sales representative\nare performed pursuant to a written contract executed between such media\nsales representative and the person for whom the services are performed;\nand (d) the written contract provided for in subparagraph (c) of this\nparagraph was not executed under duress and contains the following\nprovisions:\n (i) that the media sales representative is engaged as an independent\ncontractor associated with the person for whom services are performed\nand shall be treated as such for all purposes, including but not limited\nto federal and state taxation, withholdings, and workers' compensation;\n (ii) that the media sales representative (A) shall be paid a\ncommission based on a fixed fee rate outlined in the written contract,\nif any, without deduction for taxes, which commission shall be directly\nrelated to sales pursuant to price guidelines or other productivity\nwithin the sales area; (B) shall not receive any compensation related to\nthe number of hours worked; and (C) shall not be treated as an employee\nwith respect to such services for federal and state tax purposes;\n (iii) that the media sales representative shall be permitted to work\nany hours he or she chooses subject to the restrictions in section three\nhundred ninety-nine-p of the general business law;\n (iv) that the media sales representative may work at any site other\nthan on the premises of the person for whom services are performed;\n (v) that the person for whom the services are performed shall not be\nresponsible for any reimbursement expenses other than those outlined in\nthe written contract;\n (vi) that the person for whom the services are performed and the media\nsales representative shall comply with all articles of the labor law\nthat apply to such work other than article eighteen of the labor law,\nbut such compliance shall not affect the media sales representative's\nstatus as an independent contractor nor shall it be construed as an\nindication that the media sales representative is an employee of the\nperson for whom the services are performed for any purpose whatsoever;\nand\n (vii) that the contract and the association created thereby may be\nterminated by the media sales representative thereto at any time with\ntwo weeks notice given to the person for whom the services are\nperformed.\n For the purposes of this subdivision, "media sales representative"\nshall include any contractor engaged in the sale or renewal of magazine\nsubscriptions or the sale or renewal of magazine advertising space who\n(i) receives no direction or control on the methods by which they\nperform services other than training on product characteristics, (ii)\nare solely in control of their work schedule, and (iii) may refuse any\nwork assignment.\n For the purpose of this chapter only, whether a livery driver\ndispatched by an independent livery base, as those terms are defined in\narticle six-G of the executive law, is an "employee" shall be determined\nin accordance with section eighteen-c of this chapter.\n 5. "Employment" includes employment in a trade, business or occupation\ncarried on by the employer for pecuniary gain, or in connection\ntherewith, except where the employer elects to bring his or her\nemployees within the provisions of this chapter as provided in section\nthree of this article, and except employment as a domestic worker as\nprovided in section three of this article, and except where a town\nelects to have the provisions of this chapter apply to the town\nsuperintendent of highways. "Employment" shall also include, in\nconnection with the civil defense effort and for purposes of this\nchapter the service of a civil defense volunteer in authorized\nactivities of a volunteer agency sponsored or authorized by a local\noffice as defined in a state defense emergency act. "Employment" shall\nalso include participation with an auxiliary police effort made within a\nmunicipal corporation which elected to include auxiliary police officers\nwithin the definition of "employee" as authorized by subdivision four of\nthis section and for purposes of this chapter, the services of members\nor volunteers in activities authorized by local law. The service of a\ncivil defense volunteer who is also an employee recompensed by an\nemployer for service to such employer, shall not be deemed to be in\nemployment of a local office when he or she is performing civil defense\nservice in his or her employment or in relation thereto. For the\npurposes of this chapter only "employment" shall also include the\ndelivery or sale and delivery of newspapers or periodicals by a\nnewspaper carrier as defined in section thirty-two hundred twenty-eight\nof the education law, but shall not include delivery of newspapers or\nshopping news to the consumer (including any services directly related\nto such trade or business) by a person who is not performing commercial\ngoods transportation services for a commercial goods transportation\ncontractor within the meaning of article twenty-five-C of the labor law.\nThe term "employment" shall not include the services of a licensed real\nestate broker or sales associate if it be proven that (a) substantially\nall of the remuneration (whether or not paid in cash) for the services\nperformed by such broker or sales associate is directly related to sales\nor other output (including the performance of services) rather than to\nthe number of hours worked; (b) the services performed by the broker or\nsales associate are performed pursuant to a written contract executed\nbetween such broker or sales associate and the person for whom the\nservices are performed within the past twelve to fifteen months; and (c)\nthe written contract provided for in paragraph (b) herein was not\nexecuted under duress and contains the following 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 For the purpose of this chapter only, "employment" shall also include\nthe service of a driver, operator or lessee of a taxicab as so defined\nin section one hundred forty-eight-a of the vehicle and traffic law,\nexcept where a person leases a taxicab from an owner-operator of a\ntaxicab who, regularly operates the vehicle an average of forty or more\nhours per week. Such a lessee shall be deemed to be in employment if the\nlessor controls, directs, supervises, or has the power to hire or\nterminate the lessee.\n Notwithstanding any other provision of this chapter, and for purposes\nof this chapter only, a jockey, apprentice jockey or exercise person\nlicensed under article two or four of the racing, pari-mutuel wagering\nand breeding law, and at the election of the New York Jockey Injury\nCompensation Fund, Inc., with the approval of the New York state gaming\ncommission, employees of licensed trainers or owners, performing\nservices for an owner or trainer in connection with the training or\nracing of a horse at a facility of a racing association or corporation\nsubject to article two or four of the racing, pari-mutuel wagering and\nbreeding law and subject to the jurisdiction of the New York state\ngaming commission shall be regarded as in the "employment" not solely of\nsuch owner and trainer, but shall instead be conclusively presumed to be\nin the "employment" of The New York Jockey Injury Compensation Fund,\nInc. and of all owners and trainers who are licensed or required to be\nlicensed under article two or four of the racing, pari-mutuel wagering\nand breeding law, at the time of any occurrence for which benefits are\npayable pursuant to this chapter in respect of the injury or death of\nsuch jockey, apprentice jockey, exercise person or, if approved by the\nNew York state gaming commission, employee of a licensed trainer or\nowner. For the purpose of this chapter only, whether a livery driver's\nperformance of covered services, as those terms are defined in article\nsix-G of the executive law, constitutes "employment" shall be determined\nin accordance with section eighteen-c of this chapter.\n Notwithstanding any other provision of this chapter, and for purposes\nof this chapter only, a black car operator, as that term is defined in\narticle six-F of the executive law, shall, on and after the fund\nliability date, as that term is defined in such article, be regarded as\nin the "employment" of the New York black car operators' injury\ncompensation fund, inc. created pursuant to such article.\n "Employment" shall not include, for the purposes of this chapter, the\nservices of a licensed insurance agent or broker if it be proven that\n(a) substantially all of the remuneration (whether or not paid in cash)\nfor the services performed by such agent or broker is directly related\nto sales or other output (including the performance of services) rather\nthan to the number of hours worked; (b) such agent is not a life\ninsurance agent receiving a training allowance subsidy described in\nparagraph three of subsection (e) of section four thousand two hundred\ntwenty-eight of the insurance law; (c) the services performed by the\nagent or broker are performed pursuant to a written contract executed\nbetween such agent or broker and the person for whom the services are\nperformed; and (d) the written contract provided for in clause (c) of\nthis paragraph was not executed under duress and contains the following\nprovisions:\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 (1) 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; (2) shall not receive any remuneration related to the\nnumber of hours worked; and (3) 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 "Employment" shall not include the services of a media sales\nrepresentative if it be proven that (A) substantially all of the\ncompensation for the services performed by such media sales\nrepresentative is directly related to sales or other productivity rather\nthan to the number of hours worked; (B) the media sales representative\nmust be incorporated under the laws of this state in order to be\nconsidered an independent contractor and shall be solely responsible for\nthe payment of workers' compensation premiums; (C) the services\nperformed by the media sales representative are performed pursuant to a\nwritten contract executed between such media sales representative and\nthe person for whom the services are performed; and (D) the written\ncontract provided for in subparagraph (C) of this paragraph was not\nexecuted under duress and contains the following provisions:\n (i) that the media sales representative is engaged as an independent\ncontractor associated with the person for whom services are performed\nand shall be treated as such for all purposes, including but not limited\nto federal and state taxation, withholdings, and workers' compensation;\n (ii) that the media sales representative (A) shall be paid a\ncommission, based on a fixed fee rate outlined in the written contract,\nif any, without deduction for taxes, which commission shall be directly\nrelated to sales pursuant to price guidelines or other productivity\nwithin the sales area; (B) shall not receive any compensation related to\nthe number of hours worked; and (C) shall not be treated as an employee\nwith respect to such services for federal and state tax purposes;\n (iii) that the media sales representative shall be permitted to work\nany hours he or she chooses subject to the restrictions in section three\nhundred ninety-nine-p of the general business law;\n (iv) that the media sales representative may work at any site other\nthan on the premises of the person for whom services are performed;\n (v) that the person for whom the services are performed shall not be\nresponsible for any reimbursement expenses other than those outlined in\nthe written contract;\n (vi) that the person for whom the services are performed and the media\nsales representative shall comply with all articles of the labor law\nthat apply to such work other than article eighteen of the labor law,\nbut such compliance shall not affect the media sales representative's\nstatus as an independent contractor nor shall it be construed as an\nindication that the media sales representative is an employee of the\nperson for whom the services are performed for any purpose whatsoever;\nand\n (vii) that the contract and the association created thereby may be\nterminated by the media sales representative thereto at any time with\ntwo weeks notice given to the person for whom the services are\nperformed.\n For the purposes of this subdivision, "media sales representative"\nshall include any contractor engaged in the sale or renewal of magazine\nsubscriptions or the sale or renewal of magazine advertising space who\n(i) receives no direction or control on the methods by which they\nperform services other than training on product characteristics, (ii)\nare solely in control of their work schedule, and (iii) may refuse any\nwork assignment.\n 6. "Compensation" means the money allowance payable to an employee or\nto his dependents as provided for in this chapter, and includes funeral\nbenefits provided therein.\n 7. "Injury" and "personal injury" mean only accidental injuries\narising out of and in the course of employment and such disease or\ninfection as may naturally and unavoidably result therefrom. The terms\n"injury" and "personal injury" shall not include an injury which is\nsolely mental and is based on workrelated stress if such mental injury\nis a direct consequence of a lawful personnel decision involving a\ndisciplinary action, work evaluation, job transfer, demotion, or\ntermination taken in good faith by the employer.\n 8. "Death" when mentioned as a basis for the right to compensation\nmeans only death resulting from such injury.\n 9. "Wages" means the money rate at which the service rendered is\nrecompensed under the contract of hiring in force at the time of the\naccident, including the reasonable value of board, rent, housing,\nlodging or similar advantage received from the employer, or in the case\nof (a) a civil defense volunteer, (b) a volunteer worker in a state\ndepartment as provided in group sixteen of subdivision one of section\nthree of this chapter, (c) a volunteer worker for a social services\ndistrict as provided in group seventeen of subdivision one of section\nthree of this chapter, (d) a county fire coordinator, a deputy county\nfire coordinator or a comparable county official to whom the provisions\nof group fifteen-a of subdivision one of section three of this chapter\nare applicable, who is also a volunteer firefighter or ambulance worker,\n(e) a fire district officer whether elective or appointive and whether\nor not he or she is compensated for his or her services or a paid fire\nor ambulance district employee, (f) a state fire instructor whose\ncompensation is paid in whole or in part by the state, (g) an enrolled\nmember of a fire company who, is not a volunteer firefighter, receives\ncompensation for his or her services and is not a full-time firefighter,\nknown as a "call firefighter", (h) persons who are performing services\nfor a public or not-for-profit corporation, association, institution or\nagency organized as an unincorporated association or duly incorporated\nunder the laws of this state in fulfillment of a sentence of probation\nor of conditional discharge, or persons performing such services\npursuant to the provisions of section 170.55 or 170.56 of the criminal\nprocedure law, (i) an auxiliary police officer in a municipal\ncorporation which elected to include such persons within the definition\nof "employee" as authorized by subdivision four of this section, or (j)\na duly appointed member of a regional hazardous materials incidents team\nrecognized under section two hundred nine-y of the general municipal\nlaw, such money rate applying in his or her regular vocation or the\namount of the regular earnings of such volunteer, coordinator,\ninstructor, or comparable officer, fire or ambulance district officer or\nemployee or call firefighter, or team member as the case may be, in his\nor her regular vocation, plus any amount earned as such a coordinator,\ninstructor or comparable officer, or as such a fire or ambulance\ndistrict officer or employee or call firefighter or team member,\nprovided, however, that in no event shall the average weekly wage be\nfixed at less than thirty dollars regardless of whether or not such\nvolunteer, coordinator, instructor or comparable officer or fire or\nambulance district officer or employee or call firefighter or team\nmember had gainful employment elsewhere at the time of the injury.\n The wages of a livery driver, as defined in article six-G of the\nexecutive law, shall be calculated in accordance with this paragraph.\nThe chair shall promulgate regulations, in consultation with the\nindependent livery driver benefit fund, and all local taxi and limousine\ncommissions, as defined in article six-G of the executive law,\nestablishing amounts that livery drivers are presumptively deemed to\nreceive in annual wages, and may vary such presumptive wage by such\ngeographic region or political subdivision of the state as the chair may\nset. Such regulations may establish other factors or criteria for\ndetermining the presumptive wage. The presumptive wage shall be set\nbased on the chair's findings as to the amount earned by livery drivers,\nand their expenses. A livery driver or the livery driver's employer,\nincluding the independent livery driver benefit fund, may rebut the\npresumptive wage by competent evidence that the driver's actual wages\nfor covered services, as defined in article six-G of the executive law,\nwere different. The chair shall promulgate such other rules as are\nnecessary to compute livery driver wages in accordance with this\nparagraph.\n 10. "State fund" means the state insurance fund provided for in\narticle five of this chapter.\n 11. "Child" shall include a posthumous child, a child legally adopted\nprior to the injury of the employee; and a step-child or child born out\nof wedlock dependent upon the deceased.\n 12. "Insurance carrier" shall include the state fund, stock\ncorporations, mutual corporations or reciprocal insurers with which\nemployers have insured, and employers permitted to pay compensation\ndirectly under the provisions of subdivisions three, three-a or four of\nsection fifty of this chapter. For purposes of this chapter, a nonprofit\nproperty/casualty insurance company which is licensed pursuant to\nsubsection (b) of section six thousand seven hundred four of the\ninsurance law shall be deemed a stock corporation and a nonprofit\nproperty/casualty insurance company which is licensed as a reciprocal\ninsurer pursuant to subsection (c) of section six thousand seven hundred\nfour of the insurance law shall be deemed a reciprocal insurer.\n 13. "Manufacture," "construction," "operation" and "installation"\nshall include "repair," "demolition," "fabrication" and "alteration" and\nshall include all work done in connection with the repair of plants,\nbuildings, grounds and approaches of all places where any of the\nhazardous employments are being carried on, operated or conducted.\n 14. "Minor" means a person who has not attained the age of eighteen\nyears.\n 15. "Occupational disease" means a disease resulting from the nature\nof employment and contracted therein.\n 16. "New York state average weekly wage" shall mean the average weekly\nwage of the state of New York for the previous calendar year as reported\nby the commissioner of labor to the superintendent of financial services\non March thirty-first.\n 17. A "substantially owned affiliated entity" of any person means the\nparent company of the person, any subsidiary of the person, or any\nentity in which the parent of the person owns more than fifty percent of\nthe voting stock, or an entity in which one or more of the top five\nshareholders of the person individually or collectively also owns a\ncontrolling share of the voting stock, or an entity which exhibits any\nother indicia of control over the person or over which the person\nexhibits control, regardless of whether or not the controlling party or\nparties have any identifiable or documented ownership interest. Such\nindicia shall include: power or responsibility over employment\ndecisions; access to and/or use of the relevant entity's assets or\nequipment; power or responsibility over contracts of the person;\nresponsibility for maintenance or submission of certified payroll\nrecords; and influence over the business decisions of the relevant\nentity.\n 19. A "claim for reimbursement" from the special disability fund means\nan application to the board under paragraph (f) of subdivision eight of\nsection fifteen of this chapter for a determination that the special\ndisability fund is liable in the first instance for any reimbursement to\nthe insurance carrier, self-insured employer or state insurance fund.\n 20. A "request for reimbursement" from the special disability fund\nmeans an application to the special disability fund for reimbursement\nfor specific costs, subsequent to a determination by the board that the\nspecial disability fund is liable to provide reimbursement on the claim.\n 21. The "workers' compensation rating board" or the "New York workers'\ncompensation rating board" shall mean the compensation insurance rating\nboard until February first, two thousand eight, and thereafter the\nsuperintendent of financial services or other entity designated by the\nsuperintendent of financial services for collection and analysis of data\nor such other purposes as set forth in this chapter.\n 22. "Cost of compensation" means the amount that an employer must pay\nto secure compensation as calculated in accordance with regulation of\nthe board or, in the absence of such regulation, based on average market\nrates for a comparable employer.\n 23. "Special disability fund advisory committee" shall mean an\nadvisory committee to the workers' compensation board, acting by a\nmajority thereof, solely with respect to the special fund entitled the\nspecial disability fund, composed of the director of the budget, the\ncommissioner of labor, the commissioner of taxation and finance, the\nchair of the workers' compensation board, and the superintendent of\nfinancial services.\n 24. "Employees of licensed trainers or owners" means assistant\ntrainers, foremen, watchmen and stable employees, including grooms and\nhot-walkers, employed by a trainer or owner licensed pursuant to article\ntwo or four of the racing, pari-mutuel wagering and breeding law.\n