§ 201 — Definitions

§ 201. Definitions. As used in this article:\n 1. "Board" means the workers' compensation board created under this\nchapter.\n 2. "Chairman" means the chairman of the workers' compensation board of\nthe state of New York.\n 3. "State fund" means the state insurance fund created under article\nsix of this chapter.\n 4. "Employer," except when otherwise expressly stated, means a person,\npartnership, association, corporation, legal representative of a\ndeceased employer, or the receiver or trustee of a person, partnership,\nassociation or corporation, who has persons in employment as defined in\nsubdivision six of this section, but does not include the state, a\nmunicipal corporation, local governmental agency, other political\nsubdivisions or public authority.\n 5. "Employee" means a person engaged in the service of an employer in\nany employment defined in subdivision six of this section, except a\nminor child of the employer, except a duly ordained, commissioned, or\nlicensed minister, priest or rabbi, a sexton, a christian science\nreader, or member of a religious order, or an executive officer of a\ncorporation who at all times during the period involved owns all of the\nissued and outstanding stock of the corporation and holds all of the\noffices pursuant to paragraph (e) of section seven hundred fifteen of\nthe business corporation law or two executive officers of a corporation\nwho at all times during the period involved between them own all of the\nissued and outstanding stock of such corporation and hold all such\noffices provided, however, that each officer must own at least one share\nof stock, except as provided in section two hundred twelve of this\narticle, or an executive officer of an incorporated religious,\ncharitable or educational institution, or persons engaged in a\nprofessional or teaching capacity in or for a religious, charitable or\neducational institution, or volunteers in or for a religious, charitable\nor educational institution, or persons participating in and receiving\nrehabilitative services in a sheltered workshop operated by a religious,\ncharitable or educational institution under a certificate issued by the\nUnited States department of labor, or recipients of charitable aid from\na religious or charitable institution who perform work in or for the\ninstitution which is incidental to or in return for the aid conferred,\nand not under an express contract of hire. The terms "religious,\ncharitable or educational institution" mean a corporation,\nunincorporated association, community chest, fund or foundation\norganized and operated exclusively for religious, charitable or\neducational purposes, no part of the net earnings of which inure to the\nbenefit of any private shareholder or individual.\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 "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 6. "Employment." A. "Employment" means employment in any trade,\nbusiness or occupation carried on by an employer, except that the\nfollowing shall not be deemed employment under this article: services\nperformed for the state, a municipal corporation, local governmental\nagency, other political subdivision or public authority; employment\nsubject to the federal railroad unemployment insurance act; service\nperformed on or as an officer or member of the crew of a vessel on the\nnavigable water of the United States or outside the United States;\ncasual employment and the first forty-five days of extra employment of\nemployees not regularly in employment as otherwise defined herein;\nservice as golf caddies; and service during all or any part of the\nschool year or regular vacation periods as a part-time worker of any\nperson actually in regular attendance during the day time as a student\nin an elementary or secondary school. The term "employment" shall\ninclude domestic or personal work in a private home. The term\n"employment" shall not include the services of a licensed real estate\nbroker or sales associate if it be proven that (a) substantially all of\nthe 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 subparagraph (b) of this paragraph\nwas not executed 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 (1) 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; (2) shall\nnot receive any remuneration related to the number of hours worked; and\n(3) 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 "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 B. The term "employment" includes an employee's entire service\nperformed within or both within and without this state if the service is\nlocalized in this state. Service is deemed localized within the state if\nit is performed entirely within the state or is performed both within\nand without the state but that performed without the state is incidental\nto the employee's service within the state or is temporary or transitory\nin nature or consists of isolated transactions.\n C. The term "employment" includes an employee's entire service\nperformed both within and without this state provided it is not\nlocalized in any state but some of the service is performed in this\nstate, and\n (1) the employee's base of operations is in this state; or\n (2) 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 (3) 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 employee's residence is in this state.\n D. "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 (1) 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; (2) shall not receive any compensation related to\nthe number of hours worked; and (3) 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 should 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;\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 paragraph, "media sales representative" shall\ninclude 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 7. "Termination of employment". Employment with a covered employer\nterminates on the last day on which an employee performs work in the\nservice of such employer; provided, however, that employment shall not\nterminate on such day if the employee by agreement with the employer,\nthen commences, for a specified period, a leave of absence with pay or\nvacation with pay, at the conclusion of which the employee will return\nto work with the same employer. If notwithstanding such agreement the\nemployee does not so return, his employment shall be deemed to have\nterminated on the last day of the period of such paid leave of absence\nor such paid vacation.\n 8. "Injury" and "sickness" mean accidental injury, disease, infection\nor illness or incapacitation as a result of being an organ donor in a\ntransplant operation.\n 9. A. "Disability" during employment means the inability of an\nemployee, as a result of injury or sickness not arising out of and in\nthe course of an employment, to perform the regular duties of his\nemployment or the duties of any other employment which his employer may\noffer him at his regular wages and which his injury or sickness does not\nprevent him from performing. "Disability" during unemployment means the\ninability of an employee, as a result of injury or sickness not arising\nout of and in the course of an employment, to perform the duties of any\nemployment for which he is reasonably qualified by training and\nexperience.\n B. "Disability" also includes disability caused by or in connection\nwith a pregnancy.\n 10. "Benefits" means the money allowances during disability payable to\nan employee who is eligible to receive such benefits, as provided in\nthis article.\n 11. "Carrier" shall include: the state fund, stock corporations,\nmutual corporations and reciprocal insurers which insure the payment of\nbenefits provided pursuant to this article; and employers and\nassociations of employers or of employees and trustees authorized or\npermitted to pay benefits under the provisions of this article. For\npurposes of this chapter, a nonprofit property/casualty insurance\ncompany which is licensed pursuant to subsection (b) of section six\nthousand seven hundred four of the insurance law shall be deemed a stock\ncorporation and a nonprofit property/casualty insurance company which is\nlicensed as a reciprocal insurer pursuant to subsection (c) of section\nsix thousand seven hundred four of the insurance law shall be deemed a\nreciprocal insurer.\n 12. "Wages" means the money rate at which employment with a covered\nemployer is recompensed under the contract of hiring with the covered\nemployer and shall include the reasonable value of board, rent, housing,\nlodging, or similar advantage received under the contract of hiring.\n 13. "Average weekly wage." For the purpose of computing the amount of\ndisability benefits of an employee during any period of disability,\n"average weekly wage" shall be the amount determined by dividing either\nthe total wages of such employee in the employment of his last covered\nemployer for the eight weeks or portion thereof that the employee was in\nsuch employment immediately preceding and including his last day worked\nprior to commencement of such disability, or the total wages of the last\neight weeks or portion thereof immediately preceding and excluding the\nweek in which the disability began, whichever is the higher amount, by\nthe number of weeks or portion thereof of such employment. The chairman\nmay by regulation prescribe reasonable procedures to determine average\nweekly wage, including procedures in lieu of the foregoing for\ndetermination of the average weekly wage of a class or classes of\nemployees, and may authorize reasonable deviations to facilitate\nadministration in the determination of average weekly wage of a class or\nclasses of the employees of a covered employer.\n In the event the employee was not in the employment of his last\ncovered employer during all of such eight weeks and if the above\ndetermination results in an average weekly wage which does not fairly\nrepresent the normal earnings of such employee in all employments with\ncovered employers during such eight weeks, there may be a\nredetermination of average weekly wage to reflect wages received from\nall covered employers during such eight week period. The chairman may by\nregulation prescribe reasonable procedures for such redetermination.\n 14. "A day of disability" means any day on which the employee was\nprevented from performing work because of disability, including any day\nwhich the employee uses for family leave, and for which the employee has\nnot received his or her regular remuneration.\n 15. "Family leave" shall mean any leave taken by an employee from\nwork: (a) to participate in providing care, including physical or\npsychological care, for a family member of the employee made necessary\nby a serious health condition of the family member; or (b) to bond with\nthe employee's child during the first twelve months after the child's\nbirth, or the first twelve months after the placement of the child for\nadoption or foster care with the employee; or (c) because of any\nqualifying exigency as interpreted under the family and medical leave\nact, 29 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8),\narising out of the fact that the spouse, domestic partner, child, or\nparent of the employee is on active duty (or has been notified of an\nimpending call or order to active duty) in the armed forces of the\nUnited States.\n 16. "Child" means a biological, adopted, or foster son or daughter, a\nstepson or stepdaughter, a legal ward, a son or daughter of a domestic\npartner, or the person to whom the employee stands in loco parentis.\n 17. "Domestic partner" has the same meaning as set forth in section\nfour of this chapter.\n 18. "Serious health condition" means an illness, injury, impairment,\nor physical or mental condition, including transplantation preparation\nand recovery from surgery related to organ or tissue donation, that\ninvolves inpatient care in a hospital, hospice, or residential health\ncare facility, continuing treatment or continuing supervision by a\nhealth care provider. Continuing supervision by a health care provider\nincludes a period of incapacity which is permanent or long term due to a\ncondition for which treatment may not be effective where the family\nmember is under the continuing supervision of, but need not be receiving\nactive treatment by, a health care provider.\n 19. "Parent" means a biological, foster, or adoptive parent, a\nparent-in-law, a stepparent, a legal guardian, or other person who stood\nin loco parentis to the employee when the employee was a child.\n 20. "Family member" means a child, parent, grandparent, grandchild,\nsibling, spouse, or domestic partner as defined in this section.\n 21. "Grandchild" means a child of the employee's child.\n 22. "Health care provider" shall mean for the purpose of family leave,\na person licensed under article one hundred thirty-one, one hundred\nthirty-one-B, one hundred thirty-two, one hundred thirty-three, one\nhundred thirty-six, one hundred thirty-nine, one hundred forty-one, one\nhundred forty-three, one hundred forty-four, one hundred fifty-three,\none hundred fifty-four, one hundred fifty-six or one hundred fifty-nine\nof the education law or a person licensed under the public health law,\narticle one hundred forty of the education law or article one hundred\nsixty-three of the education law.\n 23. "Grandparent" means a parent of the employee's parent.\n 24. "Sibling" means a biological or adopted sibling, a half-sibling or\nstepsibling.\n