N.Y. Labor Law § 511: Employment

§ 511. Employment. 1. General definition. "Employment" means (a) any

service under any contract of employment for hire, express or implied,

written, or oral and

(b) any service by a person for an employer

(1) as an agent-driver or commission-driver engaged in distributing

meat, vegetable, fruit, or bakery products; beverages other than milk;

or laundry or dry-cleaning services; or

(1-a) as a professional musician or a person otherwise engaged in the

performing arts, and performing services as such for a television or

radio station or network, a film production, a theatre, hotel,

restaurant, night club or similar establishment unless, by written

contract, such musician or person is stipulated to be an employee of

another employer covered by this chapter. "Engaged in the performing

arts" shall mean performing services in connection with the production

of or performance in any artistic endeavor which requires artistic or

technical skill or expertise; or

(1-b) as an employee in the construction industry unless the

presumption of employment can be overcome, as provided under section

eight hundred sixty-one-c of this chapter; or

(1-c) as an employee in the commercial goods transportation industry

unless the presumption of employment can be overcome, as provided under

section eight hundred sixty-two-b of this chapter; or

(2) as a traveling or city salesman engaged on a full-time basis in

soliciting orders for merchandise for resale or supplies for use in the

purchaser's business operations if the contract of service contemplates

that substantially all of such services are to be performed personally

by such person; such person does not have a substantial investment in

facilities used in connection with the performance of such services,

excepting facilities for transportation; and the services are not in the

nature of a single transaction which is not part of a continuing

relationship with the employer.

(3) as a professional model, where:

(i) the professional model performs modeling services for; or

(ii) consents in writing to the transfer of his or her exclusive legal

right to the use of his or her name, portrait, picture or image, for

advertising purposes or for the purposes of trade, directly to

a retail store, a manufacturer, an advertising agency, a photographer,

a publishing company or any other such person or entity, which dictates

such professional model's assignments, hours of work or performance

locations and which compensates such professional model in return for a

waiver of his or her privacy rights enumerated above, unless such

services are performed pursuant to a written contract wherein it is

stated that the professional model is the employee of another employer

covered by this chapter. For purposes of this subparagraph, the term

"professional model" means a person who, in the course of his or her

trade, occupation or profession, performs modeling services. For

purposes of this subparagraph, the term "modeling services" means the

appearance by a professional model in photographic sessions or the

engagement of such model in live, filmed or taped modeling performances

for remuneration.

2. Work localized in state. The term "employment" includes a person's

entire service performed within or both within and without this state if

the service is localized in this state. Service is deemed localized

within the state if it is performed entirely within the state or is

performed both within and without the state but that performed without

the state is incidental to the person's service within the state, for

example, is temporary or transitory in nature or consists of isolated

transactions.

3. Work within and without the state. The term "employment" includes a

person's entire service performed both within and without this state

provided it is not localized in any state but some of the service is

performed in this state, and

(a) the person's base of operations is in this state; or

(b) if there is no base of operations in any state in which some part

of the service is performed, the place from which such service is

directed or controlled is in this state; or

(c) if the base of operations or place from which such service is

directed or controlled is not in any state in which some part of the

service is performed, the person's residence is in this state.

The term "employment" shall not include services performed without

this state in any calendar year during which no service was performed

within this state if contributions with respect to such services are

required under the unemployment compensation law of any other state or

of the federal government.

4. Other included work.

The term "employment" shall include

(a) Service, wherever performed within the United States, the Virgin

Islands, or Canada, if

(1) contributions are not required with respect to such service under

an unemployment compensation law of any other state, the Virgin Islands,

or Canada, and

(2) the place from which such service is directed or controlled is in

this state;

(b) Service performed within this state not otherwise within the

purview of the foregoing provisions of this section if contributions are

not required with respect to such service under corresponding provisions

of an unemployment compensation law of any other state.

5. Work without the state or in a foreign country. (a) Service

performed entirely without the state, with respect to no part of which

contributions are required under an unemployment compensation law of any

other state or of the federal government, is employment if an election

with respect to the person's service has been made and approved pursuant

to the provisions of section five hundred sixty-one of this article.

(b) The term "employment" includes service by a citizen of the United

States performed for an American employer outside the United States,

except Canada or the Virgin Islands, provided contributions are not

required with respect to such service under an unemployment insurance

law of any other state pursuant to criteria which correspond to those of

subdivisions two and three of this section, if

(1) the employer's principal place of business in the United States is

in this state, or

(2) the employer has no place of business in the United States but is

(i) an individual person who is a resident of this state, or

(ii) a corporation which is organized under the laws of this state, or

(iii) a partnership or a trust and the number of partners or trustees

who are residents of this state is greater than the number who are

residents of any one other state, or

(3) none of the criteria of subparagraphs (1) and (2) are met but the

employer has elected coverage of the service in this state or, the

employer having failed to elect such coverage in any state, the

individual performing the service has filed a claim for benefits under

this article on the basis of such service.

(c) For purposes of this subdivision, "American employer" means

(1) an individual who is a resident of the United States; or

(2) a partnership if two-thirds or more of the partners are residents

of the United States; or

(3) a trust if all of the trustees are residents of the United States;

or

(4) a corporation organized under the laws of the United States or any

state.

6. Agricultural labor. (a) The term "employment" includes agricultural

labor. The term "agricultural labor" includes all service performed:

(1) on a farm, in the employ of any person, in connection with

cultivating the soil, or in connection with raising or harvesting any

agricultural or horticultural commodity, including the raising,

shearing, feeding, caring for, training, and management of livestock,

bees, poultry, and fur-bearing animals, and wildlife;

(2) in the employ of the owner or tenant or other operator of a farm,

in connection with the operation, management, conservation, improvement,

or maintenance of such farm and its tools and equipment, or in salvaging

timber or clearing land of brush and other debris left by a hurricane,

if the major part of such service is performed on a farm;

(3) in handling, planting, drying, packing, packaging, processing,

freezing, grading, storing, or delivering to storage or to market or to

a carrier for transportation to market, any agricultural or

horticultural commodity; but only if such service is performed in the

employ of an operator of a farm (i) as an incident to farming operations

or, (ii) in the case of fruits and vegetables, as an incident to the

preparation of such fruits or vegetables for market. The provisions of

this paragraph shall not apply to service performed in connection with

commercial canning or commercial freezing or in connection with any

agricultural or horticultural commodity after its delivery to a terminal

market for distribution for consumption.

(b) As used in this subdivision, the term "farm" includes stock,

dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,

nurseries, greenhouses or other similar structures, used primarily for

the raising of agricultural or horticultural commodities, and orchards.

7. Spouse or child. The term "employment" does not include service for

an employer by his spouse or child under the age of twenty-one.

8. Golf caddy. The term "employment" does not include service as a

golf caddy.

9. Day student. The term "employment" does not include service during

all or any part of the school year or regular vacation periods as a

part-time worker of any person actually in regular attendance during the

day time as a student in an elementary or secondary school.

10. Employment under the federal railroad unemployment insurance act.

The term "employment" does not include employment subject to the federal

railroad unemployment insurance act.

11. Maritime services under reciprocal agreements. The term

"employment" includes a person's entire service, if such service is

deemed performed in this state by virtue of reciprocal agreements

pursuant to the provisions of paragraph (c) of subdivision two of

section five hundred thirty-six of this article and does not include any

service which by virtue of such agreements is deemed performed in

another state.

12. Baby sitter. The term "employment" does not include service as a

baby sitter at the home of the employer by a minor.

13. Persons under the age of twenty-one engaged in casual labor. The

term "employment" does not include services of a person under the age of

twenty-one engaged in casual labor consisting of yard work and household

chores in and about a residence or the premises of a non-profit,

non-commercial organization, not involving the use of power-driven

machinery.

14. The term "employment" does not include service by a child under

the age of fourteen years.

15. Students and students' spouses at educational institutions. The

term "employment" does not include services rendered for an educational

institution by a person who is enrolled and is in regular attendance as

a student in such an institution, or the spouse of such student employed

by that institution if such spouse is advised at the beginning of such

services that the employment is provided under a program of financial

assistance to such student and will not be covered under this article.

For the purposes of this article, the term "employment" shall include

services rendered for a health care facility, including academic medical

centers, by fellow, resident and intern physicians.

16. Non-applicability of exclusions. The exclusions described in

subdivisions eight, nine, twelve, thirteen and fourteen of this section

shall not apply to services performed for a nonprofit organization as

defined in section five hundred sixty-three or for a governmental entity

as defined in section five hundred sixty-five or for an Indian tribe as

defined in section five hundred sixty-six of this article. The

exclusions described in subdivision twenty-three of this section shall

not apply to commercial goods transportation services performed for a

commercial goods transportation contractor within the meaning of article

twenty-five-C of this chapter.

17. Certain college students. The term "employment" does not include

service performed by an individual, regardless of age, who is enrolled

at a nonprofit or public educational institution which normally

maintains a regular faculty and curriculum and normally has a regularly

organized body of students in attendance at the place where its

educational activities are carried on as a student in a full-time

program taken for credit at such institution, which combines academic

instruction with work experience, if such service is an integral part of

such program, and such institution has so certified to the employer,

except that this subdivision shall not apply to service performed in a

program established for or on behalf of an employer or group of

employers.

18. Freelance shorthand reporter. The term "employment" does not

include the services of a freelance shorthand reporter rendered pursuant

to any agreement, contract, or mutual understanding, either written or

oral, with another freelance shorthand reporter or a freelance shorthand

reporting service. For the purposes of this subdivision, a freelance

shorthand reporter is a person who records verbatim any oral statement

or series of oral statements made over a definite period of time by a

written system of shorthand and whose sole compensation for making such

a record is an agreed upon fee per page of record produced. Additional

payment of a set dollar charge as a minimum fee or attendance fee shall

not affect the above definition of a freelance shorthand reporter. For

the purposes of this subdivision, a freelance shorthand reporting

service means any business which provides freelance shorthand reporters

through subcontracts or by any other means.

19. Qualified real estate agent. The term "employment" shall not

include the services of a licensed real estate broker or sales associate

if it be proven that (a) substantially all of the remuneration (whether

or not paid in cash) for the services performed by such broker or sales

associate is directly related to sales or other output (including the

performance of services) rather than to the number of hours worked; (b)

the services performed by the broker or sales associate are performed

pursuant to a written contract executed between such broker or sales

associate and the person for whom the services are performed within the

past twelve to fifteen months; and (c) the written contract provided for

in paragraph (b) herein was not executed under duress and contains the

following provisions:

(i) that the broker or sales associate is engaged as an independent

contractor associated with the person for whom services are performed

pursuant to article twelve-A of the real property law and shall be

treated as such for all purposes, including but not limited to federal

and state taxation, withholding, unemployment insurance and workers'

compensation;

(ii) that the broker or sales associate (A) shall be paid a commission

on his or her gross sales, if any, without deduction for taxes, which

commission shall be directly related to sales or other output; (B) shall

not receive any remuneration related to the number of hours worked; and

(C) shall not be treated as an employee with respect to such services

for federal and state tax purposes;

(iii) that the broker or sales associate shall be permitted to work

any hours he or she chooses;

(iv) that the broker or sales associate shall be permitted to work out

of his or her own home or the office of the person for whom services are

performed;

(v) that the broker or sales associate shall be free to engage in

outside employment;

(vi) that the person for whom the services are performed may provide

office facilities and supplies for the use of the broker or sales

associate, but the broker or sales associate shall otherwise bear his or

her own expenses, including but not limited to automobile, travel, and

entertainment expenses;

(vii) that the person for whom the services are performed and the

broker or sales associate shall comply with the requirements of article

twelve-A of the real property law and the regulations pertaining

thereto, but such compliance shall not affect the broker or sales

associate's status as an independent contractor nor should it be

construed as an indication that the broker or sales associate is an

employee of the person for whom the services are performed for any

purpose whatsoever;

(viii) that the contract and the association created thereby may be

terminated by either party thereto at any time upon notice given to the

other.

20. The term "employment" shall not include services performed by a

full-time student in the employ of an organized camp:

(a) if such camp:

(1) did not operate for more than seven months in the calendar year

and did not operate for more than seven months in the preceding calendar

year; or

(2) had average gross receipts for any six months in the preceding

calendar year which were not more than thirty-three and one-third

percent of its average gross receipts for the other six months in the

preceding calendar year; and

(b) if such full-time student performs services in the employ of such

camp for less than thirteen calendar weeks in any such year.

20-a. Full-time student. (a) For purposes of subdivision twenty of

this section, an individual shall be treated as a full-time student for

any period:

(1) during which the individual is enrolled as a full-time student at

an educational institution; or

(2) which is between academic years or terms if:

(i) the individual was enrolled as a full-time student at an

educational institution for the immediately preceding academic year or

term; and

(ii) there is a reasonable assurance that the individual will be so

enrolled for the immediately succeeding academic year or term after the

period described in clause (i) of this subparagraph.

(b) For purposes of this subdivision, the term educational institution

shall mean any educational institution of secondary, higher educational,

professional or vocational educational training, as those terms are

defined in the education law.

20-b. Camp. For purposes of subdivision twenty of this section, the

term camp shall mean "children's overnight camp" as that term is defined

in subdivision one of section thirteen hundred ninety-two of the public

health law, and any "summer day camp" as that term is defined in

subdivision two of section thirteen hundred ninety-two of the public

health law, and any "traveling summer day camp" as that term is defined

in subdivision three of section thirteen hundred ninety-two of the

public health law.

21. Qualified insurance agent or broker. The term "employment" shall

not include the services of a licensed insurance agent or broker if it

be proven that (a) substantially all of the remuneration (whether or not

paid in cash) for the services performed by such agent or broker is

directly related to sales or other output (including the performance of

services) rather than to the number of hours worked; (b) such agent is

not a life insurance agent receiving a training allowance subsidy

described in paragraph three of subsection (e) of section four thousand

two hundred twenty-eight of the insurance law; (c) the services

performed by the agent or broker are performed pursuant to a written

contract executed between such agent or broker and the person for whom

the services are performed; and (d) the written contract provided for in

paragraph (c) of this subdivision was not executed under duress and

contains the following provisions:

(i) that the agent or broker is engaged as an independent contractor

associated with the person for whom services are performed pursuant to

article twenty-one of the insurance law and shall be treated as such for

all purposes, including but not limited to federal and state taxation,

withholding (other than federal insurance contributions act (FICA) taxes

required for full time life insurance agents pursuant to section

3121(d)(3) of the federal internal revenue code), unemployment insurance

and workers' compensation;

(ii) that the agent or broker (A) shall be paid a commission on his or

her gross sales, if any, without deduction for taxes (other than federal

insurance contributions act (FICA) taxes required for full time life

insurance agents pursuant to section 3121(d)(3) of the federal internal

revenue code), which commission shall be directly related to sales or

other output; (B) shall not receive any remuneration related to the

number of hours worked; and (C) shall not be treated as an employee with

respect to such services for federal and state tax purposes (other than

federal insurance contributions act (FICA) taxes required for full time

life insurance agents pursuant to section 3121(d)(3) of the federal

internal revenue code);

(iii) that the agent or broker shall be permitted to work any hours he

or she chooses;

(iv) that the agent or broker shall be permitted to work out of his or

her own office or home or the office of the person for whom services are

performed;

(v) that the person for whom the services are performed may provide

office facilities, clerical support, and supplies for the use of the

agent or broker, but the agent or broker shall otherwise bear his or her

own expenses, including but not limited to automobile, travel, and

entertainment expenses;

(vi) that the person for whom the services are performed and the agent

or broker shall comply with the requirements of article twenty-one of

the insurance law and the regulations pertaining thereto, but such

compliance shall not affect the agent's or broker's status as an

independent contractor nor should it be construed as an indication that

the agent or broker is an employee of the person for whom the services

are performed for any purpose whatsoever;

(vii) that the contract and the association created thereby may be

terminated by either party thereto at any time with notice given to the

other.

22. Recreational bowling. The term "employment" shall not include

recreational bowling, such as bowling in a league where an individual

may occasionally win prize money.

23. Newspaper delivery persons. The term "employment" shall not

include service performed by any person if:

(a) such person is engaged in the trade or business of the delivering

or distribution of newspapers or shopping news (including any services

directly related to such trade or business);

(b) substantially all the remuneration (whether or not paid in cash)

for the performance of the services described in paragraph (a) of this

subdivision is directly related to sales or other output (including the

performance of services) rather than to the number of hours worked; and

(c) the services performed by the person are performed pursuant to a

written contract between such person and the person for whom the

services are performed, and such contract provides that person will not

be treated as an employee with respect to such services for federal tax

purposes.