N.Y. Labor Law § 861-c: Presumption of employment in the construction industry

§ 861-c. Presumption of employment in the construction industry. 1.

Any person performing services for a contractor shall be classified as

an employee unless the person is a separate business entity under

subdivision two of this section or all of the following criteria are

met, in which case the person shall be an independent contractor:

(a) the individual is free from control and direction in performing

the job, both under his or her contract and in fact;

(b) the service must be performed outside the usual course of business

for which the service is performed; and

(c) the individual is customarily engaged in an independently

established trade, occupation, profession, or business that is similar

to the service at issue.

2. A business entity, including any sole proprietor, partnership,

corporation or entity that may be a contractor under this section shall

be considered a separate business entity from the contractor where all

the following criteria are met:

(a) the business entity is performing the service free from the

direction or control over the means and manner of providing the service,

subject only to the right of the contractor for whom the service is

provided to specify the desired result;

(b) the business entity is not subject to cancellation or destruction

upon severance of the relationship with the contractor;

(c) the business entity has a substantial investment of capital in the

business entity beyond ordinary tools and equipment and a personal

vehicle;

(d) the business entity owns the capital goods and gains the profits

and bears the losses of the business entity;

(e) the business entity makes its services available to the general

public or the business community on a continuing basis;

(f) the business entity includes services rendered on a Federal Income

Tax Schedule as an independent business or profession;

(g) the business entity performs services for the contractor under the

business entity's name;

(h) when the services being provided require a license or permit, the

business entity obtains and pays for the license or permit in the

business entity's name;

(i) the business entity furnishes the tools and equipment necessary to

provide the service;

(j) if necessary, the business entity hires its own employees without

contractor approval, pays the employees without reimbursement from the

contractor and reports the employees' income to the Internal Revenue

Service;

(k) the contractor does not represent the business entity as an

employee of the contractor to its customers; and

(l) the business entity has the right to perform similar services for

others on whatever basis and whenever it chooses.

3. The failure to withhold federal or state income taxes or to pay

unemployment compensation contributions or workers' compensation

premiums with respect to an individual's wages shall not be considered

in making a determination under this section, except as set forth in

paragraph (f) of subdivision two of this section.

4. An individual's act of securing workers' compensation insurance

with a carrier as a sole proprietor, partnership or otherwise shall not

be binding on any determination under this section.

5. When a business entity meets the definition of a separate business

entity pursuant to subdivision two of this section, the separate

business entity will be considered a contractor subject to all the

provisions of this article in regard to the classification of

individuals performing services for it.