N.Y. Labor Law § 862-b: Presumption of employment in the commercial goods transportation industry

§ 862-b. Presumption of employment in the commercial goods

transportation industry. 1. Any person performing commercial goods

transportation services for a commercial goods transportation contractor

shall be classified as an employee of the commercial goods

transportation contractor unless payment for such services is reported

on a Federal Income Tax form 1099 if required by law and either 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,

firm, corporation, limited liability company, association or other legal

entity that may also be a commercial goods transportation contractor

under this section shall be considered a separate business entity from

the commercial goods transportation 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 commercial goods transportation

contractor for whom the service is provided to specify the desired

result or federal rule or regulation;

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

upon severance of the relationship with the commercial goods

transportation contractor;

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

business entity, including but not limited to ordinary tools and

equipment;

(d) the business entity owns or leases the capital goods and gains the

profits and bears the losses of the business entity;

(e) the business entity may make its services available to the general

public or others not a party to the business entity's written contract

referenced in paragraph (g) of this subdivision in the business

community on a continuing basis;

(f) the business entity provides services reported on a Federal Income

Tax form 1099, if required by law;

(g) the business entity performs services for the commercial goods

transportation contractor pursuant to a written contract, under the

business entity's name, specifying their relationship to be as

independent contractors or separate business entities;

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

business entity pays for the license or permit in the business entity's

name or, where permitted by law, pays for reasonable use of the

commercial goods transportation contractor's license or permit;

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

the commercial goods transportation contractor's approval, subject to

applicable qualification requirements or federal or state laws, rules or

regulations, and pays the employees without reimbursement from the

commercial goods transportation contractor;

(j) the commercial goods transportation contractor does not require

that the business entity be represented as an employee of the commercial

goods transportation contractor to its customers; and

(k) 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 commercial goods transportation

contractor subject to all the provisions of this article in regard to

the classification of individuals performing services for it.