N.Y. Workers' Compensation Law § 18-c: Independent livery bases

§ 18-c. Independent livery bases. 1. For purposes of this section,

"covered services," "livery," "livery driver," "livery registrant,"

"livery base," "local taxi and limousine commission" and "responsible

person" shall have the meanings set forth in article six-G of the

executive law.

2. The board shall designate a livery base as an independent livery

base, only if the base meets each of the following criteria:

(a) The base submits an affirmation sworn under penalty of perjury by

an officer or director and such other individuals as the chair may

direct, on such form as is provided by the board, which attests to the

truth of such criteria as are set by the chair by regulation, or in the

absence of such regulation attests to the truth of the following: (i)

the base is not, directly or indirectly, including through any director

or officer, the owner or registrant of any livery dispatched by the

base; (ii) all livery drivers dispatched by the base provide and select

their own clothing; (iii) all livery drivers dispatched by the base set

their own hours and days of work; (iv) all livery drivers choose which

dispatches or fares to accept, and no livery driver suffers any

consequence by the livery base for failing to respond to its dispatch;

(v) livery drivers dispatched by the base may enter into a contractual

relationship with one or more other bases; (vi) no livery driver

dispatched by the base receives an internal revenue service form W-2

from such base, or is subject to the withholding of any federal income

taxes by the base; (vii) the base does not pay for the fuel or

maintenance of any liveries; (viii) the base does not impose any fines

and penalties on any livery drivers, except that it may decline to

provide further dispatches for misconduct during any dispatch; and (ix)

no livery driver is subject to being fired or discharged by the livery

base. The base shall agree to provide the board with immediate notice of

any inaccuracies in the affirmation, including any failure to adhere to

any of the matters set forth on its affirmation.

(b) The board shall alter the criteria set forth in paragraph (a) of

this subdivision to conform to any statutory definition for employer or

independent contractor applicable to livery drivers.

(c) The livery shall provide the board and local taxi and limousine

commission, and all livery registrants or drivers whose liveries may be

dispatched by the livery base, with a copy of a written policy in plain

language, in the primary language spoken by each registrant or driver,

setting forth all matters to which it has attested on the affirmation

provided for in paragraph (a) of this subdivision. The failure to

distribute such a policy shall not have any legal consequence except in

accordance with section one hundred sixty-hhh of the executive law.

(d) The base shall pay into the independent livery fund such payments

as are directed by the independent livery driver benefit fund pursuant

to article six-G of the executive law.

(e) The base may not owe any payments into the fund established under

section twenty-six-a of this article, or otherwise owe any moneys under

this chapter, unless it has an agreement with the board to repay the

money owed, or to relieve it of the obligation to make any such

payments.

(f) The base shall maintain such records as are provided for by

regulation of the chair.

(g) The base shall permit the local taxi and limousine commission, the

independent livery fund and any carrier providing compensation under

this title for the independent livery fund to audit its books and

records during regular business hours solely as necessary to determine

compliance with this section, or to determine the amount owed to the

fund.

(h) No responsible persons of the livery base may have been a

responsible person of a base whose status as an independent livery base

was revoked within the previous five years, or which has no agreement on

moneys owed in as required by paragraph (e) of this subdivision, unless

such criteria are waived in the discretion of the board.

3. The board may revoke any livery base's status as an independent

livery base if it determines that the base is in violation of any of the

criteria set forth in subdivision one of this section, or may suspend

the livery base's status as an independent livery base pending the

base's compliance with any such criteria.

4. An independent livery base's obligations under this chapter

regarding the securing and provision of workers' compensation benefits

for any livery driver it dispatches shall be satisfied in full by

compliance with the requirements imposed upon an independent livery base

by this section and article six-G of the executive law. Insurance

coverage directly procured by any independent livery base for the

purpose of satisfying the requirements of this chapter with respect to

employees of the central livery dispatch facility shall not include

coverage of any livery driver to the extent that the livery driver is

covered under coverage secured by the New York livery drivers' injury

compensation fund pursuant to the requirements of article six-G of the

executive law except as provided in that article.

5. Any livery base that is not an independent livery base shall be

deemed an employer of any livery driver it dispatches for purposes of

this article.

6. A livery base's designation as an employer or independent livery

base in accordance with this section shall not be considered in any

determination as to whether a livery base is an employer or independent

contractor under any other provision of law. The livery base's

designation under this section shall not be admissible in any court or

administrative proceeding in this state, except any proceeding under

this article or article six-G of the executive law, to demonstrate the

base's status as an employer or independent contractor.

7. For all injuries or illnesses resulting to a livery driver arising

out of covered services for an independent livery base, and for which

compensation must be paid in accordance with section one hundred

sixty-ddd of the executive law, the independent livery driver benefit

fund shall be deemed the employer for all purposes of this chapter.

8. An independent livery driver that sustains injury as a result of

the use or operation of an automobile during a dispatch by an

independent livery base may obtain recovery in accordance with article

fifty-one of the insurance law, and shall not be entitled to workers'

compensation benefits except as set forth in section one hundred

sixty-ddd of the executive law.

9. An independent livery driver who submits a claim for recovery in

accordance with article fifty-one of the insurance law pursuant to

subdivision eight of this section shall be subject to local taxi and

limousine commission rules prohibiting driving until he or she has

recovered from his or her injury. Any authorized insurer required to

accept such claims shall be entitled to apply the pre-authorized

procedures, medical treatment guidelines and other applicable provisions

of this article.