N.Y. Workers' Compensation Law § 2: Definitions

§ 2. Definitions. As used in this chapter, 1. "Hazardous employment"

means a work or occupation described in section three of this chapter.

2. "Department" means the department of labor of the state of New

York;

"Chairman" means the chairman of the workers' compensation board of

the state of New York;

"Commissioner" means the industrial commissioner of the state of New

York;

"Board" means the workers' compensation board of the state of New

York;

"Commissioners" means the commissioners of the state insurance fund of

the department of labor of the state of New York.

3. "Employer," except when otherwise expressly stated, means a person,

partnership, association, corporation, and the legal representatives of

a deceased employer, or the receiver or trustee of a person,

partnership, association or corporation, having one or more persons in

employment, including the state, a municipal corporation, fire district

or other political subdivision of the state, and every authority or

commission heretofore or hereafter continued or created by the public

authorities law. For the purposes of this chapter only "employer" shall

also mean a person, partnership, association, corporation, and the legal

representatives of a deceased employer, or the receiver or trustee of a

person, partnership, association or corporation who delivers or causes

to be delivered newspapers or periodicals for delivering or selling and

delivering by a newspaper carrier under the age of eighteen years as

defined in section thirty-two hundred twenty-eight of the education law,

but shall not include delivering newspapers or shopping news to the

consumer (including any services directly related to such trade or

business) by a person who is not performing commercial goods

transportation services for a commercial goods transportation contractor

within the meaning of article twenty-five-C of the labor law. For the

purpose of this chapter only, "employer" shall also mean a person,

partnership, association, or corporation who leases or otherwise

contracts with an operator or lessee for the purpose of driving,

operating or leasing a taxicab as so defined in section one hundred

forty-eight-a of the vehicle and traffic law, except where such person

is an owner-operator of such taxicab who personally regularly operates

such vehicle an average of forty or more hours per week and leases such

taxicab for some portion of the remaining time, and except if the

taxicab is a livery subject to section eighteen-c of this chapter, in

which case the livery driver's employer shall only be such employer as

is defined in that section. For the purposes of this section only, such

an owner-operator shall be deemed to be an employer if he controls,

directs, supervises, or has the power to hire or terminate such other

person who leases the vehicle.

Notwithstanding any other provision of this chapter and for purposes

of this chapter only, "employer" shall mean, with respect to a jockey,

apprentice jockey or exercise person licensed under article two or four

of the racing, pari-mutuel wagering and breeding law, and at the

election of the New York Jockey Injury Compensation Fund, Inc., with the

approval of the New York state gaming commission, employees of licensed

trainers or owners, performing services for an owner or trainer in

connection with the training or racing of a horse at a facility of a

racing association or corporation subject to article two or four of the

racing, pari-mutuel wagering and breeding law and subject to the

jurisdiction of the New York state gaming commission, The New York

Jockey Injury Compensation Fund, Inc. and all owners and trainers who

are licensed or required to be licensed under article two or four of the

racing, pari-mutuel wagering and breeding law at the time of any

occurrence for which benefits are payable pursuant to this chapter in

respect to the injury or death of such jockey, apprentice jockey,

exercise person or, if approved by the New York state gaming commission,

employee of a licensed trainer or owner.

Notwithstanding any other provision of this chapter, and for purposes

of this chapter only, the employer of a black car operator, as defined

in article six-F of the executive law, shall, on and after the fund

liability date, as defined in such article, be the New York black car

operators' injury compensation fund, inc. created pursuant to such

article.

For the purpose of this chapter only, whether a livery base operating

in any locality where liveries must register with a local taxi and

limousine commission shall be deemed the "employer" of any livery driver

engaging in covered services shall be determined in accordance with

section eighteen-c of this chapter.

4. "Employee" means a person engaged in one of the occupations

enumerated in section three of this article or who is in the service of

an employer whose principal business is that of carrying on or

conducting a hazardous employment upon the premises or at the plant, or

in the course of his or her employment away from the plant of his or her

employer; "employee" shall also mean for the purposes of this chapter

any individual performing services in construction for a contractor who

does not overcome the presumption of employment as provided under

section eight hundred sixty-one-c of the labor law; "employee" shall

also mean for the purposes of this chapter any individual performing

services in the commercial goods transportation industry for a

commercial goods transportation contractor who does not overcome the

presumption of employment as provided under section eight hundred

sixty-two-b of the labor law; "employee" shall also mean for the

purposes of this chapter civil defense volunteers who are personnel of

volunteer agencies sponsored or authorized by a local office under

regulations of the civil defense commission, to the extent of the

provisions of groups seventeen and nineteen; "employee" shall at the

election of a municipal corporation made pursuant to local law duly

enacted also mean a member of an auxiliary police organization

authorized by local law; and for the purposes of this chapter only a

newspaper carrier under the age of eighteen years as defined in section

thirty-two hundred twenty-eight of the education law, but shall not

include delivery of newspapers or shopping news to the consumer

(including any services directly related to such trade or business) by a

person who is not performing commercial goods transportation services

for a commercial goods transportation contractor within the meaning of

article twenty-five-C of the labor law, and shall not include domestic

servants except as provided in section three of this chapter, and except

where the employer has elected to bring such employees under the law by

securing compensation in accordance with the terms of section fifty of

this chapter. The term "employee" shall not include persons who are

members of a supervised amateur athletic activity operated on a

non-profit basis, provided that said members are not also otherwise

engaged or employed by any person, firm or corporation participating in

said athletic activity, nor shall it include the spouse or minor child

of an employer who is a farmer unless the services of such spouse or

minor child shall be engaged by said employer under an express contract

of hire nor shall it include an executive officer of a corporation who

at all times during the period involved owns all of the issued and

outstanding stock of the corporation and holds all of the offices

pursuant to paragraph (e) of section seven hundred fifteen of the

business corporation law or two executive officers of a corporation who

at all times during the period involved between them own all of the

issued and outstanding stock of such corporation and hold all such

offices except as provided in subdivision six of section fifty-four of

this chapter provided, however, that where there are two executive

officers of a corporation each officer must own at least one share of

stock, nor shall it include a self-employed person or a partner of a

partnership as defined in section ten of the partnership law who is not

covered under a compensation insurance contract or a certificate of

self-insurance as provided in subdivision eight of section fifty-four of

this chapter, nor shall it include farm laborers except as provided in

group fourteen-b of section three of this chapter. If a farm labor

contractor recruits or supplies farm laborers for work on a farm, such

farm laborers shall for the purposes of this chapter be deemed to be

employees of the owner or lessee of such farm. The term "employee" shall

not include baby sitters as defined in subdivision three of section one

hundred thirty-one and subdivision three of section one hundred

thirty-two of the labor law or minors fourteen years of age or over

engaged in casual employment consisting of yard work and household

chores in and about a one family owner-occupied residence or the

premises of a non-profit, non-commercial organization, not involving the

use of power-driven machinery. The term "employee" shall not include

persons engaged by the owner in casual employment consisting of yard

work, household chores and making repairs to or painting in and about a

one-family owner-occupied residence. The term "employee" 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) of this subdivision 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.

"Employee" shall also mean, for purposes of this chapter, an infant

rendering services for the public good as prescribed in sections seven

hundred fifty-eight-a and 353.6 of the family court act.

For the purpose of this chapter only, "employee" shall also mean a

driver, operator or lessee who contracts with an owner, operator or

lessor for the purpose of operating a taxicab as so defined in section

one hundred forty-eight-a of the vehicle and traffic law, except where

such person leases the taxicab from a person who personally, regularly

operates such vehicle an average of forty or more hours per week, and

except if the taxicab is a livery subject to section eighteen-c of this

chapter, in which case the livery driver's employer shall only be such

employer as is defined in that section. For the purposes of this section

only, such person shall be deemed to be an employee of the

owner-operator if the owner-operator controls, directs, supervises, or

has the power to hire or terminate such person.

"Employee" shall also mean, for purposes of this chapter, a

professional musician or a person otherwise engaged in the performing

arts who performs 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

service in connection with the production of or performance in any

artistic endeavor which requires artistic or technical skill or

expertise.

Notwithstanding any other provision of this chapter, and for purposes

of this chapter only, a jockey, apprentice jockey or exercise person

licensed under article two or four of the racing, pari-mutuel wagering

and breeding law, and at the election of the New York Jockey Injury

Compensation Fund, Inc., with the approval of the New York state gaming

commission, employees of licensed trainers or owners, performing

services for an owner or trainer in connection with the training or

racing of a horse at a facility of a racing association or corporation

subject to article two or four of the racing, pari-mutuel wagering and

breeding law and subject to the jurisdiction of the New York state

gaming commission shall be regarded as the "employee" not solely of such

owner or trainer, but shall instead be conclusively presumed to be the

"employee" of The New York Jockey Injury Compensation Fund, Inc. and

also of all owners and trainers who are licensed or required to be

licensed under article two or four of the racing, pari-mutuel wagering

and breeding law at the time of any occurrence for which benefits are

payable pursuant to this chapter in respect of the injury or death of

such jockey, apprentice jockey, exercise person or, if approved by the

New York state gaming commission, employee of a licensed trainer or

owner.

"Employee" shall also mean, for purposes of this chapter, a

professional model, who:

(a) performs modeling services for; or

(b) 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 such professional model's privacy rights enumerated above,

unless such services are performed pursuant to a written contract

wherein it is stated that such professional model is the employee of

another employer covered by this chapter. For the purposes of this

paragraph, 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 paragraph, 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.

Notwithstanding any other provision of this chapter, and for purposes

of this chapter only, a black car operator, as defined in article six-F

of the executive law, shall, on and after the fund liability date, as

defined in such article, be an "employee" of the New York black car

operators' injury compensation fund, inc. created pursuant to such

article.

"Employee" shall not include, for the purposes of this chapter, 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

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; and (d) the written contract provided for in

clause (c) of this paragraph 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 (1) 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; (2) shall not receive any remuneration related to the

number of hours worked; and (3) 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.

"Employee" shall not include a media sales representative if it be

proven that (a) substantially all of the compensation for the services

performed by such media sales representative is directly related to

sales or other productivity rather than to the number of hours worked;

(b) the media sales representative must be incorporated under the laws

of this state in order to be considered an independent contractor and

shall be solely responsible for the payment of workers' compensation

premiums; (c) the services performed by the media sales representative

are performed pursuant to a written contract executed between such media

sales representative and the person for whom the services are performed;

and (d) the written contract provided for in subparagraph (c) of this

paragraph was not executed under duress and contains the following

provisions:

(i) that the media sales representative is engaged as an independent

contractor associated with the person for whom services are performed

and shall be treated as such for all purposes, including but not limited

to federal and state taxation, withholdings, and workers' compensation;

(ii) that the media sales representative (A) shall be paid a

commission based on a fixed fee rate outlined in the written contract,

if any, without deduction for taxes, which commission shall be directly

related to sales pursuant to price guidelines or other productivity

within the sales area; (B) shall not receive any compensation 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 media sales representative shall be permitted to work

any hours he or she chooses subject to the restrictions in section three

hundred ninety-nine-p of the general business law;

(iv) that the media sales representative may work at any site other

than on the premises of the person for whom services are performed;

(v) that the person for whom the services are performed shall not be

responsible for any reimbursement expenses other than those outlined in

the written contract;

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

sales representative shall comply with all articles of the labor law

that apply to such work other than article eighteen of the labor law,

but such compliance shall not affect the media sales representative's

status as an independent contractor nor shall it be construed as an

indication that the media sales representative is an employee of the

person for whom the services are performed for any purpose whatsoever;

and

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

terminated by the media sales representative thereto at any time with

two weeks notice given to the person for whom the services are

performed.

For the purposes of this subdivision, "media sales representative"

shall include any contractor engaged in the sale or renewal of magazine

subscriptions or the sale or renewal of magazine advertising space who

(i) receives no direction or control on the methods by which they

perform services other than training on product characteristics, (ii)

are solely in control of their work schedule, and (iii) may refuse any

work assignment.

For the purpose of this chapter only, whether a livery driver

dispatched by an independent livery base, as those terms are defined in

article six-G of the executive law, is an "employee" shall be determined

in accordance with section eighteen-c of this chapter.

5. "Employment" includes employment in a trade, business or occupation

carried on by the employer for pecuniary gain, or in connection

therewith, except where the employer elects to bring his or her

employees within the provisions of this chapter as provided in section

three of this article, and except employment as a domestic worker as

provided in section three of this article, and except where a town

elects to have the provisions of this chapter apply to the town

superintendent of highways. "Employment" shall also include, in

connection with the civil defense effort and for purposes of this

chapter the service of a civil defense volunteer in authorized

activities of a volunteer agency sponsored or authorized by a local

office as defined in a state defense emergency act. "Employment" shall

also include participation with an auxiliary police effort made within a

municipal corporation which elected to include auxiliary police officers

within the definition of "employee" as authorized by subdivision four of

this section and for purposes of this chapter, the services of members

or volunteers in activities authorized by local law. The service of a

civil defense volunteer who is also an employee recompensed by an

employer for service to such employer, shall not be deemed to be in

employment of a local office when he or she is performing civil defense

service in his or her employment or in relation thereto. For the

purposes of this chapter only "employment" shall also include the

delivery or sale and delivery of newspapers or periodicals by a

newspaper carrier as defined in section thirty-two hundred twenty-eight

of the education law, but shall not include delivery of newspapers or

shopping news to the consumer (including any services directly related

to such trade or business) by a person who is not performing commercial

goods transportation services for a commercial goods transportation

contractor within the meaning of article twenty-five-C of the labor law.

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.

For the purpose of this chapter only, "employment" shall also include

the service of a driver, operator or lessee of a taxicab as so defined

in section one hundred forty-eight-a of the vehicle and traffic law,

except where a person leases a taxicab from an owner-operator of a

taxicab who, regularly operates the vehicle an average of forty or more

hours per week. Such a lessee shall be deemed to be in employment if the

lessor controls, directs, supervises, or has the power to hire or

terminate the lessee.

Notwithstanding any other provision of this chapter, and for purposes

of this chapter only, a jockey, apprentice jockey or exercise person

licensed under article two or four of the racing, pari-mutuel wagering

and breeding law, and at the election of the New York Jockey Injury

Compensation Fund, Inc., with the approval of the New York state gaming

commission, employees of licensed trainers or owners, performing

services for an owner or trainer in connection with the training or

racing of a horse at a facility of a racing association or corporation

subject to article two or four of the racing, pari-mutuel wagering and

breeding law and subject to the jurisdiction of the New York state

gaming commission shall be regarded as in the "employment" not solely of

such owner and trainer, but shall instead be conclusively presumed to be

in the "employment" of The New York Jockey Injury Compensation Fund,

Inc. and of all owners and trainers who are licensed or required to be

licensed under article two or four of the racing, pari-mutuel wagering

and breeding law, at the time of any occurrence for which benefits are

payable pursuant to this chapter in respect of the injury or death of

such jockey, apprentice jockey, exercise person or, if approved by the

New York state gaming commission, employee of a licensed trainer or

owner. For the purpose of this chapter only, whether a livery driver's

performance of covered services, as those terms are defined in article

six-G of the executive law, constitutes "employment" shall be determined

in accordance with section eighteen-c of this chapter.

Notwithstanding any other provision of this chapter, and for purposes

of this chapter only, a black car operator, as that term is defined in

article six-F of the executive law, shall, on and after the fund

liability date, as that term is defined in such article, be regarded as

in the "employment" of the New York black car operators' injury

compensation fund, inc. created pursuant to such article.

"Employment" shall not include, for the purposes of this chapter, 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 clause (c) of

this paragraph 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 (1) 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; (2) shall not receive any remuneration related to the

number of hours worked; and (3) 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.

"Employment" shall not include the services of a media sales

representative if it be proven that (A) substantially all of the

compensation for the services performed by such media sales

representative is directly related to sales or other productivity rather

than to the number of hours worked; (B) the media sales representative

must be incorporated under the laws of this state in order to be

considered an independent contractor and shall be solely responsible for

the payment of workers' compensation premiums; (C) the services

performed by the media sales representative are performed pursuant to a

written contract executed between such media sales representative and

the person for whom the services are performed; and (D) the written

contract provided for in subparagraph (C) of this paragraph was not

executed under duress and contains the following provisions:

(i) that the media sales representative is engaged as an independent

contractor associated with the person for whom services are performed

and shall be treated as such for all purposes, including but not limited

to federal and state taxation, withholdings, and workers' compensation;

(ii) that the media sales representative (A) shall be paid a

commission, based on a fixed fee rate outlined in the written contract,

if any, without deduction for taxes, which commission shall be directly

related to sales pursuant to price guidelines or other productivity

within the sales area; (B) shall not receive any compensation 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 media sales representative shall be permitted to work

any hours he or she chooses subject to the restrictions in section three

hundred ninety-nine-p of the general business law;

(iv) that the media sales representative may work at any site other

than on the premises of the person for whom services are performed;

(v) that the person for whom the services are performed shall not be

responsible for any reimbursement expenses other than those outlined in

the written contract;

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

sales representative shall comply with all articles of the labor law

that apply to such work other than article eighteen of the labor law,

but such compliance shall not affect the media sales representative's

status as an independent contractor nor shall it be construed as an

indication that the media sales representative is an employee of the

person for whom the services are performed for any purpose whatsoever;

and

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

terminated by the media sales representative thereto at any time with

two weeks notice given to the person for whom the services are

performed.

For the purposes of this subdivision, "media sales representative"

shall include any contractor engaged in the sale or renewal of magazine

subscriptions or the sale or renewal of magazine advertising space who

(i) receives no direction or control on the methods by which they

perform services other than training on product characteristics, (ii)

are solely in control of their work schedule, and (iii) may refuse any

work assignment.

6. "Compensation" means the money allowance payable to an employee or

to his dependents as provided for in this chapter, and includes funeral

benefits provided therein.

7. "Injury" and "personal injury" mean only accidental injuries

arising out of and in the course of employment and such disease or

infection as may naturally and unavoidably result therefrom. The terms

"injury" and "personal injury" shall not include an injury which is

solely mental and is based on workrelated stress if such mental injury

is a direct consequence of a lawful personnel decision involving a

disciplinary action, work evaluation, job transfer, demotion, or

termination taken in good faith by the employer.

8. "Death" when mentioned as a basis for the right to compensation

means only death resulting from such injury.

9. "Wages" means the money rate at which the service rendered is

recompensed under the contract of hiring in force at the time of the

accident, including the reasonable value of board, rent, housing,

lodging or similar advantage received from the employer, or in the case

of (a) a civil defense volunteer, (b) a volunteer worker in a state

department as provided in group sixteen of subdivision one of section

three of this chapter, (c) a volunteer worker for a social services

district as provided in group seventeen of subdivision one of section

three of this chapter, (d) a county fire coordinator, a deputy county

fire coordinator or a comparable county official to whom the provisions

of group fifteen-a of subdivision one of section three of this chapter

are applicable, who is also a volunteer firefighter or ambulance worker,

(e) a fire district officer whether elective or appointive and whether

or not he or she is compensated for his or her services or a paid fire

or ambulance district employee, (f) a state fire instructor whose

compensation is paid in whole or in part by the state, (g) an enrolled

member of a fire company who, is not a volunteer firefighter, receives

compensation for his or her services and is not a full-time firefighter,

known as a "call firefighter", (h) persons who are performing services

for a public or not-for-profit corporation, association, institution or

agency organized as an unincorporated association or duly incorporated

under the laws of this state in fulfillment of a sentence of probation

or of conditional discharge, or persons performing such services

pursuant to the provisions of section 170.55 or 170.56 of the criminal

procedure law, (i) an auxiliary police officer in a municipal

corporation which elected to include such persons within the definition

of "employee" as authorized by subdivision four of this section, or (j)

a duly appointed member of a regional hazardous materials incidents team

recognized under section two hundred nine-y of the general municipal

law, such money rate applying in his or her regular vocation or the

amount of the regular earnings of such volunteer, coordinator,

instructor, or comparable officer, fire or ambulance district officer or

employee or call firefighter, or team member as the case may be, in his

or her regular vocation, plus any amount earned as such a coordinator,

instructor or comparable officer, or as such a fire or ambulance

district officer or employee or call firefighter or team member,

provided, however, that in no event shall the average weekly wage be

fixed at less than thirty dollars regardless of whether or not such

volunteer, coordinator, instructor or comparable officer or fire or

ambulance district officer or employee or call firefighter or team

member had gainful employment elsewhere at the time of the injury.

The wages of a livery driver, as defined in article six-G of the

executive law, shall be calculated in accordance with this paragraph.

The chair shall promulgate regulations, in consultation with the

independent livery driver benefit fund, and all local taxi and limousine

commissions, as defined in article six-G of the executive law,

establishing amounts that livery drivers are presumptively deemed to

receive in annual wages, and may vary such presumptive wage by such

geographic region or political subdivision of the state as the chair may

set. Such regulations may establish other factors or criteria for

determining the presumptive wage. The presumptive wage shall be set

based on the chair's findings as to the amount earned by livery drivers,

and their expenses. A livery driver or the livery driver's employer,

including the independent livery driver benefit fund, may rebut the

presumptive wage by competent evidence that the driver's actual wages

for covered services, as defined in article six-G of the executive law,

were different. The chair shall promulgate such other rules as are

necessary to compute livery driver wages in accordance with this

paragraph.

10. "State fund" means the state insurance fund provided for in

article five of this chapter.

11. "Child" shall include a posthumous child, a child legally adopted

prior to the injury of the employee; and a step-child or child born out

of wedlock dependent upon the deceased.

12. "Insurance carrier" shall include the state fund, stock

corporations, mutual corporations or reciprocal insurers with which

employers have insured, and employers permitted to pay compensation

directly under the provisions of subdivisions three, three-a or four of

section fifty of this chapter. For purposes of this chapter, a nonprofit

property/casualty insurance company which is licensed pursuant to

subsection (b) of section six thousand seven hundred four of the

insurance law shall be deemed a stock corporation and a nonprofit

property/casualty insurance company which is licensed as a reciprocal

insurer pursuant to subsection (c) of section six thousand seven hundred

four of the insurance law shall be deemed a reciprocal insurer.

13. "Manufacture," "construction," "operation" and "installation"

shall include "repair," "demolition," "fabrication" and "alteration" and

shall include all work done in connection with the repair of plants,

buildings, grounds and approaches of all places where any of the

hazardous employments are being carried on, operated or conducted.

14. "Minor" means a person who has not attained the age of eighteen

years.

15. "Occupational disease" means a disease resulting from the nature

of employment and contracted therein.

16. "New York state average weekly wage" shall mean the average weekly

wage of the state of New York for the previous calendar year as reported

by the commissioner of labor to the superintendent of financial services

on March thirty-first.

17. A "substantially owned affiliated entity" of any person means the

parent company of the person, any subsidiary of the person, or any

entity in which the parent of the person owns more than fifty percent of

the voting stock, or an entity in which one or more of the top five

shareholders of the person individually or collectively also owns a

controlling share of the voting stock, or an entity which exhibits any

other indicia of control over the person or over which the person

exhibits control, regardless of whether or not the controlling party or

parties have any identifiable or documented ownership interest. Such

indicia shall include: power or responsibility over employment

decisions; access to and/or use of the relevant entity's assets or

equipment; power or responsibility over contracts of the person;

responsibility for maintenance or submission of certified payroll

records; and influence over the business decisions of the relevant

entity.

19. A "claim for reimbursement" from the special disability fund means

an application to the board under paragraph (f) of subdivision eight of

section fifteen of this chapter for a determination that the special

disability fund is liable in the first instance for any reimbursement to

the insurance carrier, self-insured employer or state insurance fund.

20. A "request for reimbursement" from the special disability fund

means an application to the special disability fund for reimbursement

for specific costs, subsequent to a determination by the board that the

special disability fund is liable to provide reimbursement on the claim.

21. The "workers' compensation rating board" or the "New York workers'

compensation rating board" shall mean the compensation insurance rating

board until February first, two thousand eight, and thereafter the

superintendent of financial services or other entity designated by the

superintendent of financial services for collection and analysis of data

or such other purposes as set forth in this chapter.

22. "Cost of compensation" means the amount that an employer must pay

to secure compensation as calculated in accordance with regulation of

the board or, in the absence of such regulation, based on average market

rates for a comparable employer.

23. "Special disability fund advisory committee" shall mean an

advisory committee to the workers' compensation board, acting by a

majority thereof, solely with respect to the special fund entitled the

special disability fund, composed of the director of the budget, the

commissioner of labor, the commissioner of taxation and finance, the

chair of the workers' compensation board, and the superintendent of

financial services.

24. "Employees of licensed trainers or owners" means assistant

trainers, foremen, watchmen and stable employees, including grooms and

hot-walkers, employed by a trainer or owner licensed pursuant to article

two or four of the racing, pari-mutuel wagering and breeding law.