N.Y. Workers' Compensation Law § 201: Definitions

§ 201. Definitions. As used in this article:

1. "Board" means the workers' compensation board created under this

chapter.

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

the state of New York.

3. "State fund" means the state insurance fund created under article

six of this chapter.

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

partnership, association, corporation, legal representative of a

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

association or corporation, who has persons in employment as defined in

subdivision six of this section, but does not include the state, a

municipal corporation, local governmental agency, other political

subdivisions or public authority.

5. "Employee" means a person engaged in the service of an employer in

any employment defined in subdivision six of this section, except a

minor child of the employer, except a duly ordained, commissioned, or

licensed minister, priest or rabbi, a sexton, a christian science

reader, or member of a religious order, or 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 provided, however, that each officer must own at least one share

of stock, except as provided in section two hundred twelve of this

article, or an executive officer of an incorporated religious,

charitable or educational institution, or persons engaged in a

professional or teaching capacity in or for a religious, charitable or

educational institution, or volunteers in or for a religious, charitable

or educational institution, or persons participating in and receiving

rehabilitative services in a sheltered workshop operated by a religious,

charitable or educational institution under a certificate issued by the

United States department of labor, or recipients of charitable aid from

a religious or charitable institution who perform work in or for the

institution which is incidental to or in return for the aid conferred,

and not under an express contract of hire. The terms "religious,

charitable or educational institution" mean a corporation,

unincorporated association, community chest, fund or foundation

organized and operated exclusively for religious, charitable or

educational purposes, no part of the net earnings of which inure to the

benefit of any private shareholder or individual.

"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.

"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.

6. "Employment." A. "Employment" means employment in any trade,

business or occupation carried on by an employer, except that the

following shall not be deemed employment under this article: services

performed for the state, a municipal corporation, local governmental

agency, other political subdivision or public authority; employment

subject to the federal railroad unemployment insurance act; service

performed on or as an officer or member of the crew of a vessel on the

navigable water of the United States or outside the United States;

casual employment and the first forty-five days of extra employment of

employees not regularly in employment as otherwise defined herein;

service as golf caddies; and 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. The term "employment" shall

include domestic or personal work in a private home. 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 subparagraph (b) of this paragraph

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 (1) 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; (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;

(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.

"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.

B. The term "employment" includes an employee'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 employee's service within the state or is temporary or transitory

in nature or consists of isolated transactions.

C. The term "employment" includes an employee'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

(1) the employee's base of operations is in this state; or

(2) 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

(3) 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 employee's residence is in this state.

D. "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 (1) 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; (2) shall not receive any compensation 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;

(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 should 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;

(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 paragraph, "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.

7. "Termination of employment". Employment with a covered employer

terminates on the last day on which an employee performs work in the

service of such employer; provided, however, that employment shall not

terminate on such day if the employee by agreement with the employer,

then commences, for a specified period, a leave of absence with pay or

vacation with pay, at the conclusion of which the employee will return

to work with the same employer. If notwithstanding such agreement the

employee does not so return, his employment shall be deemed to have

terminated on the last day of the period of such paid leave of absence

or such paid vacation.

8. "Injury" and "sickness" mean accidental injury, disease, infection

or illness or incapacitation as a result of being an organ donor in a

transplant operation.

9. A. "Disability" during employment means the inability of an

employee, as a result of injury or sickness not arising out of and in

the course of an employment, to perform the regular duties of his

employment or the duties of any other employment which his employer may

offer him at his regular wages and which his injury or sickness does not

prevent him from performing. "Disability" during unemployment means the

inability of an employee, as a result of injury or sickness not arising

out of and in the course of an employment, to perform the duties of any

employment for which he is reasonably qualified by training and

experience.

B. "Disability" also includes disability caused by or in connection

with a pregnancy.

10. "Benefits" means the money allowances during disability payable to

an employee who is eligible to receive such benefits, as provided in

this article.

11. "Carrier" shall include: the state fund, stock corporations,

mutual corporations and reciprocal insurers which insure the payment of

benefits provided pursuant to this article; and employers and

associations of employers or of employees and trustees authorized or

permitted to pay benefits under the provisions of this article. 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.

12. "Wages" means the money rate at which employment with a covered

employer is recompensed under the contract of hiring with the covered

employer and shall include the reasonable value of board, rent, housing,

lodging, or similar advantage received under the contract of hiring.

13. "Average weekly wage." For the purpose of computing the amount of

disability benefits of an employee during any period of disability,

"average weekly wage" shall be the amount determined by dividing either

the total wages of such employee in the employment of his last covered

employer for the eight weeks or portion thereof that the employee was in

such employment immediately preceding and including his last day worked

prior to commencement of such disability, or the total wages of the last

eight weeks or portion thereof immediately preceding and excluding the

week in which the disability began, whichever is the higher amount, by

the number of weeks or portion thereof of such employment. The chairman

may by regulation prescribe reasonable procedures to determine average

weekly wage, including procedures in lieu of the foregoing for

determination of the average weekly wage of a class or classes of

employees, and may authorize reasonable deviations to facilitate

administration in the determination of average weekly wage of a class or

classes of the employees of a covered employer.

In the event the employee was not in the employment of his last

covered employer during all of such eight weeks and if the above

determination results in an average weekly wage which does not fairly

represent the normal earnings of such employee in all employments with

covered employers during such eight weeks, there may be a

redetermination of average weekly wage to reflect wages received from

all covered employers during such eight week period. The chairman may by

regulation prescribe reasonable procedures for such redetermination.

14. "A day of disability" means any day on which the employee was

prevented from performing work because of disability, including any day

which the employee uses for family leave, and for which the employee has

not received his or her regular remuneration.

15. "Family leave" shall mean any leave taken by an employee from

work: (a) to participate in providing care, including physical or

psychological care, for a family member of the employee made necessary

by a serious health condition of the family member; or (b) to bond with

the employee's child during the first twelve months after the child's

birth, or the first twelve months after the placement of the child for

adoption or foster care with the employee; or (c) because of any

qualifying exigency as interpreted under the family and medical leave

act, 29 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8),

arising out of the fact that the spouse, domestic partner, child, or

parent of the employee is on active duty (or has been notified of an

impending call or order to active duty) in the armed forces of the

United States.

16. "Child" means a biological, adopted, or foster son or daughter, a

stepson or stepdaughter, a legal ward, a son or daughter of a domestic

partner, or the person to whom the employee stands in loco parentis.

17. "Domestic partner" has the same meaning as set forth in section

four of this chapter.

18. "Serious health condition" means an illness, injury, impairment,

or physical or mental condition, including transplantation preparation

and recovery from surgery related to organ or tissue donation, that

involves inpatient care in a hospital, hospice, or residential health

care facility, continuing treatment or continuing supervision by a

health care provider. Continuing supervision by a health care provider

includes a period of incapacity which is permanent or long term due to a

condition for which treatment may not be effective where the family

member is under the continuing supervision of, but need not be receiving

active treatment by, a health care provider.

19. "Parent" means a biological, foster, or adoptive parent, a

parent-in-law, a stepparent, a legal guardian, or other person who stood

in loco parentis to the employee when the employee was a child.

20. "Family member" means a child, parent, grandparent, grandchild,

sibling, spouse, or domestic partner as defined in this section.

21. "Grandchild" means a child of the employee's child.

22. "Health care provider" shall mean for the purpose of family leave,

a person licensed under article one hundred thirty-one, one hundred

thirty-one-B, one hundred thirty-two, one hundred thirty-three, one

hundred thirty-six, one hundred thirty-nine, one hundred forty-one, one

hundred forty-three, one hundred forty-four, one hundred fifty-three,

one hundred fifty-four, one hundred fifty-six or one hundred fifty-nine

of the education law or a person licensed under the public health law,

article one hundred forty of the education law or article one hundred

sixty-three of the education law.

23. "Grandparent" means a parent of the employee's parent.

24. "Sibling" means a biological or adopted sibling, a half-sibling or

stepsibling.

* 25. "Construction employee" means employees who perform

construction, demolition, reconstruction, excavation, rehabilitation,

repairs, renovations, alterations, or improvements for multiple

employers pursuant to a collective bargaining agreement.

* NB Effective January 1, 2027