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New York Workers' Compensation Law Section 2 - Definitions.Legal Research Home > New York Lawyer > Workers' Compensation > New York Workers' Compensation Law Section 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 workmen's compensation board of
the state of New York;
"Commissioner" means the industrial commissioner of the state of New
York;
"Board" means the workmen's 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.
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. 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 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 racing and wagering board, 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 or exercise person.
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.
4. "Employee" means a person engaged in one of the occupations
enumerated in section three 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 employment away from the plant of his employer; "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, 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) 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.
"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. 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
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 racing and wagering board 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 or exercise person.
"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.
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 employees
within the provisions of this chapter as provided in section three, and
except employment as a domestic worker as provided in section three, 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 policemen
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 is performing civil defense service
in his 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. 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
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 racing and wagering board 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 or
exercise person.
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.
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 is compensated for his 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 services and is not a full-time fireman, known as a "call fireman",
(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 policeman 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 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 fireman, or team member
as the case may be, in his 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 fireman 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 fireman or team member
had gainful employment elsewhere at the time of the injury.
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.
Last modified: July 31, 2006 |