18-c. Independent livery bases. 1. For purposes of this section, "covered services," "livery," "livery driver," "livery registrant," "livery base," "local taxi and limousine commission" and "responsible person" shall have the meanings set forth in article six-G of the executive law.
2. The board shall designate a livery base as an independent livery base, only if the base meets each of the following criteria:
(a) The base submits an affirmation sworn under penalty of perjury by an officer or director and such other individuals as the chair may direct, on such form as is provided by the board, which attests to the truth of such criteria as are set by the chair by regulation, or in the absence of such regulation attests to the truth of the following: (i) the base is not, directly or indirectly, including through any director or officer, the owner or registrant of any livery dispatched by the base; (ii) all livery drivers dispatched by the base provide and select their own clothing; (iii) all livery drivers dispatched by the base set their own hours and days of work; (iv) all livery drivers choose which dispatches or fares to accept, and no livery driver suffers any consequence by the livery base for failing to respond to its dispatch; (v) livery drivers dispatched by the base may enter into a contractual relationship with one or more other bases; (vi) no livery driver dispatched by the base receives an internal revenue service form W-2 from such base, or is subject to the withholding of any federal income taxes by the base; (vii) the base does not pay for the fuel or maintenance of any liveries; (viii) the base does not impose any fines and penalties on any livery drivers, except that it may decline to provide further dispatches for misconduct during any dispatch; and (ix) no livery driver is subject to being fired or discharged by the livery base. The base shall agree to provide the board with immediate notice of any inaccuracies in the affirmation, including any failure to adhere to any of the matters set forth on its affirmation.
(b) The board shall alter the criteria set forth in paragraph (a) of this subdivision to conform to any statutory definition for employer or independent contractor applicable to livery drivers.
(c) The livery shall provide the board and local taxi and limousine commission, and all livery registrants or drivers whose liveries may be dispatched by the livery base, with a copy of a written policy in plain language, in the primary language spoken by each registrant or driver, setting forth all matters to which it has attested on the affirmation provided for in paragraph (a) of this subdivision. The failure to distribute such a policy shall not have any legal consequence except in accordance with section one hundred sixty-hhh of the executive law.
(d) The base shall pay into the independent livery fund such payments as are directed by the independent livery driver benefit fund pursuant to article six-G of the executive law.
(e) The base may not owe any payments into the fund established under section twenty-six-a of this article, or otherwise owe any moneys under this chapter, unless it has an agreement with the board to repay the money owed, or to relieve it of the obligation to make any such payments.
(f) The base shall maintain such records as are provided for by regulation of the chair.
(g) The base shall permit the local taxi and limousine commission, the independent livery fund and any carrier providing compensation under this title for the independent livery fund to audit its books and records during regular business hours solely as necessary to determine compliance with this section, or to determine the amount owed to the fund.
(h) No responsible persons of the livery base may have been a responsible person of a base whose status as an independent livery base was revoked within the previous five years, or which has no agreement on moneys owed in as required by paragraph (e) of this subdivision, unless such criteria are waived in the discretion of the board.
3. The board may revoke any livery base's status as an independent livery base if it determines that the base is in violation of any of the criteria set forth in subdivision one of this section, or may suspend the livery base's status as an independent livery base pending the base's compliance with any such criteria.
4. An independent livery base's obligations under this chapter regarding the securing and provision of workers' compensation benefits for any livery driver it dispatches shall be satisfied in full by compliance with the requirements imposed upon an independent livery base by this section and article six-G of the executive law. Insurance coverage directly procured by any independent livery base for the purpose of satisfying the requirements of this chapter with respect to employees of the central livery dispatch facility shall not include coverage of any livery driver to the extent that the livery driver is covered under coverage secured by the New York livery drivers' injury compensation fund pursuant to the requirements of article six-G of the executive law except as provided in that article.
5. Any livery base that is not an independent livery base shall be deemed an employer of any livery driver it dispatches for purposes of this article.
6. A livery base's designation as an employer or independent livery base in accordance with this section shall not be considered in any determination as to whether a livery base is an employer or independent contractor under any other provision of law. The livery base's designation under this section shall not be admissible in any court or administrative proceeding in this state, except any proceeding under this article or article six-G of the executive law, to demonstrate the base's status as an employer or independent contractor.
7. For all injuries or illnesses resulting to a livery driver arising out of covered services for an independent livery base, and for which compensation must be paid in accordance with section one hundred sixty-ddd of the executive law, the independent livery driver benefit fund shall be deemed the employer for all purposes of this chapter.
8. An independent livery driver that sustains injury as a result of the use or operation of an automobile during a dispatch by an independent livery base may obtain recovery in accordance with article fifty-one of the insurance law, and shall not be entitled to workers' compensation benefits except as set forth in section one hundred sixty-ddd of the executive law.
9. An independent livery driver who submits a claim for recovery in accordance with article fifty-one of the insurance law pursuant to subdivision eight of this section shall be subject to local taxi and limousine commission rules prohibiting driving until he or she has recovered from his or her injury. Any authorized insurer required to accept such claims shall be entitled to apply the pre-authorized procedures, medical treatment guidelines and other applicable provisions of this article.
Last modified: February 3, 2019