S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 9110--A

                          I N  A S S E M B L Y

                            January 28, 2016
                               ___________

Introduced  by M. of A. MORELLE -- read once and referred to the Commit-
  tee on Labor -- committee discharged, bill amended, ordered  reprinted
  as amended and recommitted to said committee

AN  ACT  to  amend  the  labor law and the workers' compensation law, in
  relation to the application of  unemployment,  the  minimum  wage  and
  workers' compensation coverage to newspaper delivery persons

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 511 of the labor law is amended  by  adding  a  new
subdivision 23 to read as follows:
  23.  NEWSPAPER  DELIVERY  PERSONS.    THE  TERM "EMPLOYMENT" SHALL NOT
INCLUDE SERVICE PERFORMED BY ANY PERSON IF:
  (A) SUCH PERSON IS ENGAGED IN THE TRADE OR BUSINESS OF THE  DELIVERING
OR  DISTRIBUTION  OF NEWSPAPERS OR SHOPPING NEWS (INCLUDING ANY SERVICES
DIRECTLY RELATED TO SUCH TRADE OR BUSINESS);
  (B) SUBSTANTIALLY ALL THE REMUNERATION (WHETHER OR NOT PAID  IN  CASH)
FOR  THE  PERFORMANCE OF THE SERVICES DESCRIBED IN PARAGRAPH (A) OF THIS
SUBDIVISION IS DIRECTLY RELATED TO SALES OR OTHER OUTPUT (INCLUDING  THE
PERFORMANCE OF SERVICES) RATHER THAN TO THE NUMBER OF HOURS WORKED; AND
  (C)  THE  SERVICES PERFORMED BY THE PERSON ARE PERFORMED PURSUANT TO A
WRITTEN CONTRACT BETWEEN  SUCH  PERSON  AND  THE  PERSON  FOR  WHOM  THE
SERVICES  ARE PERFORMED, AND SUCH CONTRACT PROVIDES THAT PERSON WILL NOT
BE TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR FEDERAL  TAX
PURPOSES.
  S  2.  Subdivision  16  of section 511 of the labor law, as amended by
chapter 102 of the laws of 2002, is amended to read as follows:
  16. Non-applicability  of  exclusions.  The  exclusions  described  in
subdivisions  eight, nine, twelve, thirteen and fourteen of this section
shall not apply to services performed for a  nonprofit  organization  as
defined in section five hundred sixty-three or for a governmental entity
as  defined in section five hundred sixty-five or for an Indian tribe as
defined in section five hundred sixty-six of this article.   THE  EXCLU-
SIONS  DESCRIBED  IN  SUBDIVISION TWENTY-THREE OF THIS SECTION SHALL NOT
APPLY TO  COMMERCIAL  GOODS  TRANSPORTATION  SERVICES  PERFORMED  FOR  A

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD13647-04-6

A. 9110--A                          2

COMMERCIAL GOODS TRANSPORTATION CONTRACTOR WITHIN THE MEANING OF ARTICLE
TWENTY-FIVE-C OF THIS CHAPTER.
  S  3.  The  opening  paragraph  of subdivision 5 of section 651 of the
labor law, as amended by chapter 481 of the laws of 2010, is amended  to
read as follows:
  "Employee" includes any individual employed or permitted to work by an
employer  in any occupation, but shall not include any individual who is
employed or permitted to work: (a) on a casual basis  in  service  as  a
part  time  baby  sitter  in the home of the employer; (b) in labor on a
farm; (c) in a bona  fide  executive,  administrative,  or  professional
capacity; (d) as an outside salesman; (e) as a driver engaged in operat-
ing  a  taxicab;  (f)  as a volunteer, learner or apprentice by a corpo-
ration, unincorporated association, community chest, fund or  foundation
organized  and  operated exclusively for religious, charitable or educa-
tional purposes, no part of the net earnings  of  which  inures  to  the
benefit  of  any private shareholder or individual; (g) as a member of a
religious order, or as a duly ordained, commissioned or licensed  minis-
ter,  priest or rabbi, or as a sexton, or as a christian science reader;
(h) in or for such a religious or charitable institution, which work  is
incidental  to or in return for charitable aid conferred upon such indi-
vidual and not under any express contract of hire; (i) in or for such  a
religious, educational or charitable institution if such individual is a
student;  (j)  in  or  for  such  a religious, educational or charitable
institution if the earning capacity of such individual  is  impaired  by
age  or  by  physical  or  mental  deficiency or injury; (k) in or for a
summer camp or conference of such a religious, educational or charitable
institution for not more than three months  annually;  (l)  as  a  staff
counselor  in  a  children's camp; (m) in or for a college or university
fraternity, sorority, student association  or  faculty  association,  no
part  of  the net earnings of which inures to the benefit of any private
shareholder or individual, and which is recognized by  such  college  or
university,  if such individual is a student; (n) by a federal, state or
municipal government or political subdivision thereof[.  The  exclusions
from  the  term  "employee"  contained  in  this subdivision shall be as
defined by regulations of the commissioner]; [or] (o) as a volunteer  at
a  recreational  or amusement event run by a business that operates such
events, provided that no single  such  event  lasts  longer  than  eight
consecutive days and no more than one such event concerning substantial-
ly the same subject matter occurs in any calendar year[. Any], WHERE (1)
ANY  such  volunteer shall be at least eighteen years of age[. A], (2) A
business seeking coverage under this paragraph shall notify every volun-
teer in writing, in language acceptable to  the  commissioner,  that  by
volunteering  his  or her services, such volunteer is waiving his or her
right to receive the minimum wage pursuant to this article[. Such],  AND
(3)  SUCH  notice  shall  be signed and dated by a representative of the
business and the volunteer and kept on file by the business for  thirty-
six months; OR (P) IN THE DELIVERY OF NEWSPAPERS OR SHOPPING NEWS TO THE
CONSUMER  BY A PERSON WHO IS NOT PERFORMING COMMERCIAL GOODS TRANSPORTA-
TION SERVICES FOR A COMMERCIAL GOODS  TRANSPORTATION  CONTRACTOR  WITHIN
THE  MEANING  OF  ARTICLE  TWENTY-FIVE-C OF THIS CHAPTER. THE EXCLUSIONS
FROM THE TERM "EMPLOYEE" CONTAINED  IN  THIS  SUBDIVISION  SHALL  BE  AS
DEFINED BY REGULATIONS OF THE COMMISSIONER.
   S 4. The opening paragraph of subdivision 3 of section 2 of the work-
ers' compensation law, as amended by chapter 392 of the laws of 2008, is
amended to read as follows:

A. 9110--A                          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, partner-
ship, association or corporation, having one or more persons in  employ-
ment,  including  the  state,  a municipal corporation, fire district or
other political subdivision of the state, and every authority or commis-
sion heretofore or hereafter continued or created by the public authori-
ties 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 BUSI-
NESS)  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 vehi-
cle 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.
  S 5. The opening paragraph of subdivision 4 of section 2 of the  work-
ers' compensation law, as amended by chapter 558 of the laws of 2013, is
amended to read as follows:
  "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 hazard-
ous 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 individ-
ual 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 trans-
portation 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  auxil-
iary  police  organization authorized by local law; and for the purposes
of this chapter only a newspaper carrier under the age of eighteen years

A. 9110--A                          4

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 TRANSPORTA-
TION  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 employ-
ees 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  oper-
ated  on  a  non-profit  basis,  provided that said members are not also
otherwise engaged or employed by any person, firm or corporation partic-
ipating 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  corpo-
ration  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 offi-
cers 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  partner-
ship as defined in section ten of the partnership law who is not covered
under  a  compensation insurance contract or a certificate of self-insu-
rance 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 labor-
ers 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  follow-
ing provisions:

A. 9110--A                          5

  S  6. The opening paragraph of subdivision 5 of section 2 of the work-
ers' compensation law, as separately amended by chapters 470 and 903  of
the laws of 1986, is amended to read as follows:
  "Employment"  includes  employment  in a trade, business or occupation
carried on by the employer for pecuniary gain, or in  connection  there-
with, except where the employer elects to bring his 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. "Employ-
ment" shall also include, in connection with the  civil  defense  effort
and  for  purposes of this chapter the service of a civil defense volun-
teer in authorized activities of a volunteer agency sponsored or author-
ized 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  recom-
pensed  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 deliv-
ery 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:
  S 7. This act shall take effect immediately.