S T A T E   O F   N E W   Y O R K
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                                  7753

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              May 26, 2015
                               ___________

Introduced  by  M. of A. MORELLE, FAHY, STECK, McDONALD -- read once and
  referred to the Committee on Labor

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 PERSON. THE TERM "EMPLOYMENT" SHALL NOT INCLUDE
THE SERVICES OF A PERSON ENGAGED IN  THE  DELIVERY  OR  DISTRIBUTION  OF
NEWSPAPERS, "PENNYSAVERS", SHOPPING NEWS OR ANY FREE DISTRIBUTION PUBLI-
CATIONS (INCLUDING ANY SERVICES THAT ARE DIRECTLY RELATED TO SUCH DELIV-
ERY  OR  DISTRIBUTION), IF (A) SUBSTANTIALLY ALL OF THE REMUNERATION FOR
THE PERFORMANCE OF THE SERVICES IS RELATED TO SALES OR OTHER OUTPUT (FOR
EXAMPLE, FEE PER-COPY OR BUY/SELL) RATHER THAN TO THE  NUMBER  OF  HOURS
WORKED;  (B)  THE SERVICES ARE PERFORMED PURSUANT TO A WRITTEN CONTRACT;
AND (C) THE WRITTEN CONTRACT CONTAINS PROVISIONS EVIDENCING ANY SEVEN OF
THE FOLLOWING:
  (1) THE PERSON IS NOT TREATED AS AN EMPLOYEE FOR FEDERAL TAX PURPOSES,
AND HE OR SHE WILL BE ISSUED IRS FORM 1099 FOR FEDERAL TAX PURPOSES;
  (2) THE PERSON HAS THE RIGHT TO DETERMINE THE SEQUENCE OF DELIVERY  IN
HIS OR HER GEOGRAPHIC AREA OR ROUTE;
  (3) THE PERSON IS NOT REQUIRED TO ATTEND GROUP MEETINGS;
  (4)  THE  PERSON  HAS  THE  RIGHT  TO ENGAGE THE SERVICES OF OTHERS TO
DISTRIBUTE THE PUBLICATION OR PRODUCT WITHOUT APPROVAL OF THE PUBLISHING
COMPANY;
  (5) THE PERSON IS NOT REQUIRED TO SUBMIT WRITTEN REPORTS WITH  RESPECT
TO  TIME  SPENT  OR  ACTIVITIES  ENGAGED  IN  RELATING  TO  DISTRIBUTION
SERVICES, OTHER THAN THOSE FOR INTERNAL CIRCULATION  STATISTICS,  AUDITS
OR AS REQUIRED BY LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10624-01-5
              

A. 7753                             2

  (6)  THE PERSON HAS THE RIGHT TO INCREASE THE NUMBER OF SUBSCRIBERS OR
CUSTOMERS ON THE ROUTE OR GEOGRAPHIC AREA, EVEN  THOUGH  NOTICE  TO  THE
PUBLISHING COMPANY MAY BE REQUIRED;
  (7)  THE  PERSON HAS THE RIGHT TO ENGAGE IN OTHER BUSINESS ACTIVITIES,
INCLUDING THE DELIVERY OF OTHER NEWSPAPERS, SHOPPING GUIDES OR PRODUCTS;
  (8) THE PERSON IS NOT IDENTIFIED AS REPRESENTING THE PUBLISHING COMPA-
NY BY THE PROVISION OF BUSINESS CARDS, UNIFORMS OR SIGNS TO PLACE ON THE
DELIVERY PERSON'S VEHICLE;
  (9) THE PERSON HAS THE ULTIMATE RESPONSIBILITY TO  RESOLVE  SUBSCRIBER
AND/OR  CUSTOMER  COMPLAINTS,  EVEN  THOUGH  THE  PUBLISHING COMPANY MAY
RECEIVE AND RESOLVE CUSTOMER COMPLAINTS AND MAKE  APPROPRIATE  FINANCIAL
SETTLEMENT WITH THE DELIVERY PERSON; OR
  (10)  THE  PERSON  IS RESPONSIBLE TO PROVIDE ANY NEEDED VEHICLE AND TO
PAY FOR ALL MAINTENANCE AND INSURANCE ON SUCH VEHICLE.
  S 2. 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:
  5. "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, WHO
IS EIGHTEEN YEARS OF AGE OR OLDER, 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 substantially the same subject  matter  occurs  in
any  calendar year; OR (P) AS A NEWSPAPER DELIVERY PERSON AS REFERRED TO
IN SUBDIVISION TWENTY-THREE OF SECTION FIVE HUNDRED ELEVEN OF THIS CHAP-
TER. [Any such volunteer shall be at least eighteen  years  of  age.]  A
business seeking coverage under [this] paragraph (P) OF THIS SUBDIVISION
shall  notify  every volunteer in writing, in language acceptable to the
commissioner, that by volunteering his or her services,  such  volunteer

A. 7753                             3

is waiving his or her right to receive the minimum wage pursuant to this
article.  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.
  "Employee"  also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or  board  of  cooper-
ative  educational  services  except that the provisions of sections six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S 3. Subdivision 4 of section 2 of the workers'  compensation  law  is
amended by adding a new closing paragraph to read as follows:
  "EMPLOYEE"  SHALL  NOT  INCLUDE A NEWSPAPER DELIVERY PERSON ENGAGED IN
THE DELIVERY OR DISTRIBUTION OF NEWSPAPERS, "PENNYSAVERS", SHOPPING NEWS
OR ANY FREE DISTRIBUTION PUBLICATIONS (INCLUDING ANY SERVICES  THAT  ARE
DIRECTLY RELATED TO SUCH DELIVERY OR DISTRIBUTION), IF (A) SUBSTANTIALLY
ALL  OF  THE REMUNERATION FOR THE PERFORMANCE OF THE SERVICES IS RELATED
TO SALES OR OTHER OUTPUT (FOR EXAMPLE, FEE PER-COPY OR BUY/SELL)  RATHER
THAN  TO  THE  NUMBER  OF  HOURS  WORKED; (B) THE SERVICES ARE PERFORMED
PURSUANT TO A WRITTEN CONTRACT; AND (C) THE  WRITTEN  CONTRACT  CONTAINS
PROVISIONS EVIDENCING ANY SEVEN OF THE FOLLOWING:
  (I)  THE DELIVERY PERSON IS NOT TREATED AS AN EMPLOYEE FOR FEDERAL TAX
PURPOSES AND SUCH PERSON WILL BE ISSUED IRS FORM 1099  FOR  FEDERAL  TAX
PURPOSES;
  (II)  THE  DELIVERY  PERSON HAS THE RIGHT TO DETERMINE THE SEQUENCE OF
DELIVERY IN HIS OR HER GEOGRAPHIC AREA OR ROUTE;
  (III) THE DELIVERY PERSON IS NOT REQUIRED TO ATTEND GROUP MEETINGS;
  (IV) THE DELIVERY PERSON HAS THE  RIGHT  TO  ENGAGE  THE  SERVICES  OF
OTHERS  TO DISTRIBUTE THE PUBLICATION OR PRODUCT WITHOUT APPROVAL OF THE
PUBLISHING COMPANY;
  (V) THE DELIVERY PERSON IS NOT REQUIRED TO SUBMIT WRITTEN REPORTS WITH
RESPECT TO TIME SPENT OR ACTIVITIES ENGAGED IN RELATING TO  DISTRIBUTION
SERVICES,  OTHER  THAN THOSE FOR INTERNAL CIRCULATION STATISTICS, AUDITS
OR AS REQUIRED BY LAW;
  (VI) THE DELIVERY PERSON HAS THE  RIGHT  TO  INCREASE  THE  NUMBER  OF
SUBSCRIBERS  OR  CUSTOMERS  ON THE ROUTE OR GEOGRAPHIC AREA, EVEN THOUGH
NOTICE TO THE PUBLISHING COMPANY MAY BE REQUIRED;
  (VII) THE DELIVERY PERSON HAS THE RIGHT TO ENGAGE  IN  OTHER  BUSINESS
ACTIVITIES,  INCLUDING THE DELIVERY OF OTHER NEWSPAPERS, SHOPPING GUIDES
OR PRODUCTS;
  (VIII) THE DELIVERY PERSON  IS  NOT  IDENTIFIED  AS  REPRESENTING  THE
PUBLISHING COMPANY BY THE PROVISION OF BUSINESS CARDS, UNIFORMS OR SIGNS
TO PLACE ON THE DELIVERY PERSON'S VEHICLE;
  (IX)  THE  DELIVERY  PERSON HAS THE ULTIMATE RESPONSIBILITY TO RESOLVE
SUBSCRIBER AND/OR CUSTOMER COMPLAINTS, EVEN THOUGH THE PUBLISHING COMPA-
NY MAY RECEIVE AND RESOLVE  CUSTOMER  COMPLAINTS  AND  MAKE  APPROPRIATE
FINANCIAL SETTLEMENT WITH THE DELIVERY PERSON; OR
  (X)  THE  DELIVERY PERSON IS RESPONSIBLE TO PROVIDE ANY NEEDED VEHICLE
AND TO PAY FOR ALL MAINTENANCE AND INSURANCE ON SUCH VEHICLE.
  S 4. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law.