NY State Senate Bill 2021-S1999

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to labor
Jan 16, 2021	referred to labor

co-Sponsors

2021-S1999 (ACTIVE) - Details

See Assembly Version of this Bill:: A5772
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§511, 160 & 651, Lab L; amd §201, Work Comp L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S6699, A8721
2023-2024: S2052, A2085

2021-S1999 (ACTIVE) - Summary

Relates to the employee status of an individual; establishes criteria for determining whether labor or services performed for remuneration qualify as employment.

2021-S1999 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S1999

SPONSOR: JACKSON
 
TITLE OF BILL:

An act to amend the labor law and the workers' compensation law, in
relation to the employee status of an individual

 
PURPOSE:

The purpose of this bill is to reclassify more workers as employees
rather than independent contractors in order for them to receive bene-
fits such as healthcare and retirement.

 
SUMMARY OF PROVISIONS:

Section 1 amends Section 511 of the Labor Law that requires hiring enti-
ties to demonstrate that (i) the person is free from the control and
direction of the hiring entity in connection with the performance of the
work, both under the contract for performance of the work and in fact;
(ii) the person performs work that is outside the usual course of the

hiring entity's business; and (iii) the person is customarily engaged in
an independently established trade, occupation, or business of the same
nature as that involved in the work performed. If the hiring entity does
not demonstrate all three aforementioned conditions, the person provid-
ing the services or labor is considered an employee rather than an inde-
pendent contractor.

Section 2 amends subdivision 3 of Section 160 of the Labor Law that
requires an individual providing labor or services to be classified as
an employee rather than an independent contractor unless the hiring
entity demonstrates that (i) the individual is free from the control and
direction of the hiring entity in connection with the performance of the
work, both under the contract for performance of the work and in fact;
(ii) the individual performs work that is outside the usual course of
the hiring entity's business; and (iii) the individual is customarily
engaged in an independently established trade, occupation, or business
of the same nature as that involved in the work performed.

Section 3 amends subdivision 5 of Section 651 of the Labor law that
requires an individual providing labor or services to be classified as
an employee rather than an independent contractor unless the hiring
entity demonstrates that (i) the individual is free from the control and
direction of the hiring entity in connection with the performance of the
work, both under the contract for performance of the work and in fact;
(ii) the individual performs work that is outside the usual course of
the hiring entity's business; and (iii) the individual is customarily
engaged in an independently established trade, occupation, or business
of the same nature as that involved in the work performed.

Section 4 adds a new paragraph E to subdivision 6 of Section 201 of the
Workers' Compensation Law that requires hiring entities to demonstrate
that (i) the person is free from the control and direction of the hiring
entity in connection with the performance of the work, both under the
contract for performance of the work and in fact; (ii) the person
performs work that is outside the usual course of the hiring entity's
business; and (iii) the person is customarily engaged in an independent-
ly established trade, occupation, or business of the same nature as that
involved in the work performed.  If the hiring entity does not demon-
strate all three aforementioned conditions, the person providing the
services or labor is considered an employee rather than an independent
contractor.

Section 5 is the effective date.

 
JUSTIFICATION:

This bill addresses one of the largest dichotomies in America today -
the power of corporations versus the most basic human rights of American
workers to a voice on their jobs and a role in shaping their futures.

It is a David vs Goliath battle that New York State has a responsibility
to address.

Large corporate entities, such as Uber, Lyft, Doordash, Instacart, and
Amazon, benefit from the current rules that classify workers as inde-
pendent contractors rather than employees.

These corporations rely on a steady pool of low-wage, no-rights workers
to increase their bottom line at the expense of these workers who make
them so profitable.

By classifying them as independent contractors, they strip these workers
of an avenue to have basic benefits - like vacation, sick pay, retire-
ment, and health care for them and their families addressed in any
coherent fashion.

This has led to the disturbing trend in which these workers have to rely
on public assistance and benefits, as well as working two or three jobs,
to make ends meet while many of these corporate giants that employ them
offer these workers no benefits and pay nothing in taxes.

This bill challenges this imbalance by giving these workers, who endure
the misfortune of not having control of any workplace issues, an ability
to be recognized as employees and to work together with their peers to
improve their rights and working conditions.

New York has always been a leader in protecting the rights of workers.
This bill will help millions of New Yorkers currently stuck in the swamp
of employer dominance of their working lives.

 
LEGISLATIVE HISTORY:

2019-2020: S.6699-A - Referred to Labor/A.8721-A - Referred to Labor

 
STATE AND LOCAL FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S1999 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1999
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 16, 2021
                                ___________
 
 Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor law and  the  workers'  compensation  law,  in
   relation to the employee status of an individual
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (a) and (b) of subdivision 1 of section  511  of
 the  labor  law, as amended by chapter 607 of the laws of 1971, subpara-
 graph 1-a of paragraph (b) as added by chapter 903 of the laws of  1986,
 subparagraph 1-b of paragraph (b) as added by chapter 418 of the laws of
 2010,  subparagraph  1-c of paragraph (b) as added by chapter 558 of the
 laws of 2013, and subparagraph 3 of paragraph (b) as  added  by  chapter
 668 of the laws of 1992, are amended to read as follows:
   (a)  any service under any contract of employment for hire, express or
 implied, written, or oral; and
   (b) (1) ANY SERVICE BY A PERSON PROVIDING LABOR OR SERVICES FOR REMUN-
 ERATION UNLESS THE HIRING ENTITY DEMONSTRATES THAT ALL OF THE  FOLLOWING
 CONDITIONS ARE SATISFIED:
   (I)  THE  PERSON  IS FREE FROM THE CONTROL AND DIRECTION OF THE HIRING
 ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK,  BOTH  UNDER  THE
 CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT; AND
   (II)  THE PERSON PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF THE
 HIRING ENTITY'S BUSINESS; AND
   (III) THE PERSON IS CUSTOMARILY ENGAGED  IN  AN  INDEPENDENTLY  ESTAB-
 LISHED  TRADE,  OCCUPATION,  OR  BUSINESS  OF  THE  SAME  NATURE AS THAT
 INVOLVED IN THE WORK PERFORMED.
   (2) FOR THE PURPOSES OF THIS SECTION, ANY PERSON  PROVIDING  LABOR  OR
 SERVICES FOR REMUNERATION PURSUANT TO SUBPARAGRAPH ONE OF THIS PARAGRAPH
 SHALL  BE  CONSIDERED AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR;
 AND
   (C) any service by a person for an employer:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02344-01-1

 S. 1999                             2
 
   (1) as an agent-driver or commission-driver  engaged  in  distributing
 meat,  vegetable,  fruit, or bakery products; beverages other than milk;
 or laundry or dry-cleaning services; or
   (1-a)  as a professional musician or a person otherwise engaged in the
 performing arts, and performing services as such  for  a  television  or
 radio  station  or network, a film production, a theatre, hotel, restau-
 rant, 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  services  in  connection  with  the  production  of  or
 performance  in any artistic endeavor which requires artistic or techni-
 cal skill or expertise; or
   (1-b) as an employee in the construction industry unless the  presump-
 tion  of  employment  can  be  overcome, as provided under section eight
 hundred sixty-one-c of this chapter; or
   (1-c) as an employee in the commercial goods  transportation  industry
 unless  the presumption of employment can be overcome, as provided under
 section eight hundred sixty-two-b of this chapter; or
   (2) as a traveling or city salesman engaged on a  full-time  basis  in
 soliciting  orders for merchandise for resale or supplies for use in the
 purchaser's business operations if the contract of service  contemplates
 that  substantially  all of such services are to be performed personally
 by such person; such person does not have a  substantial  investment  in
 facilities  used  in  connection  with the performance of such services,
 excepting facilities for transportation; and the services are not in the
 nature of a single  transaction  which  is  not  part  of  a  continuing
 relationship with the employer.
   (3) as a professional model, where:
   (i) the professional model performs modeling services for; or
   (ii) 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 publish-
 ing  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
 his  or  her  privacy  rights enumerated above, unless such services are
 performed pursuant to a written contract wherein it is stated  that  the
 professional  model  is the employee of another employer covered by this
 chapter. For purposes  of  this  subparagraph,  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 subpara-
 graph,  the  term  "modeling services" means the appearance by a profes-
 sional model in photographic sessions or the engagement of such model in
 live, filmed or taped modeling performances for remuneration.
   § 2.  Subdivision 3 of section 160 of the labor law, the opening para-
 graph of such subdivision as amended by chapter 481 of the laws of 2010,
 is amended to read as follows:
   3. A. For all other employees, except those engaged in farm  work  and
 those affected by subdivision four of section two hundred twenty of this
 chapter, eight hours.
   B. FOR THE PURPOSES OF THIS SUBDIVISION, AN INDIVIDUAL PROVIDING LABOR
 OR  SERVICES  FOR REMUNERATION HAS THE STATUS OF AN EMPLOYEE RATHER THAN
 AN INDEPENDENT CONTRACTOR UNLESS THE HIRING ENTITY DEMONSTRATES  ALL  OF
 THE FOLLOWING CONDITIONS:

 S. 1999                             3
 
   (I)  THE  INDIVIDUAL  IS  FREE  FROM  THE CONTROL AND DIRECTION OF THE
 HIRING ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER
 THE CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT.
   (II)  THE INDIVIDUAL PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF
 THE HIRING ENTITY'S BUSINESS.
   (III) THE INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
 LISHED TRADE, OCCUPATION,  OR  BUSINESS  OF  THE  SAME  NATURE  AS  THAT
 INVOLVED IN THE WORK PERFORMED.
   C.  This subdivision shall not prevent an agreement for overwork at an
 increased compensation, except upon work by or for the state or a munic-
 ipal corporation, or by contractors  or  subcontractors  therewith,  and
 except as otherwise provided in this chapter.
   §  3.  Subdivision  5  of  section  651 of the labor law is amended by
 adding a new closing paragraph to read as follows:
   UNLESS OTHERWISE EXCLUDED BY THE PROVISIONS OF THIS SUBDIVISION OR  BY
 REGULATIONS  PROMULGATED  BY  THE  COMMISSIONER, AN INDIVIDUAL PROVIDING
 LABOR OR SERVICES FOR REMUNERATION HAS THE STATUS OF AN EMPLOYEE  RATHER
 THAN AN INDEPENDENT CONTRACTOR UNLESS THE HIRING ENTITY DEMONSTRATES ALL
 OF THE FOLLOWING CONDITIONS:
   (A)  THE  INDIVIDUAL  IS  FREE  FROM  THE CONTROL AND DIRECTION OF THE
 HIRING ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK, BOTH UNDER
 THE CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT.
   (B) THE INDIVIDUAL PERFORMS WORK THAT IS OUTSIDE THE USUAL  COURSE  OF
 THE HIRING ENTITY'S BUSINESS.
   (C)  THE  INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB-
 LISHED TRADE, OCCUPATION,  OR  BUSINESS  OF  THE  SAME  NATURE  AS  THAT
 INVOLVED IN THE WORK PERFORMED.
   §  4. Subdivision 6 of section 201 of the workers' compensation law is
 amended by adding a new paragraph E to read as follows:
   E. (A) THE TERM "EMPLOYMENT" INCLUDES, UNLESS SPECIFICALLY EXCLUDED BY
 A PROVISION OF THIS SUBDIVISION, ANY SERVICE BY A PERSON PROVIDING LABOR
 OR SERVICES FOR REMUNERATION UNLESS THE HIRING ENTITY DEMONSTRATES  THAT
 ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED:
   (I)  THE  PERSON  IS FREE FROM THE CONTROL AND DIRECTION OF THE HIRING
 ENTITY IN CONNECTION WITH THE PERFORMANCE OF THE WORK,  BOTH  UNDER  THE
 CONTRACT FOR THE PERFORMANCE OF THE WORK AND IN FACT; AND
   (II)  THE PERSON PERFORMS WORK THAT IS OUTSIDE THE USUAL COURSE OF THE
 HIRING ENTITY'S BUSINESS; AND
   (III) THE PERSON IS CUSTOMARILY ENGAGED  IN  AN  INDEPENDENTLY  ESTAB-
 LISHED  TRADE,  OCCUPATION,  OR  BUSINESS  OF  THE  SAME  NATURE AS THAT
 INVOLVED IN THE WORK PERFORMED.
   (B) FOR THE PURPOSES OF THIS SECTION, ANY PERSON  PROVIDING  LABOR  OR
 SERVICES FOR REMUNERATION PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH
 SHALL BE CONSIDERED AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR.
   § 5.  This act shall take effect immediately.

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Senate Bill S1999

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

2021-S1999 (ACTIVE) - Details

2021-S1999 (ACTIVE) - Summary

2021-S1999 (ACTIVE) - Sponsor Memo

2021-S1999 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S1999

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Sponsored By

Robert Jackson

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

Jabari Brisport

Brad Hoylman-Sigal

Rachel May

2021-S1999 (ACTIVE) - Details

2021-S1999 (ACTIVE) - Summary

2021-S1999 (ACTIVE) - Sponsor Memo

2021-S1999 (ACTIVE) - Bill Text download pdf

Comments