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Employer Liability

Who is an Employer?

An employer includes:

  • New York State and other government entities
  • Any person, partnership, firm, or association
  • A public or private, domestic or foreign corporation
  • The legal representative(s) of a deceased person
  • The receiver, trustee, or successor of a person, partnership, firm, association, public or private, domestic or foreign corporation

Types of Employers

General Business Employers General business employers make up most of the more than 450,000 registered employers in New York State.

Liability under U.I. Law

General business employers are liable on:

  • The first day of the calendar quarter you pay remuneration of $300 or more - or
  • The day you acquire any or all of a business of a liable employer

You may terminate liability if you:

  • Send a written request to the DOL before the end of the quarter if
  • You paid less than $300 in remuneration during that quarter and the 3 prior calendar quarters

Limited Liability Organizations - The Limited Liability Company Law (Chapter 34 of the Consolidated Laws) permits:

  • The creation of a Limited Liability Company (LLC) and
  • The registration of a Limited Liability Partnership (LLP)

The advantage of these entities is that the members or partners are not held individually liable for the debts of the LLC or LLP. A Limited Liability Company may owe Federal income tax as a sole proprietorship, a partnership or a corporation. Consult your financial advisor about the advantages or disadvantages of forming an LLC or LLP.

LLCs and LLPs are separate entities under the Unemployment Insurance Law. If you change your current business to an LLC or an LLP, notify us promptly. We will set up a new account and transfer your experience for rating purposes.

Partners in an LLP or members of an LLC are not employees, and unemployment contributions are not paid on their earnings. Managers of an LLC who are not members may be employees.

If you have questions about the unemployment insurance liability of these entities, contact our Liability & Determination Section at (518) 457-5807 or (518) 457-5806.

Non-profit Employers A non-profit organization is set up and operates exclusively for religious, charitable, scientific, literary or educational purposes. Generally, this includes all organizations that qualify for exemption under Section 501(c) (3) of the Internal Revenue Code.

Liability under U.I. Law

Non-profit employers are liable on:

  • The first day of the calendar quarter you pay cash remuneration of $1,000 or more or
  • The first day of the calendar year you employ four or more persons on at least one day in each of 20 different weeks (during that year or the prior calendar year)

You may voluntarily terminate liability at the end of any calendar quarter in which you send a written request to the DOL if:

  • You paid less than $1000 in cash remuneration during the quarter and the three prior calendar quarters and
  • You did not employ four or more persons on at least one day in each of 20 different weeks (during that year or the prior calendar year)

Government Employers The law defines government entities as "the State of New York, municipal corporations, and other governmental subdivisions and any instrumentality of one or more of the foregoing."

Liability under U.I. Law

Government employers are liable:

  • As of the first day of the calendar quarter in which they pay wages to employees in covered employment
  • Regardless of the amount of remuneration they pay or the number of employees

Domestic Employers Domestic employment is the performance of personal or domestic services in private homes. Most of the information for general business employers applies to domestic employers.

Liability under U.I. Law

Employers of household help are liable as of the first day of any calendar quarter you pay cash wages of $500 or more.

You may terminate liability when you:

  • Send a written request to the DOL before the end of any calendar quarter and
  • Pay less than $500 in cash wages during that calendar quarter and the 3 prior calendar quarters

Agricultural Employers An agricultural employer is an employer of workers engaged in agricultural labor.

Section 511(6) of the NYS Labor Law defines agricultural labor as services workers perform:

  • On a farm, in the employ of any person, in connection with cultivating the soil or raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, fur-bearing animals and wildlife
  • In the employ of the owner, tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of the farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm
  • In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity
    • but only if such service is performed in the employ of an operator of a farm
      • As an incident to farming operations, or
      • In the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market

Services are not considered agricultural employment if they are performed in connection with:

  • Commercial canning
  • Commercial freezing
  • Any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption

Also, services are not considered agricultural employment, even when located on a farm, if they are done in connection with:

  • Converting a primary product to a secondary derivative, such as grapes to wine
  • A retail operation

The UI law definition of a farm includes:

  • Stock
  • Dairy
  • Poultry
  • Fur-bearing animals
  • Fruit and truck farms
  • Plantations
  • Nurseries
  • Greenhouses
  • Other similar structures, used primarily to raise agricultural or horticultural commodities
  • Orchards

Although much of the information for general business employers applies to agricultural employers, some specific topics of interest to agricultural employers include:

Liability under U.I. Law

Employers of agricultural labor are liable as of:

  • The first day of the calendar year in which you employ 10 or more workers in agricultural labor on at least one day in each of 20 different weeks (during that year or the prior year) or
  • The first day of the calendar quarter in which you pay cash remuneration of $20,000 or more to workers you employ in agricultural labor or
  • The first day of the calendar quarter in which you pay any remuneration to workers you employ in agricultural labor, if they are liable under FUTA with respect to farm workers

A farm labor crew leader who furnishes and pays the members of a farm crew to perform services in agricultural labor for another employer may be the actual employer of the crew members. This applies if the crew leader:

  • Meets any of the conditions of liability for agricultural employers, and
  • Holds a valid certificate of registration under the Federal Farm Labor Contractor Registration Act of 1963,or
  • Provides the mechanized equipment which most of the members of the crew operate or maintain, and
  • Is not an employee of the other employer

If the above conditions are not met, the crew leader is not liable, and the crew members are employees of the farm operator.

Agricultural employers can terminate liability at the end of the calendar quarter in which you send a request in writing to the DOL if you:

  • Have not paid cash remuneration of $20,000 or more to farm workers in any of the eight calendar quarters prior to the date you wish to terminate liability, and
  • Have not employed:
    • 10 or more persons in agricultural labor
    • On at least one day in each of 20 different weeks during the current calendar year or the prior calendar year, and
    • Are not liable under FUTA as an agricultural employer

Indian Tribes The law defines an Indian tribe as any Indian tribe, subdivision, subsidiary or business enterprise wholly owned by such Indian tribe as defined in Section 3306(u) of FUTA.

Liability under U.I. Law

All Indian tribes, as defined in Section 3306(u) of FUTA, are liable under the New York State Unemployment Insurance Law:

  • As of the first day of the calendar quarter in which they pay wages to employees in covered employment
  • Without regard to the amount of remuneration paid or the number of employees

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