Skip to Content Skip to Navigation
  • Home
  • Legal
  • Construction Industry Fair Play Act

Construction Industry Fair Play Act

Attention all Employees, Contractors and Subcontractors: You are Covered by the Construction Industry Fair Play Act.

The law says that you are an employee unless:

  • You are free from direction and control in performing your job, AND
  • You perform work that is not part of the usual work done by the business that hired you, AND
  • You have an independently established business

Your employer cannot consider you to be an independent contractor unless all three of these facts apply to your work.

It is against the law for an employer to misclassify employees as independent contractors or pay employees off the books.

Law S05847

5847--F
Cal. No. 782
2009-2010 Regular Sessions
I N  S E N A T E
June 11, 2009
___________ 
       Introduced  by  Sens. ONORATO, FOLEY, ADDABBO, BRESLIN, KRUEGER, LARKIN, 
SAVINO, SCHNEIDERMAN, STACHOWSKI -- read twice  and  ordered  printed, 
and  when  printed to be committed to the Committee on Rules -- recom- 
mitted to the Committee on Labor in accordance  with  Senate  Rule  6, 
sec.  8  --  committee  discharged, bill amended, ordered reprinted as 
amended and recommitted to said committee -- reported  favorably  from 
said  committee  and  committed to the Committee on Codes -- committee 
discharged, bill amended, ordered reprinted as amended and recommitted 
to said committee  --  reported  favorably  from  said  committee  and 
committed  to  the  Committee on Finance -- committee discharged, bill 
amended, ordered reprinted as amended and recommitted to said  commit- 
tee  --  reported  favorably from said committee, ordered to first and 
second report,  ordered  to  a  third  reading,  amended  and  ordered 
reprinted,  retaining its place in the order of third reading -- again 
amended and ordered reprinted, retaining its place  in  the  order  of 
third  reading  --  again amended and ordered reprinted, retaining its 
place in the order of third reading 
AN ACT to amend the labor law, in relation to  enacting  the  "New  York 
state  construction industry fair play act"; and to amend the workers' 
compensation law, in relation to the definition of employee 
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM- 
BLY, DO ENACT AS FOLLOWS: 
1    Section  1.  The  labor law is amended by adding a new article 25-B to 
2  read as follows: 
3                                 ARTICLE 25-B 
4           THE NEW YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT 
5  SECTION 861.   SHORT TITLE. 
6          861-A. LEGISLATIVE FINDINGS AND INTENT. 
7          861-B. DEFINITIONS. 
8          861-C. PRESUMPTION OF EMPLOYMENT IN THE CONSTRUCTION INDUSTRY.   
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets 
[ ] is old law to be omitted. 
LBD11756-24-0 
S. 5847--F                          2 
1          861-D. NOTICE TO PERSONS RECEIVING REMUNERATION FROM CONTRACTORS 
2                   AND SUBCONTRACTORS. 
3          861-E. VIOLATIONS AND PENALTIES.     
4          861-F. RETALIATION.     
5    S  861.  SHORT  TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS 
6  "THE NEW YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT". 
7    S 861-A. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS 
8  AND DECLARES THAT NEW YORK STATE'S CONSTRUCTION INDUSTRY IS EXPERIENCING 
9  DANGEROUS LEVELS OF  EMPLOYEE  MISCLASSIFICATION  FRAUD.    UNSCRUPULOUS 
10  EMPLOYERS  ARE INTENTIONALLY REPORTING EMPLOYEES AS INDEPENDENT CONTRAC- 
11  TORS TO STATE AND FEDERAL AUTHORITIES OR WORKERS' COMPENSATION  CARRIERS 
12  IN RECORD NUMBERS. IN ADDITION, THERE HAS BEEN AN EXPLOSION OF EMPLOYERS 
13  WHO OPERATE IN THE UNDERGROUND ECONOMY AND FAIL TO REPORT ALL OR A SIZA- 
14  BLE PORTION OF THEIR WORKERS. 
15    THE  LEGISLATURE  HEREBY FINDS AND DECLARES THAT RECENT STUDIES OF NEW 
16  YORK CITY'S CONSTRUCTION INDUSTRY ALONE SUGGESTS THAT AS MANY  AS  FIFTY 
17  THOUSAND NEW YORK CITY CONSTRUCTION WORKERS -- NEARLY ONE IN FOUR -- ARE 
18  EITHER  MISCLASSIFIED  AS  INDEPENDENT  CONTRACTORS  OR  ARE EMPLOYED BY 
19  CONSTRUCTION CONTRACTORS COMPLETELY OFF THE BOOKS. CONSTRUCTION INDUSTRY 
20  FRAUD REDUCES GOVERNMENT REVENUE, SHIFTS TAX AND  WORKERS'  COMPENSATION 
21  INSURANCE  COSTS TO LAW-ABIDING EMPLOYEES, LOWERS WORKING CONDITIONS AND 
22  STEALS JOBS FROM LEGITIMATE EMPLOYERS AND THEIR EMPLOYEES. 
23    THEREFORE, THE LEGISLATURE HEREBY FINDS AND DECLARES  THAT  GOVERNMENT 
24  HAS  AN OBLIGATION TO CURB THIS UNDERGROUND ECONOMY, ENFORCE LONG-STAND- 
25  ING EMPLOYMENT LAWS, ENSURE COMPLIANCE WITH ESSENTIAL  SOCIAL  INSURANCE 
26  PROTECTIONS AND ELIMINATE THE UNFAIR COMPETITIVE ADVANTAGE FROM CONTRAC- 
27  TORS  IN THE UNDERGROUND ECONOMY BY AND THROUGH THE ENACTMENT OF THE NEW 
28  YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT. 
29    S 861-B. DEFINITIONS. AS USED IN THIS ARTICLE: 
30    1. "CONSTRUCTION" MEANS CONSTRUCTING, RECONSTRUCTING, ALTERING,  MAIN- 
31  TAINING,  MOVING, REHABILITATING, REPAIRING, RENOVATING OR DEMOLITION OF 
32  ANY BUILDING, STRUCTURE, OR IMPROVEMENT, OR RELATING TO  THE  EXCAVATION 
33  OF OR OTHER DEVELOPMENT OR IMPROVEMENT TO LAND. 
34    2.  "CONTRACTOR"  MEANS ANY SOLE PROPRIETOR, PARTNERSHIP, FIRM, CORPO- 
35  RATION, LIMITED LIABILITY COMPANY, ASSOCIATION  OR  OTHER  LEGAL  ENTITY 
36  PERMITTED  BY  LAW  TO  DO  BUSINESS  WITHIN  THE  STATE  WHO ENGAGES IN 
37  CONSTRUCTION AS DEFINED IN THIS ARTICLE. 
38    3. "CONTRACTOR" INCLUDES A GENERAL CONTRACTOR AND A SUBCONTRACTOR. 
39    4. "DEPARTMENT" MEANS THE DEPARTMENT OF LABOR. 
40    5. "COMMISSIONER" MEANS THE COMMISSIONER OF LABOR. 
41    6. "EMPLOYER" MEANS ANY CONTRACTOR  THAT  EMPLOYS  INDIVIDUALS  DEEMED 
42  EMPLOYEES UNDER THIS ARTICLE. 
43    S  861-C.  PRESUMPTION  OF EMPLOYMENT IN THE CONSTRUCTION INDUSTRY. 1. 
44  ANY PERSON PERFORMING SERVICES FOR A CONTRACTOR SHALL BE  CLASSIFIED  AS 
45  AN EMPLOYEE UNLESS THE PERSON IS A SEPARATE BUSINESS ENTITY UNDER SUBDI- 
46  VISION  TWO OF THIS SECTION OR ALL OF THE FOLLOWING CRITERIA ARE MET, IN 
47  WHICH CASE THE PERSON SHALL BE AN INDEPENDENT CONTRACTOR: 
48    (A) THE INDIVIDUAL IS FREE FROM CONTROL AND  DIRECTION  IN  PERFORMING 
49  THE JOB, BOTH UNDER HIS OR HER CONTRACT AND IN FACT; 
50    (B) THE SERVICE MUST BE PERFORMED OUTSIDE THE USUAL COURSE OF BUSINESS 
51  FOR WHICH THE SERVICE IS PERFORMED; AND 
52    (C)  THE  INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTAB- 
53  LISHED TRADE, OCCUPATION, PROFESSION, OR BUSINESS THAT IS SIMILAR TO THE 
54  SERVICE AT ISSUE. 
55    2. A BUSINESS ENTITY,  INCLUDING  ANY  SOLE  PROPRIETOR,  PARTNERSHIP, 
56  CORPORATION  OR ENTITY THAT MAY BE A CONTRACTOR UNDER THIS SECTION SHALL 
S. 5847--F                          3 
1  BE CONSIDERED A SEPARATE BUSINESS ENTITY FROM THE CONTRACTOR  WHERE  ALL 
2  THE FOLLOWING CRITERIA ARE MET: 
3    (A) THE BUSINESS ENTITY IS PERFORMING THE SERVICE FREE FROM THE DIREC- 
4  TION  OR  CONTROL  OVER  THE  MEANS AND MANNER OF PROVIDING THE SERVICE, 
5  SUBJECT ONLY TO THE RIGHT OF THE CONTRACTOR  FOR  WHOM  THE  SERVICE  IS 
6  PROVIDED TO SPECIFY THE DESIRED RESULT; 
7    (B)  THE BUSINESS ENTITY IS NOT SUBJECT TO CANCELLATION OR DESTRUCTION 
8  UPON SEVERANCE OF THE RELATIONSHIP WITH THE CONTRACTOR; 
9    (C) THE BUSINESS ENTITY HAS A SUBSTANTIAL INVESTMENT OF CAPITAL IN THE 
10  BUSINESS ENTITY BEYOND ORDINARY TOOLS AND EQUIPMENT AND A PERSONAL VEHI- 
11  CLE; 
12    (D) THE BUSINESS ENTITY OWNS THE CAPITAL GOODS AND GAINS  THE  PROFITS 
13  AND BEARS THE LOSSES OF THE BUSINESS ENTITY; 
14    (E)  THE  BUSINESS  ENTITY MAKES ITS SERVICES AVAILABLE TO THE GENERAL 
15  PUBLIC OR THE BUSINESS COMMUNITY ON A CONTINUING BASIS; 
16    (F) THE BUSINESS ENTITY INCLUDES SERVICES RENDERED ON A FEDERAL INCOME 
17  TAX SCHEDULE AS AN INDEPENDENT BUSINESS OR PROFESSION; 
18    (G) THE BUSINESS ENTITY PERFORMS SERVICES FOR THE CONTRACTOR UNDER THE 
19  BUSINESS ENTITY'S NAME; 
20    (H) WHEN THE SERVICES BEING PROVIDED REQUIRE A LICENSE OR PERMIT,  THE 
21  BUSINESS  ENTITY OBTAINS AND PAYS FOR THE LICENSE OR PERMIT IN THE BUSI- 
22  NESS ENTITY'S NAME; 
23    (I) THE BUSINESS ENTITY FURNISHES THE TOOLS AND EQUIPMENT NECESSARY TO 
24  PROVIDE THE SERVICE; 
25    (J) IF NECESSARY, THE BUSINESS ENTITY HIRES ITS OWN EMPLOYEES  WITHOUT 
26  CONTRACTOR  APPROVAL,  PAYS THE EMPLOYEES WITHOUT REIMBURSEMENT FROM THE 
27  CONTRACTOR AND REPORTS THE EMPLOYEES' INCOME  TO  THE  INTERNAL  REVENUE 
28  SERVICE; 
29    (K)  THE  CONTRACTOR  DOES  NOT  REPRESENT  THE  BUSINESS ENTITY AS AN 
30  EMPLOYEE OF THE CONTRACTOR TO ITS CUSTOMERS; AND 
31    (L) THE BUSINESS ENTITY HAS THE RIGHT TO PERFORM SIMILAR SERVICES  FOR 
32  OTHERS ON WHATEVER BASIS AND WHENEVER IT CHOOSES. 
33    3.  THE  FAILURE  TO  WITHHOLD FEDERAL OR STATE INCOME TAXES OR TO PAY 
34  UNEMPLOYMENT COMPENSATION CONTRIBUTIONS OR WORKERS' COMPENSATION  PREMI- 
35  UMS  WITH  RESPECT  TO  AN INDIVIDUAL'S WAGES SHALL NOT BE CONSIDERED IN 
36  MAKING A DETERMINATION UNDER THIS SECTION, EXCEPT AS SET FORTH IN  PARA- 
37  GRAPH (F) OF SUBDIVISION TWO OF THIS SECTION. 
38    4.  AN  INDIVIDUAL'S  ACT  OF SECURING WORKERS' COMPENSATION INSURANCE 
39  WITH A CARRIER AS A SOLE PROPRIETOR, PARTNERSHIP OR OTHERWISE SHALL  NOT 
40  BE BINDING ON ANY DETERMINATION UNDER THIS SECTION. 
41    5.  WHEN A BUSINESS ENTITY MEETS THE DEFINITION OF A SEPARATE BUSINESS 
42  ENTITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE  SEPARATE  BUSI- 
43  NESS  ENTITY  WILL  BE  CONSIDERED  A  CONTRACTOR  SUBJECT  TO  ALL  THE 
44  PROVISIONS OF THIS ARTICLE IN REGARD TO THE CLASSIFICATION  OF  INDIVID- 
45  UALS PERFORMING SERVICES FOR IT. 
46    S 861-D. NOTICE TO PERSONS RECEIVING REMUNERATION FROM CONTRACTORS AND 
47  SUBCONTRACTORS. 1. EVERY CONTRACTOR SHALL POST IN A PROMINENT AND ACCES- 
48  SIBLE  PLACE  ON  THE SITE WHERE THE CONSTRUCTION IS PERFORMED A LEGIBLE 
49  STATEMENT, PROVIDED BY THE COMMISSIONER, THAT DESCRIBES THE RESPONSIBIL- 
50  ITY OF INDEPENDENT CONTRACTORS TO PAY TAXES REQUIRED BY STATE AND FEDER- 
51  AL LAW, THE RIGHTS OF EMPLOYEES TO WORKERS'  COMPENSATION,  UNEMPLOYMENT 
52  BENEFITS,  MINIMUM  WAGE, OVERTIME AND OTHER FEDERAL AND STATE WORKPLACE 
53  PROTECTIONS, AND THE PROTECTIONS AGAINST RETALIATION AND  THE  PENALTIES 
54  IN THIS ARTICLE IF THE CONTRACTOR FAILS TO PROPERLY CLASSIFY AN INDIVID- 
55  UAL  AS  AN EMPLOYEE. THIS NOTICE SHALL ALSO CONTAIN CONTACT INFORMATION 
56  FOR INDIVIDUALS TO FILE COMPLAINTS  OR  INQUIRE  WITH  THE  COMMISSIONER 
S. 5847--F                          4 
1  ABOUT  EMPLOYMENT  CLASSIFICATION  STATUS.  THIS  INFORMATION  SHALL  BE 
2  PROVIDED IN ENGLISH, SPANISH OR OTHER LANGUAGES REQUIRED BY THE  COMMIS- 
3  SIONER.  THE  POSTED STATEMENT SHALL BE CONSTRUCTED OF MATERIALS CAPABLE 
4  OF WITHSTANDING ADVERSE WEATHER CONDITIONS. 
5    2.  WITHIN  THIRTY  DAYS  OF  THE  EFFECTIVE DATE OF THIS ARTICLE, THE 
6  COMMISSIONER SHALL CREATE THE NOTICE DESCRIBED  IN  SUBDIVISION  ONE  OF 
7  THIS  SECTION  AND POST THE NOTICE ON THE DEPARTMENT'S WEBSITE FOR DOWN- 
8  LOADING BY CONTRACTORS. 
9    3. CONTRACTORS WHO VIOLATE THIS SECTION SHALL BE SUBJECT  TO  A  CIVIL 
10  PENALTY  OF  UP  TO  ONE  THOUSAND  FIVE  HUNDRED  DOLLARS  FOR  A FIRST 
11  VIOLATION, AND UP TO FIVE THOUSAND DOLLARS FOR  A  SUBSEQUENT  VIOLATION 
12  WITHIN A FIVE YEAR PERIOD. 
13    S  861-E.  VIOLATIONS  AND PENALTIES.   1. ANY CONTRACTOR WHO WILFULLY 
14  FAILS TO PROPERLY CLASSIFY AN INDIVIDUAL  AS  AN  EMPLOYEE  AS  PROVIDED 
15  UNDER SECTION EIGHT HUNDRED SIXTY-ONE-C OF THIS ARTICLE SHALL BE SUBJECT 
16  TO  THE  CIVIL  AND  CRIMINAL PENALTIES PROVIDED UNDER THIS SECTION. THE 
17  CIVIL PENALTIES SET FORTH IN THIS SECTION SHALL BE IMPOSED  AS  FOLLOWS: 
18  BY  THE  COMMISSIONER WHERE SUCH PENALTY IS BASED ON A VIOLATION OF THIS 
19  CHAPTER; BY THE CHAIR OF THE  WORKERS'  COMPENSATION  BOARD  WHERE  SUCH 
20  PENALTY IS BASED ON A VIOLATION OF THE WORKERS' COMPENSATION LAW; AND BY 
21  THE  COMMISSIONER  OF  TAX  AND  FINANCE WHEN SUCH PENALTY IS BASED ON A 
22  VIOLATION OF THE TAX LAW, PROVIDED THAT NO MORE THAN ONE  CIVIL  PENALTY 
23  UNDER  THIS SECTION MAY BE IMPOSED PER EMPLOYEE PER INCIDENT OF MISCLAS- 
24  SIFICATION. 
25    (A) THE WORKERS' COMPENSATION BOARD SHALL PROVIDE A COPY OF ANY  ORDER 
26  RELATING  TO  THE  MISCLASSIFICATION OF AN EMPLOYEE, THE INTENTIONAL AND 
27  MATERIAL UNDERPAYMENT OR CONCEALMENT  OF  PAYROLL,  OR  THE  FAILURE  TO 
28  SECURE WORKERS' COMPENSATION IN THE CONSTRUCTION INDUSTRY TO THE COMMIS- 
29  SIONER AND COMMISSIONER OF TAXATION AND FINANCE NO LATER THAN SEVEN DAYS 
30  AFTER THE ISSUANCE OF THE ORDER. 
31    (B)  NOTWITHSTANDING  THE  SECRECY  PROVISIONS  CONTAINED  IN ARTICLES 
32  NINE-A AND TWENTY-TWO OF THE TAX LAW, THE  DEPARTMENT  OF  TAXATION  AND 
33  FINANCE  SHALL PROVIDE A COPY OF ANY ASSESSMENT FOR FAILURE TO PAY BUSI- 
34  NESS,  CORPORATE  OR  PERSONAL  INCOME  TAX  BY  AN  EMPLOYER   IN   THE 
35  CONSTRUCTION INDUSTRY ARISING OUT OF THE MISCLASSIFICATION OF AN EMPLOY- 
36  EE  TO  THE COMMISSIONER AND CHAIR OF THE WORKERS' COMPENSATION BOARD NO 
37  LATER THAN SEVEN DAYS AFTER THE ISSUANCE OF THE ASSESSMENT. 
38    (C) UPON THE ISSUANCE OF AN ORDER OR DETERMINATION BY THE COMMISSIONER 
39  FOR A VIOLATION AND PENALTIES UNDER THIS ARTICLE, THE COMMISSIONER SHALL 
40  PROVIDE A COPY OF THE ORDER TO THE CHAIR OF  THE  WORKERS'  COMPENSATION 
41  BOARD  AND  THE COMMISSIONER OF TAXATION AND FINANCE NO LATER THAN SEVEN 
42  DAYS AFTER THE ISSUANCE OF THE ORDER. 
43    2. FOR THE PURPOSES OF THIS SECTION,  THE  TERM  "WILLFULLY  VIOLATES" 
44  MEANS A CONTRACTOR KNEW OR SHOULD HAVE KNOWN THAT HIS OR HER CONDUCT WAS 
45  PROHIBITED BY THIS SECTION. 
46    3.  ANY CONTRACTOR WHO WILLFULLY VIOLATES SECTION EIGHT HUNDRED SIXTY- 
47  ONE-C OF THIS ARTICLE SHALL BE SUBJECT TO A CIVIL PENALTY OF UP TO TWEN- 
48  TY-FIVE HUNDRED  DOLLARS  FOR  THE  FIRST  VIOLATION  PER  MISCLASSIFIED 
49  EMPLOYEE  AND TO A CIVIL PENALTY OF UP TO FIVE THOUSAND DOLLARS FOR EACH 
50  SUBSEQUENT VIOLATION PER MISCLASSIFIED EMPLOYEE WITHIN A FIVE YEAR PERI- 
51  OD. 
52    4. IN ADDITION TO CIVIL PENALTIES, THE CRIMINAL PENALTIES IMPOSED ON A 
53  CONTRACTOR WHO WILLFULLY VIOLATES THE PROVISIONS OF THIS  ARTICLE  SHALL 
54  BE  A  MISDEMEANOR  AND  UPON  CONVICTION  SHALL BE PUNISHED FOR A FIRST 
55  OFFENSE BY IMPRISONMENT FOR NOT MORE THAN THIRTY DAYS OR A FINE  NOT  TO 
56  EXCEED  TWENTY-FIVE  THOUSAND  DOLLARS  AND  FOR A SUBSEQUENT OFFENSE BY 
S. 5847--F                          5 
1  IMPRISONMENT FOR NOT MORE THAN SIXTY DAYS OR A FINE NOT TO EXCEED  FIFTY 
2  THOUSAND DOLLARS. 
3    5. IF THE CONTRACTOR IS A CORPORATION, ANY OFFICER OF SUCH CORPORATION 
4  OR  SHAREHOLDER  WHO  OWNS  OR  CONTROLS  AT  LEAST  TEN  PERCENT OF THE 
5  OUTSTANDING STOCK OF SUCH CORPORATION WHO KNOWINGLY PERMITS  THE  CORPO- 
6  RATION TO WILLFULLY VIOLATE THE PROVISIONS OF THIS ARTICLE SHALL ALSO BE 
7  IN VIOLATION OF THIS ARTICLE AND THE CIVIL AND CRIMINAL PENALTIES HEREIN 
8  SHALL ATTACH TO SUCH OFFICER UPON CONVICTION. 
9    6.  ANY CONTRACTOR SUBJECT TO CIVIL PENALTIES UNDER THIS ARTICLE SHALL 
10  ALSO BE SUBJECT TO ANY OTHER APPLICABLE PENALTIES OR  REMEDIES  PROVIDED 
11  BY  LAW FOR FAILURE TO PAY ANY OTHER STATUTORY PAYMENT OR COVERAGE OBLI- 
12  GATIONS, INCLUDING BUT NOT LIMITED TO, UNEMPLOYMENT INSURANCE,  WORKERS' 
13  COMPENSATION  INSURANCE,  OR BUSINESS, CORPORATE OR PERSONAL INCOME TAX, 
14  AS FOLLOWS: 
15    (A) FOR FAILURE TO  PAY  UNEMPLOYMENT  INSURANCE  TAX,  THE  PENALTIES 
16  IMPOSED BY SECTION FIVE HUNDRED SEVENTY OF THIS CHAPTER. 
17    (B)  FOR  INTENTIONAL  AND  MATERIAL  UNDERSTATEMENT OR CONCEALMENT OF 
18  PAYROLL OR FAILURE TO SECURE WORKERS' COMPENSATION INSURANCE, THE PENAL- 
19  TIES IMPOSED BY PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION FIFTY-TWO OF 
20  THE WORKERS' COMPENSATION LAW, AND FOR FAILURE TO KEEP A TRUE AND  ACCU- 
21  RATE  RECORD  PURSUANT TO SECTION ONE HUNDRED THIRTY-ONE OF THE WORKERS' 
22  COMPENSATION LAW, THE PENALTIES OF SECTION ONE HUNDRED THIRTY-ONE OF THE 
23  WORKERS' COMPENSATION LAW. 
24    (C) FOR FAILURE TO PAY BUSINESS, CORPORATE OR PERSONAL INCOME TAX, THE 
25  PENALTIES IMPOSED BY SECTION SIX HUNDRED EIGHTY-FIVE  AND  ONE  THOUSAND 
26  EIGHTY-FIVE OF THE TAX LAW. 
27    7.  ANY  CONTRACTOR OR ANY OFFICER OR SHAREHOLDER WHO OWNS OR CONTROLS 
28  AT LEAST TEN PERCENT OF THE OUTSTANDING STOCK OF SUCH  CORPORATION  THAT 
29  HAS BEEN CONVICTED OF A MISDEMEANOR SHALL BE SUBJECT TO DEBARMENT AND BE 
30  INELIGIBLE  TO  SUBMIT  A BID ON OR BE AWARDED ANY PUBLIC WORKS CONTRACT 
31  WITH THE STATE, ANY MUNICIPAL CORPORATION, PUBLIC  BENEFIT  CORPORATION, 
32  PUBLIC  AUTHORITY OR PUBLIC BODY FOR A PERIOD OF UP TO ONE YEAR FROM THE 
33  DATE OF SUCH CONVICTION OR FINAL DETERMINATION, OR UP TO FIVE  YEARS  IN 
34  THE EVENT OF ANY SUBSEQUENT VIOLATION. 
35    8.  ANY  SUBSTANTIALLY  OWNED  AFFILIATED  ENTITY  OF A CONTRACTOR, AS 
36  DEFINED BY PARAGRAPH G OF SUBDIVISION FIVE OF SECTION TWO HUNDRED TWENTY 
37  OF THIS CHAPTER, SHALL BE SUBJECT TO THE  SAME  CIVIL  PENALTY  PROVIDED 
38  UNDER THIS ARTICLE FOR A VIOLATION OF SUCH PROVISION. 
39    9.  ANY PENALTIES IMPOSED UNDER THIS SECTION BY THE COMMISSIONER SHALL 
40  BE APPEALED TO THE INDUSTRIAL BOARD OF APPEALS IN ACCORDANCE WITH  ARTI- 
41  CLE  THREE  OF THIS CHAPTER. ANY PENALTIES IMPOSED UNDER THIS SECTION BY 
42  THE WORKERS' COMPENSATION BOARD OR COMMISSIONER OF TAXATION AND  FINANCE 
43  SHALL BE APPEALED IN THE SAME MANNER AS THE UNDERLYING VIOLATION. 
44    10.  NOTHING  IN  THIS  SECTION  SHALL LIMIT THE AVAILABILITY OF OTHER 
45  REMEDIES AT LAW OR IN EQUITY FOR A VIOLATION OF THIS ARTICLE. 
46    11. ANY FEE OR PENALTY ASSESSED FOR A VIOLATION OF THIS ARTICLE  SHALL 
47  BE DEPOSITED INTO THE DEPARTMENT'S FEE AND PENALTY ACCOUNT. 
48    S  861-F.  RETALIATION.  1.  IT  IS A VIOLATION OF THIS ARTICLE FOR AN 
49  EMPLOYER OR ANY AGENT OF ANY EMPLOYER, TO RETALIATE THROUGH DISCHARGE OR 
50  IN ANY OTHER MANNER AGAINST ANY PERSON IN THE TERMS OF CONDITIONS OF HIS 
51  OR HER EMPLOYMENT FOR EXERCISING ANY RIGHTS GRANTED UNDER  THIS  ARTICLE 
52  FOR: 
53    (A)  MAKING,  OR  THREATENING  TO  MAKE,  A  COMPLAINT TO AN EMPLOYER, 
54  CO-WORKER OR TO A PUBLIC BODY THAT RIGHTS GUARANTEED UNDER THIS  ARTICLE 
55  HAVE BEEN VIOLATED; 
S. 5847--F                          6 
1    (B)  CAUSING  TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THIS 
2  ARTICLE; OR 
3    (C)  PROVIDING  INFORMATION  TO, OR TESTIFYING BEFORE, ANY PUBLIC BODY 
4  CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY INTO ANY SUCH  VIOLATION 
5  OF  A LAW, RULE OR REGULATION BY SUCH EMPLOYER.  NOTHING IN THIS SECTION 
6  SHALL LIMIT THE  COMMISSIONER'S  AUTHORITY  UNDER  SECTION  TWO  HUNDRED 
7  FIFTEEN OF THE LABOR LAW, OR ANY OTHER STATUTE. 
8    2. ANY ACT OF RETALIATION UNDER THIS SECTION SHALL SUBJECT AN EMPLOYER 
9  TO  THE  CIVIL PENALTIES UNDER SECTION EIGHT HUNDRED SIXTY-ONE-E OF THIS 
10  ARTICLE, OR TO A PRIVATE CAUSE OF ACTION, OR BOTH. 
11    S 2. Paragraph (b) of subdivision 1 of section 511 of the labor law is 
12  amended by adding a new subparagraph 1-b to read as follows: 
13    (1-B) AS AN EMPLOYEE IN THE CONSTRUCTION INDUSTRY UNLESS THE  PRESUMP- 
14  TION  OF  EMPLOYMENT  CAN  BE  OVERCOME, AS PROVIDED UNDER SECTION EIGHT 
15  HUNDRED SIXTY-ONE-C OF THIS CHAPTER; OR 
16    S 3. The opening paragraph of subdivision 4 of section 2 of the  work- 
17  ers' compensation law, as amended by chapter 205 of the laws of 1993, is 
18  amended to read as follows: 
19    "Employee" means a person engaged in one of the occupations enumerated 
20  in section three OF THIS ARTICLE or who is in the service of an employer 
21  whose  principal business is that of carrying on or conducting a hazard- 
22  ous employment upon the premises or at the plant, or in  the  course  of 
23  his  OR  HER  employment  away  from  the  plant of his OR HER employer; 
24  "EMPLOYEE" SHALL ALSO MEAN FOR THE PURPOSES OF THIS CHAPTER ANY INDIVID- 
25  UAL PERFORMING SERVICES IN CONSTRUCTION FOR A CONTRACTOR  WHO  DOES  NOT 
26  OVERCOME  THE  PRESUMPTION OF EMPLOYMENT AS PROVIDED UNDER SECTION EIGHT 
27  HUNDRED SIXTY-ONE-C OF THE LABOR LAW; "employee" shall also mean for the 
28  purposes of this chapter civil defense volunteers who are  personnel  of 
29  volunteer agencies sponsored or authorized by a local office under regu- 
30  lations of the civil defense commission, to the extent of the provisions 
31  of  groups seventeen and nineteen; "employee" shall at the election of a 
32  municipal corporation made pursuant to local law duly enacted also  mean 
33  a  member  of  an auxiliary police organization authorized by local law; 
34  and for the purposes of this chapter only a newspaper carrier under  the 
35  age  of  eighteen years as defined in section thirty-two hundred twenty- 
36  eight of the education law, and  shall  not  include  domestic  servants 
37  except  as  provided  in section three of this chapter, and except where 
38  the employer has elected to bring such employees under the law by secur- 
39  ing compensation in accordance with the terms of section fifty  of  this 
40  chapter.  The  term "employee" shall not include persons who are members 
41  of a supervised amateur  athletic  activity  operated  on  a  non-profit 
42  basis,  provided  that  said  members  are not also otherwise engaged or 
43  employed by any  person,  firm  or  corporation  participating  in  said 
44  athletic  activity, nor shall it include the spouse or minor child of an 
45  employer who is a farmer unless the services of  such  spouse  or  minor 
46  child  shall  be  engaged  by said employer under an express contract of 
47  hire nor shall it include an executive officer of a corporation  who  at 
48  all  times  during  the  period  involved  owns  all  of  the issued and 
49  outstanding stock of the corporation and holds all of the offices pursu- 
50  ant to paragraph (e) of section seven hundred fifteen  of  the  business 
51  corporation  law  or  two executive officers of a corporation who at all 
52  times during the period involved between them own all of the issued  and 
53  outstanding  stock  of such corporation and hold all such offices except 
54  as provided in subdivision six of section  fifty-four  of  this  chapter 
55  provided,  however,  that  where  there  are two executive officers of a 
56  corporation each officer must own at least one share of stock, nor shall 
S. 5847--F                          7 
1  it include a self-employed person or  a  partner  of  a  partnership  as 
2  defined in section ten of the partnership law who is not covered under a 
3  compensation  insurance  contract  or a certificate of self-insurance as 
4  provided in subdivision eight of section fifty-four of this chapter, nor 
5  shall it include farm laborers except as provided in group fourteen-b of 
6  section  three  of  this chapter. If a farm labor contractor recruits or 
7  supplies farm laborers for work on a farm, such farm laborers shall  for 
8  the  purposes  of this chapter be deemed to be employees of the owner or 
9  lessee of such farm.  The term "employee" shall not include baby sitters 
10  as defined in subdivision three of section one  hundred  thirty-one  and 
11  subdivision  three of section one hundred thirty-two of the labor law or 
12  minors fourteen years of  age  or  over  engaged  in  casual  employment 
13  consisting  of  yard work and household chores in and about a one family 
14  owner-occupied residence or the premises of a non-profit, non-commercial 
15  organization, not involving the use of power-driven machinery. The  term 
16  "employee"  shall  not  include  persons  engaged by the owner in casual 
17  employment consisting of yard work, household chores and making  repairs 
18  to  or  painting in and about a one-family owner-occupied residence. The 
19  term "employee" shall not include the services of a licensed real estate 
20  broker or sales associate if it be proven that (a) substantially all  of 
21  the  remuneration  (whether  or  not  paid  in  cash)  for  the services 
22  performed by such broker or sales associate is directly related to sales 
23  or other output (including the performance of services) rather  than  to 
24  the  number of hours worked; (b) the services performed by the broker or 
25  sales associate are performed pursuant to a  written  contract  executed 
26  between  such  broker  or  sales  associate  and the person for whom the 
27  services are performed within the past twelve to fifteen months; and (c) 
28  the written contract provided for in  paragraph  (b)  [herein]  OF  THIS 
29  SUBDIVISION  was  not  executed  under duress and contains the following 
30  provisions: 
31    S 4. Notwithstanding any other provision of the law to  the  contrary, 
32  the  provisions  of  section 861-c of the labor law, as added by section 
33  one of this act, shall apply to and be utilized for  all  determinations 
34  of  a  construction  industry  individual's  employment status under the 
35  labor law and the workers' compensation law, but not the tax law. 
36    S 5. This act shall take effect on the sixtieth  day  after  it  shall 
37  have become a law. 

 

Thanks for the feedback! It will help us improve your experience.