State Codes and Statutes

Statutes > New-york > Lab > Article-18 > Title-2 > 511

§  511.  Employment. 1. General definition. "Employment" means (a) any  service under any contract of employment for hire, express  or  implied,  written, or oral and    (b) any service by a person for an employer    (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,  restaurant, 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  technical skill or expertise; or    * (1-b)  as  an  employee  in  the  construction  industry  unless the  presumption of employment can be overcome,  as  provided  under  section  eight hundred sixty-one-c of this chapter; or    * NB Effective October 26, 2010    (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  publishing 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 subparagraph, the term "modeling  services"  means  the  appearance  by  a  professional  model  in  photographic sessions or the  engagement of such model in live, filmed or taped modeling  performances  for remuneration.    2.  Work localized in state. The term "employment" includes a person's  entire service performed within or both within and without this state if  the service is localized in this  state.  Service  is  deemed  localized  within  the  state  if  it  is performed entirely within the state or is  performed both within and without the state but that  performed  without  the  state  is  incidental to the person's service within the state, for  example, is temporary or transitory in nature or  consists  of  isolated  transactions.    3. Work within and without the state. The term "employment" includes a  person's  entire  service  performed  both within and without this stateprovided it is not localized in any state but some  of  the  service  is  performed in this state, and    (a) the person's base of operations is in this state; or    (b)  if there is no base of operations in any state in which some part  of the service is performed,  the  place  from  which  such  service  is  directed or controlled is in this state; or    (c)  if  the  base  of  operations or place from which such service is  directed or controlled is not in any state in which  some  part  of  the  service is performed, the person's residence is in this state.    The  term  "employment"  shall  not include services performed without  this state in any calendar year during which no  service  was  performed  within  this  state  if  contributions with respect to such services are  required under the unemployment compensation law of any other  state  or  of the federal government.    4. Other included work.    The term "employment" shall include    (a)  Service,  wherever performed within the United States, the Virgin  Islands, or Canada, if    (1) contributions are not required with respect to such service  under  an unemployment compensation law of any other state, the Virgin Islands,  or Canada, and    (2)  the place from which such service is directed or controlled is in  this state;    (b) Service performed within  this  state  not  otherwise  within  the  purview of the foregoing provisions of this section if contributions are  not required with respect to such service under corresponding provisions  of an unemployment compensation law of any other state.    5.  Work  without  the  state  or  in  a  foreign country. (a) Service  performed entirely without the state, with respect to no part  of  which  contributions are required under an unemployment compensation law of any  other  state  or of the federal government, is employment if an election  with respect to the person's service has been made and approved pursuant  to the provisions of section five hundred sixty-one of this article.    (b) The term "employment" includes service by a citizen of the  United  States  performed  for  an  American employer outside the United States,  except Canada or the Virgin  Islands,  provided  contributions  are  not  required  with  respect  to such service under an unemployment insurance  law of any other state pursuant to criteria which correspond to those of  subdivisions two and three of this section, if    (1) the employer's principal place of business in the United States is  in this state, or    (2) the employer has no place of business in the United States but is    (i) an individual person who is a resident of this state, or    (ii) a corporation which is organized under the laws of this state, or    (iii) a partnership or a trust and the number of partners or  trustees  who  are  residents  of  this  state  is greater than the number who are  residents of any one other state, or    (3) none of the criteria of subparagraphs (1) and (2) are met but  the  employer  has  elected  coverage  of  the  service in this state or, the  employer having  failed  to  elect  such  coverage  in  any  state,  the  individual  performing  the service has filed a claim for benefits under  this article on the basis of such service.    (c) For purposes of this subdivision, "American employer" means    (1) an individual who is a resident of the United States; or    (2) a partnership if two-thirds or more of the partners are  residents  of the United States; or    (3) a trust if all of the trustees are residents of the United States;  or(4) a corporation organized under the laws of the United States or any  state.    6.  Agricultural  labor.  (a)  The  term "employment" does not include  agricultural labor unless it is covered pursuant to section five hundred  sixty-four.  The  term  "agricultural  labor"   includes   all   service  performed:    (1)  on  a  farm,  in  the  employ  of  any person, in connection with  cultivating the soil, or in connection with raising  or  harvesting  any  agricultural   or   horticultural   commodity,  including  the  raising,  shearing, feeding, caring for, training, and  management  of  livestock,  bees, poultry, and fur-bearing animals, and wildlife;    (2)  in the employ of the owner or tenant or other operator of a farm,  in connection with the operation, management, conservation, improvement,  or maintenance of such 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;    (3)  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 (i) as an incident to farming operations  or,  (ii)  in  the  case of fruits and vegetables, as an incident to the  preparation of such fruits or vegetables for market. The  provisions  of  this  paragraph  shall not apply to service performed in connection with  commercial canning or commercial freezing  or  in  connection  with  any  agricultural or horticultural commodity after its delivery to a terminal  market for distribution for consumption.    (b)  As  used  in  this  subdivision,  the term "farm" includes stock,  dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,  nurseries, greenhouses or other similar structures, used  primarily  for  the raising of agricultural or horticultural commodities, and orchards.    7. Spouse or child. The term "employment" does not include service for  an employer by his spouse or child under the age of twenty-one.    8.  Golf  caddy.  The  term "employment" does not include service as a  golf caddy.    9. Day student. The term "employment" does not include service  during  all  or  any  part  of  the school year or regular vacation periods as a  part-time worker of any person actually in regular attendance during the  day time as a student in an elementary or secondary school.    10. Employment under the federal railroad unemployment insurance  act.  The term "employment" does not include employment subject to the federal  railroad unemployment insurance act.    11.   Maritime   services   under   reciprocal  agreements.  The  term  "employment" includes a person's entire  service,  if  such  service  is  deemed  performed  in  this  state  by  virtue  of reciprocal agreements  pursuant to the provisions  of  paragraph  (c)  of  subdivision  two  of  section five hundred thirty-six of this article and does not include any  service  which  by  virtue  of  such  agreements  is deemed performed in  another state.    12. Baby sitter. The term "employment" does not include service  as  a  baby sitter at the home of the employer by a minor.    13.  Persons  under the age of twenty-one engaged in casual labor. The  term "employment" does not include services of a person under the age of  twenty-one engaged in casual labor consisting of yard work and household  chores in and about  a  residence  or  the  premises  of  a  non-profit,  non-commercial  organization,  not  involving  the  use  of power-driven  machinery.14. The term "employment" does not include service by  a  child  under  the age of fourteen years.    15.  Students  and  students' spouses at educational institutions. The  term "employment" does not include services rendered for an  educational  institution  by a person who is enrolled and is in regular attendance as  a student in such an institution, or the spouse of such student employed  by that institution if such spouse is advised at the beginning  of  such  services  that  the  employment is provided under a program of financial  assistance to such student and will not be covered under  this  article.  For  the  purposes  of this article, the term "employment" shall include  services rendered for a health care facility, including academic medical  centers, by fellow, resident and intern physicians.    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.    17. Certain college students. The term "employment" does  not  include  service  performed  by an individual, regardless of age, who is enrolled  at  a  nonprofit  or  public  educational  institution  which   normally  maintains  a regular faculty and curriculum and normally has a regularly  organized body  of  students  in  attendance  at  the  place  where  its  educational  activities  are  carried  on  as  a  student in a full-time  program taken for credit at such institution,  which  combines  academic  instruction with work experience, if such service is an integral part of  such  program,  and  such  institution has so certified to the employer,  except that this subdivision shall not apply to service performed  in  a  program  established  for  or  on  behalf  of  an  employer  or group of  employers.    18. Freelance shorthand  reporter.  The  term  "employment"  does  not  include the services of a freelance shorthand reporter rendered pursuant  to  any  agreement, contract, or mutual understanding, either written or  oral, with another freelance shorthand reporter or a freelance shorthand  reporting service. For the purposes of  this  subdivision,  a  freelance  shorthand  reporter  is a person who records verbatim any oral statement  or series of oral statements made over a definite period of  time  by  a  written  system of shorthand and whose sole compensation for making such  a record is an agreed upon fee per page of record  produced.  Additional  payment  of a set dollar charge as a minimum fee or attendance fee shall  not affect the above definition of a freelance shorthand  reporter.  For  the  purposes  of  this  subdivision,  a  freelance  shorthand reporting  service means any business which provides freelance shorthand  reporters  through subcontracts or by any other means.    19.  Qualified  real  estate  agent.  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:    (i) that the broker or sales associate is engaged  as  an  independent  contractor  associated  with  the person for whom services are performedpursuant to article twelve-A of the  real  property  law  and  shall  be  treated  as  such for all purposes, including but not limited to federal  and state taxation, withholding,  unemployment  insurance  and  workers'  compensation;    (ii) that the broker or sales associate (A) shall be paid a commission  on  his  or  her gross sales, if any, without deduction for taxes, which  commission shall be directly related to sales or other output; (B) shall  not receive any remuneration related to the number of hours worked;  and  (C)  shall  not  be treated as an employee with respect to such services  for federal and state tax purposes;    (iii) that the broker or sales associate shall be  permitted  to  work  any hours he or she chooses;    (iv) that the broker or sales associate shall be permitted to work out  of his or her own home or the office of the person for whom services are  performed;    (v)  that  the  broker  or  sales associate shall be free to engage in  outside employment;    (vi) that the person for whom the services are performed  may  provide  office  facilities  and  supplies  for  the  use  of the broker or sales  associate, but the broker or sales associate shall otherwise bear his or  her own expenses, including but not limited to automobile,  travel,  and  entertainment expenses;    (vii)  that  the  person  for  whom the services are performed and the  broker or sales associate shall comply with the requirements of  article  twelve-A  of  the  real  property  law  and  the  regulations pertaining  thereto, but such compliance  shall  not  affect  the  broker  or  sales  associate's  status  as  an  independent  contractor  nor  should  it be  construed as an indication that the broker  or  sales  associate  is  an  employee  of  the  person  for  whom  the services are performed for any  purpose whatsoever;    (viii) that the contract and the association created  thereby  may  be  terminated  by either party thereto at any time upon notice given to the  other.    20. The term "employment" shall not include services  performed  by  a  full-time student in the employ of an organized camp:    (a) if such camp:    (1)  did  not  operate for more than seven months in the calendar year  and did not operate for more than seven months in the preceding calendar  year; or    (2) had average gross receipts for any six  months  in  the  preceding  calendar  year  which  were  not  more  than  thirty-three and one-third  percent of its average gross receipts for the other six  months  in  the  preceding calendar year; and    (b)  if such full-time student performs services in the employ of such  camp for less than thirteen calendar weeks in any such year.    20-a. Full-time student. (a) For purposes  of  subdivision  twenty  of  this  section, an individual shall be treated as a full-time student for  any period:    (1) during which the individual is enrolled as a full-time student  at  an educational institution; or    (2) which is between academic years or terms if:    (i)  the  individual  was  enrolled  as  a  full-time  student  at  an  educational institution for the immediately preceding academic  year  or  term; and    (ii)  there  is  a reasonable assurance that the individual will be so  enrolled for the immediately succeeding academic year or term after  the  period described in clause (i) of this subparagraph.(b) For purposes of this subdivision, the term educational institution  shall mean any educational institution of secondary, higher educational,  professional  or  vocational  educational  training,  as those terms are  defined in the education law.    20-b.  Camp.  For  purposes of subdivision twenty of this section, the  term camp shall mean "children's overnight camp" as that term is defined  in subdivision one of section thirteen hundred ninety-two of the  public  health  law,  and  any  "summer  day  camp"  as  that term is defined in  subdivision two of section thirteen hundred  ninety-two  of  the  public  health  law, and any "traveling summer day camp" as that term is defined  in subdivision three of  section  thirteen  hundred  ninety-two  of  the  public health law.    21.  Qualified  insurance agent or broker. The term "employment" shall  not include the services of a licensed insurance agent or broker  if  it  be proven that (a) substantially all of the remuneration (whether or not  paid  in  cash)  for  the  services performed by such agent or broker is  directly related to sales or other output (including the performance  of  services)  rather  than to the number of hours worked; (b) such agent is  not a life  insurance  agent  receiving  a  training  allowance  subsidy  described  in paragraph three of subsection (e) of section four thousand  two  hundred  twenty-eight  of  the  insurance  law;  (c)  the  services  performed  by  the  agent  or broker are performed pursuant to a written  contract executed between such agent or broker and the person  for  whom  the services are performed; and (d) the written contract provided for in  paragraph  (c)  of  this  subdivision  was not executed under duress and  contains the following provisions:    (i) that the agent or broker is engaged as an  independent  contractor  associated  with  the person for whom services are performed pursuant to  article twenty-one of the insurance law and shall be treated as such for  all purposes, including but not limited to federal and  state  taxation,  withholding (other than federal insurance contributions act (FICA) taxes  required  for  full  time  life  insurance  agents  pursuant  to section  3121(d)(3) of the federal internal revenue code), unemployment insurance  and workers' compensation;    (ii) that the agent or broker (A) shall be paid a commission on his or  her gross sales, if any, without deduction for taxes (other than federal  insurance contributions act (FICA) taxes required  for  full  time  life  insurance  agents pursuant to section 3121(d)(3) of the federal internal  revenue code), which commission shall be directly related  to  sales  or  other  output;  (B)  shall  not  receive any remuneration related to the  number of hours worked; and (C) shall not be treated as an employee with  respect to such services for federal and state tax purposes (other  than  federal  insurance contributions act (FICA) taxes required for full time  life insurance agents pursuant to  section  3121(d)(3)  of  the  federal  internal revenue code);    (iii) that the agent or broker shall be permitted to work any hours he  or she chooses;    (iv) that the agent or broker shall be permitted to work out of his or  her own office or home or the office of the person for whom services are  performed;    (v)  that  the  person for whom the services are performed may provide  office facilities, clerical support, and supplies for  the  use  of  the  agent or broker, but the agent or broker shall otherwise bear his or her  own  expenses,  including  but  not  limited  to automobile, travel, and  entertainment expenses;    (vi) that the person for whom the services are performed and the agent  or broker shall comply with the requirements of  article  twenty-one  of  the  insurance  law  and  the  regulations  pertaining thereto, but suchcompliance shall not  affect  the  agent's  or  broker's  status  as  an  independent  contractor nor should it be construed as an indication that  the agent or broker is an employee of the person for whom  the  services  are performed for any purpose whatsoever;    (vii)  that  the  contract  and the association created thereby may be  terminated by either party thereto at any time with notice given to  the  other.    22.  Recreational  bowling.  The  term  "employment" shall not include  recreational bowling, such as bowling in a league  where  an  individual  may occasionally win prize money.

State Codes and Statutes

Statutes > New-york > Lab > Article-18 > Title-2 > 511

§  511.  Employment. 1. General definition. "Employment" means (a) any  service under any contract of employment for hire, express  or  implied,  written, or oral and    (b) any service by a person for an employer    (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,  restaurant, 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  technical skill or expertise; or    * (1-b)  as  an  employee  in  the  construction  industry  unless the  presumption of employment can be overcome,  as  provided  under  section  eight hundred sixty-one-c of this chapter; or    * NB Effective October 26, 2010    (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  publishing 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 subparagraph, the term "modeling  services"  means  the  appearance  by  a  professional  model  in  photographic sessions or the  engagement of such model in live, filmed or taped modeling  performances  for remuneration.    2.  Work localized in state. The term "employment" includes a person's  entire service performed within or both within and without this state if  the service is localized in this  state.  Service  is  deemed  localized  within  the  state  if  it  is performed entirely within the state or is  performed both within and without the state but that  performed  without  the  state  is  incidental to the person's service within the state, for  example, is temporary or transitory in nature or  consists  of  isolated  transactions.    3. Work within and without the state. The term "employment" includes a  person's  entire  service  performed  both within and without this stateprovided it is not localized in any state but some  of  the  service  is  performed in this state, and    (a) the person's base of operations is in this state; or    (b)  if there is no base of operations in any state in which some part  of the service is performed,  the  place  from  which  such  service  is  directed or controlled is in this state; or    (c)  if  the  base  of  operations or place from which such service is  directed or controlled is not in any state in which  some  part  of  the  service is performed, the person's residence is in this state.    The  term  "employment"  shall  not include services performed without  this state in any calendar year during which no  service  was  performed  within  this  state  if  contributions with respect to such services are  required under the unemployment compensation law of any other  state  or  of the federal government.    4. Other included work.    The term "employment" shall include    (a)  Service,  wherever performed within the United States, the Virgin  Islands, or Canada, if    (1) contributions are not required with respect to such service  under  an unemployment compensation law of any other state, the Virgin Islands,  or Canada, and    (2)  the place from which such service is directed or controlled is in  this state;    (b) Service performed within  this  state  not  otherwise  within  the  purview of the foregoing provisions of this section if contributions are  not required with respect to such service under corresponding provisions  of an unemployment compensation law of any other state.    5.  Work  without  the  state  or  in  a  foreign country. (a) Service  performed entirely without the state, with respect to no part  of  which  contributions are required under an unemployment compensation law of any  other  state  or of the federal government, is employment if an election  with respect to the person's service has been made and approved pursuant  to the provisions of section five hundred sixty-one of this article.    (b) The term "employment" includes service by a citizen of the  United  States  performed  for  an  American employer outside the United States,  except Canada or the Virgin  Islands,  provided  contributions  are  not  required  with  respect  to such service under an unemployment insurance  law of any other state pursuant to criteria which correspond to those of  subdivisions two and three of this section, if    (1) the employer's principal place of business in the United States is  in this state, or    (2) the employer has no place of business in the United States but is    (i) an individual person who is a resident of this state, or    (ii) a corporation which is organized under the laws of this state, or    (iii) a partnership or a trust and the number of partners or  trustees  who  are  residents  of  this  state  is greater than the number who are  residents of any one other state, or    (3) none of the criteria of subparagraphs (1) and (2) are met but  the  employer  has  elected  coverage  of  the  service in this state or, the  employer having  failed  to  elect  such  coverage  in  any  state,  the  individual  performing  the service has filed a claim for benefits under  this article on the basis of such service.    (c) For purposes of this subdivision, "American employer" means    (1) an individual who is a resident of the United States; or    (2) a partnership if two-thirds or more of the partners are  residents  of the United States; or    (3) a trust if all of the trustees are residents of the United States;  or(4) a corporation organized under the laws of the United States or any  state.    6.  Agricultural  labor.  (a)  The  term "employment" does not include  agricultural labor unless it is covered pursuant to section five hundred  sixty-four.  The  term  "agricultural  labor"   includes   all   service  performed:    (1)  on  a  farm,  in  the  employ  of  any person, in connection with  cultivating the soil, or in connection with raising  or  harvesting  any  agricultural   or   horticultural   commodity,  including  the  raising,  shearing, feeding, caring for, training, and  management  of  livestock,  bees, poultry, and fur-bearing animals, and wildlife;    (2)  in the employ of the owner or tenant or other operator of a farm,  in connection with the operation, management, conservation, improvement,  or maintenance of such 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;    (3)  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 (i) as an incident to farming operations  or,  (ii)  in  the  case of fruits and vegetables, as an incident to the  preparation of such fruits or vegetables for market. The  provisions  of  this  paragraph  shall not apply to service performed in connection with  commercial canning or commercial freezing  or  in  connection  with  any  agricultural or horticultural commodity after its delivery to a terminal  market for distribution for consumption.    (b)  As  used  in  this  subdivision,  the term "farm" includes stock,  dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,  nurseries, greenhouses or other similar structures, used  primarily  for  the raising of agricultural or horticultural commodities, and orchards.    7. Spouse or child. The term "employment" does not include service for  an employer by his spouse or child under the age of twenty-one.    8.  Golf  caddy.  The  term "employment" does not include service as a  golf caddy.    9. Day student. The term "employment" does not include service  during  all  or  any  part  of  the school year or regular vacation periods as a  part-time worker of any person actually in regular attendance during the  day time as a student in an elementary or secondary school.    10. Employment under the federal railroad unemployment insurance  act.  The term "employment" does not include employment subject to the federal  railroad unemployment insurance act.    11.   Maritime   services   under   reciprocal  agreements.  The  term  "employment" includes a person's entire  service,  if  such  service  is  deemed  performed  in  this  state  by  virtue  of reciprocal agreements  pursuant to the provisions  of  paragraph  (c)  of  subdivision  two  of  section five hundred thirty-six of this article and does not include any  service  which  by  virtue  of  such  agreements  is deemed performed in  another state.    12. Baby sitter. The term "employment" does not include service  as  a  baby sitter at the home of the employer by a minor.    13.  Persons  under the age of twenty-one engaged in casual labor. The  term "employment" does not include services of a person under the age of  twenty-one engaged in casual labor consisting of yard work and household  chores in and about  a  residence  or  the  premises  of  a  non-profit,  non-commercial  organization,  not  involving  the  use  of power-driven  machinery.14. The term "employment" does not include service by  a  child  under  the age of fourteen years.    15.  Students  and  students' spouses at educational institutions. The  term "employment" does not include services rendered for an  educational  institution  by a person who is enrolled and is in regular attendance as  a student in such an institution, or the spouse of such student employed  by that institution if such spouse is advised at the beginning  of  such  services  that  the  employment is provided under a program of financial  assistance to such student and will not be covered under  this  article.  For  the  purposes  of this article, the term "employment" shall include  services rendered for a health care facility, including academic medical  centers, by fellow, resident and intern physicians.    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.    17. Certain college students. The term "employment" does  not  include  service  performed  by an individual, regardless of age, who is enrolled  at  a  nonprofit  or  public  educational  institution  which   normally  maintains  a regular faculty and curriculum and normally has a regularly  organized body  of  students  in  attendance  at  the  place  where  its  educational  activities  are  carried  on  as  a  student in a full-time  program taken for credit at such institution,  which  combines  academic  instruction with work experience, if such service is an integral part of  such  program,  and  such  institution has so certified to the employer,  except that this subdivision shall not apply to service performed  in  a  program  established  for  or  on  behalf  of  an  employer  or group of  employers.    18. Freelance shorthand  reporter.  The  term  "employment"  does  not  include the services of a freelance shorthand reporter rendered pursuant  to  any  agreement, contract, or mutual understanding, either written or  oral, with another freelance shorthand reporter or a freelance shorthand  reporting service. For the purposes of  this  subdivision,  a  freelance  shorthand  reporter  is a person who records verbatim any oral statement  or series of oral statements made over a definite period of  time  by  a  written  system of shorthand and whose sole compensation for making such  a record is an agreed upon fee per page of record  produced.  Additional  payment  of a set dollar charge as a minimum fee or attendance fee shall  not affect the above definition of a freelance shorthand  reporter.  For  the  purposes  of  this  subdivision,  a  freelance  shorthand reporting  service means any business which provides freelance shorthand  reporters  through subcontracts or by any other means.    19.  Qualified  real  estate  agent.  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:    (i) that the broker or sales associate is engaged  as  an  independent  contractor  associated  with  the person for whom services are performedpursuant to article twelve-A of the  real  property  law  and  shall  be  treated  as  such for all purposes, including but not limited to federal  and state taxation, withholding,  unemployment  insurance  and  workers'  compensation;    (ii) that the broker or sales associate (A) shall be paid a commission  on  his  or  her gross sales, if any, without deduction for taxes, which  commission shall be directly related to sales or other output; (B) shall  not receive any remuneration related to the number of hours worked;  and  (C)  shall  not  be treated as an employee with respect to such services  for federal and state tax purposes;    (iii) that the broker or sales associate shall be  permitted  to  work  any hours he or she chooses;    (iv) that the broker or sales associate shall be permitted to work out  of his or her own home or the office of the person for whom services are  performed;    (v)  that  the  broker  or  sales associate shall be free to engage in  outside employment;    (vi) that the person for whom the services are performed  may  provide  office  facilities  and  supplies  for  the  use  of the broker or sales  associate, but the broker or sales associate shall otherwise bear his or  her own expenses, including but not limited to automobile,  travel,  and  entertainment expenses;    (vii)  that  the  person  for  whom the services are performed and the  broker or sales associate shall comply with the requirements of  article  twelve-A  of  the  real  property  law  and  the  regulations pertaining  thereto, but such compliance  shall  not  affect  the  broker  or  sales  associate's  status  as  an  independent  contractor  nor  should  it be  construed as an indication that the broker  or  sales  associate  is  an  employee  of  the  person  for  whom  the services are performed for any  purpose whatsoever;    (viii) that the contract and the association created  thereby  may  be  terminated  by either party thereto at any time upon notice given to the  other.    20. The term "employment" shall not include services  performed  by  a  full-time student in the employ of an organized camp:    (a) if such camp:    (1)  did  not  operate for more than seven months in the calendar year  and did not operate for more than seven months in the preceding calendar  year; or    (2) had average gross receipts for any six  months  in  the  preceding  calendar  year  which  were  not  more  than  thirty-three and one-third  percent of its average gross receipts for the other six  months  in  the  preceding calendar year; and    (b)  if such full-time student performs services in the employ of such  camp for less than thirteen calendar weeks in any such year.    20-a. Full-time student. (a) For purposes  of  subdivision  twenty  of  this  section, an individual shall be treated as a full-time student for  any period:    (1) during which the individual is enrolled as a full-time student  at  an educational institution; or    (2) which is between academic years or terms if:    (i)  the  individual  was  enrolled  as  a  full-time  student  at  an  educational institution for the immediately preceding academic  year  or  term; and    (ii)  there  is  a reasonable assurance that the individual will be so  enrolled for the immediately succeeding academic year or term after  the  period described in clause (i) of this subparagraph.(b) For purposes of this subdivision, the term educational institution  shall mean any educational institution of secondary, higher educational,  professional  or  vocational  educational  training,  as those terms are  defined in the education law.    20-b.  Camp.  For  purposes of subdivision twenty of this section, the  term camp shall mean "children's overnight camp" as that term is defined  in subdivision one of section thirteen hundred ninety-two of the  public  health  law,  and  any  "summer  day  camp"  as  that term is defined in  subdivision two of section thirteen hundred  ninety-two  of  the  public  health  law, and any "traveling summer day camp" as that term is defined  in subdivision three of  section  thirteen  hundred  ninety-two  of  the  public health law.    21.  Qualified  insurance agent or broker. The term "employment" shall  not include the services of a licensed insurance agent or broker  if  it  be proven that (a) substantially all of the remuneration (whether or not  paid  in  cash)  for  the  services performed by such agent or broker is  directly related to sales or other output (including the performance  of  services)  rather  than to the number of hours worked; (b) such agent is  not a life  insurance  agent  receiving  a  training  allowance  subsidy  described  in paragraph three of subsection (e) of section four thousand  two  hundred  twenty-eight  of  the  insurance  law;  (c)  the  services  performed  by  the  agent  or broker are performed pursuant to a written  contract executed between such agent or broker and the person  for  whom  the services are performed; and (d) the written contract provided for in  paragraph  (c)  of  this  subdivision  was not executed under duress and  contains the following provisions:    (i) that the agent or broker is engaged as an  independent  contractor  associated  with  the person for whom services are performed pursuant to  article twenty-one of the insurance law and shall be treated as such for  all purposes, including but not limited to federal and  state  taxation,  withholding (other than federal insurance contributions act (FICA) taxes  required  for  full  time  life  insurance  agents  pursuant  to section  3121(d)(3) of the federal internal revenue code), unemployment insurance  and workers' compensation;    (ii) that the agent or broker (A) shall be paid a commission on his or  her gross sales, if any, without deduction for taxes (other than federal  insurance contributions act (FICA) taxes required  for  full  time  life  insurance  agents pursuant to section 3121(d)(3) of the federal internal  revenue code), which commission shall be directly related  to  sales  or  other  output;  (B)  shall  not  receive any remuneration related to the  number of hours worked; and (C) shall not be treated as an employee with  respect to such services for federal and state tax purposes (other  than  federal  insurance contributions act (FICA) taxes required for full time  life insurance agents pursuant to  section  3121(d)(3)  of  the  federal  internal revenue code);    (iii) that the agent or broker shall be permitted to work any hours he  or she chooses;    (iv) that the agent or broker shall be permitted to work out of his or  her own office or home or the office of the person for whom services are  performed;    (v)  that  the  person for whom the services are performed may provide  office facilities, clerical support, and supplies for  the  use  of  the  agent or broker, but the agent or broker shall otherwise bear his or her  own  expenses,  including  but  not  limited  to automobile, travel, and  entertainment expenses;    (vi) that the person for whom the services are performed and the agent  or broker shall comply with the requirements of  article  twenty-one  of  the  insurance  law  and  the  regulations  pertaining thereto, but suchcompliance shall not  affect  the  agent's  or  broker's  status  as  an  independent  contractor nor should it be construed as an indication that  the agent or broker is an employee of the person for whom  the  services  are performed for any purpose whatsoever;    (vii)  that  the  contract  and the association created thereby may be  terminated by either party thereto at any time with notice given to  the  other.    22.  Recreational  bowling.  The  term  "employment" shall not include  recreational bowling, such as bowling in a league  where  an  individual  may occasionally win prize money.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Lab > Article-18 > Title-2 > 511

§  511.  Employment. 1. General definition. "Employment" means (a) any  service under any contract of employment for hire, express  or  implied,  written, or oral and    (b) any service by a person for an employer    (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,  restaurant, 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  technical skill or expertise; or    * (1-b)  as  an  employee  in  the  construction  industry  unless the  presumption of employment can be overcome,  as  provided  under  section  eight hundred sixty-one-c of this chapter; or    * NB Effective October 26, 2010    (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  publishing 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 subparagraph, the term "modeling  services"  means  the  appearance  by  a  professional  model  in  photographic sessions or the  engagement of such model in live, filmed or taped modeling  performances  for remuneration.    2.  Work localized in state. The term "employment" includes a person's  entire service performed within or both within and without this state if  the service is localized in this  state.  Service  is  deemed  localized  within  the  state  if  it  is performed entirely within the state or is  performed both within and without the state but that  performed  without  the  state  is  incidental to the person's service within the state, for  example, is temporary or transitory in nature or  consists  of  isolated  transactions.    3. Work within and without the state. The term "employment" includes a  person's  entire  service  performed  both within and without this stateprovided it is not localized in any state but some  of  the  service  is  performed in this state, and    (a) the person's base of operations is in this state; or    (b)  if there is no base of operations in any state in which some part  of the service is performed,  the  place  from  which  such  service  is  directed or controlled is in this state; or    (c)  if  the  base  of  operations or place from which such service is  directed or controlled is not in any state in which  some  part  of  the  service is performed, the person's residence is in this state.    The  term  "employment"  shall  not include services performed without  this state in any calendar year during which no  service  was  performed  within  this  state  if  contributions with respect to such services are  required under the unemployment compensation law of any other  state  or  of the federal government.    4. Other included work.    The term "employment" shall include    (a)  Service,  wherever performed within the United States, the Virgin  Islands, or Canada, if    (1) contributions are not required with respect to such service  under  an unemployment compensation law of any other state, the Virgin Islands,  or Canada, and    (2)  the place from which such service is directed or controlled is in  this state;    (b) Service performed within  this  state  not  otherwise  within  the  purview of the foregoing provisions of this section if contributions are  not required with respect to such service under corresponding provisions  of an unemployment compensation law of any other state.    5.  Work  without  the  state  or  in  a  foreign country. (a) Service  performed entirely without the state, with respect to no part  of  which  contributions are required under an unemployment compensation law of any  other  state  or of the federal government, is employment if an election  with respect to the person's service has been made and approved pursuant  to the provisions of section five hundred sixty-one of this article.    (b) The term "employment" includes service by a citizen of the  United  States  performed  for  an  American employer outside the United States,  except Canada or the Virgin  Islands,  provided  contributions  are  not  required  with  respect  to such service under an unemployment insurance  law of any other state pursuant to criteria which correspond to those of  subdivisions two and three of this section, if    (1) the employer's principal place of business in the United States is  in this state, or    (2) the employer has no place of business in the United States but is    (i) an individual person who is a resident of this state, or    (ii) a corporation which is organized under the laws of this state, or    (iii) a partnership or a trust and the number of partners or  trustees  who  are  residents  of  this  state  is greater than the number who are  residents of any one other state, or    (3) none of the criteria of subparagraphs (1) and (2) are met but  the  employer  has  elected  coverage  of  the  service in this state or, the  employer having  failed  to  elect  such  coverage  in  any  state,  the  individual  performing  the service has filed a claim for benefits under  this article on the basis of such service.    (c) For purposes of this subdivision, "American employer" means    (1) an individual who is a resident of the United States; or    (2) a partnership if two-thirds or more of the partners are  residents  of the United States; or    (3) a trust if all of the trustees are residents of the United States;  or(4) a corporation organized under the laws of the United States or any  state.    6.  Agricultural  labor.  (a)  The  term "employment" does not include  agricultural labor unless it is covered pursuant to section five hundred  sixty-four.  The  term  "agricultural  labor"   includes   all   service  performed:    (1)  on  a  farm,  in  the  employ  of  any person, in connection with  cultivating the soil, or in connection with raising  or  harvesting  any  agricultural   or   horticultural   commodity,  including  the  raising,  shearing, feeding, caring for, training, and  management  of  livestock,  bees, poultry, and fur-bearing animals, and wildlife;    (2)  in the employ of the owner or tenant or other operator of a farm,  in connection with the operation, management, conservation, improvement,  or maintenance of such 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;    (3)  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 (i) as an incident to farming operations  or,  (ii)  in  the  case of fruits and vegetables, as an incident to the  preparation of such fruits or vegetables for market. The  provisions  of  this  paragraph  shall not apply to service performed in connection with  commercial canning or commercial freezing  or  in  connection  with  any  agricultural or horticultural commodity after its delivery to a terminal  market for distribution for consumption.    (b)  As  used  in  this  subdivision,  the term "farm" includes stock,  dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,  nurseries, greenhouses or other similar structures, used  primarily  for  the raising of agricultural or horticultural commodities, and orchards.    7. Spouse or child. The term "employment" does not include service for  an employer by his spouse or child under the age of twenty-one.    8.  Golf  caddy.  The  term "employment" does not include service as a  golf caddy.    9. Day student. The term "employment" does not include service  during  all  or  any  part  of  the school year or regular vacation periods as a  part-time worker of any person actually in regular attendance during the  day time as a student in an elementary or secondary school.    10. Employment under the federal railroad unemployment insurance  act.  The term "employment" does not include employment subject to the federal  railroad unemployment insurance act.    11.   Maritime   services   under   reciprocal  agreements.  The  term  "employment" includes a person's entire  service,  if  such  service  is  deemed  performed  in  this  state  by  virtue  of reciprocal agreements  pursuant to the provisions  of  paragraph  (c)  of  subdivision  two  of  section five hundred thirty-six of this article and does not include any  service  which  by  virtue  of  such  agreements  is deemed performed in  another state.    12. Baby sitter. The term "employment" does not include service  as  a  baby sitter at the home of the employer by a minor.    13.  Persons  under the age of twenty-one engaged in casual labor. The  term "employment" does not include services of a person under the age of  twenty-one engaged in casual labor consisting of yard work and household  chores in and about  a  residence  or  the  premises  of  a  non-profit,  non-commercial  organization,  not  involving  the  use  of power-driven  machinery.14. The term "employment" does not include service by  a  child  under  the age of fourteen years.    15.  Students  and  students' spouses at educational institutions. The  term "employment" does not include services rendered for an  educational  institution  by a person who is enrolled and is in regular attendance as  a student in such an institution, or the spouse of such student employed  by that institution if such spouse is advised at the beginning  of  such  services  that  the  employment is provided under a program of financial  assistance to such student and will not be covered under  this  article.  For  the  purposes  of this article, the term "employment" shall include  services rendered for a health care facility, including academic medical  centers, by fellow, resident and intern physicians.    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.    17. Certain college students. The term "employment" does  not  include  service  performed  by an individual, regardless of age, who is enrolled  at  a  nonprofit  or  public  educational  institution  which   normally  maintains  a regular faculty and curriculum and normally has a regularly  organized body  of  students  in  attendance  at  the  place  where  its  educational  activities  are  carried  on  as  a  student in a full-time  program taken for credit at such institution,  which  combines  academic  instruction with work experience, if such service is an integral part of  such  program,  and  such  institution has so certified to the employer,  except that this subdivision shall not apply to service performed  in  a  program  established  for  or  on  behalf  of  an  employer  or group of  employers.    18. Freelance shorthand  reporter.  The  term  "employment"  does  not  include the services of a freelance shorthand reporter rendered pursuant  to  any  agreement, contract, or mutual understanding, either written or  oral, with another freelance shorthand reporter or a freelance shorthand  reporting service. For the purposes of  this  subdivision,  a  freelance  shorthand  reporter  is a person who records verbatim any oral statement  or series of oral statements made over a definite period of  time  by  a  written  system of shorthand and whose sole compensation for making such  a record is an agreed upon fee per page of record  produced.  Additional  payment  of a set dollar charge as a minimum fee or attendance fee shall  not affect the above definition of a freelance shorthand  reporter.  For  the  purposes  of  this  subdivision,  a  freelance  shorthand reporting  service means any business which provides freelance shorthand  reporters  through subcontracts or by any other means.    19.  Qualified  real  estate  agent.  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:    (i) that the broker or sales associate is engaged  as  an  independent  contractor  associated  with  the person for whom services are performedpursuant to article twelve-A of the  real  property  law  and  shall  be  treated  as  such for all purposes, including but not limited to federal  and state taxation, withholding,  unemployment  insurance  and  workers'  compensation;    (ii) that the broker or sales associate (A) shall be paid a commission  on  his  or  her gross sales, if any, without deduction for taxes, which  commission shall be directly related to sales or other output; (B) shall  not receive any remuneration related to the number of hours worked;  and  (C)  shall  not  be treated as an employee with respect to such services  for federal and state tax purposes;    (iii) that the broker or sales associate shall be  permitted  to  work  any hours he or she chooses;    (iv) that the broker or sales associate shall be permitted to work out  of his or her own home or the office of the person for whom services are  performed;    (v)  that  the  broker  or  sales associate shall be free to engage in  outside employment;    (vi) that the person for whom the services are performed  may  provide  office  facilities  and  supplies  for  the  use  of the broker or sales  associate, but the broker or sales associate shall otherwise bear his or  her own expenses, including but not limited to automobile,  travel,  and  entertainment expenses;    (vii)  that  the  person  for  whom the services are performed and the  broker or sales associate shall comply with the requirements of  article  twelve-A  of  the  real  property  law  and  the  regulations pertaining  thereto, but such compliance  shall  not  affect  the  broker  or  sales  associate's  status  as  an  independent  contractor  nor  should  it be  construed as an indication that the broker  or  sales  associate  is  an  employee  of  the  person  for  whom  the services are performed for any  purpose whatsoever;    (viii) that the contract and the association created  thereby  may  be  terminated  by either party thereto at any time upon notice given to the  other.    20. The term "employment" shall not include services  performed  by  a  full-time student in the employ of an organized camp:    (a) if such camp:    (1)  did  not  operate for more than seven months in the calendar year  and did not operate for more than seven months in the preceding calendar  year; or    (2) had average gross receipts for any six  months  in  the  preceding  calendar  year  which  were  not  more  than  thirty-three and one-third  percent of its average gross receipts for the other six  months  in  the  preceding calendar year; and    (b)  if such full-time student performs services in the employ of such  camp for less than thirteen calendar weeks in any such year.    20-a. Full-time student. (a) For purposes  of  subdivision  twenty  of  this  section, an individual shall be treated as a full-time student for  any period:    (1) during which the individual is enrolled as a full-time student  at  an educational institution; or    (2) which is between academic years or terms if:    (i)  the  individual  was  enrolled  as  a  full-time  student  at  an  educational institution for the immediately preceding academic  year  or  term; and    (ii)  there  is  a reasonable assurance that the individual will be so  enrolled for the immediately succeeding academic year or term after  the  period described in clause (i) of this subparagraph.(b) For purposes of this subdivision, the term educational institution  shall mean any educational institution of secondary, higher educational,  professional  or  vocational  educational  training,  as those terms are  defined in the education law.    20-b.  Camp.  For  purposes of subdivision twenty of this section, the  term camp shall mean "children's overnight camp" as that term is defined  in subdivision one of section thirteen hundred ninety-two of the  public  health  law,  and  any  "summer  day  camp"  as  that term is defined in  subdivision two of section thirteen hundred  ninety-two  of  the  public  health  law, and any "traveling summer day camp" as that term is defined  in subdivision three of  section  thirteen  hundred  ninety-two  of  the  public health law.    21.  Qualified  insurance agent or broker. The term "employment" shall  not include the services of a licensed insurance agent or broker  if  it  be proven that (a) substantially all of the remuneration (whether or not  paid  in  cash)  for  the  services performed by such agent or broker is  directly related to sales or other output (including the performance  of  services)  rather  than to the number of hours worked; (b) such agent is  not a life  insurance  agent  receiving  a  training  allowance  subsidy  described  in paragraph three of subsection (e) of section four thousand  two  hundred  twenty-eight  of  the  insurance  law;  (c)  the  services  performed  by  the  agent  or broker are performed pursuant to a written  contract executed between such agent or broker and the person  for  whom  the services are performed; and (d) the written contract provided for in  paragraph  (c)  of  this  subdivision  was not executed under duress and  contains the following provisions:    (i) that the agent or broker is engaged as an  independent  contractor  associated  with  the person for whom services are performed pursuant to  article twenty-one of the insurance law and shall be treated as such for  all purposes, including but not limited to federal and  state  taxation,  withholding (other than federal insurance contributions act (FICA) taxes  required  for  full  time  life  insurance  agents  pursuant  to section  3121(d)(3) of the federal internal revenue code), unemployment insurance  and workers' compensation;    (ii) that the agent or broker (A) shall be paid a commission on his or  her gross sales, if any, without deduction for taxes (other than federal  insurance contributions act (FICA) taxes required  for  full  time  life  insurance  agents pursuant to section 3121(d)(3) of the federal internal  revenue code), which commission shall be directly related  to  sales  or  other  output;  (B)  shall  not  receive any remuneration related to the  number of hours worked; and (C) shall not be treated as an employee with  respect to such services for federal and state tax purposes (other  than  federal  insurance contributions act (FICA) taxes required for full time  life insurance agents pursuant to  section  3121(d)(3)  of  the  federal  internal revenue code);    (iii) that the agent or broker shall be permitted to work any hours he  or she chooses;    (iv) that the agent or broker shall be permitted to work out of his or  her own office or home or the office of the person for whom services are  performed;    (v)  that  the  person for whom the services are performed may provide  office facilities, clerical support, and supplies for  the  use  of  the  agent or broker, but the agent or broker shall otherwise bear his or her  own  expenses,  including  but  not  limited  to automobile, travel, and  entertainment expenses;    (vi) that the person for whom the services are performed and the agent  or broker shall comply with the requirements of  article  twenty-one  of  the  insurance  law  and  the  regulations  pertaining thereto, but suchcompliance shall not  affect  the  agent's  or  broker's  status  as  an  independent  contractor nor should it be construed as an indication that  the agent or broker is an employee of the person for whom  the  services  are performed for any purpose whatsoever;    (vii)  that  the  contract  and the association created thereby may be  terminated by either party thereto at any time with notice given to  the  other.    22.  Recreational  bowling.  The  term  "employment" shall not include  recreational bowling, such as bowling in a league  where  an  individual  may occasionally win prize money.

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