S268-2011 Actions

• Jan 4, 2012: REFERRED TO CIVIL SERVICE AND PENSIONS
• Mar 31, 2011: COMMITTEE DISCHARGED AND COMMITTED TO CIVIL SERVICE AND PENSIONS
• Feb 22, 2011: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
• Jan 5, 2011: REFERRED TO FINANCE

S268-2011 Memo

BILL NUMBER:S268           REVISED 12/30/11

TITLE OF BILL:

An act
to amend the executive law and the workers' compensation law, in
relation to workers' compensation benefits  secured
by the New York black car
operators' injury compensation fund, inc.

PURPOSE:

To clarify existing law that workers' compensation benefits secured by
the New York Black Car Operators' Injury Compensation Fund, Inc. (the
"Fund") pursuant to Executive Law Article 6-F is designed to only
cover black operators whose injuries arose out of and in the course
of providing covered services while on a dispatch from a central
dispatch facility.

SUMMARY OF PROVISIONS:

Section 1 Amends Section 160-cc (4) of the Executive Law. Clarifies
that the definition of covered services means a black car operator
while on a dispatch from a central dispatch facility.

Section 2 Amends Section 160-cc (6) (7) (8) of the Executive Law;
renumbers such subdivisions to (7) (8) and (9); adds a new
subdivision (6). Defines the term "dispatch" to mean a black car
operator who is in the course of picking up, transporting or
discharging a passenger or package or other items at the express
direction of a central dispatch facility or such other meaning as
established by regulation proposed by the Fund and adopted by the
Department of State.

Sections 3 to 6 Amends Sections 2 (3), 2 (4), 2 (5) and 11 of the
Workers' Compensation Law.
Clarifies that the Fund is deemed to be the "employer" of a black car
operator and such operator is deemed to be an "employee" and in the
"employment" of the Fund only while such operator is providing
covered services. Additionally, a black car operator providing
services for a central dispatch facility refers to covered services.

Section 7 Effective Date

EXISTING LAW:

Executive Law Article 6F; New York Black Car Operators' Injury
Compensation Fund, Inc.

JUSTIFICATION:

Chapter 49 of the Laws of 1999 created the New York Black Car
Operators' Injury Compensation Fund, Inc. The Fund is organized as a
not-for-profit corporation pursuant to Executive Law Article 6-F for
the purpose of establishing a fund for the provision of workers'
compensation coverage for black car operators, and is an important


benefit consistent with the business interests of central dispatch
facilities. The cost is borne by the passenger in the car as the
recipient of the benefits of the services. The Appellate Division for
the 3rd Department, in Aminov v. New York Black Car Operators Injury
Compensation Fund, Inc., 2 A.D.2d 1007, 768 N.Y.S.2d 530 (3d Dept.
2003), broadly interpreted the term covered services under Executive
Law Section 160-cc(4) to encompass a black car operator who simply
logged onto the central dispatch facility, and therefore was not
engaged in the delivery of services to a passenger. The decision of
the Court in Aminov overlooks the legislative intent of Chapter 49
and is at odds with the plain language of Executive Law Section
160-cc( 4), which was intended to provide that black car operators
are covered only for injuries that arose out of and in the course of
a dispatch assignment. Black car operators
are more analogous to independent contractors in they generally keep
their own hours and autonomously decide whether to receive equitable
treatment when they are injured in the course of picking up,
transporting or discharging passengers on behalf of a central
dispatch facility.

LEGISLATIVE HISTORY:

2011:    S.268  - Discharged from Finance and Committed to
         Civil Service and Pensions
2010:    S.2173 - Referred to Finance/A.366 Enacting Clause Stricken
2009:    S.2173 - Referred to Finance/A. 366 - Referred to Labor
2007-08: S.6260 - Passed Senate/A.9153 Passed Assembly; Veto
160

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

This act shall take effect immediately.

S268-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                          268
 2011-2012 Regular Sessions
 I N  SENATE
 (PREFILED)
 January 5, 2011
 
 Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
 printed to be committed to the Committee on Finance
 

AN ACT to amend the executive law and the workers' compensation law,  in
 relation  to  workers' compensation benefits   secured by the New York
 black car operators' injury compensation fund, inc.
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Subdivision  4 of section 160-cc of the executive law, as
 added by chapter 49 of the laws of 1999, is amended to read as follows:

 4. "Covered services" means ONLY A BLACK CAR OPERATOR WHO  IS  IN  THE
 COURSE  OF  A  DISPATCH, with respect to dispatches from or by a central
 dispatch facility located in the state, all dispatches from such central
 dispatch facility regardless of where the pick-up or  discharge  occurs,
 and,  with  respect to dispatches from or by a central dispatch facility
 located outside the state, all dispatches involving  a  pick-up  in  the
 state, regardless of where the discharge occurs.
 

S 2. Subdivisions 6, 7, 8 and 9 of section 160-cc of the executive law
 are  renumbered  subdivisions  7, 8, 9 and 10 and a new subdivision 6 is
 added to read as follows:

 6. "DISPATCH" OR "DISPATCHES" SHALL MEAN A BLACK CAR OPERATOR  WHO  IS
 IN  THE COURSE OF PICKING UP, TRANSPORTING OR DISCHARGING A PASSENGER OR
 PACKAGE OR OTHER ITEM AT THE EXPRESS DIRECTION  OF  A  CENTRAL  DISPATCH
 FACILITY  OR SUCH OTHER MEANING AS ESTABLISHED BY REGULATION PROPOSED BY
 THE BOARD OF DIRECTORS OF THE FUND AND  ADOPTED  BY  THE  DEPARTMENT  IN
 ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-NN OF THIS ARTICLE.
 

S  3.  The second undesignated paragraph of subdivision 3 of section 2
 of the workers' compensation law, as amended by chapter 392 of the  laws
 of 2008, is amended to read as follows:

 Notwithstanding  any other provision of this chapter, and for purposes
 of this chapter only, the employer of a  black  car  operator  PROVIDING
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD02215-01-1
 
       S. 268                              2
 COVERED  SERVICES,  as  defined  in  article six-F of the executive law,
 shall, on and after the fund liability date, as defined in such article,
 be the New York black car  operators'  injury  compensation  fund,  inc.
 created pursuant to such article.
 

S  4. The seventh undesignated paragraph of subdivision 4 of section 2
 of the workers' compensation law, as added by chapter 49 of the laws  of
 1999, is amended to read as follows:

 Notwithstanding  any other provision of this chapter, and for purposes
 of this chapter only, a black car operator PROVIDING  COVERED  SERVICES,
 as  defined  in  article six-F of the executive law, shall, on and after
 the fund liability date, as defined in such article, be an "employee" of
 the New York black car operators' injury compensation fund, inc. created
 pursuant to such article.
 

S 5. The fourth undesignated paragraph of subdivision 5 of  section  2
 of  the workers' compensation law, as added by chapter 49 of the laws of
 1999, is amended to read as follows:

 Notwithstanding any other provision of this chapter, and for  purposes
 of  this  chapter only, a black car operator PROVIDING COVERED SERVICES,
 as that term is defined in article six-F of the executive law, shall, on
 and after the fund liability date, as that term is defined in such arti
 cle, be regarded as in the "employment" of the New York black car opera
 tors' injury compensation fund, inc. created pursuant to such article.
 

S 6. The fifth undesignated paragraph of section 11  of  the  workers'
 compensation law, as added by chapter 49 of the laws of 1999, is amended
 to read as follows:

 The  liability under this chapter of the New York black car operators'
 injury compensation fund, inc. shall be limited  to:  (i)  securing  the
 payment of workers' compensation in accordance with article six-F of the
 executive  law  to  black  car  operators PROVIDING COVERED SERVICES, as
 defined in such article, whose injury arose out of and in the course  of
 providing  ONLY  COVERED  services  for  a central dispatch facility, as
 defined in such article, that is a registered member of such  fund,  and
 (ii)  any  statutory  penalty  resulting from the failure to secure such
 payment. The liability under this chapter of a central dispatch  facili
 ty,  as  defined in article six-F of the executive law, that is a regis
 tered member of the New York black car  operators'  injury  compensation
 fund,  inc.  that  shall  be limited to remaining a registered member in
 good standing of such fund and any statutory penalty, including loss  of
 immunity  provided by this section, resulting from the failure to become
 or remain a registered member in good standing  of  such  fund,  except,
 however,  that  such  central  dispatch facility shall be subject to the
 provisions of section one hundred thirty-one of this chapter  and  shall
 be  liable for any payments for which it may become responsible pursuant
 to such section or pursuant to section fourteen-a of this chapter.
 

S 7. This act shall take effect immediately.

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