Bill S2715-2013

Excludes from the definition of employee certain harness race drivers

Excludes from the definition of employee such services rendered by a harness race driver, only a groom or caretaker of a temporary designated trainer of a harness race horse, a shipper or transporter of a harness race horse, a farrier of a harness race horse, or a veterinarian to a harness race horse.

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  • Jan 23, 2013: REFERRED TO LABOR

Memo

BILL NUMBER:S2715

TITLE OF BILL: An act to amend the workers' compensation law, in relation to exclusions to the definition of employee for workers' compensation purposes

PURPOSE: Excludes from the definition of employee certain harness race drivers.

SUMMARY OF PROVISIONS:

Section 1 subdivision 4 of section 2 of the workers' compensation law is amended by adding five new undesignated paragraphs focusing on the employment status of harness race drivers; the legal relationship between grooms and/or caretakers and designated and/or substituted trainers; and the independent contractor status of shippers, farriors and veterinarians that provide services to harness race horses.

JUSTIFICATION: The legal determination of whether an employer/employee relationship exists focuses on the issue of control. In general, under New York law an employee is a person who contracts to work for an employer and is under the employer's control with respect to "the results produced...or the means use to achieve the results". The principal consideration is the employers control over the individual's work. In the case of the employee, that control is present. In the case of the independent contractor, it is absent. This bill is being introduced in response to concerns throughout the industry about the escalating costs of Workers' Compensation insurance, the lack of uniformity in the audit practice. The proposal seeks to provide critical guidance and clarity in an area of increasing uncertainty, bringing uniformity and certainty to these particular employment relationships based on time-honored law.

EXISTING LAW: 2010: S.7072 Held in Labor

LEGISLATIVE HISTORY: S.3701 03/02/11 - Referred to Labor S.3701 01/04/12 - Referred to Labor

FISCAL IMPLICATIONS: To be determined.

LOCAL FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This act shall a take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 2715 2013-2014 Regular Sessions IN SENATE January 23, 2013 ___________
Introduced by Sen. ADAMS -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to exclusions to the definition of employee for workers' compensation purposes THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 4 of section 2 of the workers' compensation law is amended by adding five new undesignated paragraphs to read as follows: NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE TERM "EMPLOY- EE" SHALL NOT INCLUDE THE SERVICES OF A HARNESS RACE DRIVER IF IT BE PROVEN THAT: (A) SUBSTANTIALLY ALL OF THE COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES PERFORMED BY SUCH HARNESS RACE DRIVER IS RELATED TO HIS OR HER PERFORMANCE IN THE HARNESS RACE RATHER THAN THE NUMBER OF HOURS WORKED; (B) THE HARNESS RACE DRIVER IS FREE TO ACCEPT OR DECLINE ANY REQUEST TO DRIVE HORSES; (C) THE HARNESS RACE DRIVER IS FREE TO DRIVE HORSES FOR THE OWNER AND/OR TRAINERS OF HIS OR HER CHOOSING AND/OR ENGAGE IN OTHER EMPLOY- MENT; (D) THE HARNESS RACE DRIVER MAY UNILATERALLY DETERMINE WHEN AND WHERE HE OR SHE WILL WORK; (E) THE HARNESS RACE DRIVER IS RESPONSIBLE FOR HIS OR HER OWN EXPENSES; (F) THE HARNESS RACE DRIVER IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN VEST, HELMET AND WHIP; (G) THE HARNESS RACE DRIVER IS FREE TO TERMINATE HIS OR HER SERVICES AT ANY TIME; AND
(H) THE PERSON OR ENTITY THAT RETAINS THE HARNESS RACE DRIVER TO PROVIDE SERVICES IS NOT TREATED BY SUCH PERSON OR ENTITY AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR FEDERAL OR STATE TAX PURPOSES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, A GROOM AND/OR CARETAKER OF A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IF IT BE PROVEN THAT: (A) THE COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES PERFORMED BY SUCH GROOM AND/OR CARETAKER RELATING TO THE HARNESS RACE HORSE IS NOT PAID BY THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF SUCH HARNESS RACE HORSE; (B) THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE DOES NOT CONTROL THE WORKING HOURS OF THE GROOM AND/OR CARE- TAKER; (C) THE GROOM AND/OR CARETAKER PROVIDING SERVICES TO THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IS FREE TO PROVIDE HIS OR HER SERVICES TO OTHER TRAINERS (INCLUDING OTHER DESIG- NATED TRAINERS AND/OR SUBSTITUTE TRAINERS) OF HARNESS RACE HORSES; (D) THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE PROVIDES NO EQUIPMENT OR SUPPLIES TO THE GROOM AND/OR CARE- TAKER PROVIDING SERVICES TO THAT DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER; (E) THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IS NOT RESPONSIBLE AND DOES NOT REIMBURSE THE GROOM AND/OR CARETAKER FOR HIS OR HER EXPENSES; AND (F) THE GROOM AND/OR CARETAKER PROVIDING SERVICES TO THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IS NOT TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR FEDERAL OR STATE TAX PURPOSES BY THE DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A SHIPPER OR TRANSPORTER OF A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IF IT BE PROVEN THAT: (A) SUBSTANTIALLY ALL OF COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES PERFORMED BY THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS DIRECTLY RELATED TO MILEAGE OR SOME OTHER TYPE OF AGREED- UPON RATE THAT IS NOT RELATED TO ACTUAL HOURS WORKED; (B) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS FREE TO PROVIDE SERVICES TO CUSTOMERS OF ITS CHOOSING AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS; (C) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE MAY UNILATER- ALLY DETERMINE WHEN AND WHERE IT WILL WORK; (D) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS RESPONSI- BLE FOR ITS OWN EXPENSES; (E) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS RESPONSI- BLE FOR FURNISHING ITS OWN EQUIPMENT AND/OR VEHICLE; (F) THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE IS FREE TO TERMINATE ITS SERVICES AT ANY TIME; AND (G) THE PARTY THAT RETAINS THE SERVICES OF THE SHIPPER OR TRANSPORTER OF THE HARNESS RACE HORSE DOES NOT TREAT SUCH SHIPPER OR TRANSPORTER AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICE FOR FEDERAL AND STATE TAX PURPOSES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A FARRIER WHOSE SERVICES ARE RENDERED TO A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IF IT BE PROVEN THAT:
(A) SUBSTANTIALLY ALL OF COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES RENDERED BY THE FARRIER TO THE HARNESS RACE HORSE IS RELATED TO A NEGOTIATED FEE OR ONE SET BY THE FARRIER AND IS NOT RELATED TO ACTUAL HOURS WORKED; (B) THE FARRIER RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE IF FREE TO PROVIDE HIS OR HER SERVICES TO CUSTOMERS OF HIS OR HER CHOOSING, INCLUDING PROVIDING FARRIER SERVICES TO ANY OTHER HARNESS RACE HORSE AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS; (C) THE FARRIER RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE MAY UNILATERALLY DETERMINE WHERE AND WHEN HE OR SHE WILL WORK; (D) THE FARRIER RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE IS RESPONSIBLE FOR HIS OR HER EXPENSES; (E) THE FARRIER RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN EQUIPMENT; (F) THE FARRIER RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE IS FREE TO TERMINATE OR DECLINE TO PROVIDE HIS OR HER SERVICES AT ANY TIME; AND (G) THE PARTY THAT RETAINS THE SERVICES OF THE FARRIER DOES NOT TREAT HIM OR HER AS AN EMPLOYEE FOR FEDERAL AND STATE TAX PURPOSES WITH RESPECT TO HIS OR HER SERVICES PROVIDED TO THE HARNESS RACE HORSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE SERVICES OF A VETERINARIAN RETAINED TO TREAT A HARNESS RACE HORSE SHALL NOT BE DEEMED AN "EMPLOYEE" OF A DESIGNATED TRAINER AND/OR SUBSTITUTE TRAINER OF THE HARNESS RACE HORSE IF IT BE PROVEN THAT: (A) SUBSTANTIALLY ALL OF COMPENSATION (WHETHER OR NOT PAID IN CASH) FOR THE SERVICES RENDERED BY THE VETERINARIAN TO THE HARNESS RACE HORSE IS RELATED TO A FEE NEGOTIATED OR SOME OTHER TYPE OF AGREED-UPON RATE AND IS NOT RELATED TO ACTUAL HOURS WORKED; (B) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE HORSE IS FREE TO PROVIDE HIS OR HER SERVICES TO CUSTOMERS OF HIS OR HER CHOOSING, INCLUDING PROVIDING VETERINARIAN SERVICES TO ANY OTHER HARNESS RACE HORSE AND/OR TO ENTER INTO OTHER EMPLOYMENT RELATIONSHIPS; (C) THE VETERINARIAN RETAINED TO PROVIDE SERVICES FOR THE HARNESS RACE HORSE MAY UNILATERALLY DETERMINE WHERE AND WHEN HE OR SHE WILL WORK; (D) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE HORSE IS RESPONSIBLE FOR HIS OR HER EXPENSES; (E) THE VETERINARIAN RETAINED TO PROVIDE SERVICES TO THE HARNESS RACE HORSE IS RESPONSIBLE FOR FURNISHING HIS OR HER OWN EQUIPMENT; (F) THE VETERINARIAN PROVIDING SERVICES TO THE HARNESS RACE HORSE IS FREE TO TERMINATE PROVIDING HIS OR HER SERVICES AT ANY TIME; AND (G) THE PARTY THAT RETAINS THE SERVICES OF THE VETERINARIAN DOES NOT TREAT HIM OR HER AS AN EMPLOYEE FOR FEDERAL AND STATE TAX PURPOSES WITH RESPECT TO HIS OR HER SERVICES PROVIDED TO THE HARNESS RACE HORSE. S 2. This act shall take effect immediately.

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