NY State Senate Bill 2015-S5016

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to labor
Apr 28, 2015	referred to labor

2015-S5016 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §651, Lab L
Versions Introduced in 2017-2018 Legislative Session:: S1534

2015-S5016 (ACTIVE) - Summary

Includes outside captive salespersons within the definition of an "employee".

2015-S5016 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5016

TITLE OF BILL:

An act to amend the labor law, in relation to the definition of
"employee" for the purpose of the minimum wage act

PURPOSE OR GENERAL IDEA OF BILL:

To prevent employers from denying individuals due compensation,
benefits, leave, training, supervision, access to facilities, or other
rights and privileges due to improper classification of employees as
independent contractors.

SUMMARY OF PROVISIONS:

Section 1 requires that "captive" representatives, those under a
contract or other binding obligation to sell products for one and only
one firm, be included in the New York State definition of an employee.
This is done by retaining the exclusion of outside salespeople from
the definition of employee only when such individuals are under a
non-captive agreement.

Section 2 effective date.

JUSTIFICATION:

The IRS (2014) defines independent contractors as individuals "who are
in an independent trade, business, or profession in which they offer
their services to the general public," while noting that services
cannot be said to be provided under this arrangement if they can be
controlled by an employer. According to Wood (2013), the
classification of employees as independent contractors has been a
widespread labor practice recently investigated by the United States
Department of Labor and the New York Attorney General. The Department
of Labor has collected over $18.2 million in back wages from 19,000
employees who were placed in the wrong category. Other states have
entered into deals with the DOL to crack down on this practice. The
AFL-CIO (2014) suggests that millions of employees have been hired as
independent contractors by employers in order to cut costs bypass
federal antidiscrimination and collective bargaining laws, exploit
undocumented laborers, or avoid having to pay for health benefits.

This practice is widespread across industries, occurring at 30 percent
of firms audited by the Department of Labor; over 700,000 workers in
New York could be reasonably assumed to be misclassified. In 2007, one
in four New York City construction workers was estimated by the Fiscal
Policy Institute to be operating under false terms. The federal
government was estimated to have lost $2.72 billion due to employees
filed as independent contractors in 2006 (AFL-CIO, 2014).  These
figures indicate that current labor laws contain glaring inadequacies
which allow a significant portion of New York's labor force to fall
through the cracks, often without legal recourse.  Loopholes which
allow individuals to be treated as employees without receiving proper
benefits and protections must be closed by the legislature.

PRIOR LEGISLATIVE HISTORY:


New bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Increased revenue to the state due to increases in taxable wages and
unemployment insurance contributions 2002-2005 losses to New York
State alone were estimated at $4 billion and $175 million respectively
by a 2007 Cornell University study.

EFFECTIVE DATE:

This act shall take effect January first of the calendar year
immediately following its enactment into law.

2015-S5016 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5016

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 28, 2015
                               ___________

Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to the definition of "employ-
  ee" for the purpose of the minimum wage act

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 5 of section 651 of the labor law, as amended
by chapter 481 of the laws of 2010, is amended to read as follows:
  5. "Employee" includes any individual employed or permitted to work by
an employer in any occupation, but shall not include any individual  who
is  employed or permitted to work: (a) on a casual basis in service as a
part time baby sitter in the home of the employer; (b)  in  labor  on  a
farm;  (c)  in  a  bona  fide executive, administrative, or professional
capacity; (d) as an outside [salesman] SALESPERSON IF SUCH INDIVIDUAL IS
NOT CONTRACTUALLY BOUND TO ANY PERSON, FIRM, CORPORATION OR OTHER ENTITY
AS A CAPTIVE SALESPERSON, SOLICITOR, AGENT, VENDOR, OR  OTHER  REPRESEN-
TATIVE;  (e) as a driver engaged in operating a taxicab; (f) as a volun-
teer, learner or apprentice by  a  corporation,  unincorporated  associ-
ation,  community  chest,  fund  or  foundation  organized  and operated
exclusively for religious, charitable or educational purposes,  no  part
of the net earnings of which inures to the benefit of any private share-
holder or individual; (g) as a member of a religious order, or as a duly
ordained,  commissioned  or  licensed minister, priest or rabbi, or as a
sexton, or as a christian science reader; (h) in or for such a religious
or charitable institution, which work is incidental to or in return  for
charitable  aid conferred upon such individual and not under any express
contract of hire; (i) in or for such a religious, educational or  chari-
table  institution if such individual is a student; (j) in or for such a
religious, educational or charitable institution if the earning capacity
of such individual is impaired by age or by physical or mental deficien-
cy or injury; (k) in or for a summer camp or conference of such a  reli-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08488-02-5

S. 5016                             2

gious,  educational  or  charitable  institution for not more than three
months annually; (l) as a staff counselor in a children's camp;  (m)  in
or for a college or university fraternity, sorority, student association
or  faculty  association, no part of the net earnings of which inures to
the benefit of any private  shareholder  or  individual,  and  which  is
recognized  by  such  college  or  university,  if  such individual is a
student; (n) by a federal, state or municipal  government  or  political
subdivision  thereof.  The exclusions from the term "employee" contained
in this subdivision shall be as defined by regulations  of  the  commis-
sioner;  or  (o) as a volunteer at a recreational or amusement event run
by a business that operates such events, provided that  no  single  such
event lasts longer than eight consecutive days and no more than one such
event  concerning  substantially  the  same subject matter occurs in any
calendar year. Any such volunteer shall be at least  eighteen  years  of
age. A business seeking coverage under this paragraph shall notify every
volunteer  in  writing, in language acceptable to the commissioner, that
by volunteering his or her services, such volunteer is  waiving  his  or
her  right  to  receive  the minimum wage pursuant to this article. Such
notice shall be signed and dated by a representative of the business and
the volunteer and kept on file by the business for thirty-six months.
  "Employee" also includes any individual employed or permitted to  work
in  any  non-teaching  capacity by a school district or board of cooper-
ative educational services except that the provisions  of  sections  six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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Senate Bill S5016

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

2015-S5016 (ACTIVE) - Details

2015-S5016 (ACTIVE) - Summary

2015-S5016 (ACTIVE) - Sponsor Memo

2015-S5016 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5016

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Sponsored By

Tony Avella

Archive: Last Bill Status - In Senate Committee Labor Committee

2015-S5016 (ACTIVE) - Details

2015-S5016 (ACTIVE) - Summary

2015-S5016 (ACTIVE) - Sponsor Memo

2015-S5016 (ACTIVE) - Bill Text download pdf

Comments