Current through Register Vol. 46, No. 12, March 20, 2024
(a) Every
individual is an employee if the relationship between him and the person for
whom he performs services is the legal relationship of employer and employee
and if he is in any employment defined in subdivision 6 of section 201 of the
Workers' Compensation Law or in employment with an employer who has voluntarily
elected to provide for the payment of benefits under this law.
(b) Without limitation, superintendents,
managers and other administrative personnel are employees. An officer of a
corporation is an employee of the corporation and shall be counted as such
unless he is a nominal officer or receives no wages or other remuneration for
his services. A director acting only as a director is not an
employee.
(c) Excluded from the
definition of employee, cited as examples, are the following:
1. The spouse or a minor child of the
employer for whom such person renders services.
2. A duly ordained, commissioned, or licensed
minister, priest or rabbi in the exercise of his ministry, a sexton, a
Christian Science reader or a member of a religious order in the exercise of
duties required by such order.
3. A
person engaged in a professional or teaching capacity in or for a religious,
charitable or educational institution.
4. A volunteer in or for a religious,
charitable or educational institution.
5. A person participating in and receiving
rehabilitative services in a sheltered workshop operated by a religious,
charitable or educational institution under a certificate issued by the United
States Department of Labor.
6. A
recipient of charitable aid from a religious or charitable institution who
performs work in or for the institution which is incidental to or in return for
the aid conferred and not under an express contract of hire.
7. Any individual who is an independent
contractor.
8. A livery driver
covered for work-related injuries by the Independent Livery Disability Benefits
Fund pursuant to Article 6-G of the Executive Law.
9. A black car operator covered by the Black
Car Operator's Fund pursuant to Article 6-F of the Executive Law.
10. A jockey, apprentice jockey, exercise
person, employee of a trainer or owner licensed under Article two or four of
the racing, pari-mutuel wagering and breeding law, covered by the New York
Jockey Injury Fund, Inc. pursuant to section 221 of the Racing, Pari-Mutuel
Wagering and Breeding Law.
(d) A person engaged in a professional
capacity is one:
(1) whose primary duty
consists of the performance of work:
(i)
requiring knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual
instruction and study, as distinguished from a general academic education and
from an apprenticeship and from training in the performance of routine mental,
manual or physical processes; or
(ii) original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced
by a person endowed with general manual or intellectual ability and training),
and the result of which depends primarily on the invention, imagination or
talent of the employee; and
(2) whose work is not subject to routine
supervision and which requires the consistent exercise of discretion and
judgment in its performance; and
(3) whose work is predominantly intellectual
and varied in character (as opposed to routine mental, manual, mechanical or
physical work) and is of such a character that the output produced or the
result accomplished cannot be standardized in relation to a given period of
time; and
(4) who does not devote
more than 20 percent of his hours worked in the workweek to activities which
are not an essential part of and necessarily incident to the work described in
paragraphs (1) through (3) of this subdivision.
