Current through Register Vol. 46, No. 12, March 20, 2024
(a) Service for
wages as defined in subdivision 11 of section 201 of the Workers' Compensation
Law performed in any trade, business or occupation carried on by the employer,
whether or not for profit, constitutes employment.
(b) Domestic service in a private home
constitutes employment and such service includes, without limitation, service
as a cook, laundress, cleaning woman, maid, butler, gardener, handyman,
chauffeur or valet.
(c) Temporary
employment means the employment for a temporary period of an employee, not in
casual employment, who is regularly in employment as defined in subdivision 6
of section 201 of the Workers' Compensation Law or regularly in the labor
market. Temporary employment is not an exempt employment.
(d) A student is deemed not to be in
employment under this law if:
(1) he is in
regular attendance during the daytime as a student in an elementary or
secondary school and performs services as a part-time worker during all or part
of the school year or regular vacation periods; or
(2) he is in regular attendance during the
daytime as a student in an elementary or secondary school and is working under
a cooperative work-study program approved by the State Commissioner of
Education and regularly operated and supervised by a local board of education.
Determination as to whether a person is or is not a
"student" may be affected by the worker's intent as disclosed by all of the
circumstances, that is, whether the work is a temporary job or work taken on
and performed with usual school work and subordinate thereto.
(e) If an employer in good faith
engages in two or more unrelated types or kinds of trade, business or
occupation, each such unrelated trade, business or occupation shall be deemed
an employment, regardless of whether carried on at one or more places of
employment.
(f) Where any of the
tests applied under subdivision 6(c)(1), (2) or (3) of section 201 of the
Workers' Compensation Law have been met, all employment of the employee is
included under the term employment, even though some of the services are
performed outside this State.
(g)
The following are excluded from the definition of employment:
(1) Services performed for the State, a
municipal corporation, a local governmental agency or other political
subdivision or public authority, except that, pursuant to section 212 of the
Workers' Compensation Law, a public authority, municipal corporation, fire
district or other political subdivision may elect to become a covered
employer.
(2) Employment subject to
the Federal Railroad Unemployment Insurance Act.
(3) Service performed as an officer or member
of the crew of a vessel and service performed on a vessel by any other person
who is also eligible for wages, maintenance and care under the General Maritime
Law.
(4) Service as a farm
laborer.
(5) Services as golf
caddies.
(6) Casual employment.
(i) Any employments in which hiring is for a
daily period, or for a period of less than a day, and in which it is a usual
employment practice to recruit occasional workers who are normally engaged in
performing services in a different occupation, the labor and services of such
workers for less than 30 days in a calendar year are to be construed as casual
employment.
(ii) Labor or services
not in a regular and usual course of the employer's trade, business or
occupation, and which are occasional or incidental, is to be construed as
casual employment; but an employment which recurs frequently and is
characteristic of the employer's regular and usual conduct of his business is
not to be construed as casual employment, except as provided in subparagraph
(i) of this paragraph.
(7) Extra employment.
(i) Extra employment means employment in the
regular and usual course of the employer's trade, business or occupation for
limited special periods of persons not regularly in the labor market or not
regularly in employment as defined in subdivision 6 of section 201 of the
Workers' Compensation Law. The first 45 days of extra employment, which is not
deemed employment under the law, means 45 days during which the employee
performs services for a single employer during a bona fide single period of
employment.
(ii) In determining
whether an employee is in extra employment, consideration shall be given to
evidence of past work record, registration at a labor employment office,
frequency and regularity of application for employment and other relevant
circumstances. Written statements submitted to the employer by the employee at
or about the time of employment, setting forth pertinent facts, shall be
considered presumptive evidence of whether or not the employee is in extra
employment.
(h) Whenever an employer claims that any
employment is not an employment under this law, the burden shall be on the
employer to prove the exemption claimed.
