New York Codes, Rules and Regulations
Title 20 - DEPARTMENT OF TAXATION AND FINANCE
Chapter VII - Wage Reporting System
Part 2380 - Wage Reporting System
Section 2380.3 - Definition of employment
Universal Citation: 20 NY Comp Codes Rules and Regs ยง 2380.3
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Statutory references and rule of construction.
(1) The term employment has the meaning
prescribed by sections
511,
563 and
565 of the Labor Law.
(2) Subdivisions (b), (c) and (d) of this
section are intended to provide only a general description of the scope of
employment. Any question involving the proper construction of such term must be
resolved by reference to the statutes cited in paragraph (1) of this
subdivision.
(b) Definition of employment. Employment encompasses any service under any contract of employment for hire, express or implied, written or oral and specifically includes:
(1) agent or commission drivers
engaged in distributing meat, vegetables, fruit or bakery products; beverages
(other than milk); or laundry or dry cleaning services;
(2) professional musicians or persons
otherwise engaged in the performing arts, who perform services as such for a
television or radio station or network, a film production, a theatre, hotel,
restaurant, night club or similar establishment unless, by written contract,
such musicians or persons are stipulated to be employees of another
employer;
(3) traveling or city
salespersons who work full-time soliciting orders for merchandise for resale or
use in the purchaser's business operations; and
(4) professional models who perform modeling
services for, or who consent in writing to transfer use of their name or
likeness for purposes of advertising or trade to, a person or entity that
dictates assignments, hours of work or performance location and that
compensates them, in return for a waiver of their privacy rights, unless the
services are performed under a written contract that states that the model is
an employee of another employer.
(c) Jurisdiction.
(1) Where services are performed both within
and without New York State, the term employment includes all services performed
if:
(i) the services are localized in New York
State. Services are localized in New York State if the services performed
outside this State are incidental to the services performed within this State
(e.g., are temporary or transitory in nature or consist of isolated
transactions);
(ii) the services
are not localized in this State but the person's base of operations is in this
State and some part of the services are performed in this State;
(iii) the services are not localized in this
State and there is no base of operations in this State, but direction and
control of the services emanates from this State and some part of the services
are performed in this State;
(iv)
the services are not localized in this State, there is no base of operations in
this State and direction and control of the services does not emanate from this
State, but the person's residence is in this State and some part of the
services are performed in this State.
(2) Where services are performed without New
York State but within the United States, Canada or the Virgin Islands, and
contributions are not required with respect to such services under the
unemployment compensation law of the other state, Canada or the Virgin Islands,
the term employment includes such services if the place from which they are
directed or controlled is within this State.
(3) Where services are performed outside the
United States (except for Canada and the Virgin Islands) by a citizen of the
United States for an American employer, and contributions are not required with
respect to such services under an unemployment insurance law of another state
of the United States or of the Federal government, the term employment includes
such services if:
(i) the employer's principal
place of business in the United States is in this State; or
(ii) the employer has no place of business in
the United States but is:
(a) an individual
who is a resident of this State;
(b) a corporation organized under the laws of
this State; or
(c) a partnership or
trust and the number of partners or trustees who are residents of this State is
greater than the number who are residents of any other jurisdiction.
(4) If services are
performed entirely without this State, whether within or without the United
States, and contributions are not required with respect to any part of such
services under an unemployment compensation law of another state of the United
States or of the Federal government, the term employment includes such services
if:
(i) an election with respect to such
services has been approved by the New York State Department of Labor upon
request to it; or
(ii) a claim for
benefits under article 18 of the Labor Law has been filed.
(5) The term employment includes maritime
services on vessels of American registry, regardless of where the services are
performed, provided that the vessels are directed and controlled from an office
in this State.
(d) Exclusions.
(1) With respect to all employers
(see section
2380.2 of
this Part), the term employment does not include:
(i) agricultural labor, unless the employer
becomes liable for unemployment insurance contributions pursuant to section
564
of the Labor Law (see section
2380.2[c][4]
of this Part), or the employer of agricultural labor elects to have such labor
treated as employment and the New York State Department of Labor approves such
election in writing;
(a) for purposes of this
Part, the term agricultural labor includes all service performed:
(1) on a farm, in connection with cultivating
the soil or raising or harvesting any agricultural or horticultural
commodity;
(2) in the employ of the
owner or tenant or other operator of a farm, in connection with the operation,
management, conservation, improvement or maintenance of such farm and its tools
and equipment, or in salvaging timber or clearing land of brush and other
debris left by a hurricane, if the major part of such service is performed on a
farm; or
(3) in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing or
delivering to storage or to market or to a carrier for transportation to
market, any agricultural or horticultural commodity; but only if such service
is performed as an incident to farming operations or, in the case of fruits and
vegetables, as an incident to the preparation of such fruits and vegetables for
market;
(ii)
service for an employer by his or her spouse or child under the age of
21;
(iii) employment subject to the
Federal Railroad Unemployment Insurance Act;
(iv) services rendered for an educational
institution by a student who is enrolled and in regular attendance at such
institution, or by the student's spouse employed by such institution if the
spouse is advised at the time of hire that the employment is provided under a
program of financial assistance to the student;
(v) services rendered by a student who is
enrolled at a non-profit or public educational institution which combines
academic instruction with work experience;
(vi) services of a freelance shorthand
reporter rendered pursuant to any agreement, written or oral, with another
freelance shorthand reporter or a freelance shorthand reporting service;
and
(vii) services of a licensed
real estate broker or sales associate if substantially all remuneration for the
services performed is related to sales or other output rather than to number of
hours worked and the services are performed pursuant to a written contract as
provided for in section 511.19 of the Labor Law.
(2) With respect to all employers except for
non-profit organizations and governmental entities (see section
2380.2[b]of
this Part), the term employment does not include:
(i) service as a golf caddy;
(ii) services rendered as a part-time worker
by a daytime student in elementary or secondary school;
(iii) services as a babysitter by a minor at
the home of the employer;
(iv)
services of a person under age 21 engaged in casual labor consisting of yard
work and household chores about a residence; and
(v) services of a child under the age of
14.
(3)
(i) With respect to non-profit organizations
only, the term employment does not include services rendered for such
organization by:
(a) a duly ordained minister
in the exercise of his or her ministry;
(b) a member of a religious order in the
performance of his or her duties;
(c) a lay member elected or appointed to an
office within the discipline of a bona fide church and engaged in religious
activities;
(d) a person employed
at a place of religious worship as a caretaker or for the performance of duties
of a religious nature;
(e) a person
receiving rehabilitative services in a facility conducted for such
purposes;
(f) a person given
remunerative work in a facility conducted for the purpose of providing such
work for persons of impaired physical or mental capacity;
(g) inmates of a custodial or penal
institution; and
(h) a participant
in a Youth Services Program.
(ii) Notwithstanding the provisions of
subparagraph (i) of this paragraph, the services of a person performed at a
place of religious worship as a caretaker or for the performance of duties of a
religious nature, or both, shall be deemed employment if the employer makes
application to this effect and the Commissioner of Labor approves such
application in writing.
(4) With respect to governmental entities
only, the term employment does not include services rendered for such an entity
by:
(i) an elected official;
(ii) a member of a legislative body or the
judiciary;
(iii) a member of the
State National Guard or Air National Guard, except a person who renders such
services as a regular State employee;
(iv) an individual hired on a temporary basis
in case of fire, snow, earthquake, flood or similar emergency;
(v) a person in a major, nontenured,
policymaking or advisory position;
(vi) a person in a policymaking or advisory
position whose official duties do not require more than eight hours a week to
perform; and
(vii) an inmate of a
custodial or penal institution.
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