N.Y. Comp. Codes R. & Regs. tit. 12 § 309.2

Current through Register Vol. 46, No. 25, June 18, 2024

Section 309.2 - Independent livery base

(a) A livery base may join the fund only if it is designated by the board as an independent livery base.

(b) A livery base will only be designated as an independent livery base if:

(1) the livery base submits to the board an affirmation sworn to under penalty of perjury by an officer or director on a board prescribed form attesting that it meets the criteria to be an independent livery base set forth in subdivision (c) of this section;

(2) the livery base agrees to provide the board and fund with written notice of any inaccuracies in the information in the affirmation within five business days of discovery or knowledge of the inaccuracies;

(3) the livery base agrees to provide the board and fund with written notice of any changes in the information in the affirmation within 10 business days of such changes; and

(4) the board designates the livery base as an independent livery base after receipt and review of the affirmation required by paragraph (1) of this subdivision.

(c) A livery base shall only be designated as an independent livery base if it meets all of the following criteria:

(1) the livery base is not classified by the governing taxi and limousine commission as a black car base or luxury limousine base and is not a member of the New York Black Car Operators' Injury Compensation Fund, Inc.;

(2) all livery drivers dispatched by the livery base provide and determine their own clothing;

(3) all livery drivers dispatched by the livery base set their own hours and days of work;

(4) all livery drivers choose which dispatches or fares to accept, and no livery driver suffers any consequence by the livery base for failing to respond to its dispatch, except that every livery driver must comply with all requirements of his or her governing taxi and limousine commission regarding acceptance of dispatches, fares, trips, passengers and destinations. A livery base may temporarily deny access to its dispatches for failing to respond to a dispatch in violation of local and State laws or governing taxi and limousine commission rules and regulations regarding refusing dispatches without affecting its ability to be an independent livery base;

(5) all livery drivers may affiliate with one or more other livery bases, except if prohibited by rules or regulations of the governing taxi and limousine commission;

(6) either the livery driver or livery base may terminate their affiliation at any time, except that a livery base must terminate its relationship with the livery driver in accordance with any rules and regulations of the governing taxi and limousine commission;

(7) the livery base is not, directly or indirectly, including through any director, shareholder, partner, member or officer, the owner or registrant of more than 50 percent of the liveries dispatched by the livery base;

(8) the livery base is not, directly or indirectly, including through any director, shareholder, partner, member or officer, paying or participating in paying for the purchase, maintenance, repair, insurance, licensing, or fuel, of more than 50 percent of the liveries dispatched by the livery base;

(9) no livery driver dispatched by the livery base receives an Internal Revenue Service form W-2 from such base, or is subject to the withholding of any Federal income taxes by the livery base, except as provided in paragraph (10) of this subdivision;

(10) if the livery base is the owner or registrant of less than 50 percent of the liveries dispatched by that livery base and it issues an Internal Revenue Service form W-2 to a livery driver or livery drivers, or withholds any Federal income taxes for a livery driver or livery drivers, such livery base must provide workers' compensation coverage for that livery driver or those livery drivers that is separate from the fund; and

(11) the livery base does not impose any fines or penalties or both on any livery drivers, except the livery base may impose fines or penalties or both on a livery driver for violating the rules and regulations of the governing taxi and limousine commission regarding the conduct of livery drivers while performing their duties as livery drivers and in order to recover the cost of any fines or penalties or both imposed on the livery base by the governing taxi and limousine commission due to the behavior of that livery driver that violated the rules and regulations of the governing taxi and limousine commission.

(d) Termination of membership in the fund.

(1) Nonpayment. If an independent livery base fails to pay the annual payment, any additional payment or any part of such payments pursuant to an installment agreement to the fund, the fund, its insurance carrier, or other designated agent may terminate the independent livery base's membership in the fund by sending written notice to the livery base that its membership in the fund will be terminated on a date, specified in the notice, that is no less than 10 days after the date the notice was served on the independent livery base and the chair. The notice must state that upon the termination of its membership in the fund, the livery base will be deemed the employer of all of its livery drivers and must obtain workers' compensation coverage for them. If service is made by mail, the fund must allow five days for delivery. Failure to provide written notice to the livery base that its membership in the fund will be terminated on a date, specified in the notice, that is no less than 10 days after the date the notice was served on the independent livery base, will result in the livery base's membership in the fund continuing until such notice can be provided in accordance with this paragraph, unless the fund, its insurance carrier, or other designated agent can show actual notice by the livery base of the termination of its membership in the fund. A copy of the written notice shall be sent to the governing tax and limousine commission on the same date it is sent to the livery base and the chair.

(2) Designation revoked. Before revoking a livery base's designation as an independent livery base, the board will provide written notice of the charges to the independent livery base and conduct a hearing to determine the validity of the charges. If the board revokes a livery base's designation as an independent livery base, the board will send a copy of the decision revoking the designation to the fund at the same time it sends the decision to the livery base. The fund upon receiving the decision revoking the designation of the livery base as an independent livery base will send written notice to the livery base, the board and the governing taxi and limousine commission that the livery base will cease to be a member of the fund 30 days after the date of the notice. The notice will also state that the livery base is not entitled to the return of money paid to the fund. Within 20 days after the board issues its decision revoking a livery base's designation as an independent livery base, a livery base may appeal that decision to the Third Department of the Appellate Division. Failure to provide written notice to the livery base that it will cease to be a member of the fund 30 days after the date in the notice, will result in the livery base's membership in the fund continuing until such notice can be provided in accordance with this paragraph, unless the fund, its insurance carrier, or other designated agent can show actual notice by the livery base that its membership in the fund ceased.

(3) If an independent livery base decides to terminate its membership in the fund, it must provide written notice to the fund, chair and governing taxi and limousine commission at least 30 days prior to the date its membership in the fund will end. The notice must state the date its membership in the fund will terminate, whether it will continue to operate as a livery base, and if it will continue to operate as a livery base information regarding how it will provide workers' compensation coverage for its livery drivers, including but not limited to, name of provider of workers' compensation coverage, policy number, effective date of coverage and, if applicable, proof that all affiliated drivers will be or have been added to existing workers' compensation coverage. Failure to provide at least 30 days' written notice to the fund, chair and governing taxi and limousine commission will result in the livery base's membership in the fund continuing until such notice can be provided in accordance with this paragraph.

(e) Any livery base that is not designated by the board as an independent livery base shall be deemed an employer or purposes of the Worker's Compensation Law of any livery driver it dispatches and therefore is responsible for providing workers' compensation coverage for such livery drivers.

(f) Any livery base that is designated by the board as an independent livery base and that has joined the fund shall not charge any driver for any portion of the cost of joining and/or being a member of the fund.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 309.2