N.Y. Comp. Codes R. & Regs. tit. 20 § 2380.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2380.3 - Definition of employment

(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.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 2380.3