What's happening
This bill amends labor law to clarify when a business entity is considered independent in the construction industry, allowing written contracts to specify service requirements.
Why it matters
Clarifies the criteria for independent contractor status in construction. The bill specifies that a business entity can still be considered independent even if a written contract outlines how and when services must be performed, as long as the contract comes from the project owner and/or specifies results and deadlines.
Provides legal certainty for businesses and contractors. By allowing written agreements to set out service requirements without automatically triggering an employer-employee relationship, the bill reduces risk of misclassification claims for contractors and hiring businesses.
Supports collaboration among contractors. The amendment explicitly allows multiple contractors to work together under a written agreement without undermining their independent status, which could foster more flexible and cooperative project arrangements in the construction industry.
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Who cares
Headline styles
Clarify Construction Worker Status
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to labor
- Referred to labor
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
342
2019-2020 Regular Sessions
IN SENATE (Prefiled)
January 9, 2019
Introduced by Sen. AKSHAR -- read twice and ordered printed, and when printed to be committed to the Committee on Labor
AN ACT to amend the labor law, in relation to the presumption of employment in the construction industry
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraph (a) of subdivision 2 of section 861-c of the labor law, as added by chapter 418 of the laws of 2010, is amended to read as follows:
(a) the business entity is performing the service free from the direction or control over the means and manner of providing the service, subject to requirements as to the means and manner of providing the service prescribed by the owner in a written contract for the service, and subject only to the right of the contractor for whom the service is provided to specify the desired result and the timeframe for completion; provided, however, the foregoing shall not prevent contractors from collaborating on the performance of a service subject to a written agreement;
§ 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05169-01-9
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the labor law, in relation to the presumption of employment in the construction industry
Purpose or general idea of bill
To provide technical amendments to the New York State Construction Industry Fair Play Act to ensure that requirements for providing a service prescribed by the owner in a written contract or the timeframe for completion of a construction do not constitute direction and control over the means and manner of providing a service. It also specifically permits a contractor with written agreement to collaborate with another contractor in providing services.
Summary of specific provisions
Section 1 amends Section paragraph a of subdivision 2 of section 861-C of the labor law to provide that performance of a service by the contractor is free from direction and control where the owner provides in a written contract with the contractor any requirements as to the means and manner of the service. In the case where there is a time frame provided for completion of the service, it does not constitute direction and control over the means and manner of providing service. It also makes it clear that where contractors who perform the same type of work may collaborate on performance of service subject to a written agree- ment.
Read the full memo (652 words)
Section 2 of the bill states the effective date.
Justification
This bill makes technical amendments to the New York State Construction Industry Fair Play Act to delineate specific situations where a contrac- tor is performing a service free from direction or control over the means and manner of providing the service. Auditors from the Department of Labor reviewing construction jobs to determine if the tests providing guidance on the presumption of employment should have specific guidance on recurring situations to provide uniformity in the application of the statue.
If an owner in his contract with the contractor provides for specifics as to the means and manner of providing a service, this should not be equivalent to a contractor directing a sub-contractor to use certain means and manner as it is a contractual obligation. The contractor is legally obligated to comply with the provisions of the contract. Upon audit the Labor Department can review the contract with the owner to confirm such requirements. The contractor should not be subject to a violation for compliance with a contract.
The specification by the contractor to a sub-contractor of time for completion of a specific construction work should not be interpreted as a control over the means and manner of providing the service. It simply amounts to a completion date requirement, which is not directed at means and manner of services. Rather, the contractor is managing duty does not spill over to direction and control of the means and manner of services. A completion date is a standard construction requirement with no bearing
on determining whether a worker is an independent contractor or employ- ee.
A contractor or sub-contractor performing services sometimes find that they do not have a sufficient workforce available to comply with the completion of particular services. To meet the workforce shortage a contractor will engage another independent contractor to provide assist- ance in meeting the timeline for completion of services. This situation often arises in construction jobs, particularly where the contractor is involved in multiple projects. This bill would permit contractors to collaborate on the performance of services provided that there is writ- ten agreement with the other contractor. The auditor from the Department of Labor would be able to verify the collaboration through the written agreement and an examination as to whether the contractor was otherwise independent, even though the collaborating contractor provided similar services. Allowing for collaboration is particularly helpful for small contractors. The Fair Ply Act should not discourage such legitimate arrangements.
Prior legislative history
S8799 of 2018: Referred to Labor
Fiscal implications for state and local governments
None.
Effective date
Immediately.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.