Section 511. Employment

1. General definition. "Employment" means (a) any
  service under any contract of employment for hire, express  or  implied,
  written, or oral and
    (b) any service by a person for an employer
    (1)  as  an  agent-driver or commission-driver engaged in distributing
  meat, vegetable, fruit, or bakery products; beverages other  than  milk;
  or laundry or dry-cleaning services; or
    (1-a)  as a professional musician or a person otherwise engaged in the
  performing arts, and performing 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  musician  or  person is stipulated to be an employee of
  another employer covered by this chapter.  "Engaged  in  the  performing
  arts"  shall  mean performing services in connection with the production
  of or performance in any artistic endeavor which  requires  artistic  or
  technical skill or expertise; or
    (2)  as  a  traveling or city salesman engaged on a full-time basis in
  soliciting orders for merchandise for resale or supplies for use in  the
  purchaser's  business operations if the contract of service contemplates
  that substantially all of such services are to be  performed  personally
  by  such  person;  such person does not have a substantial investment in
  facilities used in connection with the  performance  of  such  services,
  excepting facilities for transportation; and the services are not in the
  nature  of  a  single  transaction  which  is  not  part of a continuing
  relationship with the employer.
    (3) as a professional model, where:
    (i) the professional model performs modeling services for; or
    (ii) consents in writing to the transfer of his or her exclusive legal
  right to the use of his or her name, portrait,  picture  or  image,  for
  advertising purposes or for the purposes of trade, directly to
    a retail store, a manufacturer, an advertising agency, a photographer,
  a  publishing company or any other such person or entity, which dictates
  such professional model's assignments,  hours  of  work  or  performance
  locations  and which compensates such professional model in return for a
  waiver of his or  her  privacy  rights  enumerated  above,  unless  such
  services  are  performed  pursuant  to  a written contract wherein it is
  stated that the professional model is the employee of  another  employer
  covered  by  this  chapter.  For purposes of this subparagraph, the term
  "professional model" means a person who, in the course  of  his  or  her
  trade,   occupation  or  profession,  performs  modeling  services.  For
  purposes of this subparagraph, the term "modeling  services"  means  the
  appearance  by  a  professional  model  in  photographic sessions or the
  engagement of such model in live, filmed or taped modeling  performances
  for remuneration.
    2.  Work localized in state. The term "employment" includes a person's
  entire service performed within or both within and without this state if
  the service is localized in this  state.  Service  is  deemed  localized
  within  the  state  if  it  is performed entirely within the state or is
  performed both within and without the state but that  performed  without
  the  state  is  incidental to the person's service within the state, for
  example, is temporary or transitory in nature or  consists  of  isolated
  transactions.
    3. Work within and without the state. The term "employment" includes a
  person's  entire  service  performed  both within and without this state
  provided it is not localized in any state but some  of  the  service  is
  performed in this state, and
    (a) the person's base of operations is in this state; or

    (b)  if there is no base of operations in any state in which some part
  of the service is performed,  the  place  from  which  such  service  is
  directed or controlled is in this state; or
    (c)  if  the  base  of  operations or place from which such service is
  directed or controlled is not in any state in which  some  part  of  the
  service is performed, the person's residence is in this state.
    The  term  "employment"  shall  not include services performed without
  this state in any calendar year during which no  service  was  performed
  within  this  state  if  contributions with respect to such services are
  required under the unemployment compensation law of any other  state  or
  of the federal government.
    4. Other included work.
    The term "employment" shall include
    (a)  Service,  wherever performed within the United States, the Virgin
  Islands, or Canada, if
    (1) contributions are not required with respect to such service  under
  an unemployment compensation law of any other state, the Virgin Islands,
  or Canada, and
    (2)  the place from which such service is directed or controlled is in
  this state;
    (b) Service performed within  this  state  not  otherwise  within  the
  purview of the foregoing provisions of this section if contributions are
  not required with respect to such service under corresponding provisions
  of an unemployment compensation law of any other state.
    5.  Work  without  the  state  or  in  a  foreign country. (a) Service
  performed entirely without the state, with respect to no part  of  which
  contributions are required under an unemployment compensation law of any
  other  state  or of the federal government, is employment if an election
  with respect to the person's service has been made and approved pursuant
  to the provisions of section five hundred sixty-one of this article.
    (b) The term "employment" includes service by a citizen of the  United
  States  performed  for  an  American employer outside the United States,
  except Canada or the Virgin  Islands,  provided  contributions  are  not
  required  with  respect  to such service under an unemployment insurance
  law of any other state pursuant to criteria which correspond to those of
  subdivisions two and three of this section, if
    (1) the employer's principal place of business in the United States is
  in this state, or
    (2) the employer has no place of business in the United States but is
    (i) an individual person who is a resident of this state, or
    (ii) a corporation which is organized under the laws of this state, or
    (iii) a partnership or a trust and the number of partners or  trustees
  who  are  residents  of  this  state  is greater than the number who are
  residents of any one other state, or
    (3) none of the criteria of subparagraphs (1) and (2) are met but  the
  employer  has  elected  coverage  of  the  service in this state or, the
  employer having  failed  to  elect  such  coverage  in  any  state,  the
  individual  performing  the service has filed a claim for benefits under
  this article on the basis of such service.
    (c) For purposes of this subdivision, "American employer" means
    (1) an individual who is a resident of the United States; or
    (2) a partnership if two-thirds or more of the partners are  residents
  of the United States; or
    (3) a trust if all of the trustees are residents of the United States;
  or
    (4) a corporation organized under the laws of the United States or any
  state.

    6.  Agricultural  labor.  (a)  The  term "employment" does not include
  agricultural labor unless it is covered pursuant to section five hundred
  sixty-four.  The  term  "agricultural  labor"   includes   all   service
  performed:
    (1)  on  a  farm,  in  the  employ  of  any person, in connection with
  cultivating the soil, or in connection with raising  or  harvesting  any
  agricultural   or   horticultural   commodity,  including  the  raising,
  shearing, feeding, caring for, training, and  management  of  livestock,
  bees, poultry, and fur-bearing animals, and wildlife;
    (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;
    (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  in  the
  employ of an operator of a farm (i) as an incident to farming operations
  or,  (ii)  in  the  case of fruits and vegetables, as an incident to the
  preparation of such fruits or vegetables for market. The  provisions  of
  this  paragraph  shall not apply to service performed in connection with
  commercial canning or commercial freezing  or  in  connection  with  any
  agricultural or horticultural commodity after its delivery to a terminal
  market for distribution for consumption.
    (b)  As  used  in  this  subdivision,  the term "farm" includes stock,
  dairy, poultry, fur-bearing animal, fruit, and truck farms, plantations,
  nurseries, greenhouses or other similar structures, used  primarily  for
  the raising of agricultural or horticultural commodities, and orchards.
    7. Spouse or child. The term "employment" does not include service for
  an employer by his spouse or child under the age of twenty-one.
    8.  Golf  caddy.  The  term "employment" does not include service as a
  golf caddy.
    9. Day student. The term "employment" does not include service  during
  all  or  any  part  of  the school year or regular vacation periods as a
  part-time worker of any person actually in regular attendance during the
  day time as a student in an elementary or secondary school.
    10. Employment under the federal railroad unemployment insurance  act.
  The term "employment" does not include employment subject to the federal
  railroad unemployment insurance act.
    11.   Maritime   services   under   reciprocal  agreements.  The  term
  "employment" includes a person's entire  service,  if  such  service  is
  deemed  performed  in  this  state  by  virtue  of reciprocal agreements
  pursuant to the provisions  of  paragraph  (c)  of  subdivision  two  of
  section five hundred thirty-six of this article and does not include any
  service  which  by  virtue  of  such  agreements  is deemed performed in
  another state.
    12. Baby sitter. The term "employment" does not include service  as  a
  baby sitter at the home of the employer by a minor.
    13.  Persons  under the age of twenty-one engaged in casual labor. The
  term "employment" does not include services of a person under the age of
  twenty-one engaged in casual labor consisting of yard work and household
  chores in and about  a  residence  or  the  premises  of  a  non-profit,
  non-commercial  organization,  not  involving  the  use  of power-driven
  machinery.
    14. The term "employment" does not include service by  a  child  under
  the age of fourteen years.

    15.  Students  and  students' spouses at educational institutions. The
  term "employment" does not include services rendered for an  educational
  institution  by a person who is enrolled and is in regular attendance as
  a student in such an institution, or the spouse of such student employed
  by  that  institution if such spouse is advised at the beginning of such
  services that the employment is provided under a  program  of  financial
  assistance  to  such student and will not be covered under this article.
  For the purposes of this article, the term  "employment"  shall  include
  services rendered for a health care facility, including academic medical
  centers, by fellow, resident and intern physicians.
    16.  Non-applicability  of  exclusions.  The  exclusions  described in
  subdivisions eight, nine, twelve, thirteen and fourteen of this  section
  shall  not  apply  to services performed for a nonprofit organization as
  defined in section five hundred sixty-three or for a governmental entity
  as defined in section five hundred sixty-five or for an Indian tribe  as
  defined in section five hundred sixty-six of this article.
    17.  Certain  college students. The term "employment" does not include
  service performed by an individual, regardless of age, who  is  enrolled
  at   a  nonprofit  or  public  educational  institution  which  normally
  maintains a regular faculty and curriculum and normally has a  regularly
  organized  body  of  students  in  attendance  at  the  place  where its
  educational activities are carried  on  as  a  student  in  a  full-time
  program  taken  for  credit at such institution, which combines academic
  instruction with work experience, if such service is an integral part of
  such program, and such institution has so  certified  to  the  employer,
  except  that  this subdivision shall not apply to service performed in a
  program established for  or  on  behalf  of  an  employer  or  group  of
  employers.
    18.  Freelance  shorthand  reporter.  The  term  "employment" does not
  include the services of a freelance shorthand reporter rendered pursuant
  to any agreement, contract, or mutual understanding, either  written  or
  oral, with another freelance shorthand reporter or a freelance shorthand
  reporting  service.  For  the  purposes of this subdivision, a freelance
  shorthand reporter is a person who records verbatim any  oral  statement
  or  series  of  oral statements made over a definite period of time by a
  written system of shorthand and whose sole compensation for making  such
  a  record  is an agreed upon fee per page of record produced. Additional
  payment of a set dollar charge as a minimum fee or attendance fee  shall
  not  affect  the above definition of a freelance shorthand reporter. For
  the purposes  of  this  subdivision,  a  freelance  shorthand  reporting
  service  means any business which provides freelance shorthand reporters
  through subcontracts or by any other means.
    19. Qualified real estate  agent.  The  term  "employment"  shall  not
  include the services of a licensed real estate broker or sales associate
  if  it be proven that (a) substantially all of the remuneration (whether
  or not paid in cash) for the services performed by such broker or  sales
  associate  is  directly  related to sales or other output (including the
  performance of services) rather than to the number of hours worked;  (b)
  the  services  performed  by the broker or sales associate are performed
  pursuant to a written contract executed between  such  broker  or  sales
  associate  and the person for whom the services are performed within the
  past twelve to fifteen months; and (c) the written contract provided for
  in paragraph (b) herein was not executed under duress and  contains  the
  following provisions:
    (i)  that  the  broker or sales associate is engaged as an independent
  contractor associated with the person for whom  services  are  performed
  pursuant  to  article  twelve-A  of  the  real property law and shall be
  treated as such for all purposes, including but not limited  to  federal

  and  state  taxation,  withholding,  unemployment insurance and workers'
  compensation;
    (ii) that the broker or sales associate (A) shall be paid a commission
  on  his  or  her gross sales, if any, without deduction for taxes, which
  commission shall be directly related to sales or other output; (B) shall
  not receive any remuneration related to the number of hours worked;  and
  (C)  shall  not  be treated as an employee with respect to such services
  for federal and state tax purposes;
    (iii) that the broker or sales associate shall be  permitted  to  work
  any hours he or she chooses;
    (iv) that the broker or sales associate shall be permitted to work out
  of his or her own home or the office of the person for whom services are
  performed;
    (v)  that  the  broker  or  sales associate shall be free to engage in
  outside employment;
    (vi) that the person for whom the services are performed  may  provide
  office  facilities  and  supplies  for  the  use  of the broker or sales
  associate, but the broker or sales associate shall otherwise bear his or
  her own expenses, including but not limited to automobile,  travel,  and
  entertainment expenses;
    (vii)  that  the  person  for  whom the services are performed and the
  broker or sales associate shall comply with the requirements of  article
  twelve-A  of  the  real  property  law  and  the  regulations pertaining
  thereto, but such compliance  shall  not  affect  the  broker  or  sales
  associate's  status  as  an  independent  contractor  nor  should  it be
  construed as an indication that the broker  or  sales  associate  is  an
  employee  of  the  person  for  whom  the services are performed for any
  purpose whatsoever;
    (viii) that the contract and the association created  thereby  may  be
  terminated  by either party thereto at any time upon notice given to the
  other.
    20. The term "employment" shall not include services  performed  by  a
  full-time student in the employ of an organized camp:
    (a) if such camp:
    (1)  did  not  operate for more than seven months in the calendar year
  and did not operate for more than seven months in the preceding calendar
  year; or
    (2) had average gross receipts for any six  months  in  the  preceding
  calendar  year  which  were  not  more  than  thirty-three and one-third
  percent of its average gross receipts for the other six  months  in  the
  preceding calendar year; and
    (b)  if such full-time student performs services in the employ of such
  camp for less than thirteen calendar weeks in any such year.
    20-a. Full-time student. (a) For purposes  of  subdivision  twenty  of
  this  section, an individual shall be treated as a full-time student for
  any period:
    (1) during which the individual is enrolled as a full-time student  at
  an educational institution; or
    (2) which is between academic years or terms if:
    (i)  the  individual  was  enrolled  as  a  full-time  student  at  an
  educational institution for the immediately preceding academic  year  or
  term; and
    (ii)  there  is  a reasonable assurance that the individual will be so
  enrolled for the immediately succeeding academic year or term after  the
  period described in clause (i) of this subparagraph.
    (b) For purposes of this subdivision, the term educational institution
  shall mean any educational institution of secondary, higher educational,

  professional  or  vocational  educational  training,  as those terms are
  defined in the education law.
    20-b.  Camp.  For  purposes of subdivision twenty of this section, the
  term camp shall mean "children's overnight camp" as that term is defined
  in subdivision one of section thirteen hundred ninety-two of the  public
  health  law,  and  any  "summer  day  camp"  as  that term is defined in
  subdivision two of section thirteen hundred  ninety-two  of  the  public
  health  law, and any "traveling summer day camp" as that term is defined
  in subdivision three of  section  thirteen  hundred  ninety-two  of  the
  public health law.
    21.  Qualified  insurance agent or broker. The term "employment" shall
  not include the services of a licensed insurance agent or broker  if  it
  be proven that (a) substantially all of the remuneration (whether or not
  paid  in  cash)  for  the  services performed by such agent or broker is
  directly related to sales or other output (including the performance  of
  services)  rather  than to the number of hours worked; (b) such agent is
  not a life  insurance  agent  receiving  a  training  allowance  subsidy
  described  in paragraph three of subsection (e) of section four thousand
  two  hundred  twenty-eight  of  the  insurance  law;  (c)  the  services
  performed  by  the  agent  or broker are performed pursuant to a written
  contract executed between such agent or broker and the person  for  whom
  the services are performed; and (d) the written contract provided for in
  paragraph  (c)  of  this  subdivision  was not executed under duress and
  contains the following provisions:
    (i) that the agent or broker is engaged as an  independent  contractor
  associated  with  the person for whom services are performed pursuant to
  article twenty-one of the insurance law and shall be treated as such for
  all purposes, including but not limited to federal and  state  taxation,
  withholding (other than federal insurance contributions act (FICA) taxes
  required  for  full  time  life  insurance  agents  pursuant  to section
  3121(d)(3) of the federal internal revenue code), unemployment insurance
  and workers' compensation;
    (ii) that the agent or broker (A) shall be paid a commission on his or
  her gross sales, if any, without deduction for taxes (other than federal
  insurance contributions act (FICA) taxes required  for  full  time  life
  insurance  agents pursuant to section 3121(d)(3) of the federal internal
  revenue code), which commission shall be directly related  to  sales  or
  other  output;  (B)  shall  not  receive any remuneration related to the
  number of hours worked; and (C) shall not be treated as an employee with
  respect to such services for federal and state tax purposes (other  than
  federal  insurance contributions act (FICA) taxes required for full time
  life insurance agents pursuant to  section  3121(d)(3)  of  the  federal
  internal revenue code);
    (iii) that the agent or broker shall be permitted to work any hours he
  or she chooses;
    (iv) that the agent or broker shall be permitted to work out of his or
  her own office or home or the office of the person for whom services are
  performed;
    (v)  that  the  person for whom the services are performed may provide
  office facilities, clerical support, and supplies for  the  use  of  the
  agent or broker, but the agent or broker shall otherwise bear his or her
  own  expenses,  including  but  not  limited  to automobile, travel, and
  entertainment expenses;
    (vi) that the person for whom the services are performed and the agent
  or broker shall comply with the requirements of  article  twenty-one  of
  the  insurance  law  and  the  regulations  pertaining thereto, but such
  compliance shall not  affect  the  agent's  or  broker's  status  as  an
  independent  contractor nor should it be construed as an indication that

  the agent or broker is an employee of the person for whom  the  services
  are performed for any purpose whatsoever;
    (vii)  that  the  contract  and the association created thereby may be
  terminated by either party thereto at any time with notice given to  the
  other.
    22.  Recreational  bowling.  The  term  "employment" shall not include
  recreational bowling, such as bowling in a league  where  an  individual
  may occasionally win prize money.