N.Y. Comp. Codes R. & Regs. tit. 12 § 355.2

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

Section 355.2 - Employee

(a) Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee and if he is in any employment defined in subdivision 6 of section 201 of the Workers' Compensation Law or in employment with an employer who has voluntarily elected to provide for the payment of benefits under this law.

(b) Without limitation, superintendents, managers and other administrative personnel are employees. An officer of a corporation is an employee of the corporation and shall be counted as such unless he is a nominal officer or receives no wages or other remuneration for his services. A director acting only as a director is not an employee.

(c) Excluded from the definition of employee, cited as examples, are the following:

1. The spouse or a minor child of the employer for whom such person renders services.

2. A duly ordained, commissioned, or licensed minister, priest or rabbi in the exercise of his ministry, a sexton, a Christian Science reader or a member of a religious order in the exercise of duties required by such order.

3. A person engaged in a professional or teaching capacity in or for a religious, charitable or educational institution.

4. A volunteer in or for a religious, charitable or educational institution.

5. A person participating in and receiving rehabilitative services in a sheltered workshop operated by a religious, charitable or educational institution under a certificate issued by the United States Department of Labor.

6. A recipient of charitable aid from a religious or charitable institution who performs work in or for the institution which is incidental to or in return for the aid conferred and not under an express contract of hire.

7. Any individual who is an independent contractor.

8. A livery driver covered for work-related injuries by the Independent Livery Disability Benefits Fund pursuant to Article 6-G of the Executive Law.

9. A black car operator covered by the Black Car Operator's Fund pursuant to Article 6-F of the Executive Law.

10. A jockey, apprentice jockey, exercise person, employee of a trainer or owner licensed under Article two or four of the racing, pari-mutuel wagering and breeding law, covered by the New York Jockey Injury Fund, Inc. pursuant to section 221 of the Racing, Pari-Mutuel Wagering and Breeding Law.

(d) A person engaged in a professional capacity is one:

(1) whose primary duty consists of the performance of work:

(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship and from training in the performance of routine mental, manual or physical processes; or

(ii) original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination or talent of the employee; and

(2) whose work is not subject to routine supervision and which requires the consistent exercise of discretion and judgment in its performance; and

(3) whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

(4) who does not devote more than 20 percent of his hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in paragraphs (1) through (3) of this subdivision.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 355.2

Amended New York State Register July 19, 2017/Volume XXXIX, Issue 29, eff. 7/19/2017