On the heels of similar legislation passed in 2010 for the construction industry, and consistent with the state’s continuing focus on alleged misclassification of service providers as independent contractors, the New York state legislature recently passed the Transportation Industry Fair Play Act, N.Y. Labor Law § 862 et seq.  This legislation creates a “presumption of employment” for commercial vehicle drivers who possess a state issued commercial driver’s license and work in the commercial goods transportation industry.  In order to overcome this presumption and classify such individuals as “independent contractors” instead of employees, the contractor in question must either be a “separate business entity” (as defined in the statute) or meet the multi-factor test laid out in the statute, namely that  “(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue.”  NY CLS Labor § 862-b(1).

Employers in all industries must continue to focus on worker classification and seek legal counsel as necessary.