Is an Owner-Operator an Employee or an Independent Contractor?

By Kate O'Kelly  |  February 25, 2014

New York State has amended labor law NY 5867. A new article — Article 25-C, the New York State Commercial Goods Transportation Industry Fair Play Act —addresses the distinction between “employee” and “independent contractor” for workers' compensation eligibility among commercial vehicle operators. The definition of those terms has a direct influence on whether an injured individual has access to workers' compensation benefits.

According to the amendment to NY 5867, the work status of an individual based on the obligations of the employer and individual drives the definition of “employee.” The New York legislature clarifies in S 862-B that “any person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee unless the person is a separate business entity under Subdivision Two of this section.”

Additionally, according to 5867-B, a commercial vehicle operator is not an employee if all of the following are true:

  • The individual is free from control and direction in performing the job, both under his or her contract and in fact.
  • The service is performed outside the usual course of business for which the service is performed.
  • The individual is customarily engaged in an independently established trade, occupation, profession, or business similar to the service at issue.

For more information about the amendment, read the full regulation here.

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Kate O'Kelly

Katherine O’Kelly is the ClaimSearch compliance manager. She is responsible for compliance and state regulatory matters involving ISO ClaimSearch, the property/casualty insurance industry’s “all claims” database. Katherine has five years of claims experience in the property/casualty industry, with a specialization in workers' compensation.