New York: employee or independent contractor?
The test depends on which law you're dealing with. A worker can be a contractor for one law and an employee for another.
| Law | Test | Statute |
|---|---|---|
| Unemployment insurance | common law | N.Y. Labor Law § 511(1)(a) |
| Wage and hour / wage payment | ABC for construction (Construction Industry Fair Play Act) | N.Y. Labor Law § 861-c |
| Federal income tax, FICA, FUTA | IRS common-law test | IRS |
| Federal minimum wage and overtime | Economic reality test (FLSA) | DOL |
How the statute words it
Construction (§ 861-c), summarized: free from control and direction in performing the job, both under the contract and in fact; service performed outside the usual course of business for which the service is performed; customarily engaged in an independently established trade, occupation, profession, or business similar to the service at issue (or a separate business entity under § 861-c(2)).
Details and exceptions
- effective_date is the DOL table baseline (in effect on or before 2023-01-01); the enactment date was not checked.
- Commercial goods transportation has its own presumption under Labor Law § 862-b (not checked in this pass).
- Workers' comp test not checked in this pass (Business insurance lane).
Law: N.Y. Labor Law § 511(1)(a)
Running payroll in New York?
Recent changes
Last verified against the official source on October 8, 2026.
No changes recorded since we started tracking this page.
Sources
- New York State Senate (Consolidated Laws of New York) · data as of October 8, 2026 · last checked October 8, 2026
We copy figures from official sources and re-check them against the source before every update. See our methodology. This is general information, not legal advice.